                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAR 15 2000
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 RICHARD EARL GRADY, JR.,

          Petitioner-Appellant,

 v.                                                        No. 99-6142
                                                          (W.D. Okla.)
 BOBBY BOONE,                                        (D.Ct. No. 98-CV-1360)

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       Appellant Richard Earl Grady, a state inmate appearing pro se, 1 appeals the

district court’s decision denying his petition for writ of habeas corpus pursuant to

28 U.S.C. §2254. We deny Mr. Grady’s request for a certificate of appealability

and dismiss his appeal. 2



       The facts underlying Mr. Grady’s conviction are set forth in Grady v. State,

947 P.2d 1069 (Okla. Crim. App. 1997). In short, a jury convicted Mr. Grady of

murdering a nine-month old baby for whom he provided child care, and he

received a life sentence without the possibility of parol. Id. at 1070. Mr. Grady

appealed his conviction arguing: (1) the trial court erred in giving a jury

instruction concerning the definition of “willful” because it did not require proof

of “specific intent to injure”; (2) insufficient evidence existed to sustain his

conviction; and (3) his trial attorney provided ineffective assistance in failing to

call an expert witness at trial. Id. at 1070-72. The Oklahoma Court of Criminal

       1
         While counsel represented Mr. Grady at the district court level, Mr. Grady brings
this appeal pro se.

       2
         We note that despite the State’s original contention, we have jurisdiction in this
case given Mr. Grady’s timely filing of his notice of appeal, pursuant to the mail-box rule.
See Fed. R. App. P. 4(c) (the notice of appeal of a prisoner appearing pro se is deemed
filed when it is delivered to prison official for forwarding to the district court).
Consequently, Mr. Grady’s motion on jurisdiction is granted, in part, but denied as to his
complaint on the untimeliness of the State’s response, which the State timely filed after
receiving Mr. Grady’s brief.


                                            -2-
Appeals affirmed his conviction, even though it found the jury instruction’s

definition of “willful” confusing because it did not require a finding of intent to

injure. Id. at 1070. However, the state appellate court found the use of this

instruction insufficient to require reversal because the trial court properly

instructed the jury on the elements of child-abuse murder which included the

requirement of intent to injure, and in the closing argument, the prosecutor told

the jury several times it must find Mr. Grady intended to injure the child. Id. at

1071 & n.8. In affirming his conviction, the state appellate court also rejected

Mr. Grady’s other arguments concerning the sufficiency of the evidence and

ineffective assistance of counsel. Id. at 1071-72.



      Thereafter, Mr. Grady filed his federal habeas corpus petition under § 2254,

raising the same three issues raised at the state level, and claiming the improper

jury instruction violated his due process rights. The district court referred the

petition to a magistrate judge who issued a Report and Recommendation in which

he recommended denial of Mr. Grady’s petition. On the jury instruction issue

concerning the definition of “willful,” the magistrate judge determined that under

Fairchild v. State, 965 P.2d 391 (Okla. Crim App. 1998), the Oklahoma Court of

Criminal Appeals no longer considers child-abuse murder–caused by the willful

use of unreasonable force–a specific intent crime. In addition, the magistrate


                                          -3-
judge determined: (1) the nature of the child’s injuries support a conclusion they

were caused by the unreasonable use of force, which would not require a finding

of specific intent; and (2)“[t]he record also reflects that intent was simply not a

critical issue in the trial of this case,” given the trial court followed uniform jury

instructions and applicable case law, and the proper elements of the charge were

given.



         As to the issue on the sufficiency of the evidence, the magistrate found the

evidence, viewed in the light most favorable to the prosecution, supported the

jury’s finding of guilt beyond a reasonable doubt. Finally, the magistrate judge

determined Mr. Grady’s counsel did not act ineffectively in failing to call two

witnesses, and even if counsel had been ineffective, Mr. Grady could not show

prejudice in light of the compelling evidence against him.



         After reviewing Mr. Grady’s objections to the magistrate judge’s Report

and Recommendation, the district court held Mr. Grady waived all issues except

the jury instruction issue because his objection centered only on that issue. 3 For



         The district court determined Mr. Grady raised only one other objection,
         3

contesting the sufficiency of the evidence. However, because Mr. Grady premised this
short, conclusory objection solely on the jury instruction issue, the district court
determined Mr. Grady’s objection only duplicated the erroneous jury instruction issue.
We agree, and for the same reason decline to address it on appeal, finding it resolved by

                                            -4-
this reason, the district court declined to address the remaining issues raised in

Mr. Grady’s petition and addressed by the magistrate judge.



