                       United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                      _____________

                                       No. 00-2187
                                      _____________

David Gary,                           *
                                      *
                      Appellant.      *   Appeal from the United States
                                      *   District Court for the Eastern
              v.                      *   District of Missouri
                                      *
Dave Dormire,                         *
                                      *
                      Appellee.       *
                                      _____________

                             Submitted: February 15, 2001

                                   Filed: July 6, 2001
                                      _____________

Before BOWMAN, LOKEN, Circuit Judges, and STROM,* District Judge.
                        _____________

STROM, District Judge.


       David Gary appeals from the district court’s denial of his petition for writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254. We affirm.




       *
          The Honorable Lyle E. Strom, Senior United States District Judge, District of Nebraska,
sitting by designation.
                                  I. BACKGROUND
      On September 9, 1989, at approximately 2:30 a.m., David Gary (petitioner)
visited his estranged wife to explore the prospect of reuniting. His efforts at
reconciliation proved unsuccessful, and the conversation ended with the petitioner
striking his estranged wife in the mouth. Noticing that she was bleeding, he drove her
to the hospital. At the hospital petitioner, having attracted the attention of security
guards, left the hospital and made his way to his car. He rejected a security officer’s
suggestion he exit the car and, noticing that the police were arriving, sped out of the
parking lot.


      St. Louis police located petitioner’s car several hours later and took up pursuit.
The petitioner tried eluding police, and a high-speed chase ensued. The chase ended
tragically when petitioner crashed into a police squad car barricade while traveling
over one hundred miles per hour. He survived the crash. The police officer sitting
in the squad car he struck was killed on impact. In a post-accident inventory of the
petitioner’s car, police recovered empty and full beer cans and a bottle of hard liquor.


      Petitioner was tried on charges of first-degree murder, first-degree assault,
second-degree assault, third-degree assault, and two counts of armed criminal action.
He was convicted on all charges. The conviction was reversed, however, because of
the presence of a former St. Louis police officer on the jury. See State v. Gary, 822
S.W.2d 448 (Mo. Ct. App. 1991). Petitioner was retried.
               [At trial he] defended under the theories of diminished
               capacity and lack of premeditation. [Petitioner] testified in
               his own defense. [He] stated that he was extremely upset
               and wanted to kill himself [. . .]To support his theory of

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             diminished capacity, [he] offered the expert testimony of
             Dr. Bruce Harry, a psychiatrist. Dr. Harry diagnosed
             [Petitioner] as suffering from major depression and the less
             severe depressive condition of dysthymia at the time of
             Officer McNew’s death. Dr. Harry said his diagnosis was
             based on prior medical and psychological records, police
             reports, accounts from persons with knowledge of
             [Petitioner’s] behavior, and statements [he] made [. . .]
             during Dr. Harry’s examination of him. Dr. Harry’s
             opinion was that the collision “was the result of major
             depression.”

State v. Gary, 913 S.W.2d 822, 826-28 (Mo. Ct. App. 1995). The prosecutor offered
evidence the petitioner consumed and possessed alcohol on the day of the events.
“[He] explained his purpose for offering evidence of alcohol was to undermine the
Defendant’s diminished capacity theory: My burden is not only of proof beyond a
reasonable doubt on the elements but persuasion that the defense offered is ludicrous
and is of no merit.” Id. at 828 (internal quotation marks omitted). At the close of
trial, in Jury Instruction No. 17 (patterned after MAI-CR3d § 310.50), the trial court
instructed the jury that:
             The state must prove every element of the crime beyond a
             reasonable doubt.         However, in determining the
             defendant’s guilt or innocence, you are instructed that an
             intoxicated condition from alcohol will not relieve a person
             of responsibility for his conduct.

Id. The jury convicted petitioner of first-degree murder (Mo. Rev. Stat. § 565.020.1),
second-degree assault (Mo. Rev. Stat. § 565.060), and two counts of armed criminal
action (Mo. Rev. Stat. § 570.015). He was sentenced to life imprisonment without
the possibility of probation or parole for the murder, ten years for the assault, and five
years for each of the armed criminal actions.

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      Petitioner filed for post-conviction relief pursuant to Mo. Sup. Ct. R. § 29.15.
His motion was denied. The Missouri Court of Appeals affirmed the petitioner’s
conviction and sentence and the denial of post-conviction relief. Gary, 913 S.W.2d
at 822. The United States Supreme Court denied certiorari. See Gary v. Missouri,
519 U.S. 827, 117 S.Ct. 91 (Mem), 136 L.Ed.2d 47 (1996).


