The Honorable Ronald E. Longstaff, United States District

1

Judge for the Southern District of Iowa.

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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 (Ragland) appeals the district court's denial of 1

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Ragland objects

to Iowa's felony-murder law as interpreted and applied by the Iowa Supreme

Court. We affirm.

I. BACKGROUND

After attending a concert, a group of five friends decided to swing

by a grocery store to get some beer. They chatted with some mutual

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 then

stopped. The occupants exited and approached the group of friends. One

of the newcomers carried an
 The trial court sentenced Ragland, who was 17 at the time of 2

the crime, as an adult. Jt. App. at 76. The trial court found

Ragland's record to be "probably 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 much

satisfaction . . . out of causing injury, pain, and suffering to

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 month [Ragland had] inflicted an injury

on someone that required medical treatment, hospitalization, or

caused permanent injury," and that the victim of Ragland's most

recent assault, which occurred just two days before the trial in

issue, was still hospitalized at the time of Ragland's sentencing.

Id.

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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 had no previous contact, amicable or otherwise. The friends

demurred, and as one, Timothy Sieff, backed away with his hands up, the

iron pipe wielder, Matthew Gill, swung the pipe like a baseball bat,

felling Sieff with one blow. Although an ambulance was summoned during the

ensuing melee, Sieff died before help arrived.

 

After Sieff fell, the fight moved across the parking lot and into 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.

Ragland was tried and convicted of first-degree felony murder.

Despite his youth, Ragland's extensive record of unprovoked serious

assaults and evident pleasure in hurting people convinced the trial court

that life imprisonment, without possibility of parole, was the appropriate

sentence. Ragland appealed both his conviction and his sentence. The

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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 alleged

3

inadequacy of the jury instructions until after his conviction,

despite having ample opportunity and invitation to do so. 

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postconviction actions 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 recommendation. Ragland v. Hundley,

No. 4-93-CV-10719, order (S.D. Iowa Nov. 15, 1994). Ragland appeals.

On appeal, Ragland argues that his felony-murder conviction violates

his constitutional right to due process and his right against double

jeopardy because the underlying felony (willful injury) and the murder

(killing with malice aforethought) resulted from the same act. Ragland

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 murder

because the underlying felony, willful injury, was an integral part of the

homicide is without merit. There is no double jeopardy issue because

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 the

underlying felony and the felony murder, so long as the defendant is

prosecuted for both offenses in one trial and the state legislature has

authorized cumulative punishments. Id. That a lesser crime is
 Some states have extended a form of the merger doctrine to

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felony murder, in that they do not allow felonious assault to be

the underlying felony on which a felony-murder charge is based.

This is to avoid the prosecution's bootstrapping a simple homicide

to a higher degree of murder without 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 scheme

nonetheless avoids any serious bootstrapping concerns by permitting

felony-murder charges to lie only when the killing in issue is a

murder, i.e., a killing with malice 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

liable for first-degree felony murder for any murders resulting

therefrom, regardless of which member of the attacking group

ultimately strikes the fatal blow.

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an element of a greater crime simply does not render conviction of the

greater crime a double jeopardy violation. Id.

The companion argument--that in this case there can be no felony

murder because the murder was accomplished by one blow not only lacks merit

but is, at bottom, a question of state law over which we have no

jurisdiction. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal

habeas courts may not reexamine state court determinations of state law

questions). Ragland argues that a felonious assault which results in a

murder cannot 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 on both

a lesser included offense and the greater offense. 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 the

Iowa legislature has declined to extend the "merger doctrine" to felony

murder. E.g., Iowa v. Anderson, 517 N.W.2d 208, 214 (Iowa 1994); 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.
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 Ragland makes much of the fact that Sieff was killed with a single

blow, arguing that due process concerns preclude enhancement of seconddegree murder (which carries a less severe sentence) by "participation" in

the same act which resulted in the murder. However he fails to acknowledge

Iowa's statutory inclusion of "felonious assault" as an underlying felony

which will support a felony-murder charge, or to distinguish this case from

our decision addressing the nearly identical question in Heaton v. Nix. 

