### Seiler also alleged his right to equal protection was 1 

### violated by the jury instruction. The district court rejected this argument, and Seiler has abandoned it on appeal. 1 ___________ No. 96-1157

___________ Leroy S. Seiler, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa John A. Thalacker, * * Appellant. *

___________ Submitted: September 11, 1996 Filed: November 26, 1996

___________ Before BEAM, HEANEY, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.

Leroy Se iler was convicted of first degree murder and sentenced t o life imprisonment. A fter the Iowa Supreme Court affirmed his conviction, Seiler filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 , argui ng an error in the jury instructions violated his due process an d Sixth Amendment rights. The district court conditionally issu ed the writ, 1 and the State of Iowa appeals. We reverse.

I.

The ev idence at trial showed that Seiler had hidden in a tavern t o steal the cash on hand after closing. The tavern owner

### Seiler also contested the constitutionality of the search 2 

### warrant under which the clothes and money were found. The Iowa Supreme Court rejected this argument. State v. Seiler , 342 N.W.2d 264, 267 (Iowa 1983) (en banc). 2 had discovered him, and in the struggle that followed, Seiler grabbed a meat cleaver and struck him. The victim died of numerous head injuries, inc luding two massive skull-penetrating blows from the cleaver. He ha d bled profusely and suffered many other injuries, including a severed thumb and multiple cuts. Blood samples matching those from Seiler and the victi m were found in a public shower at a hotel across the street from the tavern
. Seiler's bloody clothes and the money from the tavern were found in th e apartment where Seiler stayed the night of the murder. Seiler had als o been seen near the tavern at closing time on the night of the killing.

At t he close of evidence, the jury was instructed on thre e altern ative theories of first degree murder: felony murder whil e participating in willful injury, felony murder while participating in firs t degree burglary, and premeditated and deliberate murder. The jury returne d a general verdict of guilty of first degree murder.

On direc t appeal, Seiler contested the accuracy under state law o f the jury instruction for felony murder while committing a first degre e burglary. The Iowa Supreme Court h eld that the instruction was incorrect

2 under Iowa law because it omitted the physical injury element of firs t degree burglary. State v. Seiler , 342 N.W.2d 264, 268 (Iowa 1983) (e n banc). Nonetheless, it affirmed the conviction after holding the erroneou s instruction was not p rejudicial because the jury could not have failed to fin d the intentional infliction of physical injury that would trigger a first degree burglary. Id. The dissent objecte d that the court's holding in effect directed a verdict for the state on anissue it was obligated to prove beyond a reasonable doubt and that the

### 3

evidence was insufficient to overcome the presumption of prejudice. Id. at 269.

Seiler then filed an application for postconviction relief. H e asserted ineffective assistance of counsel at trial and on appeal resultin g from the failure of trial and appellate counsel to object adequately to th e jury instructions. The application was denied, and the Iowa Supreme Court denied further review.

Se iler next filed a petition for habeas corpus, arguing that th e omission of an element, in the instruction for felony murder whil e committing a first degree burglary, violated his due process and Sixt h Amend ment rights. Seiler asserted that Iowa law required the state t o prove he committed a first degree burglary before the felony murder rule could app ly. Iowa Code § 702.11. First degree burglary required proo f beyond a reasonable doubt that while committing a burglary, Seile r possessed a "dangerou s weapon, or intentionally or recklessly inflict[ed] physical injury on any person." Iowa Code § 713.3.
The instruction to the jury at trial stated:

Inconsidering First Degree Murder under th e Felony-Murder Doctrine, youare instructed that the law provides that when a person commits a burglary when [ sic] the burglary is performed by force o r against the will of the other. You are further instructed that burglary is a forcible felony.
Seiler contended that this instruction relieved the state of proving all elements of the crime beyond a reasonable doubt and took an element of the crime away from the jury.

The distr ict court found that the error in the jury instructio n violated Seiler's rights to due process and to a fair

### 4

trial, and that these violations were not harmless. The district cour t conditi onallyissued the writ of habeas corpus, ordering the state t o either commence proceedings to retry Seiler within sixty days or release him from custody.

The s tate appeals, arguing that Seiler procedurally defaulted hi s constitutional claims because in his direct appeal he only raised state la w issues concerning the burglary instruction. The state concedes that the juryinstruction was incorrect, but asserts that in the context of other jury instructions the error did not violate Seiler's constitutional rights
. The state argues also that any constitutional violation was harmless i n light of the overwhelming evidence concerning the intentional infliction of physical injury.

II.

