                 IN THE UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT


                                No. 98-31170




LAMON LAMAR MOODY, IV
                                                Petitioner-Appellant,

                                      versus

JAMES M LEBLANC,
                                                Respondent-Appellee.


             Appeal from the United States District Court
                 for the Middle District of Louisiana
                              (98-CV-337)

                               June 30, 2000

Before REYNALDO G. GARZA, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Lamon Lamar Moody was convicted in Louisiana state court for

attempted first-degree murder.          Moody seeks federal habeas relief

claiming an error in jury instructions, ineffective assistance of

counsel for failure to object to the jury instructions, and the

improper admission of a hearsay statement.

     Moody     was   charged   with    attempting   with   a   friend,   Brady

Lockhart, to kill several people in an apartment after an argument;

Moody’s defense was that, although he was with Lockhart at the

time, he only fired his gun into the air and did not intend to hurt

anyone.      Following Moody’s conviction after a jury trial, he


     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
appealed in state court, which affirmed the judgment.                     He sought

and was denied state post-conviction relief.               Moody then filed his

federal petition, which was denied. Moody received a COA from this

court on the issues he appeals today.

      A flawed jury instruction violates due process if it relieves

the   state    of   having   to   prove       each   element   of   the   offense.1

Louisiana law requires that for first-degree murder or its attempt,

the jury must find that the offender has specific intent to kill or

to inflict great bodily harm upon more than one person.2                    A jury

instruction must make clear that intent must be proved as to the

particular defendant.3

      Moody contends that the jury instruction in his case did not

require a finding that Moody had specific intent to kill but rather

suggested that if the jury found that if a co-conspirator had the

intent to kill, that intent could be inferred to Moody.                    Although

the trial court’s instruction as to specific intent did not make it

clear that Moody, not Lockhart, must have had the requisite intent,

the court’s other comments made it clear that intent must be proved

as to Moody.        Any error in the instructions thus did not rise to

the level of a federal constitutional deficiency.

      Moody’s claim of ineffective assistance turns on the merits of

his jury instruction contention. As we find no cognizable error in

      1
          Sandstrom v. Montana, 442 U.S. 510, 520 (1979).
      2
     See LA. REV. STAT. ANN. 14:30; State v. Holmes, 388 So.2d 722,
726 (La. 1980).
      3
     Flowers v. Blackburn, 779 F.2d 1115, 1117, 1121-22 (5th Cir.
1986).

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the instruction, the failure to object to the instruction does not

amount to ineffective assistance.

     Moody correctly contends that a hearsay statement was admitted

into evidence against him.    Even assuming that Moody did not waive

this argument during his state appeals, however, we find no error

cognizable as a federal habeas claim, where an evidentiary error

must be a “crucial, critical, or highly significant factor in the

context of the entire trial.”4        The relevant statement did not

contradict Moody’s own testimony that he shot into the air, not at

the apartment.     Although the statement suggested that Moody knew

that Lockhart said he would shoot someone, common sense would

indicate that Moody must have thought of that possibility when they

took loaded guns from their friend’s home and returned to the scene

of the initial altercation.    The hearsay statement was thus not a

highly significant factor in the context of the entire trial.

     AFFIRMED.




    4
        See Thomas v. Lynaugh, 812 F.2d 225, 230-31 (5th Cir. 1987).

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