                    United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                              ___________

                                  No. 97-4230
                                  ___________

Jason David Carson,                    *
                                       *
              Appellant,               *
                                       *
      v.                               * Appeal from the United States District
                                       * Court for the Southern District of Iowa.
Director of the Iowa Department of     *
Correctional Services,                 *
                                       *
              Appellee.                *
                                  ___________

                            Submitted: May 11, 1998

                                 Filed: August 10, 1998
                                  ___________

Before McMILLIAN, ROSS and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________


ROSS, Circuit Judge.

      Jason David Carson appeals from a judgment of the district court1 denying his
petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Supp. II 1996). We
affirm.

      1
        The Honorable Charles R. Wolle, Chief Judge, United States District Court
for the Southern District of Iowa.
      Around 2:00 a.m. on April 26, 1994, Carson, who had been drinking, was
driving his car about 110 miles an hour on a county road. The car left the road at a
curve and overturned in a ditch. A passenger in the car died and another suffered
serious bodily injury.


      Carson was charged with causing homicide and serious bodily injury by vehicle,
in violation of Iowa Code Ann. §§ 707.6A.1(b), 3, 321.277 (1993). Section 707.6A
provides that death or injury must be caused by a person "[d]riving a motor vehicle in
a reckless manner with willful or wanton disregard for the safety of persons or
property, in violation of section 321.277" Section 321.277 provides that a person is
guilty of reckless driving if he "drives any vehicle in such manner as to indicate either
a willful or a wanton disregard for the safety of persons or property." The jury was
instructed that persons drive recklessly “when they consciously or intentionally drive
and they know or should know that by driving they create an unreasonable risk of harm
to others” and that the elements of the offense of reckless driving were "(1) conscious
and intentional operation of a motor vehicle, (2) in a manner which creates an
unreasonable risk of harm to others, (3) where such risk is or should be known to the
driver." Instruction No. 24. The jury was also instructed that it could, but was not
required to, conclude that "a person intends the natural results of his acts." Instruction
No. 17. The court refused Carson's requests to instruct the jury on willful and wanton
conduct and on negligence, his theory of defense.


      After his conviction, Carson appealed. The state appellate court rejected his
arguments that the jury was improperly instructed on the elements of reckless driving.
The court held that Instruction No. 24 included the necessary elements of the offense,

                                           -2-
as the offense had been defined by the state supreme court in State v. Conyers, 506
N.W.2d 442, 444 (Iowa 1993), and it was thus unnecessary for the trial court to instruct
on willful and wanton conduct. The appellate court also held it was unnecessary for
the trial court to instruct on negligence and that Instruction No. 17 did not create an
unconstitutional presumption.


      In March 1997, Carson filed a petition for a writ of habeas corpus, which the
district court denied on October 27, 1997. On November 17, 1997, Carson filed an
application for a certificate of appealability, as required by 28 U.S.C. § 2253(c)(1).
On November 19, the district court granted the application. Carson filed his notice of
appeal on November 28, 1997.


      Initially, we address, but reject, the state's argument that this court lacks
jurisdiction because Carson's notice of appeal was filed two days after the thirty day
time limit of Fed. R. App. P. 4. In this case, Carson's request for a certificate of
appealability was filed within Rule 4's time limit and " 'was the functional equivalent
of a notice of appeal [because] it fulfilled [Fed. R. App. P.] 3's requirements concerning
notice.' " In re SDDS, Inc., 97 F.3d 1030, 1034 (8th Cir. 1996) (quoting United States
v. Gundersen, 978 F.2d 580, 583 (10th Cir. 1992)).2 Even if, as the state asserts, the
request was "technically at variance with the letter" of Rule 3, because it did not state



      2
       In SDDS, this court treated a petition for a writ of mandamus as a notice of
appeal. 97 F.3d at 1034. See also Turner v. Armontrout, 922 F.2d 492, 494 (8th
Cir. 1991) (motion for certificate of probable cause treated as notice of appeal).
Contrary to the state's argument, whether this court treats a document as a notice of
appeal is not dependent on a request to do so.

                                           -3-
an appeal was being taken to this court, the defect is not fatal. Torres v. Oakland
Scavenger Co., 487 U.S. 312, 316-17 (1988). Apparently, the state must be unaware
that the Supreme Court has held "[t]he notice afforded by a document, not the litigant’s
motivation in filing it, determines the document's sufficiency as a notice of appeal."
Smith v. Barry, 502 U.S. 244, 248 (1992). Because the certificate of service shows
that a copy of Carson's request was mailed to "Clerk, Eighth Circuit," the state does
not, and could not, argue that it lacked notice of Carson's intent to appeal to this court.