Before a district court may consider a habeas corpus petition, th e petitioner must exhau st state remedies. 28 U.S.C. § 2254(b). To satisfy th e exhaustion requirement, the petitioner must "fairly present" th e federal c laims to the state courts to give the state the opportunity t o correct any alleged violations of its prisoners' federal rights. Duncan
v. Henry , 115 S. Ct. 887, 888 (1995) (per curiam). Presenting a similar state claim to the federal right is insufficient to exhaust state remedies
. Id. Instead, the applicant must refer to "a specific federa l
cons titutional right, a particular constitutional provision, a federa l consti tutional case, or a state case raising a pertinent federa l constitut ional issue in a claim before the state courts." Kelly v
. Trickey , 844 F.2d 557, 558 (8th Cir. 1988) (citing Thomas v. Wyrick , 622 F.2d 411, 413 (8th Cir. 1980)).

The state argues Seiler procedurally defaulted the due process an d Sixth Amendment claims because those claims are not equivalent to his clai m regarding the adequacy of the burglary instruction

### 5

under Iowa law that h e raised in his direct appeal. Seiler contends that he effectively raised the constitutional claims by citing a constitutional
case and stating he was denied a fair trial. He contends the dissent show s the Iowa Supreme Court was aware of the constitutional questions.

Seiler ar gued in his direct appeal that the jury was improperl y instr ucted on the necessary elements under Iowa law for conviction o f felony murder while c ommitting a first degree burglary. Seiler contended the error in the burglary instruction could have caused the jury to find himguilty of the lesser included offense of second degree burglary bu t still con vict him of felony murder, even though under Iowa law a secon d degree burglary canno t be the underlying crime for a felony murder. Iowa Code § 702.11. He concluded that improperly ins tructing the jurors on the elements they had to find beyond a reasonable do ubt deprived him of a fair trial.
In his state court appeal, Seiler cited Jackson v. Virginia , 44 3 U.S. 307, 318-19 (1979). In Jackson , the Supreme Court held the Fourteent h Amendment required a federal court to examine whether the record evidence could reasonably support guilt when reviewing the sufficiency of th e evidence in a habeas petition. Id. at 318. The Court did not address any issues regarding the constitutionality of jury instructions. Seiler did ref er to a part of the opinion, however, which contained a genera l statement about the necessity of proper instructions on reasonable doubt for all elements of a crime. Id. at 318-19.

It is doubtful that Seiler sufficiently raised the constitutiona l issue on his direct a ppeal by citing to Jackson
. Jacksondid not turn on issues related to jury instructions although it contained a reference to instructing the jury on reasonable doubt. Neither the majority opinion no r the dissent in Seiler's direct appeal mentioned Jackson . The majorit y opinion

### 6

focus ed on the validity of the burglary instruction under Iowa law an d
never addressed taking an element of the crime away from the jury or any constitutional issue. Seiler , 342 N.W.2d at 268. The dissent, on which Seiler now relies, al so did not refer to any constitutional claim, but it stated that the court 's decision "is the equivalent of a directed verdict for the State on an issue the State was obliged to prove beyond a reasonable doubt." Id. at 269.

Eventhough Seiler's argument on the adequacy of the jur y instructi ons under Iowa law and his statement that the error in th e inst ructions deprived him of a fair trial had some similarity to th e constitutional issues he now asserts, mere similarity is insufficient to exhaust sta te remedies. Duncan , 115 S. Ct. at 888. Whether a jur y instruction is correc t under state law is not the same issue as whether a jury instruction violated the due process clause. Anderson v. Harless , 45 9 U.S. 4, 7 (1982) (per curiam). It is thus questionable whether Seile r sufficiently presente d the constitutional issue on his direct appeal, but
we need not resolve this issue because we find that any error was harmless
.

III.

In his petition for habeas corpus, Seiler argued the error in th e first degree burglary instruction violated his due process rights because the state di d not have to prove all elements of the crime beyond a reasonable doubt and his Sixth Amendment rights because it took an element of the crime away fro m the jury. The state concedes the jury instruction
was incorrect, but argues there was no constitutional violation under Boyd e v. California , 494 U.S. 370, 380 (1990), because there is not a reasonable likelihood the jurors convicted Seiler without finding he had a weapon or assaulted the victim.

Th e state argues that analyzing the incorrect burglary instructio n in the context of the entire jury charge shows there

### 7

was no constitutional error. To convict Seiler of first degree burglary, Iow a law required that while committing a burglary, Seiler possessed " a dan gerous weapon, or intentionally or recklessly inflict[ed] physica l injury on any person." Iowa Code § 713.3. The trial court instructed the jury that first degree burglary required a burgl ary performed by "force or against t he will of the other." The state argues this sufficientl y informed the jury tha t personal violence during the burglary was required to convi ct Seiler of felony murder while committing a first degre e burglary. Other instructions told the jury that Seiler could only b e convicted of first degree murder if the state proved beyond a reasonable doubt that Seiler str uck the victim and that the victim died as a result. The state argues that since the jury found that Seiler committed both a burglaryand a murder, a jury with commonsense understanding of all th e instructions would not have failed to find that Seiler committed an assaul t during the burglary. Because of this, the jury could not have convicted Seiler without finding all the elements of first degree burglary.

