### The Honorable Ronald E. Longstaff, United States Distric t 1 

### Judge for the Southern District of Iowa. ___________ No. 95-1260

___________ Jeffrey K. Ragland, * * Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Thomas E. Hundley, Warden, * Fort Madison Penitentiary, * * Appellee. *

___________ Submitted: November 13, 1995 Filed: March 20, 1996

___________ Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ BEAM, Circuit Judge.

Jeffrey K. Ragland (Ragla nd) appeals the district court's denial of 1 his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Ragland object s to Iowa's felony-murder law as interpreted and a pplied by the Iowa Supreme Court. We affirm.

I. BACKGROUND

After att ending a concert, a group of five friends decided to swing by a grocer y store to get some beer. They chatted with some mutua l acquaintances in the grocery store parking lot. While they talked, a car sped into the parking lot and the occupants shouted at them. That car the n stopped. The occupants exited and approached the group of friends. One of the newcomers carried an

### The trial c ourt sentenced Ragland, who was 17 at the time of 2 

### the crime, as an adult. Jt. App. at 76. The trial court foun d Ragland's record to be "probab ly one of the worst records that [it had] ever seen . . . as far as assaults." Id. at 81. That court had rarely encountered someone who "apparently gets so muc h satisfac tion . . . out of causing injury, pain, and suffering t o someone else." Id. at 82. The court noted that Ragland's record of assaults stretched from when he was nine years old, that Ragland had injured many people over the years, that within the year before his trial "at least once a mon th [Ragland had] inflicted an injury on s omeone that required medical treatment, hospitalization, o r caused permanent injury," and that the victim of Ragland's mos t recent assault, which occurred just two days before the trial i n issue, was still hospitalized at the time of Ragland's sentencing. Id.
-2- iron pipe and one carried an empty beer bottle in each hand. The leader of the new group, Ragland, demanded that the two groups fight, even though they had h ad no previous contact, amicable or otherwise. The friend s demurred, and as one, Timothy Sieff, backed away with his hands up, th e iron pipe wielder, Matthew Gill, swung the pipe like a baseball bat , felling Sieff with one blow. Although an ambulance was summoned during th e ensuing melee, Sieff died before help arrived.
After Sieff fell, the fight moved across the parking lot and in to the store with Ragland, now carrying the iron pipe, in pursuit of two of the victim's companions. A store employee tried to record the license plate number of the aggressor group's car when it subsequently left the premises

. The car stopped. Ragland then got out and spat upon the employee.

Raglan d was tried and convicted of first-degree felony murder

. Despi te his youth, Ragland's extensive record of unprovoked seriou s assaults and evident pleasure in hurting people convinced the trial court that life imprisonment, without possibility of p arole, was the appropriate sentence. Ragland appealed both his conviction and his sentence. Th e

2 Iowa Supreme Court affirmed. State v. Ragland , 420 N.W.2d 791 (Iowa 1988)

. Ragland's state

### We note that Ragland apparently did not raise the allege d 3 

### inad equacy of the jury instructions until after his conviction , despite having ample opportunity and invitation to do so.
-3- postconviction action s were also unsuccessful. Ragland v. State , No. 90- 920 (Iowa Ct. App. May 29, 1991). Ragland subsequently filed a petition for federal habeas relief, which the district court denied after de novo review of the magistrate's report and recommenda tion. Ragland v. Hundley , No. 4-93-CV-10719, order (S.D. Iowa Nov. 15, 1994). Ragland appeals.
On appeal, Ragland argues that his f elony-murder conviction violates his constitutional right to due process and his right against doubl e jeopar dy because the underlying felony (willful injury) and the murde r (ki lling with malice aforethought) resulted from the same act. Raglan d also contends that inadequacy in the jury instructions as to the element of malice aforethought deprived him of due process. He further asserts 3 that the Iowa Supreme Court's limitation of the statutory merger doctrine in felony-murder cases violates his right to equal protection.

