                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 9 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                                 Clerk

 JOSHUA BRANDON KAISER,

          Petitioner-Appellant,
 v.                                                    No. 00-3016
 MICHAEL A. NELSON; ATTORNEY                     (D.C. No. 97-3239-DES)
 GENERAL OF KANSAS,                                     (D.Kan.)

          Respondents-Appellees.




                            ORDER AND JUDGMENT         *




Before EBEL and BRISCOE, Circuit Judges, and       COOK , District Judge.   **




      Joshua Brandon Kaiser appeals the district court’s denial of his 28 U.S.C.

§ 2254 petition for habeas corpus relief. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.



                                         I.


      *
       This order and judgment is not binding precedent, except under the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.
      **
        The Honorable H. Dale Cook, Senior District Judge, Northern District
of Oklahoma, sitting by designation.
      Kaiser does not dispute the underlying facts of this case as set forth by the

Kansas Supreme Court in Kaiser’s direct appeal:

              [Joshua] Kaiser and [Jason] Schaeffer were AWOL from a
      juvenile drug and alcohol treatment facility. During the early
      morning hours of March 1, 1993, Kaiser and Schaeffer left the house
      of a friend, T.J. Solis. In his statements to the police, Kaiser
      admitted that he and Schaeffer, who had an unloaded sawed-off .410
      shotgun and two shells, left Solis’ house to steal a vehicle. Around
      3 a.m. they observed Tim Riley start his car and then return to his
      house. Kaiser suggested they steal the car. Because Schaeffer was
      concerned Riley would call the police to report the car stolen,
      Schaeffer decided they should wait for Riley to return and take him
      hostage. As they waited, Kaiser stated, he informed Schaeffer that
      he did not want to do it. As Kaiser started walking away, Riley
      came out of the house. Kaiser looked back and heard Schaeffer
      “cock” the gun and tell Riley that his friend had a .45 pistol. Riley
      was forced into the driver’s seat. As Kaiser continued to walk away,
      the car pulled up and Schaeffer told him to get into the front seat of
      the car. Schaeffer forced Riley into the trunk of the car, and Riley
      asked them to take care of the car.
              Solis became aware they had returned to his house when
      Kaiser threw snowballs against a window. Solis went outside.
      Kaiser was sitting in the passenger seat of a car, and Schaeffer was
      in the driver’s seat. A shotgun that a friend had left at Solis’ house
      several days earlier was on the back seat. Schaeffer told Solis they
      had “jacked” a guy. Solis understood that to mean a carjacking.
      Schaeffer informed Solis that the owner of the car was in the trunk.
      Because Solis was skeptical, Schaeffer said toward the back of the
      car, “Are you all right back there, sir?” Solis was surprised by a
      voice responding from the trunk, “Yeah, I'm all right.” Schaeffer
      told Solis to get into the car, but Solis declined. Schaeffer drove
      away with Kaiser in the passenger seat and Riley in the trunk.
              Five minutes after Schaeffer and Kaiser departed, Solis called
      the police and spoke to an officer. Solis told the officer that a
      person was in the trunk of a car. He gave the officer the make of the
      car and the license number. He informed the officer that Schaeffer
      and Kaiser would return to his house to pick up clothes that they had
      left at his house.

