The Honorable Richard H. Kyle, United States District Judge 1

for the District of Minnesota, adopting the report and

recommendations of the Honorable Ann D. Montgomery, United States

Magistrate Judge for the District of Minnesota.

___________

No. 95-4051

___________

Eugene Oliver, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Frank W. Wood, Commissioner *

of Corrections, *

*

Appellee. *

___________

 Submitted: July 11, 1996

 Filed: September 25, 1996

___________

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Eugene Oliver appeals from the district court's judgment denying his 1

petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.

I.

On November 17, 1989, H.A., a twelve-year-old girl, was babysitting

at a trailer house owned by Oliver. Sometime that evening Oliver returned

to the trailer with Russell Tilbury, who is H.A.'s uncle, and two other

men. When H.A. fell asleep on the couch, the four men were drinking and

playing cards in the kitchen. 
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Sometime after midnight, Oliver and Tilbury approached H.A., who was

still asleep on the couch. Oliver took off H.A.'s nightgown and sexually

assaulted her while Tilbury held her arms. Tilbury then also sexually

assaulted H.A. 

H.A. did not immediately report the incident. After rumors began to

circulate that she might be pregnant, H.A. told a teacher that she had been

raped but did not say who had raped her. After H.A's mother became aware

of the rumors, H.A. told her that Oliver and Tilbury were the men that had

raped her. 

H.A. was referred to the Ramsey County Social Services, where she

told a child protection worker that Oliver and Tilbury sexually assaulted

her. In an interview with Dr. Levitt, a pediatrician specializing in child

abuse, H.A. also told Dr. Levitt that Oliver and Tilbury assaulted her.

Dr. Levitt concluded that the condition of H.A.'s vagina was consistent

with her having engaged in sexual activity.

Tilbury was arrested on January 12, 1990. Before taking a statement

from Tilbury, the two investigating officers made independent

determinations that Tilbury was not then under the influence of drugs or

alcohol. Likewise, Tilbury said that he was not on drugs. 

In an unrecorded portion of his statement, Tilbury said that he

remembered seeing Oliver rape H.A., and he later admitted to attempting to

rape her as well. When the officers tried to make a recorded statement of

Tilbury's confession, Tilbury claimed he couldn't remember much of what

happened that night. Tilbury indicated, however, that he remembered some

of the unrecorded statement. On January 15th, Tilbury told the officers

that his previous statements were "bullshit."
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Following his arrest, Oliver denied participating in an assault on

H.A. A few days later, however, Oliver told police that he remembered

H.A.'s being on the couch and that he possibly approached her.

Tilbury ultimately entered an Alford-type plea of guilty to criminal

sexual contact in the second degree.

At trial, both Tilbury and Oliver recanted their statements.

Tilbury's recorded statement was admitted into evidence. Without objection

from Oliver, one of the police officers testified regarding the contents

of Tilbury's unrecorded statement. The court ultimately instructed the

jury that Tilbury's statement was to be considered for impeachment purposes

only. 

Oliver was convicted of two counts of criminal sexual conduct. The

trial court denied his motion for a new trial. Oliver later aborted an

appeal and filed for postconviction relief. The court granted a new trial,

finding that Oliver had received ineffective assistance of counsel. The

Minnesota Court of Appeals affirmed, concluding that Tilbury's statement

constituted inadmissible hearsay. On the State's petition for further

review, the Minnesota Supreme Court held that Tilbury's statement was

admissible as substantive evidence under the residual exception to hearsay

testimony set forth in Minn. R. Evid. 803 (24) and reinstated Oliver's

conviction. Oliver v. State, 502 N.W.2d 775 (Minn. 1993). Oliver then

filed the present action.

II.

Oliver contends that Tilbury's statement constituted hearsay, the

admission of which violated Oliver's right to due process of law.
 We note that 28 U.S.C. § 2254(d) has recently been amended by 2

the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.

No. 104-132, § 104(3)-(4), 110 Stat. 1214, 1219 (1996) (codified at

28 U.S.C. § 2254 (e)). We have not yet determined to what extent

the new Act applies to noncapital cases pending on appeal. The

challenged findings pass muster under either the pre-Act or postAct versions of section 2254(d).

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We will not re-examine whether evidence was properly admitted under

state law. Adams v. Leapley, 31 F.3d 713, 715 (8th Cir. 1994) (citing

Estelle v. McGuire, 502 U.S. 62, 68 (1991)). Rather, we consider only the

question whether Oliver's conviction was obtained in violation of the

United States Constitution. Estelle, 502 U.S. at 68. Admission of

Tilbury's hearsay statement was violative of Oliver's due process rights

only if the court's error in admitting the evidence was so obvious that it

"fatally infected the trial and rendered it fundamentally unfair." Troupe

v. Groose, 72 F.3d 75, 76 (8th Cir. 1995) (citing Anderson v. Gouke, 44

F.3d 675, 679 (8th Cir. 1995)). 

After noting that the case presented no confrontation clause issue,

the Minnesota Supreme Court concluded that the challenged statement was

trustworthy, finding that it was substantially corroborated and that the

circumstances surrounding the statement bolstered its reliability. Both

investigating officers testified that Tilbury was not under the influence

of drugs or alcohol. Tilbury also expressly told the officers that he was

not on drugs. In addition, Tilbury expressed considerable remorse when he

gave his statement. The fact that the statement was inculpatory likewise

increased its reliability. Moreover, the statement was consistent with and

corroborated H.A.'s statement to the investigating authorities.

These findings are presumed to be correct. See Sumner v. Mata, 449

U.S. 539, 544-47 (1981). Given this presumption, and in light of the

2

totality of the circumstances, we cannot say that admission of the hearsay

evidence constituted a violation of due
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process.

The judgment is affirmed.

A true copy.

Attest:

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