United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-2940

___________

David Lee Cross, *

*

Petitioner-Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

James Bruton, Warden; Michael Hatch, *

*

Respondents-Appellees. *

___________

Submitted: March 14, 2001

Filed: May 3, 2001 

___________

Before BYE, LAY, and JOHN R. GIBSON, Circuit Judges.

___________

LAY, Circuit Judge.

This case is before us on appeal by David Lee Cross from the district court’s

denial of his petition for a writ of habeas corpus. Cross was indicted and tried for firstdegree domestic abuse homicide in violation of Minn. Stat. § 609.185(6) (Supp. 2001)

and second-degree murder in violation of Minn. Stat. § 609.19(1) (Supp. 2001). A jury

found him guilty of both offenses and Cross was sentenced to a mandatory life

sentence. 
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Cross appealed the judgment to the Minnesota Supreme Court, which affirmed

the conviction. Cross then filed a Petition for a Writ of Habeas Corpus in the United

States District Court for the District of Minnesota. The Honorable Ann D.

Montgomery denied the petition but granted a Certificate of Appealability to this court

on the issue of whether the Minnesota Supreme Court decision in State v. Cross, 577

N.W.2d 721 (Minn. 1998), concluding that the state does not need to prove each act

of domestic abuse beyond a reasonable doubt, is contrary to or an unreasonable

application of clearly established federal law as determined by the United States

Supreme Court. We find that the Minnesota Supreme Court’s decision was in accord

with federal law.

I.

The facts of this case have been amply stated in the opinion issued by the district

court. See Cross v. Bruton, Civ. No. 99-631, slip op. at *1 (D. Minn. June 23, 2000)

(incorporating facts stated in Report & Recommendation by reference). We review the

district court’s legal conclusions de novo. See Dye v. Stender, 208 F.3d 662, 665 (8th

Cir. 2000). 

Our analysis of habeas cases challenging state convictions is governed by the

Antiterrorism and Effective Death Penalty Act of 1996. See 28 U.S.C. § 2254(d)(1)

(Supp. 2000). That standard, as articulated by the Supreme Court, provides that:

[T]he writ may issue only if one of the following two conditions is

satisfied -- the state-court adjudication resulted in a decision that (1) “was

contrary to . . . clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) “involved an unreasonable

application of . . . clearly established Federal law, as determined by the

Supreme Court of the United States.”

Williams v. Taylor, 529 U.S. 362, 412 (2000). 
1At a minimum, however, the State must prove more than one prior act of

domestic abuse. State v. Grube, 531 N.W.2d 484, 491 (Minn. 1995) (“A lone act . . .

cannot constitute a pattern.”)

2The jury instructions specified the elements of domestic abuse homicide under

Minnesota law as follows:

First the death of Heidi Rae Haines must be proven; Second the death of

Heidi Rae Haines occurred while Defendant was committing domestic

abuse as I have just defined it to you; Third Defendant engaged in a past

pattern of domestic abuse upon Heidi Rae Haines; Fourth the death of

Heidi Rae Haines occurred under circumstances which manifested an

extreme indifference to human life; Fifth Defendant’s acts took place on

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A.

Minnesota’s domestic abuse resulting in homicide statute punishes conduct that

“causes the death of a human being while committing domestic abuse, when the

perpetrator has engaged in a past pattern of domestic abuse upon the victim . . . and the

death occurs under circumstances manifesting an extreme indifference to human life.”

Minn. Stat. § 609.185(6). The focus of this appeal is what constitutes a “pattern of

domestic abuse” under the statute. 

In affirming Cross’ conviction, the Minnesota Supreme Court found that the

statute “does not require proof of a pattern of domestic abuse convictions, or specify

a minimum number of incidents which must be proven in order to find a ‘pattern,’ or

specify that proof beyond a reasonable doubt is required as to the underlying acts.”

