                                    ___________

                                    No. 96-1157
                                    ___________

Leroy S. Seiler,                         *
                                         *
           Appellee,                     *
                                         * Appeal from the United States
     v.                                  * District Court for the
                                         * Northern District of Iowa
John A. Thalacker,                       *
                                         *
           Appellant.                    *
                                    ___________

                        Submitted:    September 11, 1996

                           Filed:    November 26, 1996
                                    ___________

Before BEAM, HEANEY, and MURPHY, Circuit Judges.
                               ___________

MURPHY, Circuit Judge.


     Leroy Seiler was convicted of first degree murder and sentenced to
life imprisonment.   After the Iowa Supreme Court affirmed his conviction,
Seiler filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254,
arguing an error in the jury instructions violated his due process and
Sixth Amendment rights.1   The district court conditionally issued the writ,
and the State of Iowa appeals.       We reverse.


                                        I.


     The evidence at trial showed that Seiler had hidden in a tavern to
steal the cash on hand after closing.        The tavern owner




     1
      Seiler also alleged his right to equal protection was
violated by the jury instruction. The district court rejected
this argument, and Seiler has abandoned it on appeal.

                                        1
had discovered him, and in the struggle that followed, Seiler grabbed a
meat cleaver and struck him.             The victim died of numerous head injuries,
including two massive skull-penetrating blows from the cleaver.                      He had
bled profusely and suffered many other injuries, including a severed thumb
and multiple cuts.       Blood samples matching those from Seiler and the victim
were found in a public shower at a hotel across the street from the tavern.
Seiler's bloody clothes and the money from the tavern were found in the
apartment where Seiler stayed the night of the murder.                  Seiler had also
been seen near the tavern at closing time on the night of the killing.


     At      the    close     of    evidence,   the   jury   was   instructed   on    three
alternative        theories    of    first   degree   murder:      felony   murder    while
participating in willful injury, felony murder while participating in first
degree burglary, and premeditated and deliberate murder.               The jury returned
a general verdict of guilty of first degree murder.


     On direct appeal, Seiler contested the accuracy under state law of
the jury instruction for felony murder while committing a first degree
burglary.2    The Iowa Supreme Court held that the instruction was incorrect
under Iowa law because it omitted the physical injury element of first
degree burglary.        State v. Seiler, 342 N.W.2d 264, 268 (Iowa 1983) (en
banc).    Nonetheless, it affirmed the conviction after holding the erroneous
instruction was not prejudicial because the jury could not have failed to
find the intentional infliction of physical injury that would trigger a
first degree burglary.         Id.    The dissent objected that the court's holding
in effect directed a verdict for the state on an issue it was obligated to
prove beyond a reasonable doubt and that the




     2
      Seiler also contested the constitutionality of the search
warrant under which the clothes and money were found. The Iowa
Supreme Court rejected this argument. State v. Seiler, 342
N.W.2d 264, 267 (Iowa 1983) (en banc).

                                                2
evidence was insufficient to overcome the presumption of prejudice.               Id.
at 269.


     Seiler then filed an application for postconviction relief.                    He
asserted ineffective assistance of counsel at trial and on appeal resulting
from the failure of trial and appellate counsel to object adequately to the
jury instructions.    The application was denied, and the Iowa Supreme Court
denied further review.


     Seiler next filed a petition for habeas corpus, arguing that the
omission of an element, in the instruction for felony murder while
committing a first degree burglary, violated his due process and Sixth
Amendment rights.      Seiler asserted that Iowa law required the state to
prove he committed a first degree burglary before the felony murder rule
could apply.      Iowa Code § 702.11.       First degree burglary required proof
beyond    a   reasonable   doubt   that    while   committing   a   burglary,   Seiler
possessed a "dangerous weapon, or intentionally or recklessly inflict[ed]
physical injury on any person."           Iowa Code § 713.3.


     The instruction to the jury at trial stated:


                    In considering First Degree Murder under the
              Felony-Murder Doctrine, you are instructed that the
              law provides that when a person commits a burglary
              when [sic] the burglary is performed by force or
              against the will of the other.

