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 Seiler was convicted of first degree murder and sentenced to

life imprisonment. After the Iowa Supreme Court affirmed his conviction,

Seiler filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254,

arguing an error in the jury instructions violated his due process and

Sixth Amendment rights. The district court conditionally issued the writ, 1

and the State of Iowa appeals. We reverse.

I.

The evidence at trial showed that Seiler had hidden in a tavern to

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,

including two massive skull-penetrating blows from the cleaver. He had

bled profusely and suffered many other injuries, including a severed thumb

and multiple cuts. Blood samples matching those from Seiler and the victim

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 the

apartment where Seiler stayed the night of the murder. Seiler had also

been seen near the tavern at closing time on the night of the killing. 

At the close of evidence, the jury was instructed on three

alternative theories of first degree murder: felony murder while

participating in willful injury, felony murder while participating in first

degree burglary, and premeditated and deliberate murder. The jury returned

a general verdict of guilty of first degree murder.

On direct appeal, Seiler contested the accuracy under state law of

the jury instruction for felony murder while committing a first degree

burglary. The Iowa Supreme Court held that the instruction was incorrect 2

under Iowa law because it omitted the physical injury element of first

degree burglary. State v. Seiler, 342 N.W.2d 264, 268 (Iowa 1983) (en

banc). Nonetheless, it affirmed the conviction after holding the erroneous

instruction was not prejudicial because the jury could not have failed to

find the intentional infliction of physical injury that would trigger a

first degree burglary. Id. The dissent objected that the court's holding

in effect directed a verdict for the state on an issue 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. He

asserted ineffective assistance of counsel at trial and on appeal resulting

from the failure of trial and appellate counsel to object adequately to the

jury instructions. The application was denied, and the Iowa Supreme Court

denied further review.

Seiler next filed a petition for habeas corpus, arguing that the

omission of an element, in the instruction for felony murder while

committing a first degree burglary, violated his due process and Sixth

Amendment rights. Seiler asserted that Iowa law required the state to

prove he committed a first degree burglary before the felony murder rule

could apply. Iowa Code § 702.11. First degree burglary required proof

beyond a reasonable doubt that while committing a burglary, Seiler

possessed a "dangerous weapon, or intentionally or recklessly inflict[ed]

physical injury on any person." Iowa Code § 713.3. 

The instruction to the jury at trial stated: 

In considering First Degree Murder under the

Felony-Murder Doctrine, you are instructed that the

law provides that when a person commits a burglary

when [sic] the burglary is performed by force or

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 district court found that the error in the jury instruction

violated Seiler's rights to due process and to a fair
4

trial, and that these violations were not harmless. The district court

conditionally issued the writ of habeas corpus, ordering the state to

either commence proceedings to retry Seiler within sixty days or release

him from custody.

The state appeals, arguing that Seiler procedurally defaulted his

constitutional claims because in his direct appeal he only raised state law

issues concerning the burglary instruction. The state concedes that the

jury instruction 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 in

light of the overwhelming evidence concerning the intentional infliction

of physical injury.

II.

Before a district court may consider a habeas corpus petition, the

petitioner must exhaust state remedies. 28 U.S.C. § 2254(b). To satisfy

the exhaustion requirement, the petitioner must "fairly present" the

federal claims to the state courts to give the state the opportunity to

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 federal

constitutional right, a particular constitutional provision, a federal

constitutional case, or a state case raising a pertinent federal

constitutional 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 and

Sixth Amendment claims because those claims are not equivalent to his claim

regarding the adequacy of the burglary instruction
5

under Iowa law that he 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 shows

the Iowa Supreme Court was aware of the constitutional questions.

Seiler argued in his direct appeal that the jury was improperly

instructed on the necessary elements under Iowa law for conviction of

felony murder while committing a first degree burglary. Seiler contended

the error in the burglary instruction could have caused the jury to find

him guilty of the lesser included offense of second degree burglary but

still convict him of felony murder, even though under Iowa law a second

degree burglary cannot be the underlying crime for a felony murder. Iowa

Code § 702.11. He concluded that improperly instructing the jurors on the

elements they had to find beyond a reasonable doubt deprived him of a fair

trial.

In his state court appeal, Seiler cited Jackson v. Virginia, 443 U.S.

307, 318-19 (1979). In Jackson, the Supreme Court held the Fourteenth

Amendment required a federal court to examine whether the record evidence

could reasonably support guilt when reviewing the sufficiency of the

evidence in a habeas petition. Id. at 318. The Court did not address any

issues regarding the constitutionality of jury instructions. Seiler did

refer to a part of the opinion, however, which contained a general

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 constitutional

issue on his direct appeal by citing to Jackson. Jackson did not turn on

issues related to jury instructions although it contained a reference to

instructing the jury on reasonable doubt. Neither the majority opinion nor

the dissent in Seiler's direct appeal mentioned Jackson. The majority

opinion
6

focused on the validity of the burglary instruction under Iowa law and

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, also 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.