      Petitioner filed a pro se habeas petition in United States District Court, Eastern
District of Missouri, pursuant to 28 U.S.C. § 2254. His original petition raised four
claims. Counsel was appointed, and an amended petition was filed, raising two
additional claims.


      The district court denied the claims raised in the pro se petition as procedurally
defaulted. The claims raised in the amended petition were denied on the merits. A
certificate of appealability was granted with respect to the two claims raised in the
amended habeas petition.

                                 II. DISCUSSION
      On appeal from the denial of a petition for a writ of habeas corpus, the district
court’s conclusions of law are reviewed de novo and its factual findings are reviewed
for clear error. Smith v. Groose, 205 F.3d 1045, 1049 (8th Cir. 2000); James v.
Bowersox, 187 F.3d 866, 869 (8th Cir. 2000); Holt v. Bowersox, 191 F.3d 970, 974
(8th Cir. 1999). A statutory presumption of correctness attaches to the State court’s
findings of fact. See 18 U.S.C. § 2254(e)(1); see also Thompson v. Keohane, 516
U.S. 99, 109-11 (1995); and Weaver v. Bowersox, 241 F.3d 1024, 1031 (8th Cir.
2001); and Leisure v. Bowersox, 990 F.Supp. 769, 806 (E.D.Mo. 1998).


                                          -4-
        The two issues presented in this appeal are:
                1. Whether Mo. Rev. Stat. § 562.076.3 violates the due
                Process Clause of the Fourteenth Amendment of the United
                States Constitution.

                2. Whether MAI-CR3d § 310.50 required the jury that
                convicted Gary to presume that he acted knowingly and
                after deliberation, in violation of the Due Process Clause of
                the Fourteenth Amendment of the United States
                Constitution.

The district court evaluated both of the petitioner’s claims under 28 U.S.C. §
2254(d).1 It ultimately denied habeas relief, concluding that petitioner had “failed


        1
           The record suggests that petitioner’s challenge to Mo. Rev. Stat. § 562.076.3 was never
presented, let alone adjudicated on the merits, in State court. By its terms, subsection (d) only applies
to federal habeas claims that were “adjudicated on the merits in state court proceedings.” See 28
U.S.C. § 2254(d); see Braun v. Powell, 227 F.3d 908, 916-17 (7th Cir. 2000); and Moore v. Parke,
148 F.3d 705, 708 (7th Cir. 1998); and Lockhart v. Johnson, 104 F.3d 54, 57-8 (5th Cir. 1997). For
subsection (d) to apply, the federal habeas claim must, at a bare minimum, have been presented in
State court. Thomas v. Taylor, 170 F.3d 466, 475 (4th Cir. 1999), cert denied, 527 U.S. 1016, 119
S.Ct. 2361, 144 L.Ed.2d 254 (1999). If a claim was not presented in State court, it cannot be said
it was “adjudicated on” under even the most liberal construction of § 2254(d). See Id.
         The district court recognized that the petitioner’s first claim, the constitutional challenge to
§ 562.076.3, was different from his State-court claim. At trial the State offered evidence the
petitioner possessed and consumed alcohol on the day that the events at issue transpired. The
petitioner claimed that this evidence “was not relevant to any issue in [the] case” and its admission
prejudiced him. State v. Gary, 913 S.W.2d 822, 827 (Mo. Ct. App. 1995). Petitioner argues the exact
opposite in his federal habeas petition, claiming that this very same evidence was relevant to a very
vital issue - - the issue of whether he possessed the necessary mens rea to be convicted of first-degree
murder. Before the Missouri Court of Appeals, the petitioner claimed voluntary intoxication
evidence was inadmissable both under Mo.Rev.Stat. § 562.076.3 and the Missouri Supreme Court’s
holding in State v. Erwin (848 S.W.2d 476 (Mo. banc 1993)). Id. at 827 n. 1. Petitioner now attacks
the constitutionality of Mo.Rev.Stat. § 562.076.3 and the Erwin case. Therefore, in his federal
action the petitioner challenges the validity of the very same authority his State court arguments
relied upon.
         We need not determine whether the district court applied the appropriate standard of review
to the petitioner’s first claim as we agree that Mo. Rev. Stat.§ 562.076.3 does not violate the Due
Process Clause. The petitioner has not demonstrated that he is entitled to habeas relief under either

                                                  -5-
to show that the decisions of the trial court and the Court of Appeals are contrary to,
or an unreasonable application of, Supreme Court precedent.”