                    You are further instructed that burglary is a
              forcible felony.

Seiler contended that this instruction relieved the state of proving all
elements of the crime beyond a reasonable doubt and took an element of the
crime away from the jury.


     The district court found that the error in the jury instruction
violated Seiler's rights to due process and to a fair




                                            3
trial, and that these violations were not harmless.                  The district court
conditionally issued the writ of habeas corpus, ordering the state to
either commence proceedings to retry Seiler within sixty days or release
him from custody.


      The state appeals, arguing that Seiler procedurally defaulted his
constitutional claims because in his direct appeal he only raised state law
issues concerning the burglary instruction.               The state concedes that the
jury instruction was incorrect, but asserts that in the context of other
jury instructions the error did not violate Seiler's constitutional rights.
The state argues also that any constitutional violation was harmless in
light of the overwhelming evidence concerning the intentional infliction
of physical injury.


                                       II.


      Before a district court may consider a habeas corpus petition, the
petitioner must exhaust state remedies.           28 U.S.C. § 2254(b).       To satisfy
the exhaustion requirement, the petitioner must "fairly present" the
federal claims to the state courts to give the state the opportunity to
correct any alleged violations of its prisoners' federal rights.                   Duncan
v. Henry, 115 S. Ct. 887, 888 (1995) (per curiam).               Presenting a similar
state claim to the federal right is insufficient to exhaust state remedies.
Id.    Instead,     the   applicant   must        refer    to   "a    specific    federal
constitutional right, a particular constitutional provision, a federal
constitutional    case,   or   a   state       case   raising   a    pertinent    federal
constitutional issue in a claim before the state courts."                        Kelly v.
Trickey, 844 F.2d 557, 558 (8th Cir. 1988) (citing Thomas v. Wyrick, 622
F.2d 411, 413 (8th Cir. 1980)).


      The state argues Seiler procedurally defaulted the due process and
Sixth Amendment claims because those claims are not equivalent to his claim
regarding the adequacy of the burglary instruction




                                           4
under Iowa law that he raised in his direct appeal.       Seiler contends that
he effectively raised the constitutional claims by citing a constitutional
case and stating he was denied a fair trial.      He contends the dissent shows
the Iowa Supreme Court was aware of the constitutional questions.


     Seiler argued in his direct appeal that the jury was improperly
instructed on the necessary elements under Iowa law for          conviction of
felony murder while committing a first degree burglary.       Seiler contended
the error in the burglary instruction could have caused the jury to find
him guilty of the lesser included offense of second degree burglary but
still convict him of felony murder, even though under Iowa law a second
degree burglary cannot be the underlying crime for a felony murder.       Iowa
Code § 702.11.   He concluded that improperly instructing the jurors on the
elements they had to find beyond a reasonable doubt deprived him of a fair
trial.


     In his state court appeal, Seiler cited Jackson v. Virginia, 443 U.S.
307, 318-19 (1979).    In Jackson, the Supreme Court held the Fourteenth
Amendment required a federal court to examine whether the record evidence
could reasonably support guilt when reviewing the sufficiency of the
evidence in a habeas petition.   Id. at 318.   The Court did not address any
issues regarding the constitutionality of jury instructions.        Seiler did
refer to a part of the opinion, however, which contained a general
statement about the necessity of proper instructions on reasonable doubt
for all elements of a crime.     Id. at 318-19.


     It is doubtful that Seiler sufficiently raised the constitutional
issue on his direct appeal by citing to Jackson.       Jackson did not turn on
issues related to jury instructions although it contained a reference to
instructing the jury on reasonable doubt.   Neither the majority opinion nor
the dissent in Seiler's direct appeal mentioned Jackson.          The majority
opinion




                                      5
focused on the validity of the burglary instruction under Iowa law and
never addressed taking an element of the crime away from the jury or any
constitutional issue.   Seiler, 342 N.W.2d at 268.      The dissent, on which
Seiler now relies, also did not refer to any constitutional claim, but it
stated that the court's decision "is the equivalent of a directed verdict
for the State on an issue the State was obliged to prove beyond a
reasonable doubt."   Id. at 269.


