                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2655
                                     ___________

Arthur Elvin Killinger,                   *
                                          *
                    Appellant,            * Appeal from the United States
                                          * District Court for the Northern
      v.                                  * District of Iowa.
                                          *
State of Iowa,                            *     [UNPUBLISHED]
                                          *
                    Appellee.             *
                                     ___________

                                Submitted: March 15, 2001

                                    Filed: March 21, 2001
                                     ___________

Before RICHARD S. ARNOLD, FAGG, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                          ___________

PER CURIAM.

        After a baby died during an arson, Arthur Elvin Killinger was convicted of first-
degree murder in violation of Iowa's felony-murder statute. Killinger filed this habeas
action arguing the trial court erroneously instructed the jury on the element of malice
aforethought required for first-degree murder. Killinger did not object to the instruction
at trial or raise the issue on direct appeal or in his state postconviction petition. The
district court* denied relief, concluding the issue is procedurally defaulted. The district
court rejected Killinger's attempts to excuse the default with ineffective assistance of
state-court counsel, and actual innocence. The district court granted a certificate of
appealability on the procedural default issue, and Killinger appeals. Having carefully
reviewed the record, we agree with the district court's thorough analysis and affirm for
the reasons stated by the district court. See 8th Cir. R. 47B.

      A true copy.

             Attest:

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




      *
        The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa.

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