                                       ___________

                                       No. 95-1260
                                       ___________

Jeffrey K. Ragland,                         *
                                            *
                Appellant,                  *
                                            * Appeal from the United States
     v.                                     * District Court for the
                                            * Southern District of Iowa.
Thomas E. Hundley, Warden,                  *
Fort Madison Penitentiary,                  *
                                            *
                Appellee.                   *
                                       ___________

                          Submitted:   November 13, 1995

                              Filed:   March 20, 1996
                                       ___________

Before BEAM, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

BEAM, Circuit Judge.


     Jeffrey K. Ragland (Ragland) appeals the district court's1 denial of
his 28 U.S.C. § 2254 petition for a writ of habeas corpus.          Ragland objects
to Iowa's felony-murder law as interpreted and applied by the Iowa Supreme
Court.       We affirm.


I. BACKGROUND


     After attending a concert, a group of five friends decided to swing
by a grocery store to get some beer.                 They chatted with some mutual
acquaintances in the grocery store parking lot.            While they talked, a car
sped into the parking lot and the occupants shouted at them.          That car then
stopped.       The occupants exited and approached the group of friends.        One
of the newcomers carried an




         1
       The Honorable Ronald E. Longstaff, United States District
Judge for the Southern District of Iowa.
iron pipe and one carried an empty beer bottle in each hand.     The leader
of the new group, Ragland, demanded that the two groups fight, even though
they had had no previous contact, amicable or otherwise.        The friends
demurred, and as one, Timothy Sieff, backed away with his hands up, the
iron pipe wielder, Matthew Gill, swung the pipe like a baseball bat,
felling Sieff with one blow.   Although an ambulance was summoned during the
ensuing melee, Sieff died before help arrived.


     After Sieff fell, the fight moved across the parking lot and into the
store with Ragland, now carrying the iron pipe, in pursuit of two of the
victim's companions.   A store employee tried to record the license plate
number of the aggressor group's car when it subsequently left the premises.
The car stopped.   Ragland then got out and spat upon the employee.


     Ragland was tried and convicted of first-degree felony murder.
Despite his youth, Ragland's extensive record of unprovoked serious
assaults and evident pleasure in hurting people convinced the trial court
that life imprisonment, without possibility of parole, was the appropriate
sentence.2   Ragland appealed both his conviction and his sentence.     The
Iowa Supreme Court affirmed.   State v. Ragland, 420 N.W.2d 791 (Iowa 1988).
Ragland's state




     2
      The trial court sentenced Ragland, who was 17 at the time of
the crime, as an adult. Jt. App. at 76. The trial court found
Ragland's record to be "probably one of the worst records that [it
had] ever seen . . . as far as assaults." Id. at 81. That court
had rarely encountered someone who "apparently gets so much
satisfaction . . . out of causing injury, pain, and suffering to
someone else." Id. at 82. The court noted that Ragland's record
of assaults stretched from when he was nine years old, that Ragland
had injured many people over the years, that within the year before
his trial "at least once a month [Ragland had] inflicted an injury
on someone that required medical treatment, hospitalization, or
caused permanent injury," and that the victim of Ragland's most
recent assault, which occurred just two days before the trial in
issue, was still hospitalized at the time of Ragland's sentencing.
Id.

                                    -2-
postconviction actions were also unsuccessful.           Ragland v. State, No. 90-
920 (Iowa Ct. App. May 29, 1991).        Ragland subsequently filed a petition
for federal habeas relief, which the district court denied after de novo
review of the magistrate's report and recommendation.          Ragland v. Hundley,
No. 4-93-CV-10719, order (S.D. Iowa Nov. 15, 1994).           Ragland appeals.


       On appeal, Ragland argues that his felony-murder conviction violates
his constitutional right to due process and his right against double
jeopardy because the underlying felony (willful injury) and the murder
(killing with malice aforethought) resulted from the same act.               Ragland
also contends that inadequacy in the jury instructions as to the element
of malice aforethought deprived him of due process.3            He further asserts
that the Iowa Supreme Court's limitation of the statutory merger doctrine
in felony-murder cases violates his right to equal protection.


