                               ______________

                                 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.2            After the


     1
      The Honorable James M. Rosenbaum, United States District
Judge for the District of Minnesota, sitting by designation.
     2
      At the time Crump was involved in the fight, § 217.385
stated:

           No inmate shall offer to commit violence to
           an officer or employee of a correctional
           institution or to another inmate . . .
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 court3 denied
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.


                 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.
          3
      The Honorable Joseph E. Stevens, Jr., United States
District Judge for the Western District of Missouri.

                                        - 2 -
   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




                              - 3 -
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 self-
defense 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


     4
      At oral argument Crump's counsel stated that the sentence
was to be served concurrently with one previously imposed.

                                      - 4 -
court denied Crump’s petition, deferring to the determination of
the Missouri Court of Appeals that self-defense was not available




                              - 5 -
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 self-
defense 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

                                 - 6 -
is the initial aggressor cannot raise this defense unless he can
show he withdrew from the encounter and effectively communicated




                              - 7 -
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.

                                        - 8 -
- 9 -
A true copy.


   Attest:


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




                             - 10 -
