United States Court of Appeals
        For the Eighth Circuit
    ___________________________

            No. 15-1015
    ___________________________

              Shawn P. Shelton

   lllllllllllllllllllllPetitioner - Appellant

                       v.

                Terry Mapes

   lllllllllllllllllllllRespondent - Appellee
     ___________________________

            No. 15-2540
    ___________________________

              Shawn P. Shelton

   lllllllllllllllllllllPetitioner - Appellant

                       v.

                Terry Mapes

   lllllllllllllllllllllRespondent - Appellee
     ___________________________

            No. 15-2733
    ___________________________

              Shawn P. Shelton

   lllllllllllllllllllllPetitioner - Appellant
                                            v.

                                      Terry Mapes

                         lllllllllllllllllllllRespondent - Appellee
                                         ____________

                     Appeals from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                             Submitted: October 19, 2015
                                Filed: April 8, 2016
                                  ____________

Before RILEY, Chief Judge, SMITH and SHEPHERD, Circuit Judges.
                              ____________

SHEPHERD, Circuit Judge.

        A jury convicted Shawn Shelton of first-degree murder and attempted murder
in Iowa state court in 1990. Shelton appealed his conviction and the Iowa Supreme
Court reversed and remanded the case for a new trial on grounds that are not relevant
to this appeal. In his second trial, the jury again found Shelton guilty of both counts.
Shelton was sentenced to life in prison for the first-degree murder conviction and
twenty-five years for the attempted murder conviction. The present appeal arises from
the district court’s1 denial of Shelton’s federal petition for writ of habeas corpus under
28 U.S.C. § 2254. On appeal, Shelton presents two ineffective-assistance-of-counsel
claims regarding jury instructions. We affirm.




      1
       The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.

                                            -2-
                                           I.

       Shawn Shelton and Ivan Eugene Swigart left a party in Chariton, Iowa in the
early morning hours of July 3, 1989. Shelton drove his vehicle and Swigart rode with
him as a passenger. While driving out of the town, Shelton and Swigart observed a
pickup truck behind them and believed it was following them. Shelton pulled his
vehicle to the side of the road with the intent of allowing the pickup truck to pass by.
Instead, the pickup truck stopped alongside Shelton’s vehicle. Terry Allen Masters,
the driver of the pickup truck, and Dwight Kennedy, the passenger, asked Shelton
whether he needed assistance. Shelton asked Masters and Kennedy “what the fuck is
your problem” and told them to stop following his vehicle. Shelton sped away and
continued to drive down the highway until he reached a gravel road. Shelton turned
down the gravel road, hoping Masters and Kennedy would not see him turn and the
incident would end. He observed Masters and Kennedy continue down the highway
past the gravel road turn off, so he turned his vehicle around and began to drive back
toward the highway. On his way back to the highway, however, Shelton discovered
Masters and Kennedy driving on the gravel road toward his vehicle. The vehicles
engaged in a game of “chicken,” driving toward each other until Shelton swerved
toward the ditch at the last minute, before the vehicles could collide. Masters and
Kennedy continued driving down the gravel road away from the highway. Shelton
backed his vehicle out of the ditch onto the gravel road.

       While his vehicle was stopped on the gravel road and positioned between
Masters’ vehicle and the highway, Shelton removed a dissassembled shotgun from
behind his seat in the vehicle. He assembled and loaded the shotgun, then told
Swigart “we have to kill them before they kill us.” Swigart exited the vehicle with the
shotgun. Masters and Kennedy had turned their pickup truck around on the gravel
road and were driving back in the direction of Shelton’s vehicle and the highway. As
Masters and Kennedy approached Shelton’s vehicle, they observed Swigart standing
near the rear of the vehicle with the gun. Masters slowed his pickup truck, then began

                                          -3-
to slowly reverse the truck. Masters and Kennedy both ducked below the dash board
of the truck. Masters raised his head slightly above the dash board to guide the truck
backwards. Swigart fired the gun at Masters’ truck, hitting the windshield just above
the dash board. The shot struck Masters’ face and killed him instantly.

