                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       August 6, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 EBERARDO VALDEZ, also known as
 Eberardo Lalo Valdez,

               Petitioner-A ppellant,                    No. 05-2366
          v.                                           (D. New M exico)
 ERASM O BRAVO, W arden,                       (D.C. No. CIV-01-334 M V/RLP)
 Guadalupe County Correctional
 Facility; and A TTO RN EY G ENERAL
 FO R TH E STA TE O F N EW M EXICO,

               Respondents-Appellees.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Circuit Judge, M U RPH Y, Circuit Judge, and
L UN G ST RU M , ** District Judge.




I. Introduction

      Eberardo Valdez was convicted by a jury of second-degree murder in New

M exico state court. In addition to the jury instruction on second-degree murder,




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
       The Honorable John W . Lungstrum, Chief Judge, United States District
Court for the District of Kansas, sitting by designation.
which was proper, the trial court erroneously instructed the jury on a theory of

felony murder that was invalid under state law. Following an unsuccessful direct

appeal and motion for postconviction relief in the state court system, Valdez filed

a petition for habeas relief in the United States District Court for the District of

New M exico, pursuant to 28 U.S.C. § 2254. In his petition, he argued, inter alia,

that the instruction on felony murder was improper and resulted in a compromise

verdict of guilty on the crime of second-degree murder. The district court

recognized the error, but found the error harmless and dismissed the petition.

This court granted a certificate of appealability as to Valdez’s argument that, in

light of Price v. Georgia, 398 U.S. 323, 331 (1970), the district court erred in

finding the improper felony murder instruction harmless. Exercising jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253, this court affirm s.

II. Background

      The facts underlying Valdez’s state conviction and the case’s procedural

history are set forth in detail in this court’s published opinion issued in V aldez’s

prior appeal. See Valdez v. Bravo, 373 F.3d 1093, 1094-95 (10th Cir. 2004).

Therefore, only a brief summary will be reproduced here. The evidence in this

case established that Valdez and four other men drove to the mobile home of

Kendrick Rudolph and Carl Smith for the purpose of fighting the tw o men. Id. at

1094. W hen they arrived, the men entered the home and initially began attacking

Smith. Id. Four of the men then turned their attention to Rudolph while Valdez

                                          -2-
chased Smith out the back door and into the yard on the side of the home. Id. A s

Valdez fought Smith, the other four men continued to beat Rudolph and stab him

repeatedly, ultimately stabbing him fifty-four times and hitting him over the head

with a VCR. Id. at 1094-95. Valdez then heard police sirens approaching and

came back into the home to warn the other four men. Id. at 1094. All five men

fled the scene of the attack. Id. Police and paramedics arrived at the scene a

short time later and Rudolph was pronounced dead. Id. at 1095.

      Valdez was charged with an open count of murder in New M exico state

district court. The trial court instructed the jury on four theories of conviction:

felony murder, second-degree murder, voluntary manslaughter, and involuntary

manslaughter. The instruction on felony murder used the crime of aggravated

battery with a deadly weapon as the underlying felony. There is no dispute that

such an instruction was contrary to New M exico law, under which aggravated

battery may not serve as the predicate offense for a felony murder charge. See

State v. Campos, 921 P.2d 1266, 1274 (N.M . 1996). The jury convicted Valdez of

second-degree murder as an accessory and Valdez w as sentenced to fifteen years

in prison.

      Valdez argued on direct appeal that there was insufficient evidence to

support his conviction and that the instruction on felony murder constituted

reversible error. The N ew M exico C ourt of A ppeals affirmed the conviction. It

concluded there was sufficient evidence to support Valdez’s conviction and that

                                          -3-
Valdez w as not prejudiced by the erroneous felony murder instruction. In so

holding, the New M exico Court of Appeals placed the burden of showing

prejudice on Valdez, stating Valdez “failed to show that he was prejudiced” by

the improper instruction. The New M exico Supreme Court denied certiorari and

Valdez was denied postconviction relief in the state court system.

      Following denial of state habeas relief, Valdez filed a petition for federal

habeas relief pursuant to 28 U.S.C. § 2254. In his habeas petition, Valdez again

raised arguments regarding the sufficiency of the evidence and the improper

felony murder instruction. The district court granted habeas relief on the

sufficiency of the evidence claim and entered an order barring the state from

retrying Valdez. The district court expressly declined to consider whether habeas

relief was warranted as a result of the improper felony murder instruction as well.