Even though Seiler's argument on the adequacy of the jury

instructions under Iowa law and his statement that the error in the

instructions deprived him of a fair trial had some similarity to the

constitutional issues he now asserts, mere similarity is insufficient to

exhaust state remedies. Duncan, 115 S. Ct. at 888. Whether a jury

instruction is correct under state law is not the same issue as whether a

jury instruction violated the due process clause. Anderson v. Harless, 459

U.S. 4, 7 (1982) (per curiam). It is thus questionable whether Seiler

sufficiently presented 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 the

first degree burglary instruction violated his due process rights because

the state did 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 from the jury. The state concedes the jury instruction

was incorrect, but argues there was no constitutional violation under Boyde

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.

The state argues that analyzing the incorrect burglary instruction

in the context of the entire jury charge shows there
7

was no constitutional error. To convict Seiler of first degree burglary,

Iowa law required that while committing a burglary, Seiler possessed "a

dangerous weapon, or intentionally or recklessly inflict[ed] physical

injury on any person." Iowa Code § 713.3. The trial court instructed the

jury that first degree burglary required a burglary performed by "force or

against the will of the other." The state argues this sufficiently

informed the jury that personal violence during the burglary was required

to convict Seiler of felony murder while committing a first degree

burglary. Other instructions told the jury that Seiler could only be

convicted of first degree murder if the state proved beyond a reasonable

doubt that Seiler struck the victim and that the victim died as a result.

The state argues that since the jury found that Seiler committed both a

burglary and a murder, a jury with commonsense understanding of all the

instructions would not have failed to find that Seiler committed an assault

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 to

the level of a constitutional violation, it cannot be the basis for habeas

relief if it is harmless. On Seiler's direct appeal, the Iowa Supreme

Court examined whether the error in the jury instructions was prejudicial.

When a state court has not reviewed on direct appeal whether a

constitutional error was harmless, this court examines the error to

determine whether it "was harmless beyond a reasonable doubt." Orndorff

v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993). The record is reviewed

de novo, and the issue 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 an

error is harmless beyond a reasonable doubt. Id. The test is not whether

the evidence was sufficient to support a conviction. Id. Rather, an error

is harmless only if "what was actually and properly considered in the

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, 404-05

(1991)); Estelle v. McGuire, 502 U.S. 67, 72 (1991) (faulty jury

instruction must be examined in context of the instructions as a whole and

the trial record); Rose v. Clark, 478 U.S. 570, 583 (1986) (entire record

should be reviewed to determine whether error in jury instruction was

harmless); United States v. Hasting, 461 U.S. 499, 509 n.7 (1983) ("Chapman

mandates consideration of the entire record prior to reversing a conviction

for constitutional errors that may be harmless . . .").

The jury considered three alternative theories of first degree murder

and returned a general verdict of guilty. Seiler does not complain about

the instructions for premeditated murder or felony murder while

participating in a willful injury. The harmless error issue is therefore

whether the incorrect instruction on felony murder while committing a first

degree burglary contributed to Seiler's conviction. Id.

Seiler contends that the error was not harmless because it prevented

the jury from considering the lesser included offense of second degree

murder, but his argument fails to consider the totality of the jury

instructions and the overwhelming evidence that the victim was

intentionally struck during the burglary. The jury was instructed it could

find first degree burglary if Seiler killed the victim while participating

in a burglary by "force or against the will of the other." Jury

instruction 16, which applied to all first degree murder theories, informed

the jurors that to find Seiler guilty of first degree murder they must find

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 spell

out the requirement of physical injury
9

for first degree burglary, the evidence overwhelmingly showed that the

victim suffered physical injuries during the burglary. He had been beaten

with a poolstick and repeatedly struck with a meat cleaver, he had many

cuts and a severed thumb, and he had died from massive skull-penetrating

head injuries. The evidence concerning the intentional infliction of

physical injury during the burglary was so overwhelming that given the

whole context of the instructions and the evidence, any error of a

constitutional nature in the challenged instructions was harmless beyond

a reasonable doubt.

Accordingly, we reverse the conditional grant of a writ of habeas

corpus and remand so that the judgment can be vacated.

HEANEY, Circuit Judge, dissenting.