     Even   though   Seiler's   argument   on   the   adequacy    of   the   jury
instructions under Iowa law and his statement that the error in the
instructions deprived him of a fair trial had some similarity to the
constitutional issues he now asserts, mere similarity is insufficient to
exhaust state remedies.     Duncan, 115 S. Ct. at 888.           Whether a jury
instruction is correct under state law is not the same issue as whether a
jury instruction violated the due process clause.     Anderson v. Harless, 459
U.S. 4, 7 (1982) (per curiam).      It is thus questionable whether Seiler
sufficiently presented the constitutional issue on his direct appeal, but
we need not resolve this issue because we find that any error was harmless.



                                    III.


     In his petition for habeas corpus, Seiler argued the error in the
first degree burglary instruction violated his due process rights because
the state did not have to prove all elements of the crime beyond a
reasonable doubt and his Sixth Amendment rights because it took an element
of the crime away from the jury.   The state concedes the jury instruction
was incorrect, but argues there was no constitutional violation under Boyde
v. California, 494 U.S. 370, 380 (1990), because there is not a reasonable
likelihood the jurors convicted Seiler without finding he had a weapon or
assaulted the victim.


     The state argues that analyzing the incorrect burglary instruction
in the context of the entire jury charge shows there




                                     6
was no constitutional error.      To convict Seiler of first degree burglary,
Iowa law required that while committing a burglary, Seiler possessed "a
dangerous weapon, or intentionally or recklessly inflict[ed] physical
injury on any person."     Iowa Code § 713.3.     The trial court instructed the
jury that first degree burglary required a burglary performed by "force or
against the will of the other."           The state argues this sufficiently
informed the jury that personal violence during the burglary was required
to   convict Seiler of felony murder while committing a first degree
burglary.     Other instructions told the jury that Seiler could only be
convicted of first degree murder if the state proved beyond a reasonable
doubt that Seiler struck the victim and that the victim died as a result.
The state argues that since the jury found that Seiler committed both a
burglary and a murder, a jury with commonsense understanding of all the
instructions would not have failed to find that Seiler committed an assault
during the burglary.       Because of this, the jury could not have convicted
Seiler without finding all the elements of first degree burglary.


       Even if the error in the first degree burglary instruction rose to
the level of a constitutional violation, it cannot be the basis for habeas
relief if it is harmless.        On Seiler's direct appeal, the Iowa Supreme
Court examined whether the error in the jury instructions was prejudicial.
When   a   state   court   has   not   reviewed   on   direct   appeal   whether   a
constitutional error was harmless, this court examines the error to
determine whether it "was harmless beyond a reasonable doubt."            Orndorff
v. Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993).         The record is reviewed
de novo, and the issue is "whether there is a reasonable possibility" the
error contributed to the conviction.         Williams v. Clarke, 40 F.3d 1529,
1541 (8th Cir. 1994).       The state has a heavy burden in proving that an
error is harmless beyond a reasonable doubt.       Id.   The test is not whether
the evidence was sufficient to support a conviction.        Id.   Rather, an error
is harmless only if "what was actually and properly considered in the
decision-making process was




                                         7
'so overwhelming' that the decision would have been the same even absent
the invalid factor."        Id. (citing Yates v. Evatt, 500 U.S. 391, 404-05
(1991));   Estelle    v.    McGuire,   502       U.S.    67,    72    (1991)     (faulty    jury
instruction must be examined in context of the instructions as a whole and
the trial record); Rose v. Clark, 478 U.S. 570, 583 (1986) (entire record
should be reviewed to determine whether error in jury instruction was
harmless); United States v. Hasting, 461 U.S. 499, 509 n.7 (1983) ("Chapman
mandates consideration of the entire record prior to reversing a conviction
for constitutional errors that may be harmless . . .").


