United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-1935
                        ___________________________

                                Lucky I. Iromuanya

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

      Scott Frakes, Director, Nebraska Department of Correctional Services

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                    Appeal from United States District Court
                     for the District of Nebraska - Lincoln
                                 ____________

                             Submitted: May 10, 2017
                              Filed: August 7, 2017
                                 ____________

Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
                            ____________

BEAM, Circuit Judge.

       Lucky Iromuanya appeals the district court's1 denial of his 28 U.S.C. § 2254
petition for habeas corpus relief. We affirm.



      1
       The Honorable Joseph F. Bataillon, United States District Judge for the
District of Nebraska.
I.    BACKGROUND

        The following facts were set forth by the Nebraska Supreme Court and are
presumed to be correct under our standard of review. See 28 U.S.C. § 2254(e).
Iromuanya was at a college house party in Lincoln, Nebraska, in April 2004 when a
dispute arose over an allegedly stolen shot glass collection. A house resident
confronted Iromuanya and Iromuanya's friend when they sought to leave the party.
She asserted that no one was leaving the party until the shot glasses were recovered.
A shoving match ensued between her boyfriend, Nolan Jenkins, and Iromuanya,
wherein Iromuanya punched Jenkins and the parties were separated. Jenkins was
subsequently informed that Iromuanya had not taken the shot glasses, and
approximately five minutes later, Jenkins walked back toward Iromuanya, ostensibly
to shake hands and settle the matter, but Iromuanya again shoved Jenkins when
Jenkins got close to him. Another scuffle ensued, but this time Iromuanya took a
handgun from his pants and fired a shot. The bullet hit Jenkins, but traveled through
him and hit Jenna Cooper, another resident at the house where the party took place.
Cooper subsequently died of her injuries. Iromuanya left the scene but was arrested
later that evening. In a videotaped statement taken that evening (which was shown
to the jury during trial), Iromuanya informed the police that he did intend to shoot
the gun but did not intend to hit anyone, and that he instead attempted to shoot to the
side of Jenkins to scare him. State v. Iromuanya (Iromuanya I), 

,
273-77 (Neb. 2006).

       The primary issue at Iromuanya's trial was whether the state could prove
second-degree murder or only manslaughter for Cooper's death and the attempted
versions of those crimes for Jenkins' shooting. Iromuanya requested that the trial
court include "malice" as an element of the second-degree-murder instruction (which
was declined) and also proposed his own theory-of-defense instruction, which spelled
out his assertion from the taped statement that he did not intend to shoot anyone but
only intended to scare them. The court declined this request, finding that the other

                                         -2-
instructions adequately conveyed Iromuanya's theory of defense. Iromuanya
apparently requested a self-defense instruction, which the court also declined to give.

       On the attempted second-degree-murder charge (involving Jenkins), the court
instructed the jury that it could find Iromuanya either guilty or not guilty of the
charge, but it did not include an option for finding Iromuanya guilty of a lesser
included offense of attempted manslaughter. Nor did the attempted second-degree-
murder instruction include any instructions about lack of provocation. With regard
to the charge of second-degree murder (of Cooper), the court did include
manslaughter as a lesser included offense, and included instructions about sudden-
quarrel provocation, but it did so in a "step" instruction–meaning that the jury would
only consider manslaughter and sudden-quarrel provocation if it found Iromuanya not
guilty of second-degree murder and proceeded to the next part of the instruction.
During deliberations, an additional instruction was given after the jury posed a
question about the effect of a "sudden quarrel" on attempted second-degree murder.
The court instructed the jury that it could not consider "sudden quarrel" when
deciding guilt on the charge of attempted second-degree murder. The jury ultimately
convicted Iromuanya of the attempted second-degree murder of Jenkins, second-
degree murder of Cooper, and both weapons charges, and he was sentenced to an
aggregate prison term of 70 years to life imprisonment. 

        The Nebraska Supreme Court affirmed Iromuanya's conviction on direct
appeal. In that appeal, Iromuanya argued that the trial court erred in failing to instruct
the jury on malice as an element of second-degree murder and failed to give his
requested self-defense instruction. 

The Nebraska Supreme Court held that
because "[m]alice is not an element of second degree murder . . . the district court .
. . did not err in refusing to instruct that it was." 

(citing Neb. Rev. Stat. §
28-304(1); State v. Burlison, 

(Neb. 1998)). The court further held
that there was "no evidence in the record to support a reasonable and good faith belief



                                           -3-
that Iromuanya was threatened with death or serious bodily harm at the time he fired
the handgun" and a self-defense instruction was therefore not warranted. 

       During state postconviction proceedings, Iromuanya challenged his trial
counsel's effectiveness for failing to properly challenge the jury instructions. On
appeal of the denial of postconviction relief, the Nebraska Supreme Court again
denied relief. State v. Iromuanya (Iromuanya II), 

(Neb. 2011). As
relevant to this appeal, after Iromuanya I but before Iromuanya II, the Nebraska
Supreme Court decided State v. Ronald Smith, 

, 394 (Neb. 2011),2
which overruled an earlier case holding that manslaughter was an unintentional crime,
and held that the offense of manslaughter was an intentional killing without malice,
upon a sudden quarrel. In Iromuanya II, the court held that counsel was not
ineffective for not anticipating this change in the law, and also held that the state was
not constitutionally required to prove a lack of sudden-quarrel provocation for the
attempt to cause Jenkins' 

.