On appeal, this court reversed the district court order granting habeas relief,

concluding “sufficient evidence existed to support Valdez’s conviction as an

accessory to second-degree murder . . . .” Valdez, 373 F.3d at 1100. On remand,

the district court considered and rejected Valdez’s claim based on the improper

jury instruction, concluding the error was harmless. The district court therefore

denied the habeas petition and dismissed the case with prejudice.




                                          -4-
III. Analysis

      In an appeal of the denial of habeas relief, this court reviews the district

court’s legal conclusions de novo, applying the same standard of review to the

state court decision as that used by the district court. Jackson v. Ray, 390 F.3d

1254, 1259 (10th Cir. 2004). W here a claim has been adjudicated on the merits in

state court, a federal court may not grant habeas relief on that claim unless the

adjudication of that claim was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States” or was “based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(1), (2); Turrentine v. M ullin, 390 F.3d 1181, 1188 (10th Cir.

2004). If the state court decision is contrary to clearly established federal law , it

is entitled to no deference and this court determines de novo whether an error has

occurred that warrants habeas relief. See Brown v. Uphoff, 381 F.3d 1219, 1225

(10th Cir. 2004); Spears v. M ullin, 343 F.3d 1215, 1248 (10th Cir. 2003). Habeas

relief will not be granted for non-structural constitutional error unless the error

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

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation omitted).

      The jury instruction on felony murder, based on the predicate felony of

aggravated battery with a deadly weapon, was indisputably erroneous under state

law. See Cam pos, 921 P.2d at 1274. The New M exico Court of Appeals agreed

                                          -5-
with Valdez on this point and the government does not contend otherw ise.

Valdez, however, argues the result reached by the New M exico Court of Appeals

was contrary to clearly established federal law because the court failed to apply

the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 24

(1967), under which “the beneficiary of a constitutional error [must] prove

beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.” Again, the government does not dispute Valdez’s contention

that by placing the burden of demonstrating prejudice on Valdez, the New M exico

Court of Appeals applied a harmless error analysis that was contrary to the clearly

established Chapman standard. This court will accept the parties’ agreement on

this issue and assume the failure to apply the Chapman rule resulted in a decision

that w as contrary to clearly established federal law. 1 See Turrentine, 390 F.3d at

1190. Thus, this court must proceed to consider de novo whether the improper




      1
        The New M exico Court of Appeals framed the issue on direct appeal as
whether “the State’s felony murder theory was contrary to New M exico law” and
based its conclusion as to error solely on a rule of state law established by the
New M exico Supreme Court. Because the Chapman harmless error standard
applies only to federal constitutional error, it is not clear that the New M exico
Court of Appeals was obligated to apply the federal standard in this case. See
Chapman v. California, 386 U.S. 18, 21 (1967) (“The application of a state
harmless-error rule is, of course, a state question where it involves only errors of
state procedure or state law.”). Thus, while this court will operate within the
framework presented by the parties, which is the same framework applied by this
court in Turrentine v. M ullin, 390 F.3d 1181, 1189-91 (10th Cir. 2004), we
nevertheless do not suggest the harmless error decision by the N ew M exico C ourt
of A ppeals w as contrary to federal law.

                                         -6-
instruction on felony murder is of the class of errors that warrants federal habeas

relief. See Brown, 381 F.3d at 1225.

      “A § 2254 petitioner has a heavy burden in attempting to set aside a state

conviction based on an erroneous jury instruction.” Nguyen v. Reynolds, 131 F.3d

1340, 1357 (10th Cir. 1997). “[T]he fact that the instruction was allegedly

incorrect under state law is not a basis for habeas relief.” Estelle v. M cGuire, 502

U.S. 62, 71-72 (1991). Rather, where a habeas claim is based on an improper jury

instruction, the initial inquiry must be “w hether the ailing instruction by itself so

infected the entire trial that the resulting conviction violates due process.” Id. at

72 (quotation omitted); see also Nguyen, 131 F.3d at 1357 (“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 .” (quotation omitted)). In

making this determination, this court must consider the jury instruction “in the

context of the instructions as a whole and the trial record.” Estelle, 502 U.S. at

72. Further, even where the erroneous instruction rises to the level of

constitutional error, this court must conduct its own harmless error analysis under

Brecht. See Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007) (holding Brecht harmless

error standard applies to constitutional error in § 2254 proceedings, “whether or

not the state appellate court recognized the error and reviewed it for harmlessness

under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman”).

