The Honorable John R. Tunheim, United States District Judge for the District 1 of Minnesota. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3655

___________ Oliver Asher Branch, III, * * Appellant, * Appeal from the United States * District Court for the District v. * of Minnesota. * State of Minnesota; Frank Wood, * Commissioner of Corrections; and * Dennis L. Benson, Warden, * * Appellees. *

___________ Submitted: May 21, 1997 Filed: August 14, 1997

___________ Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Olive r Asher Branch, III, who was convicted in a Minnesota state court o f murder in the second degree, appeals the dist rict court's denial of his petition for a writ of habeas corpus. We affirm the judgment of the district court. 1-2-

Mr. Branc h first argues that the evidence was insufficient to convict him, a proposition th at, if true, would render his conviction unconstitutional as a violation of due proce ss. See Jackson v. Virginia , 443 U.S. 307, 324 (1979). In this case , however, there was substantial evidence that Mr. Branch shot at Winf red Kluttz at least three times, that Mr. K

luttz was fleeing when some of these shots were fired, and that the bullet that killed Mr. Kluttz was not shot at close range. Such evidence, which the jur y was entitled to believe, effectively undermines Mr. Branch's claim that the proof was insufficient to establish that he intended to kill Mr. Kluttz. It also runs entirel y counter to Mr. Branch's theory that he shot Mr. Kluttz in self-defense.
Mr. Branch's theory of self-defense was incorporated in an appropriate jur y instructi on at his trial, but he claims that he was also entitled to an instruction o n defense of habitation. We have repeatedly held that a failure c orrectly to instruct a jury does not amount to a violation of the Consti tution unless it renders the defendant's trial fundamentally unfair. See , e.g. , Frey v. Leapl ey , 931 F.2d 1253, 1255 (8th Cir. 1991). In the circ umstances of this case, we see no fundamental unfairness. The clos e si milarity between the defense-of-habitation and self-defense instructions inclines u s to believe that the error, if any, w as fundamentally harmless, not fundamentally unfair. There was, for instance, virtually no evidence of a felony being committed i n Mr. Branch's home, a necessary predicate for the right of defense of h abitation to attach under Minnesota law.
Mr. Br anch's final complaint has to do with remarks that the prosecutor mad e during the closing argument in his trial. The prosecutor at least twice indicated hi s be lief that certain witnesses had been untruthful, but an examination of the recor d reveals that in the context of the trial these remarks co uld hardly have "fatally infected" the trial wi th error, Murray v. Groose , 106 F.3d 812, 815 (8th Cir. 1997), petition for cert. filed ( U.S. June 19, 1997), as the cases require before the remarks can acquire a constitu tional significance. The prosecutor, however, also argued that "[t]here is n o evidence in this case at all

and there's the man that should know," referring, evidently,-3-

to Mr. Branch. In his appellate brief, Mr. Branch characterizes this remark as a n improper comment on Mr. Branch's exercise of his Fifth Amendment right not to testify. ButMr. Branc h never raised a Fifth Amendment claim in his § 2254 petition, or , indeed, i n any of his post-conviction efforts. He has therefore defaulted it. See , e.g. , Bu ckley v. Lockhart , 892 F.2d 715, 718 (8th Cir. 1989), cert. denied , 497 U.S. 1006 (1990).
Fo r the reasons indicated, we affirm the district court's judgment denying th e petition for a writ of habeas corpus. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.