                                         2
             After leaving Solis’ house, Schaeffer and Kaiser drove to the
      country. Schaeffer suggested to Kaiser that they kill Riley. Kaiser
      said he told Schaeffer he was not killing anyone and requested
      Schaeffer to drop him off and allow him to walk home. Kaiser said
      he later told Schaeffer not to kill Riley or he would get the hard 40,
      but Schaeffer ignored him. Schaeffer stopped the car, let Riley out
      of the trunk, and told Riley to stand near a fence post with his back
      to him. Kaiser said he remained in the car with the window open,
      smoking a cigarette. Schaeffer asked Riley how the ride was, and
      Riley replied that it was a little bumpy. Schaeffer then shot Riley in
      the back of the head. After the shooting, Kaiser exited the car and
      walked to the body. Kaiser observed blood coming from Riley’s
      mouth and head. Schaeffer took Riley’s watch and ring. Kaiser
      indicated he felt sad and was in a daze.
             Later, Solis again heard Kaiser throwing snowballs against a
      window. Solis notified the police by telephone that Schaeffer and
      Kaiser had returned. Solis met Kaiser at the back door of the house.
      Kaiser asked for clothes he and Schaeffer had left at the house, and
      Solis retrieved the clothes. Nothing was said about the man in the
      trunk of the car. Solis said that either Schaeffer or Kaiser told him
      that they were leaving for Texas. After Schaeffer and Kaiser drove
      away, Solis again telephoned the police.
             The police located the car and a chase ensued, ending when
      the car crashed into a tree. After a foot chase, Kaiser and Schaeffer
      were apprehended hiding in a car several blocks from the scene of
      the crash. Kaiser gave audiotaped and videotaped statements.
      Kaiser stated to the police, “It was me or him [Riley], or both of us.”
      Kaiser did not inform the police that they had stopped at Solis’
      house before taking Riley into the country. Kaiser later admitted
      that they had stopped at Solis’ house after Schaeffer killed Riley.
      Kaiser indicated to the police that Schaeffer was acting crazy. After
      giving the statements Kaiser directed the police to a field where
      Riley’s body was found. Riley had died of a single gunshot wound
      to the back of the head fired from a distance of less than 4 feet.

State v. Kaiser , 918 P.2d 629, 632-33 (Kan. 1996).

      Kaiser was charged in Kansas state court with aggravated kidnapping (Kan.

Stat. Ann. § 21-3421), first degree felony murder (Kan. Stat. Ann. § 21-3401),

                                         3
aggravated robbery (Kan. Stat. Ann. § 21-3427), and unlawful use of a weapon

(Kan. Stat. Ann. § 21-4201). The trial court denied Kaiser’s requested jury

instruction on the defense of withdrawal and the jury convicted Kaiser of all the

charges. The trial court sentenced Kaiser to life for aggravated kidnapping, life

for felony murder, fifteen years to life for aggravated robbery, and one to five

years for unlawful use of a weapon. All sentences were imposed concurrently

except the fifteen-years-to-life sentence for aggravated robbery.

       Kaiser argued in his direct appeal,   inter alia , that there was insufficient

evidence to convict him of the charges and that the trial court erred in not

instructing the jury on the defense of withdrawal.     Kaiser claimed there was

“insufficient evidence to support his convictions because the State’s evidence

was that he was not involved in the crimes, but merely was present, and he was

not an aider and abettor.”   Kaiser , 918 P.2d at 633. The Kansas Supreme Court

concluded the evidence was sufficient to convict Kaiser, specifically stating:

              Kaiser initiated the events by developing a plan with Schaeffer
       to steal a car. He knew Schaeffer was carrying a shotgun and shells.
       At times Kaiser had possession of the shotgun. When Schaeffer and
       [Kaiser] observed Riley start his car, [Kaiser] suggested taking that
       particular car. [Kaiser] claimed he did not want to take a hostage,
       but the jury found this claim was not credible. [Kaiser] accompanied
       Schaeffer in Riley’s car after Schaeffer ordered Riley into the trunk
       of the car. The jury was also aware that Kaiser had several
       opportunities to report that Riley was in the trunk of the car. Kaiser
       was present when Schaeffer shot and killed Riley. [Kaiser’s]
       footprints were near the body. Both times Kaiser and Schaeffer
       stopped at Solis’ house, [Kaiser] exited the car but returned rather

                                             4
      than leave Schaeffer.
             Further, [Kaiser] engaged the police in a foot chase after
      Schaeffer crashed Riley’s car into a tree. After the car crashed,
      [Kaiser] was in no danger from Schaeffer and could have then turned
      himself in to the police, but instead he ran away and hid in a car
      until he was found. In fact, [Kaiser] had to be forced out of his
      hiding place by the use of a police dog. From these circumstances a
      reasonable factfinder could have determined that [Kaiser] was a
      willing participant in the events despite his claim that he was an
      unwilling participant.

Id. at 636. After addressing and distinguishing the cases from other jurisdictions

cited by Kaiser, the court looked to Kansas law and concluded that “[t]he Kansas

legislature has not enacted a defense of withdrawal from aiding and abetting,”

and, therefore, the trial court did not err in failing to instruct the jury on

withdrawal as a defense to aggravated robbery, aggravated kidnapping, and

felony murder.   Id. at 639. The court affirmed Kaiser’s convictions and

sentences on June 7, 1996.