       Swigart then reentered Shelton’s vehicle and said “let’s get the hell out of here.”
Shelton initially drove back toward the highway, but turned around to go back to
Masters’ truck after telling Swigart that they should retrieve the shotgun shell that
contained their fingerprints. Upon reaching Masters’ truck, Shelton fired three
additional shots at the pickup truck. Swigart reached inside Masters’ truck to turn off
the headlights. Shelton and Swigart retrieved some of the shotgun shells and left the
scene. After seeing another vehicle driving down the gravel road toward them,
Shelton turned off his headlights and drove in the opposite direction of the highway.

       Shelton was charged in Iowa state court with murder in the first degree for the
death of Masters and attempted murder of Kennedy. A jury convicted Shelton of both
charges. Shelton appealed his conviction and the Iowa Supreme Court reversed and
remanded for a new trial on grounds that are not relevant to this appeal. At the second
trial, Shelton’s sole defense was that he acted in self-defense. The jury again
convicted Shelton on both counts. The trial court sentenced Shelton to life in prison
for the first-degree murder conviction and twenty-five years on the attempted murder
conviction. Shelton again appealed his conviction. The Iowa Supreme Court
dismissed the appeal without prejudice to any claim for ineffective assistance of
counsel in a postconviction relief action.

      An application for postconviction relief alleging ineffective assistance of trial
and appellate counsel was subsequently filed in Iowa state court and a hearing was
held, after which the court dismissed Shelton’s application, finding no evidence
existed that trial or appellate counsel were ineffective. The court also held that the
evidence against Shelton that he aided and abetted Swigart in the murder of Masters

                                           -4-
and the attempted murder of Kennedy was overwhelming. On appeal, the Iowa Court
of Appeals found that “while the justification jury instruction was an incorrect
statement of the law, the great weight of the evidence admitted at trial demonstrates
no prejudice to Shelton” and affirmed the denial of Shelton’s postconviction relief.
Shelton v. State, 

, at *10 (Iowa Ct. App. 2011). The Iowa Supreme
Court denied further review.

       Shelton then petitioned for federal habeas relief, asserting several claims, all of
which concern his justification defense and the corresponding jury instructions. The
district court denied Shelton’s petition for habeas relief, concluding that Shelton failed
to show he received constitutionally ineffective assistance of counsel or that the state
appellate court decision was unreasonable. However, the district court granted a
certificate of appealability on the issues of whether the Iowa Court of Appeals
rendered a decision contrary to federal law and whether Shelton received ineffective
assistance of counsel. Shelton appealed the district court’s denial of habeas relief
through counsel and submitted an additional pro se appellate brief in this case. We
previously granted leave to Shelton to proceed pro se in a separate appeal, which has
been consolidated with this case.

                                           II.

       On appeal, Shelton argues that the district court erred in finding that he received
effective assistance of counsel at his state trial. Because this appeal is from a denial
of habeas relief, 28 U.S.C. § 2254(d) applies. Section 2254(d) provides that a writ of
habeas corpus shall not be granted on any claim adjudicated on the merits in state
court unless such adjudication resulted in a decision that was “contrary to, or involved
an unreasonable application of, clearly established Federal law” or was “based on an
unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 18 U.S.C. § 2254(d). The United States Supreme Court has made
clear that “an unreasonable application of federal law is different from an incorrect

                                           -5-
application of federal law.” Renico v. Lett, 

, 773 (2010) (quoting
Williams v. Taylor, 

, 410 (2000)). Further, “a federal habeas court may
not issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously
or incorrectly.” 

, 529 U.S. at 411). The federal habeas court
must conclude the state court’s application of federal law was “objectively
unreasonable,” which “creates ‘a substantially higher threshold’ for obtaining relief
than de novo review.” 

, 529 U.S. at 409 and Schriro v.
Landrigan, 

, 473, 478 (2007)). “[I]n a habeas case alleging ineffective
assistance of counsel, we are bound to view what happened at trial through two
filters.” Marcrum v. Luebbers, 

, 501 (8th Cir. 2007). First, we must
defer to judgments of trial counsel. 

v. Washington, 

, 689 (1984)). Second, we must defer to the state courts’ application of federal law
to the facts of the case. 

v. Cone, 

, 698-99 (2002)). “In
habeas corpus proceedings, we review the district court’s findings of fact for clear
error and its conclusions of law de novo.” 

v. Bertsch, 

,
752 (8th Cir. 2006), cert. denied, 

(2007)).

