                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 06-3150
                                   ___________

Mark John Carney,                   *
                                    *
             Appellant,             *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * District of Minnesota.
Joan Fabian, Minnesota Commissioner *
of Corrections,                     *
                                    *
             Appellee.              *
                               ___________

                             Submitted: March 12, 2007
                                Filed: June 5, 2007
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      Mark Carney appeals from the district court’s1 denial of his petition for a writ
of habeas corpus. We affirm.




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
                                             I.

       In March 2001, Carney was convicted in a Minnesota state district court of first-
degree murder and was sentenced to life in prison for the shooting death of John
Voeller. At the time of the murder, Carney believed that Voeller was having an affair
with his wife, Shelia. At trial, Carney admitted that he shot Voeller, but asserted that
he had acted in the heat of passion and requested that the jury receive an instruction
for the lesser-included offense of first-degree heat-of-passion manslaughter. The trial
court denied Carney’s motion and the jury subsequently returned a guilty verdict.

       On direct appeal, Carney asserted, inter alia, that the trial court erred in refusing
to give the heat-of-passion manslaughter instruction. The Minnesota Supreme Court
concluded that the trial court did not err in refusing to give the instruction and
affirmed Carney’s conviction. State v. Carney, 649 N.W.2d 455 (Minn. 2002).
Following his direct appeal, Carney filed a petition for state postconviction relief,
alleging ineffective assistance of counsel. The trial court denied his petition and the
Minnesota Supreme Court affirmed. Carney v. State, 692 N.W.2d 888 (Minn. 2005).

      Carney subsequently sought federal habeas corpus relief, asserting, among other
things, that he was deprived of his constitutional right to due process when the trial
court refused to give the heat-of-passion manslaughter instruction. A magistrate
judge2 issued a report and recommendation that concluded that Carney’s due process
argument was procedurally defaulted because it was not fairly presented to the
Minnesota Supreme Court and, alternatively, that the argument would fail on the
merits. The district court adopted the magistrate judge’s report and recommendation
and denied Carney’s petition.




       2
        The Honorable Janie S. Mayeron, United States Magistrate Judge for the
District of Minnesota.

                                            -2-
                                            II.

       Carney contends on appeal that his due process claim was fairly presented to
the state court and therefore not procedurally defaulted. Carney further asserts that
the trial court’s refusal to give the heat-of-passion manslaughter instruction
constituted a denial of his due process rights under the Fourteenth Amendment. “In
reviewing a federal district court’s denial of habeas corpus relief, we review findings
of fact for clear error and conclusions of law de novo.” Bell v. Attorney General, 474
F.3d 558, 560 (8th Cir. 2007).

       To be eligible for federal habeas corpus relief, a state prisoner must first
“exhaust his state law remedies and fairly present the facts and substance of his habeas
claim to the state court.” Middleton v. Roper, 455 F.3d 838, 855 (8th Cir. 2006), cert.
denied, 127 S. Ct. 980 (2007). “In order to fairly present a federal claim to the state
courts, the petitioner must have referred to ‘a specific federal constitutional right, a
particular constitutional provision, a federal constitutional case, or a state case raising
a pertinent federal constitutional issue in a claim before the state courts.’” McCall v.
Benson, 114 F.3d 754, 757 (8th Cir. 1997) (quoting Myre v. State of Iowa, 53 F.3d
199, 200 (8th Cir. 1995)). “If a petitioner has not presented his habeas corpus claim
to the state court, the claim is generally defaulted.” Barrett v. Acevedo, 169 F.3d
1155, 1161 (8th Cir. 1999) (en banc).

      As stated above, on direct appeal Carney challenged the trial court’s refusal to
give the heat-of-passion manslaughter instruction. In that proceeding, however,
Carney relied solely on state law grounds – namely, that the trial court misapplied
Minnesota’s state statutes and case law on point. Carney did not specifically assert
a due process violation, refer to the United States Constitution, or cite a relevant
federal constitutional case.3 In addition, and despite his assertion to the contrary,


      3
       We reject Carney’s contention that his brief on direct appeal sufficiently
asserted a due process violation when it stated that the trial court’s failure to give the
                                          -3-
Carney’s citation to State v. Auchampach on direct appeal does not constitute a
reference to a “state case raising a pertinent federal constitutional issue” because the
constitutional issue raised in Auchampach is not pertinent to the one presented here.4
See State v. Auchampach, 540 N.W.2d 808, 814-18 (Minn. 1995).

