                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            AUG 3 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DENNIS RAY JONES,

                Petitioner-Appellant,

    v.                                                   No. 98-1368
                                                     (D.C. No. 95-B-3151)
    ARISTEDES W. ZAVARAS;                                  (D. Colo.)
    KEN SALAZAR, Attorney General
    of the State of Colorado,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before PORFILIO , BARRETT , and HENRY , 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      This order and judgment is not binding precedent, except under the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.
       Petitioner Dennis Ray Jones appeals the district court’s order denying his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He filed

his habeas petition before enactment of the Antiterrorism and Effective Death

Penalty Act (AEDPA), after exhausting his remedies in state court. After

receiving a response from respondent, a federal magistrate judge recommended

the habeas petition be denied, and the recommendation was adopted by the district

court. We grant petitioner’s request for issuance of a certificate of probable

cause and affirm the district court’s order denying habeas relief.


                                     BACKGROUND

       Petitioner was convicted in a Colorado state court of first-degree murder

and sentenced to life in prison. The conviction was affirmed on direct appeal.

See People v. Jones , 551 P.2d 706 (Colo. 1976). The state courts denied

petitioner’s applications for post-conviction relief.   See People v. Jones , 665 P.2d

127 (Colo. Ct. App. 1982),     aff’d sub nom. People v. Curtis , 681 P.2d 504

(Colo. 1984). The murder conviction was based on the beating death of

petitioner’s landlord on May 14, 1973. The prosecution’s main witness was

a convicted felon, Robert Dale Beavers, who testified that he saw petitioner hit

the victim with his fist and return to his own apartment. After about half an hour,

petitioner and Beavers returned to the victim’s apartment. On the way up the

stairs, petitioner said he would kill the victim. Petitioner then broke the lock on

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the victim’s apartment and beat him while the witness watched from the doorway.

The prosecution also presented an elderly, alcoholic tenant of the same apartment

building who testified that between the beatings, the victim had said he had been

beaten and he could not call the police because the person who had beaten him

would not let him out of his apartment. The defense theory of the case was that

petitioner was not at the scene of the crime and did not kill the victim, but some

other, unknown person committed the homicide. The facts are more fully

reported in the state courts’ opinions; we do not repeat them here.


                                   DISCUSSION

      Petitioner claims he was denied his constitutional right to due process and

his right to a jury verdict under the Sixth and Fourteenth Amendments when the

trial court erroneously instructed the jury on an element of first-degree murder.

He also claims he was denied his Sixth Amendment right to the effective

assistance of trial counsel because counsel failed to object to the incorrect jury

instruction referred to above and failed to request two limiting instructions based

on Beavers’ testimony. He further asserts he was denied his due process rights

when Beavers was permitted to testify that others said petitioner had threatened to

harm Beavers.

                   Erroneous Jury Instruction - Element of Crime



                                          -3-
       Petitioner challenges Jury Instruction No. 9, which pertained to the element

of premeditation for first-degree murder. Instruction No. 9 stated, in part, “[i]t

matters not how short the interval [between the formation of the intent to kill and

the act of killing], if it was sufficient for one thought to follow another.” State

trial record, Vol. I, Jury Instruction No. 9. Shortly before petitioner’s trial, the

Colorado Supreme Court disapproved that language, and held that premeditation

“means that between the forming of the intent to do the act and the act itself, an

appreciable length of time must have elapsed to allow deliberation, reflection

and judgment . . . [but the] length of time . . . need not be long.”     People v.

Sneed , 514 P.2d 776, 778 (Colo. 1973). Respondents conceded in the district

court that Instruction No. 9 was in error.

       On habeas review, we consider claims of constitutional errors in jury

instructions de novo.    See Esquibel v. Rice , 13 F.3d 1430, 1431 (10th Cir. 1994).

