                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 12a0276n.06

                                         Nos. 09-6289/6290

                            UNITED STATES COURT OF APPEALS                                   FILED
                                 FOR THE SIXTH CIRCUIT
                                                                                        Mar 13, 2012
ANDRE DRAPER-EL,                                       )                         LEONARD GREEN, Clerk
                                                       )
        Petitioner-Appellant,                          )
                                                       )       ON APPEAL FROM THE UNITED
v.                                                     )       STATES DISTRICT COURT FOR
                                                       )       THE WESTERN DISTRICT OF
NANCY DOOM, Warden,                                    )       KENTUCKY
                                                       )
        Respondent-Appellee.                           )




        Before: KEITH, MARTIN, and BOGGS, Circuit Judges.


        PER CURIAM. Andre Draper-El, who is represented by counsel, appeals a district court

order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (No. 09-

6290), and an order denying his motion to clarify a state statute (No. 09-6289), filed in the same

underlying action. The appeals have been consolidated.

        In 2004, a jury convicted Draper-El of second degree burglary and being a first degree
persistent felony offender. He was sentenced to twelve years of imprisonment, enhanced from ten

years, because of his persistent felony offender conviction. On direct appeal, Draper-El argued,

among other things, that he was erroneously denied lesser-included offense instructions on receiving

stolen property and facilitation of burglary. He also argued that the jury instruction on the persistent

felony offender charge violated Kentucky’s unanimous verdict rule. The Kentucky Court of Appeals

concluded that Draper-El was not entitled to the lesser-included offense instructions. Although the

court found the persistent felony offender instruction to be erroneous, because Draper-El had failed

to object to the instruction, the court of appeals reviewed the claim under a “palpable error” standard.
                                         Nos. 09-6289/6290
                                                -2-

The court found on review that the error failed to meet this standard. Draper-El was also

unsuccessful in his post-conviction relief pursuits in the state courts of Kentucky.

        Draper-El then filed this federal habeas corpus petition. He wrote only “due process” as his

first claim for relief on the form petition, but he attached a brief from his state direct appeal. The

matter was referred to a magistrate judge, who found that the first claim of “due process” was

conclusory and should be dismissed. The magistrate judge addressed the jury-instruction claims only

in a footnote, holding that they had not been properly raised in the petition and were meritless. The

district court adopted the magistrate judge’s recommendation to dismiss the petition. This court

granted Draper-El a certificate of appealability on the two jury-instruction claims that were contained

in the attached brief.

        A petition for a writ of habeas corpus may be granted on an issue that was decided by a state

court only if the state court’s decision was contrary to “clearly established Federal law, as determined

by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court has never

held that due process requires lesser-included offense instructions in non-capital cases. Campbell

v. Coyle, 260 F.3d 531, 541 (6th Cir. 2001). Even in capital cases, the requirement of lesser-

included offense instructions is grounded on Eighth Amendment concerns, rather than on due

process concerns. Bagby v. Sowders, 894 F.2d 792, 795-97 (6th Cir. 1990) (en banc). Accordingly,

Draper-El is not entitled to a writ of habeas corpus on his lesser-included offense instructions claim.

        The record establishes that Draper-El failed to object to the jury instruction on his persistent

felony offender charge. Due to this procedural default, we may not review this claim unless Draper-

El establishes cause and prejudice to excuse his default, or shows a miscarriage of justice. See

Hinkle v. Randle, 271 F.3d 239, 244-45 (6th Cir. 2001). Draper-El has not satisfied this burden.

        The district court’s order dismissing Draper-El’s petition for a writ of habeas corpus is

affirmed. Because the denial of Draper-El’s motion to clarify a state statute was not certified for

review by either the district court or this court, the appeal of that order is not properly before the

court for review.