       In addressing the jury instruction issue, the district court noted its

disagreement with the magistrate judge’s decision to follow Fairchild, in finding

intent to injure is not an element of child-abuse murder when based on willful use

of unreasonable force. While refusing to rely on Fairchild, the district court

nevertheless determined Mr. Grady’s due process argument must fail because he

did not demonstrate either: (1) a complete failure of the trial court to instruct the

jury on the essential element of the offense, or (2) a likelihood the defining

instruction confused the jury as to the proof necessary to find he committed the

crime charge. Specifically, the district court found the trial court correctly

instructed the jury on the elements of child-abuse murder, including the

prosecution’s requirement to prove Mr. Grady willfully or maliciously injured the

child. The district court noted the trial court also provided jurors an instruction

on “malicious,” defining it, in part, as a wish to “injure another person,” and

thereby providing the intent requirement. The district court also found no

possibility of jury confusion because the prosecutor repeatedly told jurors in




our disposition on the jury instruction issue, as discussed supra.


                                             -5-
closing argument they must find Mr. Grady intended to injure the nine-month-old

child in order to convict him.



      Finally, the district court determined no doubt existed as to Mr. Grady’s

intent to injure given the severity of the injuries sustained by the child, 4 and Mr.

Grady’s failure to claim he accidently wounded the child or allege facts showing

he did not use force with an intent to injure. For these reasons, the district court

found no reasonable likelihood the jury applied the jury instructions without a

factual finding of the necessary intent required to convict Mr. Grady. Based on

this, the district court concluded no due process violation occurred, adopted the

magistrate judge’s Findings and Recommendation as modified by its Order, and

denied Mr. Grady’s petition.



      On appeal, Mr. Grady raises the same issues raised in his petition, and

addressed by the magistrate judge. He also raises issues not raised before,



      4
          The autopsy revealed bruises, skull fractures, a large subdural hematoma, a
swollen brain, and extensive retinal hemorrhaging, consistent with the shaken baby
syndrome and blunt force trauma. Grady v. State, 947 P.2d at 1070. The evidence also
showed the injuries occurred during the time Mr. Grady cared for the child because the
injuries she received would have caused immediate and unmistakable symptoms, such as
blindness and an inability to eat, hold objects or respond in anyway, which no one noticed
prior to Mr. Grady’s sole care of the child. Id. at 1071-72.


                                           -6-
including allegations: (1) officials investigating his crime violated the

constitutional and civil rights of his family and used tainted evidence at a family-

related hearing; and (2) the Oklahoma statutes on child-abuse murder are vague,

confusing, contradictory and therefore, unconstitutional.



      “In reviewing the denial of a habeas corpus petition, we review the district

court’s factual findings under a clearly erroneous standard, and its legal

conclusions de novo.” Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999)

(citation omitted), cert. denied, 120 S. Ct. 944 (2000).

      We may not grant habeas relief unless the state court’s decision was:

      “(1) ... contrary to, or involved an unreasonable application of,
      clearly established federal law ...; or

      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.”

Id. (quoting 28 U.S.C. §§ 2254(d)(1), (2)).


      With these standards in mind, we begin by noting we will not consider

issues not raised below. Walker v. Mather (In re Walker), 959 F.2d 894, 896

(10th Cir. 1992). We thereby decline to address Mr. Grady’s contentions

concerning the alleged violation of his family’s constitutional and civil rights

during their interrogation and a family-related hearing, or his allegations


                                         -7-
concerning the constitutionality of Oklahoma’s statutes under which he received

his conviction.



      We next turn to a brief discussion on the issues raised by Mr. Grady

concerning ineffective assistance of counsel and the sufficiency of evidence. We

have adopted a “firm waiver rule” which provides that when a litigant, such as

Mr. Grady, fails to file timely objections to a magistrate judge’s report and

recommendation, he waives appellate review on both legal and factual issues.