In Heaton, we found that there simply was no constitutional issue

implicated in a felony-murder conviction, where the underlying felony,

terrorism, consisted of the same act that resulted in the murder. 924 F.2d

at 133-34. Heaton, acting entirely by himself, had fired several shots

into a building from which he had been ejected by the victim. The court

found that Iowa's specific inclusion of "felonious assault" as a basis for

felony murder and refusal to apply the merger doctrine to such situations

was determinative. Id. at 134. Because this case involves a murder

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 rejected 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 cannot

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 encompass

felony murder.

 

Ragland also argues that he was denied due process under the jury

instructions because he was held liable for Gill's malice aforethought when

he, Ragland, did not intend to kill anyone. He does not dispute that the

State proved, as it must, that Gill acted
 This argument 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-murder doctrine does not apply to murders

which are not reasonably foreseeable, and the state must still

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 Magistrate

7

Judge for the Southern District of Iowa.

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with malice aforethought. That is the essence of the felony-murder

5

doctrine, a knowing or willful participant in the underlying felony is

liable for any resulting reasonably foreseeable murder by a cofelon,

regardless of whether the participant intended that murder to be

committed. See Tison v. Arizona, 481 U.S. 137, 159 (1987) (Brennan, J.

6

dissenting). As ably pointed out in the magistrate's report and

recommendation, the jury instructions, read as a whole, Cupp v. Naughten,

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414 U.S. 141, 146-47 (1973), were adequate on this point and could not have

misled the jury. See Boyde v. California, 494 U.S. 370, 380 (1990). 

The instructions explained aiding and abetting in a public offense

(willful injury). Jt. App. at 148. They defined "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 felony

murder; that "when two or more persons, acting in concert, know[]ingly

participate in a public offense, each is responsible for the acts of the

other done in furtherance of the commission of the offense . . . unless the

act was one which the person could not reasonably expect to be done in the

furtherance of the commission of the offense." Id. at 150. That is,

knowing participants in a felony are liable as principals for the

foreseeable acts of their cofelons. The instructions also detailed the

requirements of "malice aforethought" and "murder," and the requirements

for felony murder. Id. at 144-45. Thus,
 Ragland, skirting frivolity, further argues that strict

8

scrutiny applies to his claim. This argument is clearly without

merit. 

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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 knowingly

participated in the offense of "willful injury" and one of them murdered

their victim. Id. at 139-156; see State v. Sauls, 356 N.W.2d 516, 520

(Iowa 1984). In this noncapital context, whether 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 members

did so with malice aforethought; and Sieff died as a result.

Finally, Ragland, a white male, argues that his equal protection

rights are violated by the felony-murder doctrine. He argues that felony

murder itself amounts to an impermissible classification because only

felony murderers are liable for murders that they did not intentionally aid

and abet. He claims, therefore, that felony murderers are a suspect class

within the class of murderers. Of course, participating in one of the

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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 knowing

participation in those felonies with aiding and abetting in the murders

which foreseeably ensue.

 

Further, contrary to Ragland's assertions, Iowa's aiding and abetting

statute does not require 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.

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render "aiding and abetting" a term without meaning, but requires only

9

that the aider and abettor's liability be commensurate with his extent of

involvement in and culpability for the crime in question. See Iowa Stat.

Ann. § 703.1 (West 1993). The Iowa Supreme Court has specifically

addressed whether, under Iowa law, aiders and abettors of the underlying

felony may be held liable for any resultant murder, regardless of whether

they personally had a specific intent to kill, and has consistently

answered in the affirmative. See Conner v. State, 362 N.W.2d 449, 455

(Iowa 1985); State v. Ragland, 420 N.W.2d at 791, 793-94. This

interpretation of Iowa law is definitive for our purposes, and Ragland's

forceful disagreement with the Iowa Supreme Court'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.