                                           -7-
Therefore, Valdez is entitled to habeas relief only if the improper felony murder

instruction both (1) “so infected the entire trial that the resulting conviction

violates due process” and (2) “had a substantial and injurious effect or influence

in determining the jury’s verdict.” Turrentine, 390 F.3d at 1191 (quotation

omitted). Although the two standards overlap and the harmlessness of the error

bears on the constitutional question, see Hale v. Gibson, 227 F.3d 1298, 1324

(10th Cir. 2000), habeas relief cannot be granted unless the petitioner first

establishes a constitutional violation.

      W hile “[i]t should not be necessary for this court to point out the

seriousness of accurate jury instructions,” Turrentine, 390 F.3d at 1194, a review

of the record and instructions as a whole indicates the error in this case did not

result in a conviction that violates due process. After instructing the jury on each

of the four theories of conviction, the state court instructed the jury to begin by

deliberating felony murder and proceed to second-degree murder only if it was

unable to reach a guilty verdict on felony murder. By returning a guilty verdict

on second-degree murder, the jury necessarily did not find Valdez guilty of felony

murder under the erroneous theory with which it w as presented. Cf. United States

v. Cooper, 812 F.2d 1283, 1287 (10th Cir. 1987) (Baldock, J., concurring)

(“Conviction on a lesser included offense operates as an implied acquittal on the

greater offense.”). Of course, as Valdez points out, a conviction for felony

murder under these circumstances would undoubtedly raise due process concerns.

                                          -8-
In this case, however, Valdez was implicitly acquitted of the erroneous charge of

felony murder and convicted of a proper charge for which there was no

instructional error. Unlike an instruction on an offense barred by double

jeopardy, for which the constitutional violation is the “risk or hazard of trial and

conviction, not the ultimate legal consequences of the verdict,” Price v. Georgia,

398 U.S. 323, 331 (1970), an instruction on a theory that is erroneous under state

law does not necessarily violate due process when the defendant is not convicted

under that theory.

      Valdez nevertheless argues he is entitled to habeas relief because the

erroneous felony murder instruction may have caused the jury to compromise its

verdict, finding him guilty of second-degree murder rather than continuing to

debate his innocence. See id. at 331. He asserts the submission of a greater

charge to the jury increases the likelihood of conviction on a lesser charge

because jurors will presume a defendant charged so severely must be guilty of a

serious crime. Because the felony murder theory could not form the basis for a

valid conviction under state law, Valdez argues its inclusion in the jury

instructions was “profoundly prejudicial” and “unfairly tainted” the jury, such

that the resulting conviction violated his constitutional rights.

      W e decline to adopt such an approach because it would require this court to

ignore the principle that jurors are presumed to follow the instructions given. See

Weeks v. Angelone, 528 U.S. 225, 234 (2000). The state trial court instructed the

                                          -9-
jury to consider each charge separately and to decide the case only by applying

the law as stated in the instructions to the facts. Contrary to V aldez’s assertions,

nothing more than speculation supports his suggestion that the jury ignored these

instructions and instead reached a verdict on the basis of compromise or

prejudice. See United States v. Nelson, 54 F.3d 1540, 1547 (10th Cir. 1995)

(“That the verdict may have been the result of compromise, or of a mistake on the

part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry

into such matters.” (quotation omitted)). W hile Valdez argues the similarities

between the instructions on felony murder and second-degree murder precluded a

rational jury from acquitting him of felony murder and returning a guilty verdict

on second-degree murder, this court’s review of the jury instructions indicates

otherwise. The instruction on felony murder required the jury to find Valdez

intended the crime of aggravated battery with a deadly weapon to be committed,

while the second-degree murder instruction required no such finding. 2 If the jury

      2
        The jury instruction on felony murder required the state to prove seven
elements: (1) the felony crime of Aggravated Battery W ith a Deadly W eapon was
comm itted; (2) Valdez helped, encouraged, or caused the felony of Aggravated
Battery W ith a Deadly W eapon to be committed; (3) Valdez intended that
Aggravated Battery W ith a Deadly W eapon be comm itted; (4) Rudolph was killed
during the commission of the felony; (5) Valdez helped, encouraged, or caused
the killing to be committed; (6) Valdez intended the killing to occur or knew that
he was helping to create a strong probability of death or great bodily harm; and
(7) this happened in New M exico on or about the 16th day of January, 1998.

       The jury instruction on second degree murder required the state to prove
four elements: (1) Valdez killed Rudolph; (2) Valdez knew that his acts created a
                                                                     (continued...)