       The jury considered three alternative theories of first degree murder
and returned a general verdict of guilty.               Seiler does not complain about
the    instructions   for    premeditated         murder       or    felony      murder    while
participating in a willful injury.       The harmless error issue is therefore
whether the incorrect instruction on felony murder while committing a first
degree burglary contributed to Seiler's conviction.                    Id.



       Seiler contends that the error was not harmless because it prevented
the jury from considering the lesser included offense of second degree
murder, but his argument fails to consider the totality of the jury
instructions    and   the     overwhelming         evidence         that   the    victim     was
intentionally struck during the burglary.               The jury was instructed it could
find first degree burglary if Seiler killed the victim while participating
in    a burglary by "force or against the will of the other."                               Jury
instruction 16, which applied to all first degree murder theories, informed
the jurors that to find Seiler guilty of first degree murder they must find
beyond a reasonable doubt that Seiler intentionally struck the victim,
causing his death.     Since the jury returned a general verdict of guilty,
it must have found that Seiler's intentional act caused the victim's death.
Moreover, even though the challenged instruction did not specifically spell
out the requirement of physical injury




                                             8
for first degree burglary, the evidence overwhelmingly showed that the
victim suffered physical injuries during the burglary.                   He had been beaten
with a poolstick and repeatedly struck with a meat cleaver, he had many
cuts and a severed thumb, and he had died from massive skull-penetrating
head injuries.       The evidence concerning the intentional infliction of
physical injury during the burglary was so overwhelming that given the
whole context of the instructions and the evidence, any error of a
constitutional nature in the challenged instructions was harmless beyond
a reasonable doubt.


     Accordingly, we reverse the conditional grant of a writ of habeas
corpus and remand so that the judgment can be vacated.


HEANEY, Circuit Judge, dissenting.


     I would affirm the district court on the basis of its thorough and
well-reasoned      opinion.    I    agree    with    each    of    the    district    court’s
conclusions, namely (1) Seiler exhausted his state court remedies with
respect to the claim in his habeas corpus petition, (2) the faulty jury
instruction   on    first-degree      felony      murder    rose    to    the   level      of   a
constitutional violation, (3) the error is subject to harmless-error
analysis, and (4) the error was not harmless.                Therefore, I respectfully
dissent.


     The trial court instructed the jury as follows:


                                   Instruction No. 17

           The law provides that a person commits Murder in the
     Second Degree when he kills another with either express or
     implied malice aforethought.

           However,      it   is    Murder   in     the    First   Degree,      if,   in
     addition, he:

           Willfully, deliberately, and with premeditation kills
     another person.




                                             9
           There are several circumstances, however, where murder
     becomes Murder in the First Degree.

           One circumstance is the so-called “Felony - Murder
     Doctrine.” That is where one kills another person with malice
     aforethought while participating in a forcible felony. Other
     instructions further explain this type of First Degree Murder.

                                   * * *

                            Instruction No. 28

           In considering First Degree Murder under the Felony -
     Murder Doctrine, you are instructed that the law provides that
     when [sic] a person commits a burglary when the burglary is
     performed by force or against the will of the other.

           You are further instructed that burglary is a forcible
     felony.


(J.A. at 66 and 77.)


     The jury was given a general verdict form and returned a verdict of
guilty of first-degree murder.   Neither the trial court nor this court can
determine whether the jury found Seiler guilty of premeditated first-degree
murder or first-degree felony murder.


     The state concedes that instruction 28 was improper.    There is also
no doubt that Seiler fairly presented his federal claim to the state court
and that he gave the state a full opportunity to address the constitutional
violation that the jury was improperly instructed as to the essential
elements to be found beyond a reasonable doubt for his conviction.   Seiler
cited Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) as authority for his
claim.   Moreover, in State v. Seiler, 342 N.W.2d 264 (Iowa 1983), the
dissenting justice wrote:


     The trial court's instructions authorized the jury to find the
     defendant guilty of first-degree murder based on finding
     defendant committed murder in the perpetration of




                                     10
     a burglary. The court did not define burglary or tell the jury
     only first-degree burglary would enhance the offense to first-
     degree murder, despite a timely defense objection pointing out
     the error.