       We also reject the state's argument that the certificate of appealability is
defective.   Section 2253(c)(2) provides that a court may grant a certificate of
appealability if a petitioner makes "a substantial showing of the denial of a
constitutional right." Here, the district court found that Carson had made "a substantial
showing that reasonable courts might differ'' as to whether the jury instructions violated
his due process rights. Contrary to the state's argument, the district court did not utilize
an erroneous standard in granting the certificate. This court has held that under section
2253(c)(2) "[a] substantial showing is a showing that issues are debatable among
reasonable jurists, a court could resolve the issues differently, or the issues deserve
further proceedings." Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), petition for
cert. filed, No. 97-9013 (U.S. May 5, 1998).


       Although we agree with the state that Carson has failed to demonstrate a
substantial showing, we do not, as the state requests, "tak[e] the intermediate and
wholly unnecessary step of vacating the certificate of appealability." Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997). Instead, because the certificate is "regular
on its face and not procedurally defective," we affirm the district court's judgment. Id.

                                            -4-
      On appeal Carson argues that Instruction No. 24 violated his due process rights
because it failed to define the elements of the offense of reckless driving. If this were
a direct appeal, we might agree. However, "[w]hen determining whether to grant
habeas relief, a federal court's review is limited to examining whether the conviction
violated United States law." Crump v. Caspari, 116 F.3d 326, 327 (8th Cir. 1997).
See 28 U.S.C. § 2254(d) (listing grounds for granting writ).


      Although Carson casts his jury instruction arguments as due process arguments,
"[e]rrors of state law cannot be repackaged as federal errors simply by citing the Due
Process Clause." Johnson v. Rosemeyer, 117 F.3d 104, 110 (3rd Cir. 1997). Carson's
argument that the state appellate court misapplied Conyers "is, at bottom, a question
of state law over which we have no jurisdiction." Ragland v. Hundley, 79 F.3d 702,
705 (8th Cir.), cert. denied, 117 S. Ct. 141 (1996). We note, however, that Instruction
No. 24 tracks the state supreme court’s language in Conyers.3 To the extent that
Carson suggests that Conyers was wrongly decided, "the Supreme Court has made it
clear that the states define the elements of state offenses" and "in general there is no
constitutional reason why a state offense must include particular elements." Johnson,
117 F.3d at 110 (citing McMillan v. Pennsylvania, 477 U.S. 79, 84-86 (1986)). In
addition, Carson's claim concerning the denial of his theory-of-defense instruction does




      3
        In Conyers, the state supreme court held that the elements of the offense of
reckless driving under sections 707.6A and 321.277 were "(1) the conscious and
intentional operation of a motor vehicle, (2) in a manner which creates an
unreasonable risk of harm to others, (3) where such risk is or should be known to
the driver." 506 N.W.2d at 444.

                                          -5-
not present a constitutional issue. See Frey v. Leapley, 931 F.2d 1253, 1255 (8th Cir.
1991).


         In any event, even if Carson's claims of instructional error "rose to the level of
[] constitutional violation[s], [they] cannot be the basis for habeas relief if [they are]
harmless." Seiler v. Thalacker, 101 F.3d 536, 539 (8th Cir. 1996), cert. denied, 117
S. Ct. 1447 (1997).4 Had the trial court instructed the jury, as Carson requested, on
willful and wanton conduct5 and that it should acquit if Carson were merely negligent,
in light of the evidence that Carson had consumed alcohol and was driving at 110 miles
an hour when he lost control of his car, we have no doubt that the jury's decision would
have been the same.


         Carson also incorrectly argues that Instruction No. 17, which permitted the jury
to infer that a person intends the natural consequences of his acts, "violated his [] right
to due process because [it] tended to undermine the requirement of proof beyond a
reasonable doubt." United States v. Clark, 45 F.3d 1247, 1250 (8th Cir. 1995) (internal
quotation omitted). " 'A permissive inference violates the Due Process Clause only if


         4
        Carson incorrectly argues that instructional error claims are not subject to
harmless error analysis because they are "structural" errors. See California v. Roy,
117 S. Ct. 337, 339 (1996) (per curiam) ("error in the instruction that defined the
crime" was not "the structural sort that defies analysis by harmless error standards")
(internal quotation omitted).
         5
       Carson wanted the jury instructed that "[c]onduct is willful and wanton when
a person has intentionally committed an act of unreasonable character in disregard
of a known or obvious risk that was so great as to make it highly probable that harm
would follow, accompanied by a conscious indifference to the consequences."

                                             -6-
the suggested conclusion is not one that reason and common sense justify in light of the
proven facts before the jury.' " Id. (quoting Francis v. Franklin,, 471 U.S. 307, 314-15
(1985)). In light of the evidence of Carson's conduct, "[r]eason and common sense
justify [the] . . . inference[s] in this case." Id.


       Accordingly, the judgment of the district court is affirmed.


       A true copy.


             Attest:


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




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