Even if the error in the first degree burglary instruction rose t o the level of a constitutional violation, it cann ot be the basis for habeas relief if it is harmless. On Seiler's direct appeal, the Iowa Suprem e Court examined whether the error in the jury ins tructions was prejudicial. When a state court has not reviewed on direct appeal whether a consti tutional error was harmless, this court examines the error t o determine whether it "was harmless beyond a reasonable doubt." Orndorff v. Lockhart , 998 F.2d1426, 1430 (8th Cir. 1993). The record is reviewed de novo, and the issu e is "whether there is a reasonable possibility" the
error contributed to the conviction. Williams v. Clarke , 40 F.3d 1529 , 1541 (8th Cir. 1994). The state has a heavy burden in proving that a n error is harmless beyond a reasonable doubt. Id
. The test is not whether the evidence was sufficient to support a conviction. Id. Rather, an erro r is harmles s only if "what was actually and properly considered in th e decision-making process was

### 8

'so overwhelming' that the decision would have been the same even absent the invalid factor." Id. (citing Yates v. Evatt , 500 U.S. 391, 404-0 5 (1 991)); Estelle v. McGuire , 502 U.S. 67, 72 (1991) (faulty jur y instruction must be examined in context of the i nstructions as a whole and the trial record); Ro se v. Clark , 478 U.S. 570, 583 (1986) (entire record should be reviewed to determine whether error in jury instruction wa s harmless); United States v. Hasting , 461 U.S. 499, 509 n.7 (1983) (" Chapma n mandates consideration of the entire record prior to reversing a convictio n for constitutional errors that may be harmless . . .").
The jury considered three alternative theories of first degree murder and returned a genera l verdict of guilty. Seiler does not complain about the instructions for premeditated murder or felony murder whil e participating in a wi llful injury. The harmless error issue is therefore whether the incorrect instruction on felony murder while committing a firs t degree burglary contributed to Seiler's conviction. Id.

Seiler contends that the error was n ot harmless because it prevented the jury from considering the lesser included offense of second degre e murder, b ut his argument fails to consider the totality of the jur y inst ructions and the overwhelming evidence that the victim wa s intentionally struck during the burglary. The jury was instructed it coul d find first degree burglary if Seiler killed the victim while participating in a burglary by "force or against the will of the other." Jur y instruction 16, which applied to all first degree murder theories, informe d the jurors that to find Seiler guilty of first degree murder they must fin d beyond a reasonable doubt that Seiler intentionally struck the victim , causing his death. Since the jury returned a general verdict of guilty, it must have found that Seiler's intentional act caused the victim's death
. Moreover, even though the challenged instruction did not specifically spel l out the requirement of physical injury

### 9

for fi rst degree burglary, the evidence overwhelmingly showed that th e victim suffered physical injuries during the bur glary. He had been beaten with a po olstick and repeatedly struck with a meat cleaver, he had man y cuts and a severed thumb, and he had died from massive skull-penetrating head i njuries. The evidence concerning the intentional infliction o f physical injury during the burglary was so overwhelming that given th e who le context of the instructions and the evidence, any error of a constitutional nature in the challenged instructions was harmless beyond a reasonable doubt.

Accor dingly, we reverse the conditional grant of a writ of habea s corpus and remand so that the judgment can be vacated.
HEANEY, Circuit Judge, dissenting.

I woul d affirm the district court on the basis of its thorough an d well- reasoned opinion. I agree with each of the district court’ s conclu sions, namely (1) Seiler exhausted his state court remedies wit h respect t o the claim in his habeas corpus petition, (2) the faulty jur y in structionon first-degree felony murder rose to the level of a co nstitutional violation, (3) the error is subject to harmless-erro r analysis, and (4) the error was not harmless. Therefore, I respectfully dissent.
The trial court instructed the jury as follows:

Instruction No. 17 The la w provides that a person commits Murder in th e Sec ond Degree when he kills another with either express o r implied malice aforethought.
Howeve r, it is Murder in the First Degree, if, i n addition, he: Will fully, deliberately, and with premeditation kill s another person.

### 10 There are several circumstances, however, where murde r becomes Murder in the First Degree.
One circumstance is the so-called “Felony - Murde r Doctrine.” That is wher e one kills another person with malice aforethought while participating in a forcible felony. Other instructions further exp lain this type of First Degree Murder. * * * Instruction No. 28
In co nsidering First Degree Murder under the Felony

- Murder Doctrine, you are instructed that the law provides that when [s ic] a person commits a burglary when the burglary i s performed by force or against the will of the other.
Yo u are further instructed that burglary is a forcibl e felony.
(J.A. at 66 and 77.)
The jury was given a general verdict form and returned a verdict of guilty of first-degree murder. Neither the tria l court nor this court can determine whether the jury found Seiler guilty of premeditated first-degre e murder or first-degree felony murder.