      On May 29, 1997, Kaiser filed a 28 U.S.C. § 2254 petition for habeas

corpus relief, alleging (1) his convictions violated the due process clause of the

Fourteenth Amendment because there was insufficient evidence to prove he was

guilty of aiding and abetting aggravated robbery, aggravated kidnapping, and

felony murder; and (2) he was denied his right to a fair trial and due process of

law when the trial court refused to instruct the jury on his withdrawal defense.

On December 16, 1999, the district court denied Kaiser’s petition, concluding “a

reasonable jury could have found beyond a reasonable doubt that Kaiser

                                            5
knowingly participated in an unlawful venture and that he was a willful

participant. The evidence is substantial and sufficient to support the jury’s

finding that [Kaiser] was guilty of aiding and abetting.” 2254 ROA, Doc. 14 at

11. The district court then considered Kaiser’s withdrawal argument and

concluded that “the trial court’s failure to give the requested instruction was not

so fundamentally unfair that it denied [Kaiser] due process and a fair trial.”       Id.

at 15.

                                             II.

         On appeal, Kaiser argues there was insufficient evidence to convict him of

the charged crimes and the trial court erred in not instructing the jury on

withdrawal. Kaiser argues the state court’s determination there was sufficient

evidence to convict him was contrary to the clearly established federal law

requiring the prosecution to prove his guilt beyond a reasonable doubt.          See In re

Winship , 397 U.S. 358, 364 (1970). He also argues the state court’s

determination with respect to the trial court’s failure to instruct the jury on

withdrawal was contrary to the clearly established federal law guaranteeing him

the right to present a defense.   See Washington v. Texas , 388 U.S. 14, 18-19

(1967). Kaiser presented both of these arguments in his direct appeal.

         28 U.S.C. § 2254(d) provides that a petitioner in the custody of a state

court shall not be granted habeas relief


                                             6
       with respect to any claim that was adjudicated on the merits in State
       court proceedings unless the adjudication of the claim–(1) 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; 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.

The Supreme Court has recently clarified the standard of review under

§ 2254(d)(1). The Court stated that under § 2254(d)(1) we are to apply

constitutional principles which were established by the Supreme Court at the time

the state conviction became final.    Williams v. Taylor , 120 S. Ct. 1495, 1506-08

(2000). “Under the ‘unreasonable application’ clause . . ., a federal habeas court

may grant the writ only if ‘the state court identifies the correct governing legal

principle from [the] Court’s decisions but unreasonably applies that principle to

the facts of the prisoner’s case.’”   Thomas v. Gibson , ___ F.3d ___, 2000 WL

986587 at *4 (10th Cir. 2000) (quoting      Williams , 120 S. Ct. at 1523 (O’Connor,

J., concurring)).


Sufficiency of evidence

       Kaiser contends there was insufficient evidence to convict him of aiding

and abetting aggravated robbery, aggravated kidnapping, and felony murder,

thereby violating his Constitutional right to due process.   1
                                                                 See Winship , 397 U.S.


       1
           Kaiser does not challenge his conviction or sentence for unlawful use of a
                                                                        (continued...)

                                             7
at 364 (holding that “the Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every fact necessary

to constitute the crime with which he is charged”). The Kansas Supreme Court

properly identified the “proof beyond a reasonable doubt” requirement for a

criminal conviction. Our review, therefore, is limited to whether the court

unreasonably applied that principle to the facts of this case. “Under

§ 2254(d)(1)’s ‘unreasonable application’ clause . . ., a federal habeas court may

not issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal

law erroneously or incorrectly. Rather, that application must also be

unreasonable.”   Williams , 120 S. Ct. at 1522 (O’Connor, J., concurring).

      The State proceeded against Kaiser on an aiding and abetting theory for all

counts except the unlawful possession of a weapon charge. Kansas statutes

establish criminal liability for aiding and abetting crimes, stating that:

            (1) A person is criminally responsible for a crime committed
      by another if such person intentionally aids, abets, advises, hires,
      counsels or procures the other to commit the crime.
            (2) A person liable under subsection (1) hereof is also liable
      for any other crime committed in pursuance of the intended crime if
      reasonably foreseeable by such person as a probable consequence of
      committing or attempting to commit the crime intended.




