                                   ___________

                                   No. 95-4051
                                   ___________

Eugene Oliver,                          *
                                        *
            Appellant,                  *
                                        *    Appeal from the United States
       v.                               *    District Court for the
                                        *    District of Minnesota.
Frank W. Wood, Commissioner             *
of Corrections,                         *
                                        *
            Appellee.                   *
                                   ___________

                     Submitted:    July 11, 1996

                          Filed:   September 25, 1996
                                   ___________

Before WOLLMAN, JOHN R. GIBSON, and HANSEN, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


       Eugene Oliver appeals from the district court's1 judgment denying his
petition for habeas corpus filed pursuant to 28 U.S.C. § 2254.    We affirm.


                                       I.


       On November 17, 1989, H.A., a twelve-year-old girl, was babysitting
at a trailer house owned by Oliver.     Sometime that evening Oliver returned
to the trailer with Russell Tilbury, who is H.A.'s uncle, and two other
men.   When H.A. fell asleep on the couch, the four men were drinking and
playing cards in the kitchen.




       1
      The Honorable Richard H. Kyle, United States District Judge
for the District of Minnesota, adopting the report and
recommendations of the Honorable Ann D. Montgomery, United States
Magistrate Judge for the District of Minnesota.
       Sometime after midnight, Oliver and Tilbury approached H.A., who was
still asleep on the couch.       Oliver took off H.A.'s nightgown and sexually
assaulted her while Tilbury held her arms.         Tilbury then also sexually
assaulted H.A.


       H.A. did not immediately report the incident.     After rumors began to
circulate that she might be pregnant, H.A. told a teacher that she had been
raped but did not say who had raped her.       After H.A's mother became aware
of the rumors, H.A. told her that Oliver and Tilbury were the men that had
raped her.


       H.A. was referred to the Ramsey County Social Services, where she
told a child protection worker that Oliver and Tilbury sexually assaulted
her.   In an interview with Dr. Levitt, a pediatrician specializing in child
abuse, H.A. also told Dr. Levitt that Oliver and Tilbury assaulted her.
Dr. Levitt concluded that the condition of H.A.'s vagina was consistent
with her having engaged in sexual activity.


       Tilbury was arrested on January 12, 1990.     Before taking a statement
from    Tilbury,    the    two    investigating   officers   made   independent
determinations that Tilbury was not then under the influence of drugs or
alcohol.   Likewise, Tilbury said that he was not on drugs.


       In an unrecorded portion of his statement, Tilbury said that he
remembered seeing Oliver rape H.A., and he later admitted to attempting to
rape her as well.    When the officers tried to make a recorded statement of
Tilbury's confession,      Tilbury claimed he couldn't remember much of what
happened that night.      Tilbury indicated, however, that he remembered some
of the unrecorded statement.       On January 15th, Tilbury told the officers
that his previous statements were "bullshit."




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        Following his arrest, Oliver denied participating in an assault on
H.A.    A few days later, however, Oliver told police that he remembered
H.A.'s being on the couch and that he possibly approached her.


        Tilbury ultimately entered an Alford-type plea of guilty to criminal
sexual contact in the second degree.


        At   trial,   both   Tilbury   and   Oliver    recanted   their   statements.
Tilbury's recorded statement was admitted into evidence.           Without objection
from Oliver, one of the police officers testified regarding the contents
of Tilbury's unrecorded statement.           The court ultimately instructed the
jury that Tilbury's statement was to be considered for impeachment purposes
only.


        Oliver was convicted of two counts of criminal sexual conduct.            The
trial court denied his motion for a new trial.             Oliver later aborted an
appeal and filed for postconviction relief.           The court granted a new trial,
finding that Oliver had received ineffective assistance of counsel.               The
Minnesota Court of Appeals affirmed, concluding that Tilbury's statement
constituted inadmissible hearsay.            On the State's petition for further
review, the Minnesota Supreme Court held that Tilbury's statement was
admissible as substantive evidence under the residual exception to hearsay
testimony set forth in Minn. R. Evid. 803 (24) and reinstated Oliver's
conviction.     Oliver v. State, 502 N.W.2d 775 (Minn. 1993).             Oliver then
filed the present action.


                                         II.


        Oliver contends that Tilbury's statement constituted hearsay, the
admission of which violated Oliver's right to due process of law.




                                         -3-
     We will not re-examine whether evidence was properly admitted under
state law.      Adams v. Leapley, 31 F.3d 713, 715 (8th Cir. 1994) (citing
Estelle v. McGuire, 502 U.S. 62, 68 (1991)).     Rather, we consider only the
question whether Oliver's conviction was obtained in violation of the
United States Constitution.        Estelle, 502 U.S. at 68.      Admission of
Tilbury's hearsay statement was violative of Oliver's due process rights
only if the court's error in admitting the evidence was so obvious that it
"fatally infected the trial and rendered it fundamentally unfair."     Troupe
v. Groose, 72 F.3d 75, 76 (8th Cir. 1995) (citing Anderson v. Gouke, 44
F.3d 675, 679 (8th Cir. 1995)).


     After noting that the case presented no confrontation clause issue,
the Minnesota Supreme Court concluded that the challenged statement was
trustworthy, finding that it was substantially corroborated and that the
circumstances surrounding the statement bolstered its reliability.       Both
investigating officers testified that Tilbury was not under the influence
of drugs or alcohol.    Tilbury also expressly told the officers that he was
not on drugs.    In addition, Tilbury expressed considerable remorse when he
gave his statement.    The fact that the statement was inculpatory likewise
increased its reliability.     Moreover, the statement was consistent with and
corroborated H.A.'s statement to the investigating authorities.


     These findings are presumed to be correct.       See Sumner v. Mata, 449
                           2
U.S. 539, 544-47 (1981).        Given this presumption, and in light of the
totality of the circumstances, we cannot say that admission of the hearsay
evidence constituted a violation of due




     2
      We note that 28 U.S.C. § 2254(d) has recently been amended by
the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, § 104(3)-(4), 110 Stat. 1214, 1219 (1996) (codified at
28 U.S.C. § 2254 (e)). We have not yet determined to what extent
the new Act applies to noncapital cases pending on appeal. The
challenged findings pass muster under either the pre-Act or post-
Act versions of section 2254(d).

                                      -4-
process.


     The judgment is affirmed.


     A true copy.


           Attest:


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




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