                             A. Jury Instruction No. 32

       The first claim raised by Shelton is that he received ineffective assistance of
trial counsel by virtue of counsel’s failure to object to Jury Instruction No. 32,
pertaining to his justification defense. Shelton contends that Jury Instruction No. 32
was an incorrect statement of law and that the error was one of constitutional
magnitude, infecting his entire trial. Jury Instruction No. 32 states:

      A person may use reasonable force to prevent injury to a person,
      including the defendant. The use of this force is known as justification.
      The State must prove the defendant was not acting with justification. In
      this case, if the State has proved Ivan Eugene Swigart was not acting

                                         -6-
      with justification, then it has established the defendant was not acting
      with justification. If the State has failed to prove Ivan Eugene Swigart
      acted without justification, the defendant is not guilty. Justification does
      not apply in this case to any shots you find were fired by the defendant,
      and the State does not have the burden of proving no justification in such
      circumstances.

(emphasis added). Shelton argues the emphasized portion of the instruction is an
incorrect statement of law and that his counsel’s failure to object to the instruction
constituted deficient performance, which was prejudicial under Strickland. The Iowa
Court of Appeals agreed that Jury Instruction No. 32 was “improper because it did not
permit the jury to consider Shelton’s state of mind at the time he aided and abetted
Swigart. It simply declared that if Swigart was not justified, neither was Shelton.”
Shelton, 

, at *5. Justification is considered individually under Iowa
law. See Iowa Code §§ 704.1, 704.3; State v. Johnson, 

, 44 (Iowa 1937)
(“The acts which accused may do and justify under a plea of self-defense depend
primarily upon his own conduct and secondarily upon the conduct of the deceased.”).
We defer to the Iowa Court of Appeal’s conclusion that the instruction was an
improper statement of Iowa law and move to an analysis of whether the error rose to
the level of prejudice under Strickland. See Estelle v. McGuire, 

, 67
(1991) (emphasizing that “federal habeas corpus relief does not lie for errors of state
law”); Middleton v. Roper, 

, 852 (8th Cir. 2006) (agreeing that federal
courts conducting habeas review lack authority to review the state court’s
interpretation and application of state law).

       Strickland requires the defendant to show: (1) counsel’s performance was
deficient, such that counsel’s errors were “so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment; and (2) the
deficient performance prejudiced the defense, which requires a showing that
“counsel’s errors were so serious as to deprive the defendant of a fair trial.” 466 U.S.

                                          -7-
at 687. The district court decided Shelton’s case based on the prejudice prong, so we
address the prejudice analysis first. See 

(allowing courts
to address either prong of the inquiry first and noting it will often be easier to dispose
of an ineffective assistance claim on the ground of lack of sufficient prejudice).

       To establish prejudice, the “defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” 

. “The governing legal
standard plays a critical role in defining the question to be asked in assessing the
prejudice from counsel’s errors. When a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” 

We must
determine whether the likelihood of a different result is “substantial” rather than
merely “conceivable.” Hanegan v. Miller, 

, 355 (8th Cir. 2011) (quoting
Harrington v. Richter, 

, 112 (2011)).

       The State had the burden to prove Shelton acted without justification under
Iowa law. State v. Shanahan, 

, 134 (Iowa 2006). Iowa requires the
State to prove any one of the following elements to meet that burden:

      1. The defendant started or continued the incident which resulted in
      injury.
      2. An alternative course of action was available to the defendant.
      3. The defendant did not believe he was in imminent danger of death or
      injury and the use of force was not necessary to save him.
      4. The defendant did not have reasonable grounds for the belief.
      5. The force used by the defendant was unreasonable.

v. Thornton, 

, 673 (Iowa 1993)). On appeal to the
Iowa Court of Appeals, the State asserted it met its burden on a number of those
elements. Shelton, 

, at *6. The Iowa Court of Appeals agreed that
Shelton had an alternative course of action available to him because he could have

                                           -8-
driven away from Masters and Kennedy. 