       For relief to issue pursuant to § 2254(d), a habeas petitioner must demonstrate
that the 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.”2 28 U.S.C. § 2254(d)(1). A
State court decision is “contrary to” clearly established federal law if (1) “the state
court applies a rule that contradicts the governing law set forth in [United States
Supreme Court] cases” or, (2) “the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme Court] and nonetheless
arrives at a different result[. . .]” Williams v. Taylor, 529 U.S. 362, 406 (2000)
(O’Connor, J., concurring); see also Closs v. Weber, 238 F.3d 1018, 1020 (8th Cir.
2001); and Copeland v. Washington, 232 F.3d 969, 974 (8th Cir. 2000). Under the
“unreasonable application” prong, we determine whether the state court’s application
of clearly established federal was objectively unreasonable. Williams, 529 U.S. at
365; Carroll v. Schriro, 243 F.3d 1097, 1099 (8th Cir. 2000). “A state-court decision
that correctly identifies the governing legal rule but applies it unreasonably to the
facts of a particular prisoner's case certainly would qualify as a decision involving an
unreasonable application of . . . clearly established Federal law.” Williams, 529 U.S.


§ 2254(d) or under the more liberal pre-AEDPA standard of review. See Washington v. Schriver,
___ F.3d ___ (2nd. Cir. 2001) available at 2001 WL 674248; Braun v. Powell, 227 F.3d 908, (7th
Cir. 2000); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); Lockhart, 104 F.3d at 57-8.
       2
         The petitioner has never argued that the state court adjudication of his claim “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.” See 28 U.S.C. § 2254(d)(2).

                                                -6-
at 407 (O’Connor, J., concurring); see Simmons v. Bowersox, 235 F.3d 1124, 1130
(8th Cir. 2001); and McReynolds v. Kemna, 208 F.3d 721, 723 (8th Cir. 2000). With
these principles in mind we address the petitioner’s claims in turn.

1.    Does Mo. Rev. Stat. § 562.076.3 violate the Due Process Clause of the
      Fourteenth Amendment of the United States Constitution?

      Section 562.076 provides, in its entirety:
             1. A person who is in an intoxicated or drugged condition,
             whether from alcohol, drugs or other substance, is
             criminally responsible for conduct unless such condition is
             involuntarily produced and deprived him of the capacity to
             know or appreciate the nature, quality or wrongfulness of
             his conduct.

             2. The defendant shall have the burden of injecting the
             issue of intoxicated or drugged condition.

             3. Evidence that a person was in a voluntarily intoxicated
             or drugged condition may be admissible when otherwise
             relevant on issues of conduct but in no event shall it be
             admissible for the purpose of negating a mental state which
             is an element of the offense. In a trial by jury, the jury shall
             be so instructed when evidence that a person was in a
             voluntarily intoxicated or drugged condition has been
             received into evidence.

Mo. Rev. Stat. § 562.076 (Michie 1995).


      According to the Missouri Supreme Court, there are two aspects to Missouri’s
rule on voluntary intoxication evidence . Id. at 482. First, voluntary intoxication is
not per se proof of inability to form a culpable mental state. Id.; see also State v.


                                           -7-
Roberts 948 S.W.2d 577, 587 (Mo. banc. 1997). Second, voluntary intoxication is
irrelevant to the defendant’s mental state. Erwin, at 482 (explaining that the pattern
jury instruction based on § 562.076.3 is a “unique [. . .] comment on [. . .] irrelevant
evidence.”) The statute “. . . places an intoxicated person on a level footing with a
sober person as to the mental elements of an offense and places limits on the defense
of diminished capacity due to intoxication.” State v. Erwin, 848 S.W.2d 476, 483-84
(Mo. banc 1993).


      Petitioner argues that evidence of voluntary intoxication was relevant to the
issue of whether he acted “knowingly” and “after deliberation” under the State’s
charge of first-degree murder. See Mo. Rev. Stat. § 565.020 (“A person commits the
crime of murder in the first degree if he knowingly causes the death of another person
after deliberation upon the matter.”) He claims a due process right under Montana
v. Egelhoff, 518 U.S. 37 (1996), to have the jury consider evidence of voluntary
intoxication when determining whether he possessed the requisite mens rea to be
found guilty beyond a reasonable doubt of first-degree murder. According to the
petitioner, Egelhoff establishes that evidence of voluntary intoxication may not be
excluded unless the charged offense has been redefined to eliminate the mens rea
requirement for voluntarily intoxicated defendants.