An error in describing an element of the crime is a “trial error,” not a “structural

error.” California v. Roy , 519 U.S. 2, 5 (1996).       Therefore, the error is subject to

a harmless-error analysis.    See id. The harmless-error inquiry is “whether the

error ‘had substantial and injurious effect or influence in determining the jury’s

verdict.’” Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (quoting          Kotteakos v.

United States , 328 U.S. 750, 776 (1946)). Applying this standard to a habeas

proceeding, harmless error will be found where the federal reviewing judge “is in


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grave doubt about whether a trial error of federal law” affected the verdict.

O’Neal v. McAninch , 513 U.S. 432, 436 (1995).

       In this case, the issue of intent or premeditation was uncontroverted at trial

and on appeal. Cf. Johnson v. United States , 520 U.S. 461, 470 (1997) (in direct

appeal of federal conviction, error in jury instructions stating elements of perjury

not plain error where missing element of materiality was uncontroverted and

petitioner presented no plausible argument that false statements were not

material). The error in the jury instruction created no confusion between the

elements of first- and second-degree murder because petitioner waived a proposed

jury instruction on second-degree murder, so instructions only on first-degree

murder were submitted to the jury.     See People v. Pearson , 546 P.2d 1259, 1263

(Colo. 1976) (interpreting   Sneed to have held that “a trial court must, when

requested, give an instruction which explains for the jury the difference between

‘premeditated intent’ as required in the first-degree murder statute and

‘intentionally’ as required in the second-degree murder statute.”)    .

       The jury necessarily rejected petitioner’s theory of the case that someone

else committed the homicide. There was evidence that approximately one-half

hour elapsed between the first and second beatings.       Cf. Sneed , 514 P.2d at 778

(“[T]he design to kill must precede the killing by an appreciable length of time,

[but] that need not be long.”). There was also evidence that on his way to the


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victim’s apartment the second time, petitioner stated he intended to kill him. The

autopsy revealed that the victim had been beaten about the face and the person

who initially discovered the body testified that the victim was badly bruised.

       An error in describing the crime “precludes the jury from making a finding

on the actual element of the offense.”      Neder v. United States , 119 S. Ct. 1827,

1834 (1999); see also Roy , 519 U.S. at 7 (Scalia, J., concurring). On this

evidence, however, once petitioner’s theory of the case was rejected, no jury

could reasonably find that petitioner lacked sufficient time to allow for

“deliberation, reflection and judgment” to form the requisite premeditated intent

for first-degree murder.    Sneed , 514 P.2d at 778; cf. Neder , 119 S. Ct. at 1837 (in

federal prosecution, where omitted element in jury instruction was uncontested at

trial and supported by uncontroverted evidence, preserved error was harmless

under Chapman v. California , 386 U.S. 18 (1967), because no jury could

reasonably find omitted element was not proven).          After reviewing the entire

record, we conclude that the erroneous jury instruction on the element of

“deliberation” did not have a “substantial and injurious effect or influence in

determining the jury’s verdict.”     Brecht , 507 U.S. at 637. Because we are not left

in grave doubt about the trial error, the error is harmless.     See O’Neal , 513 U.S. at

436.

                   Prejudicial Testimony About Petitioner’s Threats


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       Petitioner claims his due process rights were violated when Beavers

testified that he had heard from others that petitioner was looking for him and he

had an ice pick and a gun. He asserts that the evidence that he had a violent

nature was so prejudicial as to render his trial fundamentally unfair. State court

evidentiary rulings will not form the basis of federal habeas relief unless they

rendered the trial fundamentally unfair.   See Chavez v. Kerby , 848 F.2d 1101,

1102 (10th Cir. 1988).

       Petitioner acknowledges that the testimony was relevant to Beavers’

motivation for talking to the police, but he claims that because Beavers did not

state when the threats were made, their relevance to Beavers’ motivation was

minimal, while the damage to petitioner was great. Petitioner argues that if

Beavers heard the threats any appreciable length of time before he was arrested,

they could not have motivated him to come forward. Beavers admitted that he

spoke to the police only after he was arrested for a parole violation. The

challenged testimony was elicited during Beavers’ explanation of his arrest and

the reasons he then told the authorities about having seen petitioner beat the

victim. Moreover, it was clear that Beavers made his statements as a consequence

of his arrest in an attempt to better his own position with the authorities. Under

the circumstances and in the context of Beavers’ testimony, the challenged




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statements did not render petitioner’s trial so fundamentally unfair as to violate

his federal constitutional rights.