Court concluded that
Shelton was not in imminent danger when he assembled the shotgun because Masters
was driving away from Shelton and Swigart at that moment, making his use of force
unnecessary and unreasonable. 

counsel’s failure to object to Jury Instruction No. 32 was not
prejudicial under Strickland in light of the overwhelming evidence against Shelton.
The evidence presented in state court showed that at the point that Masters passed
Shelton’s vehicle on the gravel road, Shelton had an alternative course of action
immediately available to him. He could have driven toward the highway and
continued to drive toward the next town to seek assistance. Instead, Shelton
assembled a shotgun and told Swigart “we have to kill them before they kill us.” Even
after Swigart shot Masters, Shelton made the decision to drive to Masters’ truck and
fire three additional shots at the truck. Shelton’s extreme conduct assuredly allowed
the State to meet its burden of proof regarding Shelton’s lack of justification. The
Iowa Court of Appeals concluded that there is no substantial likelihood that the jury
would have reached a different result absent trial counsel’s error in failing to object
to Jury Instruction No. 32. Given this overwhelming evidence, we conclude the
adjudication of Shelton’s claim by the Iowa Court of Appeals was not based on an
unreasonable determination of facts.

       Shelton next argues that the Iowa Court of Appeals’ discussion of United States
v. Frady, 

(1982) is contrary to the Strickland prejudice standard.
Shelton asserts that the Iowa Court of Appeals applied the “actual and substantial
disadvantage” test from Frady, a test more stringent than the two-prong prejudice test
set forth in Strickland. While the Iowa Court of Appeals cited State v. Hill, 

(Iowa 1989), which relies upon Frady, the court did not base its holding
or primary reasoning on the standard set forth in Frady. The Court also stated that
“there is no prejudice in an erroneous jury instruction if there is so much evidence of
guilt that no reasonable probability exists that the result would have been different if

                                          -9-
the correct instruction was given” and cited State v. Hopkins, 

(Iowa
1998). Shelton, 

, at *5. Hopkins directly cites the Strickland
ineffective-assistance-of-counsel 

. The Iowa Court of
Appeals then concluded “the great weight of the evidence admitted at trial
demonstrates that no reasonable probability exists that the result would have been
different if the correct instruction was given” and again cited Hopkins. Shelton, 

, at *6. We conclude that, to the extent the Iowa Court of Appeals cited
Frady, the decision was not “contrary to” clearly established law because the final
conclusion rested upon the “reasonable probability” Strickland standard rather than
the “actual and substantial disadvantage” test from Frady.

       Because the state court’s decision was not “contrary to” clearly established law,
“the remaining question under the ‘unreasonable application’ clause of § 2254(d) is
whether the state court’s determination under the Strickland standard is unreasonable,
not merely whether it is incorrect.” Williams v. Roper, 

, 831 (8th Cir.
2012) (quoting 

). “A state court must be granted a
deference and latitude that are not in operation when the case involves review under
the Strickland standard itself.” 

. The § 2254(d) standard,
as amended by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), was
intended to be difficult to meet and only authorizes a federal habeas court to issue the
writ in cases where “there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with [the Supreme Court’s] precedents.” 

Here, the possibility for fairminded jurists to disagree on the Iowa Court of Appeals’
application of Frady and Strickland exists. Having found the state court appropriately
evaluated Shelton’s case in light of Strickland, we conclude the state court’s
determination under Strickland was not unreasonable regarding counsel’s failure to
object to Jury Instruction No. 32.




                                         -10-
       Shelton also contends that the error was a structural error that deprived him of
a key component of his defense, entitling him to automatic reversal. A structural error
is a “defect affecting the framework within which the trial proceeds, rather than
simply an error in the trial process itself.” Johnson v. United States, 

,
468 (1997) (quoting Arizona v. Fulminante, 

, 310 (1991)). Examples of
structural error include errors of such a magnitude as a total deprivation of the right
to counsel, lack of an impartial trial judge, unlawful exclusion of grand jurors of
defendant’s race, refusal of the right to self-representation at trial, denial of the right
to a public trial, or an erroneous reasonable-doubt instruction to jury. 

(internal citations omitted). Trial counsel’s failure to object to the incorrect statement
of justification law in Jury Instruction No. 32, while an error, is not so serious that it
can be considered a structural error affecting Shelton’s substantial rights. See Becht
v. United States, 

, 547 (8th Cir. 2005) (holding instructional errors on the
elements of a crime do not rise to the level of structural error).