II. DISCUSSION

Ragland's argument that he cannot be convicted of felony murde r because the underlying felony, willful injury, w as an integral part of the homicide i s without merit. There is no double jeopardy issue becaus e Ragland was convicted of one crime only, felony murder, and sentenced for that crime only. See Heaton v. Nix , 924 F.2d 130, 134 (8th Cir.), cert. denied , 500 U.S. 956 (1991). In fact, double jeopardy is not implicated
even when a state pursues convictions and punishment for both th e unde rlying felony and the felony murder, so long as the defendant i s prosecuted for both offenses in one trial and the state legislature ha s authorized cumulative punishments. Id. That a lesser crime is

### Some states have extended a form of the merger doctrine t o 4 

### felony m urder, in that they do not allow felonious assault to b e the un derlying felony on which a felony-murder charge is based

. This is to avoid the prosecuti on's bootstrapping a simple homicide to a higher degree of murder w ithout showing the requisite intent. Iowa's legislative scheme, however, explicitly includes felonious assault in the listed felonies which will support a felony-murder charge

. Iowa Code Ann. § 702.11 (West 1993). The Iowa schem e nonetheless avoids any serious bootstrapping concerns by per mitting felony-m urder charges to lie only when the killing in issue is a murder, i.e., a killing with m alice aforethought. Id. at § 707.2. In any case, it is well within a state's discretion to discourage felonious gang assaults by holding the participants in such attacks liab le for first-degree felony murder for any murders resultin g theref rom, regardless of which member of the attacking grou p ultimately strikes the fatal blow.
-4- an element of a greater crime simply does not render conviction of th e greater crime a double jeopardy violation. Id

.

Th e companion argument--that in this case there can be no felon y murder because the murder was accomplished by one blow not only lacks meri t but is, at bottom, a question of state law over which we have n o jurisdiction. See Es telle v. McGuire , 502 U.S. 62, 67-68 (1991) (federal hab eas courts may not reexamine state court determinations of state la w questions). Ragland argues that a felonious assault which results in a murder c annot be the basis for a felony-murder charge under Iowa' s statutory merger doctrine. Instead, it must be charged as a second-degree murder. The State of Iowa and the Iowa Supreme Court disagree.
Iowa's statutory merger doctrine forbids separate convictions o n both a lesser included offense and the greater offens e. Iowa Code Ann. § 701.9 (West 1993). In State v. Ragland , 420 N.W.2d at 793, and State v. Beeman , 315 N.W.2d 770, 776-77 (Iowa 1982), the Iowa Supreme Court decided that th e Iow a legislature has declined to extend the "merger doctrine" to felon y murder. E.g. , Iowa v. Anderson , 517 N.W.2d 208, 214 (Iowa 199 4); see also

4 Iowa Code Ann. §§ 702 .11; 707.2 (West 1993). Since Ragland was convicted of one crime only, felony murder, there is no statutory merger issue.

### -5- Ragland makes much of the fact that Sieff was killed with a single blow, arguing that due process concerns preclude enhancement of second

degree murder (which carries a less severe sente nce) by "participation" in the same act which resulted in the murder. However he fails to acknowledg e Iowa's statutory incl usion of "felonious assault" as an underlying felony which will support a felony-murder charge, or to distinguish this case fro m
our decision addressing the nearly identical question in Heaton v. Nix

.

In He aton , we found that there simply was no constitutional issu e impl icated in a felony-murder conviction, where the underlying felony , terrorism, consisted of the same act that resulted in the murder. 924 F.2 d at 133-34. Heaton, acting entirely by himself, had fired several shot s into a building from which he had been ejected by the victim. The court found that Iowa's specific inclusion of "felonio us assault" as a basis for felony murder and ref usal to apply the merger doctrine to such situations

was de terminative. Id. at 134. Because this case involves a murde r resulting from a blow inflicted during a group attack led by Ragland, and not the act of an isolated person acting alone, it does not even present as clear of a bootstrapping question as that rej ected in Heaton
. See id. ; supra n.4. The Heaton court in no way found that there were several shots , rather than just one, to be dispositive or even relevant. We canno t imagine a different result or analysis had there been only one shot. What
was dispositive in that case, and is dispositive in this case, is Iowa's specific inclusion of felonious assault as a basis for felony murder, and its concomitant explicit refusal to expand the merger doctrine to encompas s felony murder.