                           Ineffective Assistance of Counsel

       Petitioner alleges that he was denied his constitutional right to the effective

assistance of counsel when his trial attorneys made the following errors: (1) they

failed to object to the erroneous jury instruction discussed above pertaining to

“premeditation,” (2) they failed to request the limiting instruction also discussed

above for Beavers’ testimony that petitioner intended to harm him with an

ice pick and a gun, and (3) they failed to request an instruction informing the

jury that they could discredit Beavers’ testimony because he had been convicted

of a felony.

       A claim of ineffective assistance of counsel presents a mixed question of

law and fact which is reviewed de novo.       See Cooks v. Ward , 165 F.3d 1283,

1292 (10th Cir. 1998), petition for cert. filed , (U.S. May 14, 1999) (No. 98-9420).

To establish that counsel provided ineffective assistance, a habeas petitioner

must establish both that his attorneys’ representation was deficient and that

the attorneys’ substandard performance prejudiced him.          See Strickland v.

Washington , 466 U.S. 668, 687 (1984). Unless both elements are satisfied,

“it cannot be said that the conviction . . . resulted from a breakdown in the

adversary process that renders the result unreliable.”    Id.


                                             -8-
      We have held that the erroneous jury instruction relating to “premeditation”

was harmless because it did not have a substantial and injurious effect or

influence in determining the jury’s verdict. For the reasons and authorities stated

in reaching that conclusion, we conclude that the erroneous jury instruction did

not prejudice petitioner. Therefore, even assuming that his attorneys’

performance was substandard, we reject petitioner’s ineffective assistance of

counsel claim because he was not prejudiced by his counsels’ error.     See id.

at 697 (reviewing court need not determine whether counsels’ performance was

deficient; ineffectiveness claim may be disposed of on ground that defendant

was not prejudiced).

      Petitioner next argues that the decision not to seek a limiting instruction

during Beavers’ testimony could not have been sound trial strategy to avoid

highlighting the testimony.   See id. at 689. We need not decide whether counsels’

performance was deficient due to their failure to request an instruction that would

have highlighted testimony petitioner now claims was so prejudicial that it

violated his due process rights. Instead, we determine that the omission did not

prejudice petitioner for the reasons stated above.

      Finally, we address petitioner’s argument that his attorneys provided

ineffective assistance of counsel by failing to request an instruction on the use of

a witness’ prior felony conviction in assessing his credibility, an instruction that


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applied only to Beavers. The jury was informed that Beavers was a convicted

felon and the defense argued that he gave his statement about petitioner in hopes

of receiving leniency on his parole violation. Accordingly, counsels’ failure to

seek the subject jury instruction “did not render ‘the result of the trial unreliable

or the proceeding fundamentally unfair.’”         Newsted v. Gibson , 158 F.3d 1085,

1092 (10th Cir. 1998) (quoting      Lockhart v. Fretwell , 506 U.S. 364, 372 (1993)),

cert. denied , 119 S. Ct. 1509 (1999).


                                      CONCLUSION

       We have carefully examined the record on appeal, as well as petitioner’s

arguments and authorities. Although mindful that the evidence against petitioner

has been described as “weak,” we may not disturb the jury’s verdict absent a trial

error of federal law that affected the verdict,     see O’Neal , 513 U.S. at 436, which

is not present here.




                                             -10-
      Petitioner’s application for a certificate of probable cause is GRANTED.

The district court’s judgment denying habeas relief is AFFIRMED.



                                                  Entered for the Court



                                                  Robert H. Henry
                                                  Circuit Judge




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