      (...continued)
      1

weapon.

                                           8
Kan. Stat. Ann. § 21-3205. To establish guilt for aiding and abetting the crimes

of another, the State must prove beyond a reasonable doubt that Kaiser (1)

“knowingly associated with the unlawful venture” and (2) “participated in a way

which indicates willful furtherance of the success of the venture.”       Kelly v.

Roberts , 998 F.2d 802, 808 (10th Cir. 1993) (citing     State v. Burton , 681 P.2d

646, 652 (Kan. 1984), and    State v. Huff , 681 P.2d 656, 659 (Kan. 1984)).

       Kaiser argues his actions did not satisfy the requirements of 21-3205 and

he lacked the specific intent to assist Schaeffer in the commission of aggravated

robbery, aggravated kidnapping, and felony murder. More specifically, Kaiser

argues the evidence did not establish that he knowingly associated himself with

the unlawful venture or that he participated in a way that indicated he willfully

furthered the success of the venture. We disagree. The Kansas Supreme Court’s

conclusion that the State proved Kaiser was guilty beyond a reasonable doubt was

not an unreasonable application of the law to the evidence presented to the jury.

The evidence showed that Kaiser fully participated in the decision to steal the car

(the aggravated robbery). Kaiser chose the car to steal and voluntarily      2
                                                                                 got into

the car with Schaefer after Schaefer forced the owner of the car into the trunk at

gun point. Kaiser remained with Schaefer throughout the crime, even when he




       The jury was instructed on Kaiser’s compulsion defense, but rejected the
       2

defense.

                                             9
had several opportunities to leave. The evidence showed that Kaiser was more

than a mere associate in the crime. Kaiser also argues he lacked the specific

intent necessary to convict him of aiding and abetting. The evidence showed that

Kaiser left with Schaefer, who was armed, and that Kaiser fully intended to steal

the car. This crime of aggravated robbery led to the aggravated kidnapping and

felony murder, which were reasonably foreseeable consequences of the

aggravated robbery of the car. We conclude the Kansas Supreme Court’s

determination that the State proved Kaiser was guilty beyond a reasonable doubt

was not unreasonable.


Instruction on withdrawal

       Kaiser contends the trial court erred in refusing to instruct the jury that he

withdrew from the criminal activity, thereby violating his Sixth Amendment and

Fourteenth Amendment due process rights to present a defense. In disposing of

Kaiser’s direct appeal, the Kansas Supreme Court concluded that withdrawal is

not a defense to a charge of aiding and abetting in Kansas. There is no indication

in the Kansas Supreme Court opinion, however, that Kaiser raised a due process

argument in connection with this claim. To the extent the due process issue        “was

not heard on the merits by the state courts, and the federal district court made its

own determination in the first instance, we review the district court’s conclusions

of law de novo and its findings of fact, if any, for clear error.”   LaFevers v.

                                              10
Gibson , 182 F.3d 705, 711 (10th Cir. 1999).

        We use a highly deferential standard of review in reviewing the state trial

court’s refusal to give a defense instruction.     Tyler v. Nelson , 163 F.3d 1222,

1227 (10th Cir. 1999). “As a general rule, errors in jury instructions in a state

criminal trial are not reviewable in federal habeas corpus proceedings, unless

they are so fundamentally unfair as to deprive petitioner of a fair trial and to due

process of law.”   Id. (internal quotations omitted). “Thus, the burden on a

petitioner attacking a state court judgment based on a refusal to give a requested

jury instruction is especially great because [a]n omission, or an incomplete

instruction, is less likely to be prejudicial than a misstatement of the law.”   Id.

(internal quotations omitted). To determine whether the trial court’s refusal to

give a withdrawal instruction violated Kaiser’s federal constitutional right to due

process requires us to first determine whether Kaiser was entitled to his requested

instruction under Kansas law.      See id.

