Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.willie L. Smith, Petitioner-appellant, v. Charles Miller, Respondent-appellee, 70 F.3d 1274 (7th Cir. 1995)

Before FLAUM, MANION and DIANE P. WOOD, Circuit Judges.

ORDER

Willie Smith is serving a 15-year sentence in an Indiana state prison as a result of his 1993 conviction for dealing cocaine. Smith filed a petition to set aside his conviction under 28 U.S.C. § 2254 alleging that the trial court violated his right to a speedy trial, improperly admitted character evidence against him, improperly revealed to the jury that he was incarcerated during the trial, and convicted him based on insufficient evidence. The district court held that Smith procedurally defaulted his claims by not presenting them to the Indiana Supreme Court. Smith appeals, and we affirm.

Smith appealed his conviction to the Indiana appellate court, but he never filed a petition for transfer to the Indiana Supreme Court.¹  If a petitioner under Sec. 2254 has not presented his claims to the highest state court, they are procedurally defaulted. Lostutter v. Peters, 50 F.3d 392, 394 (7th Cir.), cert. denied, 116 S. Ct. 130 (1995); Nutall v. Greer, 764 F.2d 462, 464 (7th Cir. 1985). We may not review a procedurally defaulted claim unless the petitioner shows cause for his default and demonstrates prejudice. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995). Smith claims that his attorney's failure to file an appeal to the Indiana Supreme Court is cause that excuses his procedural default. Ineffective assistance of counsel may provide cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986); United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990). However, a petitioner must first present his ineffective assistance claim to the state courts before he may argue that it is cause for a procedural default. Lemons v. O'Sullivan, 54 F.3d 357, 360 (7th Cir. 1995), cert. petition filed (U.S. Sept. 18, 1995) (No. 95-6099); Lostutter, 50 F.3d at 395.²  Therefore, Smith may not argue that his attorney committed ineffective assistance thus excusing his procedural default.

Finally, Smith argues that we should overlook his procedural default because his conviction constitutes a fundamental miscarriage of justice. The fundamental miscarriage of justice exception allows federal courts to overlook a procedural default if "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. To invoke this exception, Smith must make a "colorable showing of factual innocence." Herrera v. Collins, 113 S. Ct. 853, 862 (1993). Smith offers no facts or "probative evidence," see Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion), that would constitute a "colorable showing" of innocence. Thus, we may not invoke the fundamental miscarriage of justice exception in this case.