Ragland also argues that he was denied due process under the jur y instructions because he was held liable for Gill's malice aforethought whe n he, Ragland, did not intend to kill anyone. He does not dispute that the State proved, as it must, that Gill acted

### This argume nt was made to and correctly rejected by the Iowa 5 

### Supreme Court. Ragland , 420 N.W.2d at 793-94. While Ragland argues that this amounts to strict liability, 6 

### it does not. The felony-murde r doctrine does not apply to murders which are not reasonably foreseeable, and the state must stil l prove that the victim was murdered during the course of a qualifying felony and that the defendant was a willful participant in that underlying felony. The Honorable Celeste F. Bremer, United States Magistrat e 7 

### Judge for the Southern District of Iowa.
-6- with malice aforethought. That is the essence of the felony-murde r 5 doctrine, a knowing or willful participant in the underlying felony i s liable for any resulting reasonably foreseeable murder by a cofelon , regard less of whether the participant intended that murder to b e commi tted. See Tison v. Arizona , 481 U.S. 137, 159 (1987) (Brennan, J

. 6 di ssenting). As ably pointed out in the magistrate's report an d recommendation, the jury instructio ns, read as a whole, Cupp v. Naughten , 7 414 U.S. 141, 146-47 (1973), were adequate on this point and could not hav e misled the jury. See Boyde v. California , 494 U.S. 370, 380 (1990).

The instructions explained aiding and abetting in a public offens e (willful injury). Jt. App. at 148. They define d "willful injury" and the intent necessary for that offense. Id. at 152. The instructions further set out the joint criminal enterprise doctrine which applies in felon y murder; that "when two or more persons, acting in concert, know[]ingl y participate in a public offense, each is responsible for the acts of the other done in furtherance of the commission of the offense . . . unless th e act was one which the person could not reasonabl y expect to be done in the furtheran ce of the commission of the offense." Id. at 150. That is , knowi ng participants in a felony are liable as principals for th e for eseeable acts of their cofelons. The instructions also detailed th e requirements of "mali ce aforethought" and "murder," and the requirements for felony murder. Id. at 144-45. Thus,

### Ragland, skirting frivolity, further argues that stric t 8 

### scrutiny applies to his claim. This argument is clearly withou t merit.
-7- Ragland's complaint that "malice aforethought" was conclusively presumed in Sieff's murder, is without merit. Taken together, these instructions adequately explained to the jury that Ragland was guilty of felony murder if the state proved beyond a reasonable doubt that he and another knowingl y participated in the offense of "willful injury" and one of them murdered their vi ctim. Id. at 139-156; see State v. Sauls , 356 N.W.2d 516, 52 0 (Iowa 1984). In this noncapital context, whethe r Ragland struck the fatal blow or intended that Sieff die is irrelevant. What is relevant is that he intended for his group to harm Sieff; at his command, one of its member s did so with malice aforethought; and Sieff died as a result.
Finally, Ragland, a white male, argues that his equal protectio n rights are violated b y the felony-murder doctrine. He argues that felony murder itself amounts to an impermissible classification because onl y felony murderers are liable for murders that they did not intentionally ai d and abet. He claims, therefore, that felony mur derers are a suspect class within t he class of murderers. Of course, participating in one of th e 8 statutory felonies supporting a felony-murder charge is participating in

a course of action from which murders are all too foreseeable. As such, it is perfectly rational and permissible for a state to equate knowin g par ticipation in those felonies with aiding and abetting in the murder s which foreseeably ensue.
Further, contrary to Ragland's assertions, Iowa's aiding and ab etting statute does not requ ire that a person personally commit every act of the crime which was aided or abetted, which would

### Likewise "aiding and abetting" felony murder is an oxymoron 9 

### and meaningless.
-8- rend er "aiding and abetting" a term without meaning, but requires onl y 9 that the aider and ab ettor's liability be commensurate with his extent of involvement in and cu lpability for the crime in question. See Iowa Stat. Ann
. § 703.1 (West 1993). The Iowa Supreme Court has specificall y addressed whether, under Iowa law, aiders and abettors of the underlying felony may be held li able for any resultant murder, regardless of whether they personally had a specific intent to kill, and has consistentl y answered in the affirmative. See Conner v. State , 362 N.W.2d 449, 45 5 (Iowa 1 985); State v. Ragland , 420 N.W.2d at 791, 793-94. Thi s interpretation of Iowa law is definitive for our purposes, and Ragland's forceful disagreement with the Iowa Supreme Cour t's interpretation of that law does not implicate the equal protection clause.

III. CONCLUSION

For the reasons stated above, we affirm the district court' s judgment.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.