1The Honorable Terry I. Adelman, United States Magistrate Judge for the

Eastern District of Missouri, presiding pursuant to 28 U.S.C. § 636(c). 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-1808

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Dewayne E. Fann, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Michael Bowersox, *

*

Appellee. *

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Submitted: February 13, 2001

Filed: April 27, 2001

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Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

___________

WOLLMAN, Chief Judge.

Dewayne E. Fann appeals from the district court’s1 order denying his petition for

writ of habeas corpus pursuant to 18 U.S.C. § 2254. We affirm.
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In 1992, a Missouri jury convicted Fann of first-degree murder and armed

criminal action. Fann was found to be a prior and persistent offender and was

sentenced to life imprisonment without the eligibility for parole on the murder charge

and a consecutive term of life imprisonment on the armed criminal action conviction.

After exhausting his state remedies, Fann timely filed a petition for writ of habeas

corpus in the United States District Court for the Eastern District of Missouri. The

court denied Fann’s petition but issued a certificate of appealability 

in regard to claim two of Mr. Fann’s petition, which alleged that the trial

court erred in submitting a jury instruction patterned after MAI-CR3d

310.50, an instruction the Missouri Supreme Court later determined

violated Due Process because it implicitly relieved the state of the burden

of proving beyond a reasonable doubt that the defendant possessed the

requisite mental state for the crime charged.

The instruction at issue in this case directed the jury that “an intoxicated

condition from alcohol will not relieve a person of responsibility for his conduct.”

Subsequent to Fann’s trial, the Missouri Supreme Court determined that this

instruction, although not a misstatement of the law, created “a reasonable likelihood

that the jury would believe that if defendant was intoxicated, he was criminally

responsible regardless of his state of mind.” State v. Erwin, 848 S.W.2d 476, 483 (Mo.

1993) (en banc). The court concluded that the jury instruction had the effect of

“excusing the state from proving the defendant’s mental state beyond a reasonable

doubt” and accordingly violated the constitutional guarantee of due process. Id. The

court further held, however, that “[t]his ruling shall be applicable only in cases tried in

the future and cases now subject to direct appeal where the issue is preserved that [the

instruction] violates due process because it relieved the state of its burden of proof as

to the required mental state.” Id. at 484.

We agree with the State’s contention that Fann’s arguments regarding the

challenged instruction are procedurally defaulted. In an unpublished memorandum
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accompanying the denial of Fann’s consolidated appeal, the Missouri Court of Appeals

determined that Fann failed to object to the jury instruction on constitutional grounds

as required by Erwin and accordingly refused to grant relief. This ruling constitutes an

adequate and independent state ground that bar our review of Fann’s claim. See

Coleman v. Thompson, 501 U.S. 722, 729 (1991) (federal courts will “not review a

question of federal law decided by a state court if the decision of that court rests on a

state law ground that is independent of the federal question and adequate to support the

judgment”). “In Missouri, it has always been the rule that to preserve a constitutional

issue for review, the issue ‘must be raised at the earliest time consistent with good

pleading and orderly procedure.’” Owsley v. Bowersox, 234 F.3d 1055, 1058 (8th Cir.

2000) (quoting State v. Flynn, 519 S.W.2d 10, 12 (Mo. 1975)). Furthermore, Missouri

requires that constitutional objections must be specific. Magenheim v. Board of

Education, 340 S.W.2d 619, 621 (Mo. 1960). These long-standing state procedural

rules are reflected in Erwin’s requirement that a defendant must preserve a

constitutional challenge to the jury instruction in question in order to benefit from the

decision. Because “[a] federal court conducting habeas corpus review must ordinarily

refrain from reviewing any issue that a state court has already found to be defaulted on

an adequate and independent state-law basis,” Owsley, 234 F.3d at 1058, we will not

review further the merits of Fann’s constitutional challenge to the jury instruction on

intoxication. 

Fann argues that his failure to object to the jury instruction should be excused.

A petitioner can excuse a procedural default by demonstrating either (1) actual

innocence or (2) cause and actual prejudice. Coleman, 501 U.S. at 748; Dejan v.

United States, 208 F.3d 682, 685 (8th Cir. 2000). Fann does not contend that he is

actually innocent of murder and armed criminal action. Rather, he attempts to

demonstrate cause and prejudice, contending that his lawyer’s failure to object to the

jury instruction constituted ineffective assistance of counsel that constituted cause for

his procedural default. We have held, however, that a lawyer’s failure to anticipate
2We decline to consider Fann’s contentions that raise issues beyond those

specified in the certificate of appealability. Cf. United States v. Morgan, No. 99-2798,

2001 WL 322054 (8th Cir. Mar. 19, 2001).

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Erwin does not constitute ineffective assistance, Parker v. Bowersox, 188 F.3d 923,

929 (8th Cir. 1999), and thus Fann’s argument to the contrary fails.2

The judgment is affirmed. 

A true copy.

Attest:

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