                               B. Jury Instruction No. 27

       Shelton also contends the Iowa Court of Appeals again unreasonably applied
Strickland when it found that trial counsel’s failure to object to Jury Instruction No.
27 was also harmless error. The Iowa Court of Appeals again cited Hill and Frady in
its discussion of Jury Instruction No. 27, Shelton, 

, at *7, which
Shelton contends was unreasonable and “contrary to” the Strickland standard for the
same reasons identified in his argument regarding Jury Instruction No. 32.

       Jury Instruction No. 27 stated: “concerning element no. 2 of instructions no. 13,
20, 21, and 24 the wound inflicted by the defendant resulted in the death of Terry
Allen Masters, if it caused or directly contributed to Terry Allen Masters’ death.”
(emphasis added). Shelton, 

, at *6. The instruction thus incorrectly
stated that it was defendant Shelton, not Swigart, who fired the shot that caused
Masters’ death. Shelton’s trial counsel failed to object to Jury Instruction No. 27. The

                                           -11-
government concedes that the only evidence presented at trial showed that Swigart,
not Shelton, inflicted the wound that killed Masters. No other jury instruction
indicated that Shelton fired the fatal shot; rather, the other jury instructions correctly
provided that Shelton aided or abetted Swigart in the shooting of Masters.

       The district court reasoned that, “[g]iven the evidence and other instructions,
there is not a reasonable probability that the error in Instruction 27 had any effect on
the outcome of the case or undermined confidence in the outcome.” Citing Strickland
and applying the deference to the state appellate court required by AEDPA, the district
court held that the “jury’s decision would not ‘reasonably likely have been different
absent the errors.’” Indeed, the Iowa Court of Appeals concluded its examination of
trial counsel’s failure to object to Jury Instruction No. 27 by holding “there is no
indication that the result would have been different if the correct instruction was
given” and cited Hopkins, the Iowa case predicated upon Strickland analysis. Shelton,

, at *7.

        “Attorney errors come in an infinite variety and are as likely to be utterly
harmless in a particular case as they are to be prejudicial.” 

. While we recognize that trial counsel failed to object to an incorrect fact
contained in Jury Instruction No. 27, we also note that causation was not a material
issue in the case. As discussed above, the evidence against Shelton was
overwhelming, and no evidence indicated that Shelton fired the fatal shot at Masters.
If Jury Instruction No. 27 had been correctly worded to say “the wound inflicted by
Swigart,” there is no substantial likelihood of a different result. The Iowa Court of
Appeals concluded that any error made by trial counsel in failing to object to this
instruction is not prejudicial under Strickland and does not rise to such a magnitude
that it can be considered constitutionally ineffective assistance of counsel. Applying
the same rules and standards under § 2254(d) and AEDPA to this claim as the claim
regarding Jury Instruction No. 32, we hold the Iowa Court of Appeals’ decision
regarding Jury Instruction No. 27 was not unreasonable.


                                          -12-
       Finally, Shelton argues the combination of errors evidenced by counsel’s failure
to object to Jury Instructions Nos. 27 and 32 amounts to a separate constitutional
violation. As the Iowa Court of Appeals noted, Strickland does not authorize a
cumulative inquiry of counsel’s performance. Forrest v. Steele, 

, 860
(8th Cir. 2014) (citing Wainwright v. Lockhart, 

, 1233 (8th Cir. 1996).
“Errors that are not unconstitutional individually cannot be added together to create
a constitutional violation.” 

(internal citations omitted).
Neither trial counsel’s failure to object to Jury Instruction No. 32 nor Jury Instruction
No. 27 were unconstitutional errors standing alone and they cannot be combined to
equal an error of constitutional magnitude. Habeas relief will not be granted based on
the cumulative effect of attorney errors.

                                          III.

       In addition to the ineffective-assistance-of-counsel claims raised by Shelton
through counsel, Shelton raised other challenges through pro se filings. “[A]lthough
generally we do not consider pro se briefs when a party is represented by counsel,”
Wayne v. Benson, 

, 535 (8th Cir. 1996), we granted Shelton leave to
proceed pro se in a consolidated case. We have considered Shelton’s additional pro
se arguments and have determined that they are either waived, moot, or without merit.

                                          IV.

      Accordingly, we affirm the district court’s denial of Shelton’s petition for a writ
of habeas corpus.
                     ______________________________




                                          -13-