NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0276n.06 Nos. 09-6289/6290 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T ANDRE DRAPER-EL , Petitioner-Appellant,

v. NANCY DO OM, Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF KENTUCKY

Be fore : KEI TH, MARTI N, and B OGGS, Circuit J udg es.

PER CURI AM. Andre Dra per- El, who i s re p rese nted by counsel, appea ls a district court order dismiss ing his petition for a writ of habea s corpus filed pursuant to 28 U.S.C. § 2254 (No. 09- 6290), and an order denying his motion to clar ify a state statute (No. 09-6289), filed in the same underlying a ction. The a

ppeals have bee n consolidated. I n 2004, a jury co n v i ct ed Dra per- El of second degree burg lary and being a first deg ree persistent felony offe nder. He was sentenc ed to twelve y ear s of imprisonment, e nhance d from ten y ear s, b ec ause of his persistent felony offe nder conviction. On direc t appea l, Dra per- El argued, among other things, that he was err oneously denied lesser- included offe nse instructions on rec eiving stolen proper

ty and fac ilitation of burg lary

. He also argued that the jury instruction on the persistent felony offe nder char g e violated Kentucky ’s unanimous verdic t rule. The Kentucky Court of Appea ls conclude d that Dra

per- El was not entitled to the lesser- included offe nse instructions. Although the court found the persistent felony offe nder instruction to be err oneous, beca use Dra per- El had failed to object to the instruction, the court of appea ls r eviewe d the claim under a “palpa ble err or” standard.Nos. 09-6289/6290 - 2 - The court found on revie w that th e er ro r fa i l ed to meet this standard. Dra per- El was also

unsucce ssful in his post -convic tion relief pur suits in t he state c ourts of Ke ntucky

. Dra per- El then filed this fede ral habea s corpus petition. He wrote only “due proce ss” as his first claim for relief on the form petiti o n , but he attached a brief from hi s state di rec t appea l. The matter was ref

err ed to a magi s trate judge , who found that the first claim of “due proce ss” was

c o n c lu s o r y a n d should be dismiss ed. The mag istrate judge addre ssed the jury -instruction claims o n ly in a footnote, holding that they had not been proper ly raised in the petition and wer e meritless. The district court adopted the mag istrate judge ’s rec ommendation to dismiss the pet i t i o n . This court g rante d Dra

pe r - E l a c e r

ti f icate of appea lability on the two jury -instruction claims that wer e contained in the attache d brief. A petition for a writ of habea s corpus may be g rante d on an issue that was decide d by a state court only if the state court’s decision was contra ry to “cle arly established Fe dera l law, as deter mined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)( 1). The Supreme Court has never held that due pr ocess r equire s lesser- included off ense instruc tions in non-capital ca ses. Campbell

v. Coyle , 260 F. 3 d 531, 541 (6th Cir. 2001). Even in capital case s, the require ment of lesserincluded offe nse instructions is g rounded on Eig hth Amendment conce rns, ra t h er t han on due proce ss conce rns. Bagby v. Sowders , 894 F.2d 792, 795-97 (6th Cir. 1990) (en banc)

. Acc ording ly , Dra per- El is not entitled to a writ of habea s corpus on his lesser- included offe nse instructions claim. The rec ord establishes that Dra per- El failed to object to the jury instruction on his persistent felony offe nder char g e. Due to this proce dural defa ult, we may not revie w this claim unless DraperEl establishes cause and prejudice to excuse his defa ult, or show s a m i s ca rr i ag e of justice. See Hinkle v . Randle , 271 F.3d 239, 244- 45 (6th Cir. 2001). Dra per- El has not satisfied this burden. The district court’s order dismiss ing Dra per- El’s petition for a writ of habea s corpus is aff ir m ed

. Be ca u se the denial of Dra per- El’s motion to clar ify a state statute was not cer tified for revie w by either the district court or this court, the appea l of that order is not prope rl y b efor e the court for revie w.