       Despite his failure to refer specifically to a federal constitutional provision or
relevant case, Carney asserts that he is entitled to federal habeas review because the
state law arguments that he presented to the Minnesota Supreme Court are identical
to his due process arguments presented here. This argument lacks merit because, as
we have previously noted, “[m]ere similarity between the state law claims and the
federal habeas claims is insufficient . . . .” McCall, 114 F.3d at 757 (“‘If state courts
are to be given the opportunity to correct alleged violations of prisoners’ federal
rights, they must surely be alerted to the fact that the prisoners are asserting claims
under the United States Constitution.’” (quoting Duncan v. Henry, 513 U.S. 364, 365-


heat-of-passion manslaughter instruction affected his “substantial rights” and his
“significant, fundamental rights.” These rights that Carney was referring to were
those provided under Minnesota state law, and Carney cited only Minnesota state law
to support his argument. Further, while petitioners are not required to “cite book and
verse on the federal constitution” to satisfy the fair presentment requirement, “the
constitutional substance of a claim must be apparent,” and the petitioner “must have
explicitly referred the state courts to the United States Constitution or federal case
law.” Wyldes v. Hundley, 69 F.3d 247, 251 (8th Cir. 1995) (internal quotations
omitted). This standard is not satisfied by the vague references petitioner relies on
here.
      4
        One of the issues before the court in Auchampach was whether the government
bore the burden of proving the absence of heat-of-passion when the matter is before
the jury. State v. Auchampach, 540 N.W.2d 808, 816-18 (Minn. 1995). The sole
federal constitutional issue raised in this context was the principle that due process
requires the government to prove beyond a reasonable doubt the existence of every
element of the crime charged. Id. at 816. The court did not address the federal
constitutional implications of a trial court’s refusal to give a lesser-included offense
instruction. The constitutional issue presented in Auchampach was therefore not
pertinent to Carney’s case.
                                            -4-
66 (1995))). Further, as the magistrate judge pointed out, the constitutional standard
governing lesser-included offense instructions in noncapital cases – if there is one –
is not necessarily synonymous with the standard imposed under Minnesota state law,
since the Supreme Court has never held that there is a constitutional requirement that
lesser-included offense instructions be given in noncapital cases.5 Dickerson v.
Dormire, 2 Fed. Appx. 695, 695-96 (8th Cir. 2001) (unpublished per curiam); Tatum
v. Dormire, 183 F.3d 875, 878 (8th Cir. 1999); Pitts v. Lockhart, 911 F.2d 109, 112
(8th Cir. 1990).

       Also unpersuasive is Carney’s assertion that his federal habeas claim was fairly
presented because Minnesota case law regarding lesser-included offense instructions
relies upon federal constitutional law. None of the cases relied on by Carney
regarding this point were included in his brief on direct appeal and the fact that federal
constitutional law shaped Minnesota’s state law does not satisfy the fair presentment
requirements set forth above. Accordingly, we agree with the district court and
conclude that Carney failed to fairly present his due process claim to the Minnesota
state court.

      The judgment is affirmed.
                      ______________________________




      5
        For this reason, we note that even if Carney’s claim were not procedurally
defaulted, it would fail on the merits. To grant federal habeas relief, current law
requires us to conclude that a state court’s adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)
(2006). Because “[t]he Supreme Court has never held that due process requires the
giving of lesser-included-offense instructions in noncapital cases,” Dickerson v.
Dormire, 2 Fed. Appx. 695, 696 (8th Cir. 2001), the trial court’s refusal to give the
heat-of-passion manslaughter instruction here cannot be considered to be contrary to
clearly established federal law.
                                            -5-