      The petitioner correctly recognizes that his claim is governed by the United
States Supreme Court’s decision in Montana v. Egelhoff. Accordingly, for the
petitioner to establish that § 562.076.3 is unconstitutional, he must demonstrate that
it violates a “fundamental principle of justice.” Egelhoff, 518 U.S. at 43; see also
Egelhoff, 518 U.S. at 58-9 (Ginsburg, J., concurring).

                                          -8-
      At issue in Egelhoff was the constitutionality of a Montana statute and
attendant jury instruction which provided that: “[an intoxicated condition] . . . may
not be taken into consideration in determining the existence of a mental state which
is an element of the offense . . .” State v. Egelhoff, 900 P.2d 260, 263 (Mont.,
1995)(quoting Mont. Code. Ann. § 45-2-203 (1995)). The Montana Supreme Court
held the defendant in that case “was denied due process when the jury was instructed
that voluntary intoxication may not be taken into consideration in determining the
existence of a mental state which is an element of the offense.” Id. at 266. It declared
the defendant possesses a due process right to have the jury consider voluntary
intoxication evidence when it determines whether a criminal defendant possesses the
necessary mens rea element to be convicted of the charged offense. Id.


      The United States Supreme Court reversed the judgment of the Montana
Supreme Court. The plurality concluded that the right being asserted by the
defendant -- the right to have the jury consider evidence of voluntary intoxication
when determining whether he acted “knowingly” and “purposefully” -- was not a
fundamental principle of justice and the Montana statute, therefore, did not violate
the Due Process Clause. Egelhoff, 518 U.S. at 43.


      In his brief the petitioner places considerable weight on Justice Ginsburg’s
concurring opinion. Justice Ginsburg cast the deciding vote in Egelhoff. She joined
in the judgment of the plurality, agreeing that for the defendant to prevail on his due
process challenge he must demonstrate that a “fundamental principle of justice” had
been violated. Id. at 58-9. She concluded that “defining mens rea to eliminate the
exculpatory value of voluntary intoxication does not offend a fundamental principle

                                          -9-
of justice.” Id. She saw no constitutional infirmity in the Montana statute, and noted
“it is within the legislature’s province to instruct courts to treat a sober person and
voluntary intoxicated person as equally responsible under the law...” Id. at 59.


      We reject the petitioner’s argument that States must redefine the criminal
offense to eliminate the mens rea element for voluntarily intoxicated defendants. As
Justice Ginsburg explained, it does not violate the Due Process Clause for States to
enact “a measure less sweeping, one that retains a mens rea requirement, but
"define[s] culpable mental state so as to give voluntary intoxication no exculpatory
relevance." Id., at 60, n. 1 (citing Egelhoff, 518 U.S. at 73 (Souter, J., dissenting)).


      Missouri treats voluntarily intoxicated individuals and sober individuals
equally culpable for criminal activity. It accomplishes this by giving evidence of
voluntary intoxication no relevance insofar as the mental elements of the crime are
concerned. Because evidence of voluntary intoxication has no exculpatory relevance
under Missouri law, a criminal defendant has no corresponding constitutional right
to have the jury consider this evidence. Id. With respect to the petitioner’s first
claim, the judgment of the district court will be affirmed.

2.    Did MAI-CR3d § 310.50 require the jury that convicted Gary to presume that
      he acted knowingly and after deliberation, in violation of the Due Process
      Clause of the Fourteenth Amendment of the United States Constitution?

      In Jury Instruction No. 17 (patterned after MAI-CR3d § 310.50) the trial court
instructed the jury as follows:
             The State must prove every element of the crime beyond a
             reasonable doubt.      However, in determining the

                                          -10-
             defendant’s guilt or innocence, you are instructed that an
             intoxicated condition from alcohol will not relieve a person
             of responsibility for his conduct.

Gary, 913 S.W.2d at 828 (Mo. Ct. App. 1995). Petitioner challenged this instruction
in the Missouri Court of Appeals, arguing that it “implicitly relieves the state of its
burden of proving the element of intent in that it creates a presumption that an
intoxicated person is guilty by stating that an intoxicated person is responsible.” Id.
at 829. The Court of Appeals rejected this claim on the basis that it lacked authority
to invalidate pattern jury instructions that had been approved by the Missouri
Supreme Court. Id. (citing State v. Bell, 906 S.W.2d 737, 739-40 (Mo. Ct. App.
1995)).