           This court's holding is the equivalent of a directed
     verdict for the State on an issue the State was obliged to
     prove beyond a reasonable doubt.


Id. at 268-69 (McCormick, J., dissenting) (emphasis added).      Thus, there
can be no doubt that instruction 28 was in error and that the error was
presented to the state court.


     Moreover, the error was a constitutional one.    The Due Process Clause
protects an accused against a criminal conviction unless the state proves
beyond a reasonable doubt every fact necessary for the crime with which the
accused is charged.   In re Winship, 397 U.S. 358, 364 (1970); see also
Sullivan v. Louisiana, 508 U.S. 275, 277 (1993); Sandstrom v. Montana, 442
U.S. 510, 520 (1979); Mullaney v. Wilbur, 421 U.S. 684, 704 (1974).       In
addition, the most important element of a defendant's Sixth Amendment right
to a jury trial is the right to have a jury, not a judge, reach the
requisite findings of guilt.    Sullivan, 508 U.S. at 277.   Thus, "although
a judge may direct a verdict for the defendant if the evidence is legally
insufficient to establish guilt, he may not direct a verdict for the state,
no matter how overwhelming the evidence."     Id.    In this case, the trial
court neither defined first-degree burglary nor told the jury that only
first-degree burglary could enhance the offense to first-degree murder.
The court also instructed the jury that burglary is a forcible felony,
thereby impermissibly substituting its own judgment for that of the jury.
I agree with the district court that this amounted to a directed verdict
for the state on an element of first-degree burglary, which was a predicate
for a first-degree felony murder conviction.        The instruction violated
Seiler's due process rights and his right to a fair jury trial.




                                     11
        I agree with both the district court and the majority that the effect
of the faulty instruction on the jury's verdict is subject to harmless
error analysis.        The appropriate inquiry for this court is set forth in
Chapman v. California, 386 U.S. 18 (1967):                  whether the state has proved
that the error was harmless beyond a reasonable doubt.                    The majority finds
that the error was harmless in light of "the totality of the jury
instructions     and     the    overwhelming        evidence      that     the   victim    was
intentionally struck during the burglary."                 Maj. Op., supra at 8.      To the
extent that the majority relies on the evidence of Seiler's guilt and its
own strong belief that a properly-instructed jury would have convicted
Seiler, it commits grave error.             The Supreme Court has spoken directly on
this issue.     The question facing this court in a harmless error analysis,


        is not whether, in a trial that occurred without the error, a
        guilty verdict would surely have been rendered, but whether the
        guilty verdict actually rendered in this trial was surely
        unattributable to the error.     That must be so, because to
        hypothesize a guilty verdict that was never in fact rendered--
        no matter how inescapable the findings to support the verdict
        might be--would violate the jury-trial guarantee.


Sullivan, 508 U.S. at 279 (emphasis added).                Had the jury explicitly based
its verdict on premeditated murder, there certainly would be sufficient
evidence to support the jury's verdict.                   However, as the record stands,
neither the state court nor the majority nor I know whether the jury
believed that Seiler was guilty of premeditated murder or felony murder.
It would have been a simple matter to have prepared a verdict form that
would    have   permitted      the   jury    to    make    a   separate    finding   on   each
instruction.     Failing that, I cannot conclude beyond a reasonable doubt
that this jury did not base its verdict on the erroneous felony-murder
instructions.


        The majority accepts the argument that the error was harmless




                                              12
in light of the totality of the jury instructions.   I disagree.   The only
possible basis for this argument is that the missing elements of first-
degree burglary are supplied when instructions 17 and 28 are read together.
The fact remains, however, that instruction 28 permitted the jury to find
Seiler guilty of murder in the first degree when he committed a burglary
that was performed by force or against the will of another.   We cannot read
the jurors' minds to supply the missing elements of that instruction.


     Thus, I would not hesitate to affirm the district court and would
remand the matter to the district court with directions to remand it to the
state court for a new trial with a properly-instructed jury.


     A true copy.


           Attest:


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




                                    13