                                         -10-
found this element to be lacking, its guilty verdict for second-degree murder

would have been entirely consistent with its acquittal on the felony murder

charge.

      M oreover, the jury’s conviction on second-degree murder was consistent

with the evidence presented. See Valdez, 373 F.3d at 1098-1100. There was

evidence Valdez drove to the mobile home w ith the intention of fighting,

prevented Smith from assisting Rudolph during the attack, and reentered the home

to warn the other men the police were arriving. Id. at 1098. Valdez testified on

cross-examination that he saw Rudolph covered in blood but nevertheless chose to

flee the scene instead of rendering aid. This evidence directly suggests that

Valdez, at a minimum, was aware of the deadly attack and did nothing to

intervene. Although the sufficiency of the evidence does not alone eliminate the

possibility of a due process violation, the strength of the evidence supports the

conclusion that the actual verdict entered in this case was not the result of an

unconstitutional jury compromise. Cf. Turrentine, 390 F.3d at 1191 (discussing

the strength of the evidence as support for the conclusion that the erroneous jury

      2
        (...continued)
strong probability of death or great bodily harm to Rudolph; (3) Valdez did not
act as a result of sufficient provocation; and (4) this happened in New M exico on
or about the 16th day of January, 1998. The jury was further instructed that
Valdez could be found guilty of second degree murder “even though he himself
did not do the acts constituting the crimes,” if the state proved the following: (1)
Valdez intended that the crime of second degree murder be committed; (2) the
crime of second-degree murder was comm itted; and (3) Valdez helped,
encouraged, or caused the crime to be committed.

                                         -11-
instruction did not violate due process). If the jury had harbored any doubt about

Valdez’s guilt on the second-degree murder charge, it retained the option of

convicting on the lesser crime of voluntary or involuntary manslaughter.

      W here, as here, a constitutional claim is not based on a specific guarantee

enumerated in the Bill of Rights, “the Due Process Clause has limited operation”

and “the category of infractions that violate ‘fundamental fairness’ [are defined]

very narrowly.” Dowling v. United States, 493 U.S. 342, 352 (1990). In the

context of this case, Valdez has given this court no specific reason, aside from

broad generalizations, to depart from the w ell-established presumption that jurors

follow the instructions given. See Weeks, 528 U.S. at 234. Nor is there anything

inherently prejudicial about the felony murder instruction itself, when compared

to the properly given second-degree murder instruction. There is no indication

the inclusion of this instruction affected the trial proceedings or permitted the

admission of evidence that would not otherwise have been admitted. In light of

the entire record and the instructions as a whole, this court cannot conclude the

improper instruction on felony murder so infected the trial as to constitute a

federal due process violation justifying habeas relief.

      The Supreme Court’s decision in Price does not compel a different result.

In Price, the petitioner was tried for murder and found guilty of the lesser

included offense of voluntary manslaughter. 398 U.S. at 324. The Supreme

Court concluded the murder charge violated double jeopardy and then concluded

                                         -12-
the conviction for voluntary manslaughter did not render the error harmless

because “we cannot determine whether or not the murder charge against petitioner

induced the jury to find him guilty of the less serious offense of voluntary

manslaughter rather than to continue to debate his innocence.” Id. at 331. Unlike

this case, however, Price involved the established violation of a strict

constitutional mandate, the D ouble Jeopardy Clause of the Fifth Amendment. In

contrast, Valdez’s claim rests on the more general principles of due process and

fundamental fairness. Cf. M ahorney v. Wallman, 917 F.2d 469, 472-73 (10th Cir.

1990) (distinguishing, in the context of prosecutorial misconduct, claims based on

the deprivation of a specific constitutional right from claims based on generalized

due process concerns). Indeed, as discussed above, Valdez has failed to show a

constitutional violation at all. Price did not hold that the erroneous submission of

a greater charge is inherently unconstitutional, but only that the constitutional

error in that case was not rendered harmless by a conviction on the lesser charge.

398 U.S. at 331. Because the instruction on felony murder in this case did not

rise to the level of constitutional error, as the instruction in Price did, this court

need not reach the issue of harmlessness and the harmless error analysis of Price

is inapplicable.




                                           -13-
IV. Conclusion

      For the foregoing reasons, this court affirms the district court order

denying and dismissing Valdez’s petition for habeas relief.

                                      ENTERED FOR THE COURT



                                      M ichael R. M urphy
                                      Circuit Judge




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