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No. 95-4040SI

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Kenneth E. Johns, *

*

Appellant, * Appeal from the United States

* District Court for the Southern

v. * District of Iowa.

*

Thomas Hundley, * [UNPUBLISHED]

*

Appellee. *

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Submitted: September 12, 1996

 Filed: September 19, 1996

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Before FAGG, BEAM, and MURPHY, Circuit Judges.

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PER CURIAM.

After Kenneth E. Johns was convicted of felony escape, the Iowa

Supreme Court rejected Johns's contention that he had committed only

misdemeanor escape. Johns then brought this 28 U.S.C. § 2254 action for

habeas relief, asserting insufficiency of the evidence and lack of fair

warning that his escape was felonious. The district court dismissed

Johns's petition. We affirm.

Johns was confined in a fenced medium-security facility at the Iowa

State Penitentiary (ISP), and he worked in the prison industries building

outside the fenced enclosure but within the ISP complex. At work, Johns

was supervised by prison industries staff and was watched by armed prison

guards in a guard tower. If Johns had been seen trying to leave the ISP

complex, prison officials would have forcibly stopped him. Johns carried

out his planned escape by walking away from the prison industries building,

getting
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into his girlfriend's waiting car, and riding off with her. He was caught

four days later in another state.

Johns did not raise his no-fair-warning claim in state court. We

need not pursue the question of exhaustion, however, because the claim is

meritless. Where that is so, we may rule on the merits at once. Granberry

v. Greer, 481 U.S. 129, 131, 135 (1987); Thompson v. Missouri Bd. of

Parole, 929 F.2d 396, 398 (8th Cir. 1991). Johns claims the Iowa Supreme

Court's decision in State v. Breitbach, 488 N.W.2d 444 (Iowa 1992),

violated his right to due process by unforeseeably expanding the scope of

Iowa's felony-escape statute. See Bouie v. City of Columbia, 378 U.S. 347,

352 (1964). As the district court pointed out to Johns, Breitbach was

decided six months before he escaped. Thus, Johns had fair warning his

escape would be felonious.

Relying on Jackson v. Virginia, 443 U.S. 307 (1979), Johns argues his

conviction violates due process because it is based on insufficient

evidence. Johns's reliance on Jackson is misplaced. In truth, Johns asks

this court to override the Iowa Supreme Court's application, in its ruling

on Johns's direct appeal, of Iowa's felony-escape statute. This we cannot

do. "A federal court may not re-examine a state court's interpretation and

application of state law." Schleeper v. Groose, 36 F.3d 735, 737 (8th Cir.

1994). Applying Breitbach and other relevant precedent to Johns's

situation, the Iowa Supreme Court held that Johns's flight from the ISP

prison industries building was a felony escape under Iowa law. State v.

Johns, No. 235/93-816, slip op. at 3 (Iowa Aug. 8, 1994). The Iowa Supreme

Court's understanding of Iowa law binds Johns, and binds us as well. See

Bates v. McCaughtry, 934 F.2d 99, 102-03 (7th Cir.), cert. denied, 502 U.S.

915 (1991).

We thus affirm the district court.
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A true copy.

Attest:

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