The state concedes that instruction 28 was improper. There is also no doubt that Seiler fairly presented his federa l claim to the state court and that he gave the state a full opportunity to address the constitutiona l violati onthat the jury was improperly instructed as to the essentia l elements to be found beyond a reasonable doubt f or his conviction. Seiler cited Jackson v. Virginia , 443 U.S. 307, 318-19 (1979) as authority for hi s cla im. Moreover, in State v. Seiler , 342 N.W.2d 264 (Iowa 1983), th e dissenting justice wrote:

The trial court's instru ctions authorized the jury to find the defen dant guilty of first-degree murder based on findin g defendant committed murder in the perpetration of

### 11 a burglary. The court did not define burglary or t ell the jury only first-degree burgla ry would enhance the offense to firstdegree murder, despite atimely defense objection pointing out the error. This court's holding is the equivalent of a directe d verdict for the State on an issue the State was obliged t o prove beyond a reasonable doubt
.
Id. at 268-69 (McCormick, J., dissenting) (emphasis added). Thus, there
can b e no doubt that instruction 28 was in error and that the error wa s presented to the state court.
Moreover, the error was a constitutional one. The Due Process Clause protects an accused a gainst a criminal conviction unless the state proves beyond a reasonable doubt every fact necessary for the crime with which th e accused is charged. In re Winship , 397 U.S. 358, 364 (1970); see als o Sullivan v. Louisiana , 508 U.S. 275, 277 (1993); Sandstrom v. Montana , 442 U.S. 51 0, 520 (1979); Mullaney v. Wilbur , 421 U.S. 684, 704 (1974). I n addition, the most important element of a defendant's Sixth Amendment righ t to a j ury trial is the right to have a jury, not a judge, reach th e requisite findings of guilt. Sullivan , 508 U.S. at 277. Thus, "although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he may not direct a verdict for the state , no matt er how overwhelming the evidence." Id. In this case, the tria l
cou rt neither defined first-degree burglary nor told the jury that onl y first-degree burglary could enhance the offense to first-degree murder
. The c ourt also instructed the jury that burglary is a forcible felony , thereby impermissibly substituting its own judgment for that of the jury. I agree with the district court that this amounted to a directed verdict for the state on an element of first-degree burglary, which was a predicat e for a first-degree felony murder conviction. The instruction violate d Seiler's due process rights and his right to a fair jury trial.

### 12 I agree with both the district court and the majority that the effect of th e faulty instruction on the jury's verdict is subject to harmles s error ana lysis. The appropriate inquiry for this court is set forth i n Chapmanv. California , 386 U.S. 18 (1967): whether the state has proved that the error was harmless beyond a reasonable doubt. The majority finds tha t the error was harmless in light of "the totality of the jur y inst ructions and the overwhelming evidence that the victim wa s intentionally struck during the burglary." Maj. Op., supra at 8. To the extent that the major ity relies on the evidence of Seiler's guilt and its
own st rong belief that a properly-instructed jury would have convicte d Seiler, it commits gr ave error. The Supreme Court has spoken directly on this issue. The ques tion facing this court in a harmless error analysis,

is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surel y unattributable to the error. That must be so, because t o hypothesize a guilty ver dict that was never in fact rendered-- no matter how inescapable the findings to support the verdict might be--would violate the jury-trial guarantee
.
Sullivan , 508 U.S. at 279 (emphasis added). Hadthe jury explicitly based its ve rdict on premeditated murder, there certainly would be sufficien t evidence to support the jury's verdict. However, as the record stands , neithe r the state court nor the majority nor I know whether the jur y believed that Seiler was guilty of premeditated murder or felony murder. It woul d have been a simple matter to have prepared a verdict form tha t
wo uld have permitted the jury to make a separate finding on eac h ins truction. Failing that, I cannot conclude beyond a reasonable doub t that this jury did not base its verdict on the erroneous felony-murde r instructions.
The majority accepts the argument that the error was harmless

### 13

in light of the total ity of the jury instructions. I disagree. The only possible basis for this argument is that the missing elements of first

degree burglary are supplied when instructions 17 and 28 are read together
. The fact remains, how ever, that instruction 28 permitted the jury to find Seiler guilty of murder in the first degree when he committed a burglary that was performed by force or against the will of another. We cannot rea d the jurors' minds to supply the missing elements of that instruction.
Thus, I would not hesitate to affirm the district court and woul d remand the matter to the district court with directions to remand it to th e state court for a new trial with a properly-instructed jury.

A true copy.

Attest:

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