II. DISCUSSION


       Ragland's argument that he cannot be convicted of felony murder
because the underlying felony, willful injury, was an integral part of the
homicide is without merit.          There is no double jeopardy issue because
Ragland was convicted of one crime only, felony murder, and sentenced for
that crime only.     See Heaton v. Nix, 924 F.2d 130, 134 (8th Cir.), cert.
denied, 500 U.S. 956 (1991).        In fact, double jeopardy is not implicated
even   when   a   state   pursues   convictions    and   punishment   for   both   the
underlying felony and the felony murder, so long as the defendant is
prosecuted for both offenses in one trial and the state legislature has
authorized cumulative punishments.        Id.     That a lesser crime is




        3
       We note that Ragland apparently did not raise the alleged
inadequacy of the jury instructions until after his conviction,
despite having ample opportunity and invitation to do so.

                                        -3-
an element of a greater crime simply does not render conviction of the
greater crime a double jeopardy violation.     Id.


      The companion argument--that in this case there can be no felony
murder because the murder was accomplished by one blow not only lacks merit
but is, at bottom, a question of state law over which we have no
jurisdiction.    See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal
habeas courts may not reexamine state court determinations of state law
questions).     Ragland argues that   a felonious assault which results in a
murder     cannot be the basis for a felony-murder charge under Iowa's
statutory merger doctrine.    Instead, it must be charged as a second-degree
murder.     The State of Iowa and the Iowa Supreme Court disagree.


      Iowa's statutory merger doctrine forbids separate convictions on both
a lesser included offense and the greater offense.    Iowa Code Ann. § 701.9
(West 1993).    In State v. Ragland, 420 N.W.2d at 793, and State v. Beeman,
315 N.W.2d 770, 776-77 (Iowa 1982), the Iowa Supreme Court decided that the
Iowa legislature has declined to extend the "merger doctrine" to felony
murder.4    E.g., Iowa v. Anderson, 517 N.W.2d 208, 214 (Iowa 1994); see also
Iowa Code Ann. §§ 702.11; 707.2 (West 1993).     Since Ragland was convicted
of one crime only, felony murder, there is no statutory merger issue.




      4
      Some states have extended a form of the merger doctrine to
felony murder, in that they do not allow felonious assault to be
the underlying felony on which a felony-murder charge is based.
This is to avoid the prosecution's bootstrapping a simple homicide
to a higher degree of murder without showing the requisite intent.
Iowa's legislative scheme, however, explicitly includes felonious
assault in the listed felonies which will support a felony-murder
charge. Iowa Code Ann. § 702.11 (West 1993). The Iowa scheme
nonetheless avoids any serious bootstrapping concerns by permitting
felony-murder charges to lie only when the killing in issue is a
murder, i.e., a killing with malice aforethought. Id. at § 707.2.
In any case, it is well within a state's discretion to discourage
felonious gang assaults by holding the participants in such attacks
liable for first-degree felony murder for any murders resulting
therefrom, regardless of which member of the attacking group
ultimately strikes the fatal blow.

                                      -4-
      Ragland makes much of the fact that Sieff was killed with a single
blow, arguing that due process concerns preclude enhancement of second-
degree murder (which carries a less severe sentence) by "participation" in
the same act which resulted in the murder.    However he fails to acknowledge
Iowa's statutory inclusion of "felonious assault" as an underlying felony
which will support a felony-murder charge, or to distinguish this case from
our decision addressing the nearly identical question in Heaton v. Nix.



     In Heaton, we found that there simply was no constitutional issue
implicated in a felony-murder conviction, where the underlying felony,
terrorism, consisted of the same act that resulted in the murder.    924 F.2d
at 133-34.   Heaton, acting entirely by himself, had fired several shots
into a building from which he had been ejected by the victim.       The court
found that Iowa's specific inclusion of "felonious assault" as a basis for
felony murder and refusal to apply the merger doctrine to such situations
was determinative.     Id. at 134.    Because this case involves a murder
resulting from a blow inflicted during a group attack led by Ragland, and
not the act of an isolated person acting alone, it does not even present
as clear of a bootstrapping question as that rejected in Heaton.     See id.;
supra n.4.   The Heaton court in no way found that there were several shots,
rather than just one, to be dispositive or even relevant.           We cannot
imagine a different result or analysis had there been only one shot.     What
was dispositive in that case, and is dispositive in this case, is Iowa's
specific inclusion of felonious assault as a basis for felony murder, and
its concomitant explicit refusal to expand the merger doctrine to encompass
felony murder.


