John Rupe, Petitioner-appellant, v. Robert D. Hannigan and Attorney General of Kansas,respondents-appellees, 976 F.2d 740 (10th Cir. 1992)

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner John Rupe, a prisoner in the Kansas State Penitentiary, appeals the denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He was convicted by a jury of aggravated burglary and felony murder. On direct appeal, the Kansas Supreme Court affirmed. The only issues cognizable in federal court and on appeal to this court are claims of violations of the federal Constitution. Here petitioner seeks to overturn his conviction because the district court gave a presumption of intent instruction that violated Sandstrom v. Montana, 442 U.S. 510 (1979).

The Kansas Court of Appeals, considering petitioner's post-conviction petition under Kan.Stat.Ann. § 60-1507, did not reach the merits. Relief was denied on procedural grounds because petitioner failed to raise in his appeal to the Kansas Supreme Court the constitutional challenge to the jury instruction. The state did not raise any procedural defense to petitioner's writ of habeas corpus filed in the district court. The district court deemed the defense waived and reached the merits of the claim, finding that although a Sandstrom instruction was given it was harmless error. We grant petitioner's application for a right to proceed in forma pauperis and for a certificate of probable cause in order to review the merits of his claim.

We have considered the arguments in petitioner's brief and have called up and reviewed the record of the state court proceedings. After such examination we are satisfied that the district court properly analyzed the issue and reached the correct conclusion. We therefore AFFIRM the district court's denial of relief for substantially the reasons stated in its Memorandum and Order filed January 14, 1992.

The mandate shall issue forthwith.