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

### fo r the District of Minnesota, adopting the report an d 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 ju dgment denying his 1 petition for habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.

I.
On Novemb er 17, 1989, H.A., a twelve-year-old girl, was babysitting at a trailer house owned by Oliver. Sometime th at evening Oliver returned to the tr ailer with Russell Tilbury, who is H.A.'s uncle, and two othe r men. When H.A. fell asleep on the couch, the four men were drinking and playing cards in the kitchen.

### -2- Sometime after midnight, Oliver and Tilbury approached H.A., who was still asleep on the c ouch. Oliver took off H.A.'s nightgown and sexually assau ltedher while Tilbury held her arms. Tilbury then also sexuall y 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 bee n 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 Til bury were the men that had raped her.

H.A. was referred to the Ramsey County Social Services, where sh e told a child protecti on worker that Oliver and Tilbury sexually assaulted her. In an interview with Dr. Levitt, a pediatrician specializing in chil d 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 consisten t with her having engaged in sexual activity. Tilbury was arrested on January 12, 1990. Before taking a statement fr omTilbury, the two investigating officers made independen t determinations that Tilbury was not then under the influence of drugs or alcohol. Likewise, Tilbury said that he was not on drugs.

In an unr ecorded portion of his statement, Tilbury said that h e remembered seeing Oliver rape H.A., and he lateradmitted to attempting to rape her as well. When the officers tried to ma ke 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."

### -3- Following his arrest, Oliver denied participating in an assault o n H.A. A few days later, however, Oliver told police that he remembere d 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 t rial, both Tilbury and Oliver recanted their statements
. Tilbury's recorded statement was admitted into evidence. Without objectio n fromOliver, one of the police officers testified regarding the contents of Til bury's unrecorded statement. The court ultimately instructed th e jury that Tilbury's statement was to be considered for impeachment purpose s only.
Oliver wa s convicted of two counts of criminal sexual conduct. The trial c ourt denied his motion for a new trial. Oliver later aborted a n 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 consti tutedinadmissible hearsay. On the State's petition for furthe r review , the Minnesota Supreme Court held that Tilbury's statement wa s admissible as substantive evidence under the res idual exception to hearsay testi monyset forth in Minn. R. Evid. 803 (24) and reinstated Oliver' s convictio n. Oliver v. State , 502 N.W.2d 775 (Minn. 1993). Oliver the n filed the present action.

II.
Oli ver contends that Tilbury's statement constituted hearsay, th e admission of which violated Oliver's right to due process of law.

### We note that 28 U.S.C. § 2254(d) has rece ntly been amended by 2 

### the Antiterrorism and Effectiv e Death Penalty Act of 1996, Pub. L. No. 104-132, § 104(3)-(4), 110 Stat. 1214, 1219 (1996) (codi fied at 28 U.S.C. § 2254 (e)). We have not yet determined to what extent the n ew Act applies to noncapital cases pending on appeal. Th echallenged findings pass muster under either the pre-Act or postAct versions of section 2254(d). -4- We will n ot re-examine whether evidence was properly admitted under state la w. Adams v. Leapley , 31 F.3d 713, 715 (8th Cir. 1994) (citin g Estelle v. McGuire , 502 U.S. 62, 68 (1991)). Ra ther, we consider only the questi onwhether Oliver's conviction was obtained in violation of th e United St ates Constitution. Estelle , 502 U.S. at 68. Admission o f Tilbury's hearsay statement was violative of Oliver's due process rights only if the court's error in admitting the evide nce was so obvious that it "fatally infected the trial and rendered it fund amentally unfair." Troupe v. Groo se , 72 F.3d 75, 76 (8th Cir. 1995) (citing Anderson v. Gouke , 4 4 F.3d 675, 679 (8th Cir. 1995)).
After not ing that the case presented no confrontation clause issue, the Mi nnesota Supreme Court concluded that the challenged statement wa s trustworthy, finding that it was substantially corroborated and that the circumstances surrounding the statement bolstered its reliability. Both investigating officer s testified that Tilbury was not under the influence of drugs or alcohol. Tilbury also expressly tol d the officers that he was not on drugs. In addition, Tilbury expressed co nsiderable remorse when he gave his statement. The fact that the statement was inculpatory likewise increased its reliability. Moreover, the statement was consistent with an d corroborated H.A.'s statement to the investigating authorities.
These fin dings are presumed to be correct. See Sumner v. Mata , 449 U.S. 539, 5 44-47 (1981). Given this presumption, and in light of th e 2 totality of the circumstances, we cannot say tha t admission of the hearsay evidence constituted a violation of due

### -5-

process. The judgment is affirmed.
A true copy.

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