I would affirm the district court on the basis of its thorough and

well-reasoned opinion. I agree with each of the district court’s

conclusions, namely (1) Seiler exhausted his state court remedies with

respect to the claim in his habeas corpus petition, (2) the faulty jury

instruction on first-degree felony murder rose to the level of a

constitutional violation, (3) the error is subject to harmless-error

analysis, and (4) the error was not harmless. Therefore, I respectfully

dissent.

The trial court instructed the jury as follows:

Instruction No. 17

The law provides that a person commits Murder in the

Second Degree when he kills another with either express or

implied malice aforethought.

However, it is Murder in the First Degree, if, in

addition, he:

Willfully, deliberately, and with premeditation kills

another person.
10

There are several circumstances, however, where murder

becomes Murder in the First Degree.

One circumstance is the so-called “Felony - Murder

Doctrine.” That is where one kills another person with malice

aforethought while participating in a forcible felony. Other

instructions further explain this type of First Degree Murder.

* * *

Instruction No. 28

In considering First Degree Murder under the Felony -

Murder Doctrine, you are instructed that the law provides that

when [sic] a person commits a burglary when the burglary is

performed by force or against the will of the other. 

You are further instructed that burglary is a forcible

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 trial court nor this court can

determine whether the jury found Seiler guilty of premeditated first-degree

murder or first-degree felony murder.

The state concedes that instruction 28 was improper. There is also

no doubt that Seiler fairly presented his federal claim to the state court

and that he gave the state a full opportunity to address the constitutional

violation that the jury was improperly instructed as to the essential

elements to be found beyond a reasonable doubt for his conviction. Seiler

cited Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) as authority for his

claim. Moreover, in State v. Seiler, 342 N.W.2d 264 (Iowa 1983), the

dissenting justice wrote: 

The trial court's instructions authorized the jury to find the

defendant guilty of first-degree murder based on finding

defendant committed murder in the perpetration of
11

a burglary. The court did not define burglary or tell the jury

only first-degree burglary would enhance the offense to firstdegree murder, despite a timely defense objection pointing out

the error.

This court's holding 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 268-69 (McCormick, J., dissenting) (emphasis added). Thus, there

can be no doubt that instruction 28 was in error and that the error was

presented to the state court. 

Moreover, the error was a constitutional one. The Due Process Clause

protects an accused against a criminal conviction unless the state proves

beyond a reasonable doubt every fact necessary for the crime with which the

accused is charged. In re Winship, 397 U.S. 358, 364 (1970); see also

Sullivan v. Louisiana, 508 U.S. 275, 277 (1993); Sandstrom v. Montana, 442

U.S. 510, 520 (1979); Mullaney v. Wilbur, 421 U.S. 684, 704 (1974). In

addition, the most important element of a defendant's Sixth Amendment right

to a jury trial is the right to have a jury, not a judge, reach the

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 matter how overwhelming the evidence." Id. In this case, the trial

court neither defined first-degree burglary nor told the jury that only

first-degree burglary could enhance the offense to first-degree murder.

The court 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 predicate

for a first-degree felony murder conviction. The instruction violated

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 the faulty instruction on the jury's verdict is subject to harmless

error analysis. The appropriate inquiry for this court is set forth in

Chapman v. California, 386 U.S. 18 (1967): whether the state has proved

that the error was harmless beyond a reasonable doubt. The majority finds

that the error was harmless in light of "the totality of the jury

instructions and the overwhelming evidence that the victim was

intentionally struck during the burglary." Maj. Op., supra at 8. To the

extent that the majority relies on the evidence of Seiler's guilt and its

own strong belief that a properly-instructed jury would have convicted

Seiler, it commits grave error. The Supreme Court has spoken directly on

this issue. The question 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 surely

unattributable to the error. That must be so, because to

hypothesize a guilty verdict 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). Had the jury explicitly based

its verdict on premeditated murder, there certainly would be sufficient

evidence to support the jury's verdict. However, as the record stands,

neither the state court nor the majority nor I know whether the jury

believed that Seiler was guilty of premeditated murder or felony murder.

It would have been a simple matter to have prepared a verdict form that

would have permitted the jury to make a separate finding on each

instruction. Failing that, I cannot conclude beyond a reasonable doubt

that this jury did not base its verdict on the erroneous felony-murder

instructions. 

The majority accepts the argument that the error was harmless
13

in light of the totality of the jury instructions. I disagree. The only

possible basis for this argument is that the missing elements of firstdegree burglary are supplied when instructions 17 and 28 are read together.

The fact remains, however, 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 read

the jurors' minds to supply the missing elements of that instruction.

Thus, I would not hesitate to affirm the district court and would

remand the matter to the district court with directions to remand it to the

state court for a new trial with a properly-instructed jury.

A true copy.

Attest:

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