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). We will not apply

this rule, however, when the interests of justice dictate, or when the magistrate

judge’s order does not inform a pro se litigant of the consequences of failing to

object to the findings and recommendation. Id. In this case, the magistrate judge

clearly advised Mr. Grady of the waiver consequences of failing to file his

objections, and Mr. Grady does not claim, and we cannot find, any circumstance

for which the interest of justice might dictate a review of the waived issues. For

these reasons, we decline to address Mr. Grady’s ineffective assistance of counsel

and sufficiency of the evidence claims, other than to express, given the gravity of

Mr. Grady’s life sentence, that our initial review of those claims and thorough

examination of the record shows they lack merit for substantially the same

reasons articulated by the magistrate judge in the December 30, 1998 Report and


                                         -8-
Recommendation. 5



       We next proceed to the jury instruction issue concerning the definition of

“willful,” which Mr. Grady raised in his objection and is properly before us. In

so proceeding, we note that Mr. Grady did not object to the challenged instruction

at trial and the state appellate court reviewed the issue for plain error. Grady,

947 P.2d at 1070. “As a general rule, errors in jury instructions in a state criminal

trial are not reviewable in a federal habeas corpus proceedings unless they are so

fundamentally unfair as to deprive the petitioner of a fair trial and to due process

of law.” Tyler v. Nelson, 163 F.3d 1222, 1227 (10th Cir. 1999) (quotation marks

and citations omitted). Thus, Mr. Grady’s burden of demonstrating the erroneous

instruction was so prejudicial as to support a collateral attack “is even greater

than the showing required to establish plain error on direct appeal.” Henderson v.

Kibbe, 431 U.S. 145, 154 (1977). We further note the case of Fairchild v. State,

on which the magistrate judge relied and the district court rejected, was

withdrawn and reissued subject to future revision or withdrawal by the Oklahoma

Court of Criminal Appeals. See Fairchild v. State, 992 P.2d 350, 1999 WL



       5
        The magistrate judge’s reasoning is further supported by the overwhelming
evidence against Mr. Grady described in Grady, 947 P.2d at 1071-72, and his failure to
show prejudice resulting from his attorney’s failure to call an expert witness. Id. at 1072.


                                            -9-
1138585 (Okla. Crim. App. 1999). In this version of Fairchild, the Oklahoma

Court of Criminal Appeals states that it must clarify its previous opinions,

including its opinion in Mr. Grady’s case,

      to specify that the “intent to injure” mentioned in those cases means
      only that general intent included within the terms “willfully” or
      “maliciously.” Thus the use of the term “willful” with “injure” ...
      does not require a specific intent to injure, but only a general intent,
      included in the term willfully, to commit the act which causes the
      injury.

Id. at *10. Thus, under the current version of Fairchild, as in the previous

version, the magistrate judge could reasonably determine specific intent is not a

requirement. However, given the precarious nature of the future disposition of

Fairchild, we prefer to examine this case, as did the district court, without relying

on Fairchild and its suggestion specific intent is not required. 6 We note that in

addressing this issue, the district court issued a well-reasoned decision explaining

in sufficient detail why the erroneous instruction at Mr. Grady’s trial did not

result in jury confusion, or ultimately, denial of due process, even if specific

intent is required. Our review of the record establishes the challenged jury

instruction, at most, constituted harmless error for substantially the same reasons

articulated by the district court in its February 2, 1999 Order, and for that reason



      6
         By so doing, we also eliminate Mr. Grady’s argument Fairchild cannot be
applied retroactively to his case.


                                         -10-
we decline to articulate the same analysis here, other than to submit no due

process violation occurred triggering 28 U.S.C. §2253. Thus, under the

circumstances presented, we conclude Mr. Grady fails to make a substantial

showing of the denial of a constitutional right as required by 28 U.S.C.

§ 2253(c)(2). For these reasons, we deny Mr. Grady’s application for a certificate

of appealability and DISMISS his appeal. 7



                                          Entered by the Court:

                                          WADE BRORBY
                                          United States Circuit Judge




       7
         We also deny Mr. Grady’s motion to supplement his brief, noting its contents do
not change the outcome of his appeal. We further deny Mr. Grady’s motion to
supplement the record. A review of the motion and the attached exhibits show the
evidence submitted: (1) is unrelated to this case and involves other family-related
incidents and proceedings; (2) was not admitted into evidence, and not shown to be
relevant or undiscoverable; or (3) involves issues previously waived, including ineffective
assistance of counsel, and constitutes inconclusive evidence not lending support to Mr.
Grady’s case.


                                           -11-
