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 offering

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 2
Violation 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.

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Missouri Court of Appeals affirmed his conviction, Crump filed a

petition 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 his

constitutional right to due process. The district court denied

3

his petition, and Crump appeals. We affirm.

The evidence at trial showed that Sergeant Francis Wilson was

the correctional officer responsible for clearing inmates from the

prison yard and directing them into their housing units for the

evening count. While he was clearing prisoners, he saw Crump leave

his housing unit. He ordered Crump to return to his unit, but

Crump objected and argued with Wilson, then turned around and

started up the stairs toward his housing unit. As Crump went up

the stairs, he continued to argue with Wilson who was following. 

A physical altercation between the two developed, and there

was some conflict in the evidence as to how it started. Wilson

testified that while he was walking up the steps, Crump bumped him

and caused him to fall; Crump then struck him on the side of his

head. Crump, on the other hand, testified that Wilson passed him

on the stairs and stepped in front of him to signal him to stop.

When he attempted to walk past Wilson and "brushed" him, Wilson

placed his hand on Crump's neck, turned him around, and swung at

him without connecting. 
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Other witnesses testified 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's
At oral argument Crump's counsel stated that the sentence 4

was to be served concurrently with one previously imposed.

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motion was a swinging or a reaching movement. There was no

testimony that Wilson struck the first blow, but witnesses reported

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

correctional officers eventually pulled Crump off of Wilson, and

Wilson was taken to a hospital. 

The state trial court determined that Crump had failed to

produce sufficient evidence that he acted in self-defense and so

declined to give a self-defense instruction to the jury. The jury

returned a verdict of guilty, and Crump was sentenced as a prior

offender to seven years imprisonment. 

4

On direct appeal, Crump argued that the trial court erred in

failing to instruct the jury both 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 was

ineffective. The Missouri Court of Appeals affirmed Crump's

conviction, concluding that the offense was one of strict

liability, no mental state instruction was required, and selfdefense was not available as a defense. It also ruled that even if

self-defense could be raised, Crump had failed to produce

substantial evidence to support the giving of that instruction

under Missouri law.

Crump then filed this petition for a writ of habeas corpus,

alleging ineffective assistance of counsel and constitutional

violations stemming from the alleged errors in the jury

instructions concerning intent and self-defense. The district
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court denied Crump’s petition, deferring to the determination of

the Missouri Court of Appeals that self-defense was not available
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as a defense, but also conducting an independent review of the

record and determining that the refusal to give a self-defense

instruction did not violate due 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 of

whether the refusal to instruct the jury on self-defense violated

Crump’s constitutional rights.

When determining whether to grant habeas relief, a federal

court’s review is limited to examining whether the conviction

violated United States law. Estelle v. McGuire, 502 U.S. 62, 67-68

(1991). Determinations of state law by the Missouri Court of

Appeals are binding. Frey v. Leapley, 931 F.2d 1253, 1254 (8th

Cir. 1991). Thus, even if the failure to give the self-defense

instruction were a violation of state law, habeas relief could only

be granted if the failure to instruct the jury on self-defense

amounted to “a fundamental defect which inherently results in a

complete miscarriage of justice, [or] an omission inconsistent with

the rudimentary demands of fair procedure.” Hill v. United States,

368 U.S. 424, 428 (1962); Frey, 931 F.2d at 1255 (examining

constitutionality of refusal to give self-defense instruction in

state criminal trial).

Crump argues that he presented sufficient evidence to support

a self-defense instruction and that the failure of the state trial

court to give it violated his due process rights. Under Missouri

law, the defendant has the burden of injecting the issue of selfdefense into the proceedings. Mo. Rev. Stat. § 563.031(4). In

order for a self-defense instruction to be given, the defendant

must show by substantial evidence that he reasonably believed force

was necessary to defend himself from the use or imminent use of

unlawful force by another person. § 563.031(1). A defendant who
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is the initial aggressor cannot raise this defense unless he can

show he withdrew from the encounter and effectively communicated
- 8 -

that withdrawal, but was required to use force after the other

party continued the use of force. § 563.031(1)(a).

The trial court's refusal of a self-defense instruction did not

violate Crump's constitutional rights because the evidence taken in

the light most favorable to him shows that he did not meet his

burden of production established by Missouri law. At the time in

question, Wilson was acting in his official capacity as a

correctional officer, clearing prisoners from the common areas and

into their housing units for the evening count. When he saw Crump

leave his housing unit, he ordered him to return, but Crump

objected and argued with Wilson. Wilson then accompanied Crump up

the steps toward the housing unit while Crump continued to argue

and "brushed" Wilson after he had signaled him to stop. Even

assuming that Wilson grabbed Crump from behind and turned him

around, no evidence indicated that Wilson hit Crump first.

Moreover, under Missouri law Wilson had the authority to use force

to enforce discipline necessary to maintain control of the prison,

Mo. Rev. Stat. § 217.405(3), and Wilson's act of reaching for Crump

after he had resisted directions, argued about returning to his

housing unit for the evening count, and bumped into Wilson could

not be the basis of a reasonable belief that unlawful use of force

by Wilson was imminent. 

Since Crump did not show he had a reasonable belief he was in

imminent danger of unlawful force, the refusal of a self-defense

instruction did not result in a miscarriage of justice or omission

inconsistent with the demands of fair procedure. See Frey, 931

F.2d at 1255. A self-defense instruction was not required under

these facts, and the failure to give it did not violate any

constitutional right. See id. It is therefore not necessary to

address the other points discussed by the parties and the district

court. The judgment is affirmed.
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A true copy.

Attest:

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