Raphael Clark, Appellant, v. Gary Henman and Attorney General, State of Missouri, Appellees, 5 F.3d 531 (8th Cir. 1993)

Raphael Clark appeals the district court's denial of his petition for a writ of habeas corpus. We affirm the district court.¹ 

Mr. Clark's petition alleges that the jury instructions given in his state criminal case were constitutionally deficient in that they failed to require the state to prove all of the elements of capital murder. The petition further asserts that Mr. Clark was deprived of his constitutional right to effective assistance of counsel by the failure of his trial lawyer to object to the jury instructions.

We have considered at some length Mr. Clark's contention with respect to the relevant jury instructions. We hold, however, that the construction of them that he posits is simply unreasonable, from any point of view. In other words, there is no "reasonable likelihood that the jury ... applied the challenged instruction [s] in a way" that allowed them to convict without finding that every element of the charge had been proved. Boyde v. California, 494 U.S. 370, 380 (1990); see also Estelle v. McGuire, 112 S. Ct. 475, 482, 482 n.4 (1991). Under these circumstances, the issue of ineffective assistance of counsel is moot.

For the reasons stated, we affirm the district court. See 8th Cir. R. 47B.