        The trial court rejected Kaiser’s proposed instruction that “[i]t is a defense

that the defendant in good faith withdrew from the agreement and communicated

the fact of such withdrawal to any party to the agreement before any party acted

in furtherance of it.” ROA, Vol. IX at 150-51. The trial court instructed the jury

that:

               A person who, either before or during its commission,
        intentionally aids, abets, advises, counsels or procures another to

                                              11
      commit a crime with intent to promote or assist in its commission is
      criminally responsible for the crime committed regardless of the
      extent of the defendant’s participation, if any, in the actual
      commission of the crime.
            A person who intentionally aids, abets, advises, counsels,
      procures another to commit a crime is also responsible for any other
      crime committed in carrying out or attempting to carry out the
      intended crime, if the other crime was reasonably foreseeable.

Id. Vol. I at 25-26.

      All crimes in Kansas are statutory. Kan. Stat. Ann. § 21-3102. The

legislature has also specified defenses to criminal liability, including withdrawal

as a defense to a charge of conspiracy. Kan. Stat. Ann. § 21-3302(b). However,

the Kansas legislature has not enacted a defense of withdrawal for an aiding and

abetting charge. The Kansas Supreme Court noted that “Kansas appellate courts

have not recognized withdrawal as a common-law or court-created defense to

aiding and abetting.”   Kaiser , 918 P.2d at 638 .

      Kaiser cites State v. Pratt , 876 P.2d 1390 (Kan. 1994), and argues

withdrawal must be a recognized defense to aiding and abetting because the court

in that case addressed a defendant’s contention that he was entitled to a

withdrawal instruction even though he was charged as an aider and abettor. In

Pratt , the court rejected the defendant’s withdrawal argument by concluding there

was no evidence he had withdrawn from the criminal activity.     The court did not

specifically address the issue of whether withdrawal is a defense to aiding and

abetting. Since Kaiser , the Kansas Supreme Court has repeated that   “while

                                           12
withdrawal is a defense to a charge of conspiracy, it is not a defense to a charge

of aiding and abetting.”     State v. Speed , 961 P.2d 13, 32 (Kan. 1998);   accord

State v. Straughter , 932 P.2d 387, 389 (Kan. 1997). We conclude the Kansas

Supreme Court did not violate Kansas law in concluding withdrawal is not a

defense to aiding and abetting.

      Even if we assume the Kansas court violated its own law, Kaiser must

show this violation denied him due process under the Fifth and Fourteenth

Amendments. “[T]he deprivation occasioned by the state’s failure to follow its

own law must be ‘arbitrary in the constitutional sense’; that is, it must shock the

judicial conscience.”      Aycox v. Lytle , 196 F.3d 1174, 1180 (10th Cir. 1999).

Kaiser argues he has a due process right to a jury instruction on the theory of his

case. “[T]he Constitution guarantees criminal defendants ‘a meaningful

opportunity to present a complete defense.’”       Gilmore v. Taylor , 508 U.S. 333,

343 (1993) (internal quotations omitted). Although the Supreme Court has

invoked this principle in cases dealing with “the exclusion of evidence” or “the

testimony of defense witnesses,” it has never done so in a case involving

“restrictions imposed on a defendant’s ability to present an affirmative defense.”

Id. Indeed, in Gilmore , the Court rejected the defendant’s argument that “the

right to present a defense includes the right to have the jury consider it” because

“such an expansive reading of our cases would make a nullity of the rule . . . that


                                             13
instructional errors of state law generally may not form the basis for federal

habeas relief.”   Id. at 344 (citing Estelle v. McGuire , 502 U.S. 62 (1991)).

       The trial court did not prevent Kaiser from presenting the evidence he

claims established withdrawal.    See Chambers v. Mississippi , 410 U.S. 284, 294

(1973) (noting that “[t]he right of an accused in a criminal trial to due process is,

in essence, the right to a fair opportunity to defend against the State’s

accusations”). The essence of Kaiser’s withdrawal defense is that he did not

willingly participate in or assist the crimes. This defense to an aiding and

abetting charge equates to an assertion that the defendant is not guilty of the

crimes charged. Kaiser does not contend that the jury was improperly instructed

on aiding and abetting, on the elements of the crime charged, or on the State’s

burden of proof. We conclude that the failure of the trial court to give a

withdrawal instruction did not deprive Kaiser of a fair trial. The district court

did not err in denying Kaiser’s § 2254 petition.

                                          III.

       The judgment of the district court is AFFIRMED.

                                                      Entered for the Court

                                                      Mary Beck Briscoe
                                                      Circuit Judge




                                           14