     Ragland also argues that he was denied due process under the jury
instructions because he was held liable for Gill's malice aforethought when
he, Ragland, did not intend to kill anyone.    He does not dispute that the
State proved, as it must, that Gill acted




                                     -5-
with malice aforethought.5                   That is the essence of the felony-murder
doctrine, a knowing or willful participant in the underlying felony is
liable for any resulting reasonably foreseeable murder by a cofelon,
regardless      of       whether       the   participant       intended      that   murder    to    be
committed.6     See Tison v. Arizona, 481 U.S. 137, 159 (1987) (Brennan, J.
dissenting).             As    ably    pointed    out    in    the     magistrate's   report       and
                     7
recommendation, the jury instructions, read as a whole, Cupp v. Naughten,
414 U.S. 141, 146-47 (1973), were adequate on this point and could not have
misled the jury.              See Boyde v. California, 494 U.S. 370, 380 (1990).


     The instructions explained aiding and abetting in a public offense
(willful injury).             Jt. App. at 148.        They defined "willful injury" and the
intent necessary for that offense.                    Id. at 152.      The instructions further
set out the joint criminal enterprise doctrine which applies in felony
murder; that "when two or more persons, acting in concert, know[]ingly
participate in a public offense, each is responsible for the acts of the
other done in furtherance of the commission of the offense . . . unless the
act was one which the person could not reasonably expect to be done in the
furtherance of the commission of the offense."                           Id. at 150.      That is,
knowing      participants         in    a    felony    are    liable    as   principals      for   the
foreseeable acts of their cofelons.                     The instructions also detailed the
requirements of "malice aforethought" and "murder,"                          and the requirements
for felony murder.             Id. at 144-45.         Thus,




     5
     This argument was made to and correctly rejected by the Iowa
Supreme Court. Ragland, 420 N.W.2d at 793-94.
     6
      While Ragland argues that this amounts to strict liability,
it does not. The felony-murder doctrine does not apply to murders
which are not reasonably foreseeable, and the state must still
prove that the victim was murdered during the course of a
qualifying felony and that the defendant was a willful participant
in that underlying felony.
         7
       The Honorable Celeste F. Bremer, United States Magistrate
Judge for the Southern District of Iowa.

                                                  -6-
Ragland's complaint that "malice aforethought" was conclusively presumed
in Sieff's murder, is without merit.       Taken together, these instructions
adequately explained to the jury that Ragland was guilty of felony murder
if the state proved beyond a reasonable doubt that he and another knowingly
participated in the offense of "willful injury" and one of them murdered
their victim.     Id. at 139-156; see State v. Sauls, 356 N.W.2d 516, 520
(Iowa 1984).    In this noncapital context, whether Ragland struck the fatal
blow or intended that Sieff die is irrelevant.       What is relevant is that
he intended for his group to harm Sieff; at his command, one of its members
did so with malice aforethought; and Sieff died as a result.


     Finally, Ragland, a white male, argues that his equal protection
rights are violated by the felony-murder doctrine.      He argues that felony
murder itself amounts to an impermissible classification because only
felony murderers are liable for murders that they did not intentionally aid
and abet.   He claims, therefore, that felony murderers are a suspect class
within the class of murderers.8     Of course, participating in one of the
statutory felonies supporting a felony-murder charge is participating in
a course of action from which murders are all too foreseeable.       As such,
it is perfectly rational and permissible for a state to equate knowing
participation in those felonies with aiding and abetting in the murders
which foreseeably ensue.


     Further, contrary to Ragland's assertions, Iowa's aiding and abetting
statute does not require that a person personally commit every act of the
crime which was aided or abetted, which would




        8
        Ragland, skirting frivolity, further argues that strict
scrutiny applies to his claim. This argument is clearly without
merit.

                                     -7-
render "aiding and abetting" a term without meaning,9 but requires only
that the aider and abettor's liability be commensurate with his extent of
involvement in and culpability for the crime in question.                  See Iowa Stat.
Ann. § 703.1 (West 1993).                  The Iowa Supreme Court has specifically
addressed whether, under Iowa law, aiders and abettors of the underlying
felony may be held liable for any resultant murder, regardless of whether
they personally had a specific intent to kill, and has consistently
answered in the affirmative.               See Conner v. State, 362 N.W.2d 449, 455
(Iowa       1985);   State   v.    Ragland,    420   N.W.2d   at    791,   793-94.      This
interpretation of Iowa law is definitive for our purposes, and Ragland's
forceful disagreement with the Iowa Supreme Court's interpretation of that
law does not implicate the equal protection clause.


III. CONCLUSION


        For    the   reasons      stated    above,   we   affirm   the   district    court's
judgment.


        A true copy.


                Attest:


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




        9
      Likewise "aiding and abetting" felony murder is an oxymoron
and meaningless.

                                              -8-