Cross, 577 N.W.2d at 727 (emphasis in original).1

Cross argues that each underlying act offered as evidence of the past pattern of

domestic abuse is a separate element of the crime of domestic abuse homicide which

must be proved beyond a reasonable doubt.2 He contends that in affirming his
June 28, 1996, in Hennepin County.

(Trial Tr. at 298). In defining “domestic abuse,” the court charged the jury that

“committing any of the following offenses against a family or household member.

Family or household members are persons who are presently residing together or have

resided together in the past or persons involved in a significant romantic or sexual

relationship.” Id. at 296.

3Cross also relies on Richardson v. United States, 526 U.S. 813, 817-18 (1999)

for the proposition that each element of domestic abuse is an element of the offense,

which requires jury unanimity, as opposed to a means, or the underlying fact of the

offense, which does not require jury unanimity. We decline to discuss this argument

because Richardson was decided after Cross was convicted and therefore is not

properly applied in this case.

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conviction, the Minnesota Supreme Court violated the clearly established law of In re

Winship, where the United States Supreme Court stated that “the Due Process Clause

protects the accused against conviction except upon proof beyond a reasonable doubt

of every fact necessary to constitute the crime with which he is charged.” 397 U.S.

358, 364 (1970). Cross also relies on basic principles of due process discussed by the

Supreme Court in Schad v. Arizona, 501 U.S. 624 (1991).3

B.

We find that the Minnesota Supreme Court’s decision in this case was not

contrary to or an unreasonable application of clearly established federal law as

determined by the Supreme Court of the United States. See Williams, 529 U.S. at 412.

In short, Cross has not identified any authority that supports his claim.

Contrary to Cross’ argument, Winship is inapposite to the issue at bar. By its

own terms, Winship “present[ed] the single, narrow question whether proof beyond a

reasonable doubt is among the ‘essentials of due process and fair treatment’ required

during the adjudicatory stage when a juvenile is charged with an act which would
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constitute a crime if committed by an adult.” 397 U.S. at 359. Winship did not

announce new principles of due process or alter the burden of proof applicable in

criminal cases. Rather, it extended due process guarantees to juvenile proceedings. 

Cross’ reliance on Schad also is misplaced. In Schad, the Supreme Court

explained the difference between the elements and the means of a crime. See 501 U.S.

at 631 (recognizing “a long-established rule of the criminal law that an indictment need

not specify which overt act, among several named, was the means by which a crime

was committed.”). The Court noted the due process limits that prohibit states from

defining a crime in a manner so vague as to “permit[] a defendant’s conviction without

jury agreement as to which course [of conduct] or state [of mind] actually occurred.”

Id. at 632. Ultimately, however, the Court concluded that distinction between the

elements and the means of a crime “represent value choices more appropriately made

in the first instance by a legislature than by a court.” Id. at 638. Given that Cross’

argument is unfounded in federal criminal law, this case does not warrant a defiance

of the judicial restraint embraced by the Supreme Court in Schad.

In addition to being unsupported by legal precedent, Cross’ argument also defies

common sense. First, if the legislature meant for a pattern of domestic abuse to be

premised on convictions for those offenses, we assume the legislature would have

written the law to that end. It did not and we will not read into a statute requirements

that the legislature did not enumerate. Further, as noted by Magistrate Judge Jonathan

G. Lebedoff in his Report and Recommendation to the District Court:

If Petitioner’s interpretation of the statute were adopted, the likelihood of

securing a conviction would decrease as the amount of evidence of

domestic abuse increased, because the greater number of incidents

presented by the prosecution, the greater the likelihood that the jury

would find at least one of those incidents had not been proven beyond a

reasonable doubt . . . . Surely the Minnesota legislature could not have

intended such an absurd consequence when it incorporated the “past
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pattern of domestic abuse” requirement into the domestic abuse homicide

statute.

Cross v. Bruton, Civ. No. 99-631, Report & Recommendation at 10-11 (D. Minn. May

3, 2000).

We find the district court’s denial of the petition for a writ of habeas should be

affirmed.

ORDER AFFIRMED.

A true copy.

Attest:

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