The Honorable James M. Rosenbaum, United States District 1 Judge for the District of Minnesota, sitting by designation. At the time Crump was involved in the fight, § 217.385 2 stated: No inmate shall offer to commit violence to

an officer or employee of a correctional institution or to another inmate . . .

______________ No. 96-2813

____________ Kevin A. Crump, * * Appellant/Petitioner, * * Appeal from the United States v. * District Court for the Western * District of Missouri. Paul Caspari, * * Appellee/Respondent. *

___________ Submitted: May 19, 1997 Filed: June 18, 1997

____________ Before MURPHY and HEANEY, Circuit Judges, and ROSENBAUM, 1 District Judge.

____________
MURPHY, Circuit Judge.

Kevin A . Crump was convicted of the offense of offerin g violence to a correctional officer in violation of Mo. Rev. Stat. § 217.385, for fighting with a correctional officer while he was an inmate at the Western Missouri Correctional Center. After the 2Violation of this section shall be a class C felony. The statute was amended in 1995, making it fault-based and a class B felony. The statute now prohibits an inmate from "knowingly" committing violence to a corrections employee or another inmate. The Honorable Joseph E. Stevens, Jr., United States 3 District Judge for the Western District of Missouri. - 2 - Mis souri Court of Appeals affirmed his conviction, Crump filed a petitio n for a writ of habeas corpus under 28 U.S.C. § 2254 , alleging several constitutional violations including a claim that the failure to give a self-defense instruction violated hi s consti tutional right to due process. The district court denie d 3 his petition, and Crump appeals. We affirm.

The evidence at trial showed that Sergeant Francis Wilson was the correctional officer respo nsible for clearing inmates from the prison yard and directing them into their housing units for th e evening count. While he was clearing prisoners, he saw Crum p leave his ho using unit. He ordered Crump to return to his unit, bu t Cru mp objected and argued with Wilson, then turned around an d starte d up the stairs toward his housing unit. As Crump went u p the stairs, he continued to argue with Wilson who was following.

A physical altercation between the two developed, and ther e was some conflict in the evidence as to how it started. Wilso n testified that while he was wa lking up the steps, Crump bumped him and caused him to fall; Crump then struck him on the side of hi s head. Crump, on the other hand, testified that Wilson passed him
on t he stairs and stepped in front of him to signal him to stop
. When he attempted to walk past Wilson and "brushed" him, Wilso n placed h is hand on Crump's neck, turned him around, and swung a t him without connecting.- 3 -

Other witnesses testif ied as to what they saw. Some said they saw Wilson place his hand on Crump's neck to turn him around, but did not see Wilson swing at Crump or were unsure whether Wilson'sAt oral argument Crump's counsel stated that the sentence 4 was to be served concurrently with one previously imposed. - 4 - moti on was a swinging or a reaching movement. There was n o testimony that Wilson struck the first blow, but witnesses r eported that Crump hit Wilson after Wilson turned him around. Crump testified that during the struggle he struck Wilson several times and kicked him, even after Wilson had fallen to the floor. Other
correc tional officers eventually pulled Crump off of Wilson, an d Wilson was taken to a hospital.

The state trial court determined that Crump had failed t o pro duce sufficient evidence that he acted in self-defense and s o declined to give a self-defens e instruction to the jury. The jury returned a verdict of guilty, and Crump was sentenced as a prio r offender to seven years imprisonment. 4

On dire ct appeal, Crump argued that the trial court erred i n failing to instruct the jury b oth on his claim of self-defense and on the required mental state for the offense of offering violence to a correctional officer. He also argued trial counsel wa s ineffe ctive. The Missouri Court of Appeals affirmed Crump' s conviction, concluding that the offense was one of stric t li ability, no mental state instruction was required, and self

defense was not available as a defense. It also ruled that even if self-defense could be raised, Crump had failed to produc e su bstantial evidence to support the giving of that instructio n under Missouri law.
Crump t hen filed this petition for a writ of habeas corpus , alleging ineffective assistance of counsel and constitutiona l viol ations stemming from the alleged errors in the jur y instru ctions concerning intent and self-defense. The distric t- 5 -

court denied Crump’s petition, deferring to the determination o f the Missouri Court of Appeals that self-defense was not available- 6 -

as a defense, but also conducting an independent review of th e record and determining that the refusal to give a self-defens e instruction did not violate du e process. The district court found the rest of Crump's claims to have no merit and declined to grant a certificate of appealability, but an administrative panel of this court granted a certificate of appealability on the issue o f whether the refusal to instruct the jury on self-defense violated Crump’s constitutional rights.

When determining whether to grant habeas relief, a federa l court’s review is limited to examining whether the convictio n violated United States law. Estelle v. McGuire , 502 U.S. 62 , 67-68 (1991). Determinations of state law by the Missouri Court o f Appea ls are binding. Frey v. Leapley , 931 F.2d 1253, 1254 (8t h Cir. 1991). Thus, even if the failure to give the self-defens e instruction were a violation of state law, habeas relief cou ld only be granted if the failure to instruct the jury on self-defens e amount ed to “a fundamental defect which inherently results in a complete miscarriage of justice, [or] an omission inconsiste nt with the rudimentary demands of fair procedure.” Hill v. United States , 368 U.S. 424, 428 (1962); Frey , 931 F.2d at 1255 (examinin g co nstitutionalityof refusal to give self-defense instruction i n state criminal trial).
Crump argues that he presented sufficient evidence to support a self-defense instruction andthat the failure of the state trial court to give it violated his due process rights. Under Missourilaw, the defendant has the burden of injecting the issue of selfdefens e into the proceedings. Mo. Rev. Stat. § 563.031(4). I n order for a self-defense instruction to be given, the defendan t must show by substantial evidence that he reasonably believe d force
was n ecessary to defend himself from the use or imminent use o f unlawful force by another person. § 563.031(1). A defendant who- 7 -

is the initial aggressor cannot raise this defense unless he ca n show he withdrew from the encounter and effectively communicated- 8 -

that withdrawal, but was required to use force after the othe r party continued the use of force. § 563.031(1)(a).

The trial court's refusal of a self-defense instruct ion did not violate Crump's constitutional rights because the evidence t aken in the li ght most favorable to him shows that he did not meet hi s burden of production established by Missouri law. At the time in questi on, Wilson was acting in his official capacity as a correctional officer, clearingprisoners from the common areas and into their housing units for t he evening count. When he saw Crump leave his housing unit, he ordered him to return, but Crump objected and argued with Wilso n. Wilson then accompanied Crump up the steps toward the housing unit while Crump continued to argu e and "brush ed" Wilson after he had signaled him to stop. Eve n ass uming that Wilson grabbed Crump from behind and turned hi m ar ound, no evidence indicated that Wilson hit Crump first
. Moreover, under Missouri law W ilson had the authority to use force to enforce discipline necessar y to maintain control of the prison, Mo. Rev. Stat. § 217.405(3), and Wilson's act of reaching fo r Crump after he had resisted directions, argued about returning to hi s housing unit for the evening count, and bumped into Wilson coul d not be the basis of a reasonab le belief that unlawful use of force by Wilson was imminent.

Since Crump did not show he had a reasonable belief he was in imm inent danger of unlawful force, the refusal of a self-defens e instruction did not result in a miscarriage of justice or omission inconsistent with the demands of fair procedure. See Frey , 93 1 F.2d at 1255. A self-defense instruction was not required unde r thes e facts, and the failure to give it did not violate an y constitu tional right. See id. It is therefore not necessary t o address the other points discu ssed by the parties and the district court. The judgment is affirmed.- 9 -- 10 -

A true copy.

Attest:

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