In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3708

RICHARD REEVES,

Petitioner-Appellant,

v.

JOHN C. BATTLES,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 1613--Robert W. Gettleman, Judge.

Argued September 28, 2001--Decided November 26, 2001

 Before Flaum, Chief Judge, Bauer and

Evans, Circuit Judges.

 Bauer, Circuit Judge. PetitionerAppellant was indicted for murder in the

first degree in the Circuit Court of Cook

County, Illinois. Prior to deliberations,

the trial judge denied the appellant’s

request to provide the jury with an

instruction on the lesser included

offense of involuntary manslaughter.

Following a guilty verdict and denial of

a new trial, the appellant sought

reversal of his conviction and sentence

by way of direct appeal. After exhausting

his state appellate remedies, the

appellant sought habeas relief in federal

court. The district court denied habeas

relief, finding that the trial court’s

failure to include an involuntary

manslaughter instruction did not result

in a fundamental miscarriage of justice.

For the following reasons, we AFFIRM the

decision of the district court.

I. Background

 On November 13, 1988, the body of Mario

Fierro was found dead outside of the

Fickle Finger Tavern in Chicago Heights,

Illinois. Fierro was earlier escorted out

of the tavern by the appellant because he

had been overserved. Though an off-duty

tavern manager took a beer can away from

Fierro and told the bartender not to
serve Fierro any more drinks, he was not

causing any disturbance. No one asked the

appellant, who was not employed by or

otherwise affiliated with the tavern, to

remove Fierro from the premises. In fact,

the off-duty tavern manager told the

appellant that she could handle the

situation.

 After escorting Fierro outside the

tavern, the appellant was seen kicking

Fierro in and/or around the head approxi

mately three times. The appellant stopped

beating Fierro when a patron from the

tavern grabbed him and told him that

Fierro had had enough. When that same

patron left the tavern about twenty

minutes later, he found Fierro lying face

down on the sidewalk in front of his car.

The patron then checked to see if Fierro

had a pulse, but found none.

 Fierro’s autopsy revealed numerous

abrasions on his face and wrists, an

injury suggesting blunt trauma to the

right side of his head, several

hemorrhages inside of his head, and a

fracture of thyroid cartilage indicative

of manual strangulation. The medical

examiner concluded that Fierro’s death

was caused by blunt trauma to the head in

association with manual strangulation,

which could result from being kicked in

the head, put into a choke-hold, or being

knocked down.

 The appellant was convicted of murder in

the first degree. After an unsuccessful

direct appeal and post-conviction

petition, the appellant petitioned the

district court for a writ of habeas

corpus pursuant to 28 U.S.C. sec. 2254.

Among other things, the appellant argued

that the trial judge erred in refusing to

charge the jury with an instruction

defining the offense of involuntary

manslaughter when the evidence supported

such a claim and a request for such

instruction was made. The district court

rejected this argument and denied the

petition, concluding that the trial

court’s failure to include the lesser

offense instructions did not result in a

fundamental miscarriage of justice. 

II. Discussion

 We review the district court’s findings

of fact for clear error and its rulings

on issues of law de novo. Whitehead v.
Cowan, 263 F.3d 708, 717 (7th Cir. 2001).

 In general, the failure of a state trial

court to instruct the jury on a lesser

offense does not implicate a federal

constitutional question and will not be

considered in a federal habeas corpus

proceeding. United States ex rel. Peery

v. Sielaff, 615 F.2d 402, 404 (7th Cir.

1979) (citations omitted); see also

United States ex rel. Waters v.

Bensinger, 507 F.2d 103, 105 (7th Cir.

1974) ("[I]nstructions to the jury in

state trials are matters of state law and

procedure not involving federal

constitutional issues."). However, the

omission of an instruction regarding a

particular offense may effectively result

in a directed verdict, thereby

implicating Sixth and Fourteenth

Amendment rights. See Peery, 615 F.2d at

404 (citations omitted). In a habeas

action, the question is not whether the

failure to instruct on a lesser included

offense was correct or incorrect under

state law, but rather whether failure to

do so constituted a defect so fundamental

that it results in a complete miscarriage

of justice or omission inconsistent with

the standards of fair procedure. Id.;

Nichols v. Gagnon, 710 F.2d 1267, 1269

(7th Cir. 1983). The specific inquiry

here is whether the failure to provide an

involuntary manslaughter instruction so

infected the entire trial that the

resulting conviction violated the

appellant’s right to due process. See

Peery, 615 F.2d at 404 (citing Cupp v.

Naughten, 414 U.S. 141, 147 (1973)).

Because it is the omission of an

instruction that is at issue in this

case, the appellant’s burden is

"especially heavy" because "[a]n

omission, or an incomplete instruction,

is less likely to be prejudicial than a

misstatement of the law." Henderson v.

Kibbe, 431 U.S. 145, 155 (1977). We agree

with the respondent that the overwhelming

evidence establishing that the appellant

acted intentionally when he beat Fierro

to death precludes his satisfaction of

this heavy burden. 

 We are persuaded that the denial of the

appellant’s request for an instruction on

involuntary manslaughter did not result

in a wrongful conviction violative of the

appellant’s right to due process. A trial

court does not err in refusing to tender

an instruction unsupported by sufficient
evidence. Davis v. Greer, 675 F.2d 141,

145 (7th Cir. 1982). The instruction

requested by the appellant provided: "A

person who unintentionally kills an

individual without lawful justification

commits involuntary manslaughter if his

acts whether lawful, or unlawful which

cause the death are such that are likely

to cause death or great bodily harm to

some individual and he performs them

recklessly . . . ." Here, the appellant

repeatedly kicked Fierro in the head.

Indeed, the appellant did not stop

kicking Fierro until another tavern

patron pulled him away and told him that

the victim had had enough. The evidence

showed that the beating Fierro suffered

at the hands of the appellant was so

severe that it caused several hemorrhages

inside of Fierro’s head and fractured his

thyroid cartilage, which indicated manual

strangulation. Given such substantial

evidence of intentional misconduct, the

trial court’s failure to instruct on

unintentional conduct simply does not

amount to a "fundamental miscarriage of

justice." See Nichols, 710 F.2d at 1269;

Davis, 675 F.2d at 144-45; Peery, 615

F.2d at 404. The appellant’s

constitutional rights were not violated

and his conviction should stand.

III. Conclusion

 Accordingly, we AFFIRM the district

court’s decision denying the petitionerappellant habeas relief.