The Honorable John R. Tunheim, United States District Judge for the District 1

of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3655

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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. *

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Submitted: May 21, 1997

Filed: August 14, 1997

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Before BOWMAN, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit

Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Oliver Asher Branch, III, who was convicted in a Minnesota state court of

murder in the second degree, appeals the district court's denial of his petition for a writ

of habeas corpus. We affirm the judgment of the district court.1
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Mr. Branch first argues that the evidence was insufficient to convict him, a

proposition that, if true, would render his conviction unconstitutional as a violation of

due process. See Jackson v. Virginia, 443 U.S. 307, 324 (1979). In this case,

however, there was substantial evidence that Mr. Branch shot at Winfred Kluttz at least

three times, that Mr. Kluttz 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

jury 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 entirely

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 jury

instruction at his trial, but he claims that he was also entitled to an instruction on

defense of habitation. We have repeatedly held that a failure correctly to instruct a jury

does not amount to a violation of the Constitution unless it renders the defendant's trial

fundamentally unfair. See, e.g., Frey v. Leapley, 931 F.2d 1253, 1255 (8th Cir. 1991).

In the circumstances of this case, we see no fundamental unfairness. The close

similarity between the defense-of-habitation and self-defense instructions inclines us

to believe that the error, if any, was fundamentally harmless, not fundamentally unfair.

There was, for instance, virtually no evidence of a felony being committed in

Mr. Branch's home, a necessary predicate for the right of defense of habitation to attach

under Minnesota law.

Mr. Branch's final complaint has to do with remarks that the prosecutor made

during the closing argument in his trial. The prosecutor at least twice indicated his

belief that certain witnesses had been untruthful, but an examination of the record

reveals that in the context of the trial these remarks could hardly have "fatally infected"

the trial with 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

constitutional significance. The prosecutor, however, also argued that "[t]here is no

evidence in this case at all and there's the man that should know," referring, evidently,
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to Mr. Branch. In his appellate brief, Mr. Branch characterizes this remark as an

improper comment on Mr. Branch's exercise of his Fifth Amendment right not to testify.

But Mr. Branch never raised a Fifth Amendment claim in his § 2254 petition, or,

indeed, in any of his post-conviction efforts. He has therefore defaulted it. See, e.g.,

Buckley v. Lockhart, 892 F.2d 715, 718 (8th Cir. 1989), cert. denied, 497 U.S. 1006

(1990). 

For the reasons indicated, we affirm the district court's judgment denying the

petition for a writ of habeas corpus.

A true copy.

Attest:

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