In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3708

RICHARD REEVES,

Petitioner-Appellant,

v.

JOHN C. BATTLES,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 1613--Robert W. Gettleman, Judge.

Argued September 28, 2001--Decided November 26, 2001



  Before Flaum, Chief Judge, Bauer and
Evans, Circuit Judges.

  Bauer, Circuit Judge. Petitioner-
Appellant was indicted for murder in the
first degree in the Circuit Court of Cook
County, Illinois. Prior to deliberations,
the trial judge denied the appellant’s
request to provide the jury with an
instruction on the lesser included
offense of involuntary manslaughter.
Following a guilty verdict and denial of
a new trial, the appellant sought
reversal of his conviction and sentence
by way of direct appeal. After exhausting
his state appellate remedies, the
appellant sought habeas relief in federal
court. The district court denied habeas
relief, finding that the trial court’s
failure to include an involuntary
manslaughter instruction did not result
in a fundamental miscarriage of justice.
For the following reasons, we AFFIRM the
decision of the district court.

I.   Background

  On November 13, 1988, the body of Mario
Fierro was found dead outside of the
Fickle Finger Tavern in Chicago Heights,
Illinois. Fierro was earlier escorted out
of the tavern by the appellant because he
had been overserved. Though an off-duty
tavern manager took a beer can away from
Fierro and told the bartender not to
serve Fierro any more drinks, he was not
causing any disturbance. No one asked the
appellant, who was not employed by or
otherwise affiliated with the tavern, to
remove Fierro from the premises. In fact,
the off-duty tavern manager told the
appellant that she could handle the
situation.

  After escorting Fierro outside the
tavern, the appellant was seen kicking
Fierro in and/or around the head approxi
mately three times. The appellant stopped
beating Fierro when a patron from the
tavern grabbed him and told him that
Fierro had had enough. When that same
patron left the tavern about twenty
minutes later, he found Fierro lying face
down on the sidewalk in front of his car.
The patron then checked to see if Fierro
had a pulse, but found none.

  Fierro’s autopsy revealed numerous
abrasions on his face and wrists, an
injury suggesting blunt trauma to the
right side of his head, several
hemorrhages inside of his head, and a
fracture of thyroid cartilage indicative
of manual strangulation. The medical
examiner concluded that Fierro’s death
was caused by blunt trauma to the head in
association with manual strangulation,
which could result from being kicked in
the head, put into a choke-hold, or being
knocked down.

  The appellant was convicted of murder in
the first degree. After an unsuccessful
direct appeal and post-conviction
petition, the appellant petitioned the
district court for a writ of habeas
corpus pursuant to 28 U.S.C. sec. 2254.
Among other things, the appellant argued
that the trial judge erred in refusing to
charge the jury with an instruction
defining the offense of involuntary
manslaughter when the evidence supported
such a claim and a request for such
instruction was made. The district court
rejected this argument and denied the
petition, concluding that the trial
court’s failure to include the lesser
offense instructions did not result in a
fundamental miscarriage of justice.

II.   Discussion

  We review the district court’s findings
of fact for clear error and its rulings
on issues of law de novo. Whitehead v.
Cowan, 263 F.3d 708, 717 (7th Cir. 2001).

  In general, the failure of a state trial
court to instruct the jury on a lesser
offense does not implicate a federal
constitutional question and will not be
considered in a federal habeas corpus
proceeding. United States ex rel. Peery
v. Sielaff, 615 F.2d 402, 404 (7th Cir.
1979) (citations omitted); see also
United States ex rel. Waters v.
Bensinger, 507 F.2d 103, 105 (7th Cir.
1974) ("[I]nstructions to the jury in
state trials are matters of state law and
procedure not involving federal
constitutional issues."). However, the
omission of an instruction regarding a
particular offense may effectively result
in a directed verdict, thereby
implicating Sixth and Fourteenth
Amendment rights. See Peery, 615 F.2d at
404 (citations omitted). In a habeas
action, the question is not whether the
failure to instruct on a lesser included
offense was correct or incorrect under
state law, but rather whether failure to
do so constituted a defect so fundamental
that it results in a complete miscarriage
of justice or omission inconsistent with
the standards of fair procedure. Id.;
Nichols v. Gagnon, 710 F.2d 1267, 1269
(7th Cir. 1983). The specific inquiry
here is whether the failure to provide an
involuntary manslaughter instruction so
infected the entire trial that the
resulting conviction violated the
appellant’s right to due process. See
Peery, 615 F.2d at 404 (citing Cupp v.
Naughten, 414 U.S. 141, 147 (1973)).
Because it is the omission of an
instruction that is at issue in this
case, the appellant’s burden is
"especially heavy" because "[a]n
omission, or an incomplete instruction,
is less likely to be prejudicial than a
misstatement of the law." Henderson v.
Kibbe, 431 U.S. 145, 155 (1977). We agree
with the respondent that the overwhelming
evidence establishing that the appellant
acted intentionally when he beat Fierro
to death precludes his satisfaction of
this heavy burden.

  We are persuaded that the denial of the
appellant’s request for an instruction on
involuntary manslaughter did not result
in a wrongful conviction violative of the
appellant’s right to due process. A trial
court does not err in refusing to tender
an instruction unsupported by sufficient
evidence. Davis v. Greer, 675 F.2d 141,
145 (7th Cir. 1982). The instruction
requested by the appellant provided: "A
person who unintentionally kills an
individual without lawful justification
commits involuntary manslaughter if his
acts whether lawful, or unlawful which
cause the death are such that are likely
to cause death or great bodily harm to
some individual and he performs them
recklessly . . . ." Here, the appellant
repeatedly kicked Fierro in the head.
Indeed, the appellant did not stop
kicking Fierro until another tavern
patron pulled him away and told him that
the victim had had enough. The evidence
showed that the beating Fierro suffered
at the hands of the appellant was so
severe that it caused several hemorrhages
inside of Fierro’s head and fractured his
thyroid cartilage, which indicated manual
strangulation. Given such substantial
evidence of intentional misconduct, the
trial court’s failure to instruct on
unintentional conduct simply does not
amount to a "fundamental miscarriage of
justice." See Nichols, 710 F.2d at 1269;
Davis, 675 F.2d at 144-45; Peery, 615
F.2d at 404. The appellant’s
constitutional rights were not violated
and his conviction should stand.

III.   Conclusion

  Accordingly, we AFFIRM the district
court’s decision denying the petitioner-
appellant habeas relief.
