                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 00-1808
                                    ___________

Dewayne E. Fann,                         *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Michael Bowersox,                        *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: February 13, 2001

                                   Filed: April 27, 2001
                                    ___________

Before WOLLMAN, Chief Judge, BOWMAN, and MORRIS SHEPPARD
      ARNOLD, Circuit Judges.
                              ___________

WOLLMAN, Chief Judge.

       Dewayne E. Fann appeals from the district court’s1 order denying his petition for
writ of habeas corpus pursuant to 18 U.S.C. § 2254. We affirm.




      1
       The Honorable Terry I. Adelman, United States Magistrate Judge for the
Eastern District of Missouri, presiding pursuant to 28 U.S.C. § 636(c).
       In 1992, a Missouri jury convicted Fann of first-degree murder and armed
criminal action. Fann was found to be a prior and persistent offender and was
sentenced to life imprisonment without the eligibility for parole on the murder charge
and a consecutive term of life imprisonment on the armed criminal action conviction.
After exhausting his state remedies, Fann timely filed a petition for writ of habeas
corpus in the United States District Court for the Eastern District of Missouri. The
court denied Fann’s petition but issued a certificate of appealability

      in regard to claim two of Mr. Fann’s petition, which alleged that the trial
      court erred in submitting a jury instruction patterned after MAI-CR3d
      310.50, an instruction the Missouri Supreme Court later determined
      violated Due Process because it implicitly relieved the state of the burden
      of proving beyond a reasonable doubt that the defendant possessed the
      requisite mental state for the crime charged.

       The instruction at issue in this case directed the jury that “an intoxicated
condition from alcohol will not relieve a person of responsibility for his conduct.”
Subsequent to Fann’s trial, the Missouri Supreme Court determined that this
instruction, although not a misstatement of the law, created “a reasonable likelihood
that the jury would believe that if defendant was intoxicated, he was criminally
responsible regardless of his state of mind.” State v. Erwin, 848 S.W.2d 476, 483 (Mo.
1993) (en banc). The court concluded that the jury instruction had the effect of
“excusing the state from proving the defendant’s mental state beyond a reasonable
doubt” and accordingly violated the constitutional guarantee of due process. Id. The
court further held, however, that “[t]his ruling shall be applicable only in cases tried in
the future and cases now subject to direct appeal where the issue is preserved that [the
instruction] violates due process because it relieved the state of its burden of proof as
to the required mental state.” Id. at 484.

      We agree with the State’s contention that Fann’s arguments regarding the
challenged instruction are procedurally defaulted. In an unpublished memorandum

                                           -2-
accompanying the denial of Fann’s consolidated appeal, the Missouri Court of Appeals
determined that Fann failed to object to the jury instruction on constitutional grounds
as required by Erwin and accordingly refused to grant relief. This ruling constitutes an
adequate and independent state ground that bar our review of Fann’s claim. See
Coleman v. Thompson, 501 U.S. 722, 729 (1991) (federal courts will “not review a
question of federal law decided by a state court if the decision of that court rests on a
state law ground that is independent of the federal question and adequate to support the
judgment”). “In Missouri, it has always been the rule that to preserve a constitutional
issue for review, the issue ‘must be raised at the earliest time consistent with good
pleading and orderly procedure.’” Owsley v. Bowersox, 234 F.3d 1055, 1058 (8th Cir.
2000) (quoting State v. Flynn, 519 S.W.2d 10, 12 (Mo. 1975)). Furthermore, Missouri
requires that constitutional objections must be specific. Magenheim v. Board of
Education, 340 S.W.2d 619, 621 (Mo. 1960). These long-standing state procedural
rules are reflected in Erwin’s requirement that a defendant must preserve a
constitutional challenge to the jury instruction in question in order to benefit from the
decision. Because “[a] federal court conducting habeas corpus review must ordinarily
refrain from reviewing any issue that a state court has already found to be defaulted on
an adequate and independent state-law basis,” Owsley, 234 F.3d at 1058, we will not
review further the merits of Fann’s constitutional challenge to the jury instruction on
intoxication.

       Fann argues that his failure to object to the jury instruction should be excused.
A petitioner can excuse a procedural default by demonstrating either (1) actual
innocence or (2) cause and actual prejudice. Coleman, 501 U.S. at 748; Dejan v.
United States, 208 F.3d 682, 685 (8th Cir. 2000). Fann does not contend that he is
actually innocent of murder and armed criminal action. Rather, he attempts to
demonstrate cause and prejudice, contending that his lawyer’s failure to object to the
jury instruction constituted ineffective assistance of counsel that constituted cause for
his procedural default. We have held, however, that a lawyer’s failure to anticipate


                                          -3-
Erwin does not constitute ineffective assistance, Parker v. Bowersox, 188 F.3d 923,
929 (8th Cir. 1999), and thus Fann’s argument to the contrary fails.2

      The judgment is affirmed.

      A true copy.

             Attest:

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




      2
        We decline to consider Fann’s contentions that raise issues beyond those
specified in the certificate of appealability. Cf. United States v. Morgan, No. 99-2798,
2001 WL 322054 (8th Cir. Mar. 19, 2001).

                                          -4-