      In State v. Roberts, 948 S.W.2d 577 (Mo. banc 1997), and State v. Taylor, 944
S.W.2d 925 (Mo. banc 1997), the Missouri Supreme Court rejected due process
challenges to MAI-CR3d § 310.50 that are virtually indistinguishable from the
challenge at hand. In Roberts the defendant argued that MAI-CR3d § 310.50 “directs
the jury to assume that a voluntarily intoxicated person has the requisite mental state
to commit the crime in question” and, in effect, “relieves the state of its burden of
proving all of the requisite elements of the crime.” Roberts, 948 S.W.2d at 590. The
defendant in Taylor argued MAI-CR3d § 310.50 “unconstitutionally shifted the
burden of proof” to the criminal defendant. State v. Taylor, 944 S.W.2d at 936.


      In Taylor the Missouri Supreme Court concluded that MAI-CR3d § 310.50 did
not violate the Due Process Clause, explaining that the “instruction explicitly directs
the jury's attention to the state's burden to prove every element of the crime.” Taylor,


                                          -11-
944 S.W.2d at 936 (quoting State v. Bell, 906 S.W.2d 737, 740. The Missouri
Supreme Court likewise upheld the constitutionality of MAI-CR3d § 310.50 in
Roberts, and noted that similar language was upheld by the United States Supreme
Court in Montana v. Egelhoff. Roberts, 948 S.W.2d at 590. We agree that MAI-
CR3d § 310.50 does not violate the Due Process Clause.


      The petitioner claims that the word “however” in the second sentence of the
instruction “relieves the state of its burden of proving the element of intent . . . in
that it creates a presumption that an intoxicated person is guilty by stating that an
intoxicated person is responsible.” Gary, 913 S.W.2d at 829. To support his claim
the petitioner cites to Sandstrom v. Montana, 442 U.S. 510 (1979), Boyde v.
California, 494 U.S. 370 (1990), and Brecht v. Abrahamson, 507 U.S. 619 (1993).


      In both Sandstrom and Boyde State jury instructions were challenged under the
Due Process Clause. The instruction addressed in Sandstrom stated: “[t]he law
presumes that a person intends the ordinary consequences of his voluntary acts.”
Sandstrom, 442 U.S. at 513, 99 S.Ct. at 2453. The Supreme Court concluded that this
instruction violated the Due Process Clause because it relieved the State of its burden
to prove every fact necessary to constitute the crime the defendant was charged with
beyond a reasonable doubt. Id., 442 U.S. at 521, 99 S.Ct. at 2458.


      In Boyde a criminal defendant challenged a State-court jury instruction
instruction which stated “you shall consider . . . [a]ny other circumstance which
extenuates the gravity of the crime even though it is not a legal excuse for the crime.”
Boyde, 494 U.S. at 381, 110 S.Ct. at 1198. The defendant argued that the instruction

                                          -12-
was ambiguous and, as a result, the jury failed to consider relevant and exculpatory
evidence. Id. The Supreme Court held that for the defendant to prevail on his due
process challenge, he must demonstrate there was “a reasonable likelihood that the
jury has applied the challenged instruction in a way that prevents the consideration
of constitutionally relevant evidence.” Id. 494 U.S. at 380, 110 S.Ct. at 1198.
Applying that standard, it concluded that the instruction in that case did not violate
the Due Process Clause. Id. 494 U.S. at 386, 110 S.Ct. at 1201.


      Unlike the instruction in Sandstrom,, MAI-CR3d § 310.50 does not obviate the
State’s burden to prove the elements of the offense beyond a reasonable doubt. To
the contrary, the burden is clearly stated in the instruction. Furthermore, the District
Court explained that the verdict directors given the jury clearly set out every element
of the offense the State was required to prove.


      We likewise reject the petitioner’s claim the State court acted contrary to, or
unreasonably applied, Boyde. The word “however” in MAI-CR3d § 310.50 does not
create a reasonable likelihood that the jury applied the instruction in a manner that
relived the State of its burden to prove that petitioner acted knowingly and after
deliberation. As the district court explained, the jury is simply reminded that
evidence of voluntary intoxication is not relevant to determining the mens rea
elements of the offense. With respect to the petitioner’s second claim, the judgment
of the district court will be affirmed.




                                          -13-
                                III. CONCLUSION
      The petitioner has not established that he is entitled to federal habeas relief.
Accordingly, the district court’s judgment denying the petition and amended petition
for writ of habeas corpus is affirmed.


      A true copy.

             ATTEST:

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




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