Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.david Allan Schmidt, Plaintiff-appellant, v. Department of Corrections, Defendant-appellee, 39 F.3d 1185 (8th Cir. 1994)

This is an appeal from a denial of a petition for a writ of habeas corpus by a Minnesota state prisoner. Schmidt was convicted in state court on two counts of second degree murder. Minn. Stat. Sec. 609.19(2) (1990). The basic constitutional claim of error is that the Minnesota state court did not give a required instruction on the lesser included offense of first degree manslaughter under Minn. Stat. Sec. 609.20(1) (b) (1990). The state trial court denied this instruction on the grounds there was insufficient evidence of provocation on the part of the victim. This ruling was affirmed by the state court of appeals. State v. Schmidt, No. C6-91-2427 (Minn. Ct. App. unpublished opinion filed September 15, 1992). The state court found the defendant pursued the victim for a block to renew their initial altercation, striking the victim on the head, back, and side with a shovel, and fatally injuring him. We agree with the federal district court's affirmance of the magistrate judge's recommendation that relief is not available to a state prisoner challenging improper jury instructions unless the error constitutes a miscarriage of justice or so affected the entire proceeding as to deprive the defendant of a fair trial. We find no such error.

The order dismissing the petition for writ of habeas corpus is hereby affirmed.

AFFIRMED. See 8th Cir. R. 47B.