       Iromuanya filed the current 28 U.S.C. § 2254 petition for habeas corpus relief
in 2012, raising an ineffective assistance of counsel claim for counsel's deficient
performance during plea negotiations and for failing to object to the sudden-quarrel
jury instruction as a step instruction for second-degree murder. Iromuanya also
alleged that the following due process violations occurred during his trial: that the
trial court failed to include manslaughter as a lesser included offense of second-
degree murder; failed to instruct that the prosecutor must prove the absence of a
sudden quarrel beyond a reasonable doubt; and failed to properly instruct the jury on
the distinction between "intent to kill" and "intent to kill resulting from a sudden
quarrel."


      2
        There are two Nebraska cases relevant to the issues in this case wherein the
defendant's surname is Smith. We will differentiate them by including the defendant's
first name in the citation.

                                          -4-
       The district court held that the ineffective assistance claims failed on the
merits, because the Nebraska Supreme Court's determination that counsel's
performance was not deficient was not an unreasonable application of Strickland v.
Washington, 

(1984), nor was it an unreasonable determination of the
facts in light of the evidence adduced at trial. See 28 U.S.C. § 2254(d). With regard
to the due process claims, the district court determined that the claims were not fairly
presented to the state courts and were thus procedurally defaulted. However, the
court went on to discuss and reject the due process claims on the merits, noting that
at the time of Iromuanya's trial, manslaughter on a sudden quarrel was not a lesser
included offense of second-degree murder. The due process claims were certified for
appellate review.

II.   DISCUSSION

      A.     Standard of Review

       We review petitions for writ of habeas corpus under the standards set forth in
the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). If
Iromuanya's claims were "adjudicated on the merits in State court proceedings," 28
U.S.C. § 2254(d), he is entitled to relief only by showing that the adjudication
resulted in a decision that was either "contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States," or "based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding."

       A state prisoner must present the substance of each federal constitutional claim
to the state courts before seeking federal habeas corpus relief. Arnold v. Dormire,

, 1086-87 (8th Cir. 2012). Under the postconviction procedures
available in Nebraska, the prisoner must have presented each § 2254 claim to the
Nebraska Supreme Court, either on direct review or postconviction review, before

                                          -5-
federal habeas review is available. Akins v. Kenney, 

, 454-55 (8th Cir.
2005) (construing Nebraska law). If the prisoner fails to do so, the claim is
procedurally defaulted. 

Default

        The first dispute is whether Iromuanya has fairly presented his due process
claims to the state courts, and if he did, whether they were adjudicated on the merits
by the Nebraska courts. Iromuanya argues the trial court violated his due process
rights by failing to properly instruct the jury as previously stated. The government
argues that Iromuanya did not raise these claims in briefing to the Nebraska Supreme
Court on direct or postconviction appeal. Our review of Iromuanya's direct appeal
and postconviction appeal briefs indicates that Iromuanya arguably did raise the due
process issues, both independently and in the context of ineffective assistance of
counsel claims. And while the Nebraska Supreme Court did not explicitly address
all of the due process issues3 in the denial of relief on direct appeal, it did address due
process in its postconviction opinion. Iromuanya 

. The court
stated:

       We reject Iromuanya's argument that the instructions relieved the State
       of its burden to prove beyond a reasonable doubt that the attempt to
       cause death was not committed during a sudden quarrel provocation.
       Due process requires the prosecution to prove, beyond a reasonable
       doubt, every fact necessary to constitute the crime charged. Here, the
       instruction for attempted second degree murder of Jenkins informed the
       jury that the State had to prove Iromuanya's intent to kill beyond a
       reasonable doubt. The absence of a provocation is not an element of
       second degree murder, and no element of the charge is presumed. If the


       3
       The court did discuss the manslaughter lesser included instruction while
disposing of Iromuanya's arguments about his theory-of-defense instruction.
Iromuanya 

.

                                           -6-
      jurors had believed that Iromuanya did not intend to kill Jenkins, the
      instructions required them to find him not guilty of attempted second
      degree murder.

We find that Iromuanya adequately, though possibly
inartfully, presented the due process claims to the Nebraska Supreme Court, and that
the court adjudicated them. Further, even were we to find the procedural issue in
doubt, we may, and in fact will, proceed to the merits of Iromuanya's claims. See
Barrett v. Acevedo, 

, 1162 (8th Cir. 1999) (holding that while normally
procedural issues should be resolved first, judicial economy sometimes dictates
reaching the merits if the merits are more easily resolvable).

      C.     Merits

       Because the state court adjudicated Iromuanya's due process claim on the
merits, Iromuanya 

, we review under the deferential standard
of 28 U.S.C. § 2254(d). Although Iromuanya's habeas corpus petition lists due
process claims with multiple parts, we find that based upon his appellate briefing the
claims can be distilled as follows: Iromuanya's jury should have been able to consider
sudden-quarrel provocation to distinguish between second-degree murder and
manslaughter, and the state has the burden of proving the absence of sudden-quarrel
provocation. Iromuanya challenges the fact that the jury was precluded from
considering sudden quarrel on the attempt charge (involving Jenkins and based upon
the trial court's answer to the jury question), and the fact that the step instruction in
the second-degree-murder charge did not allow the jury to consider sudden quarrel
unless and until it found Iromuanya not guilty of second-degree murder. The
Nebraska Supreme Court found that there was no due process violation and the state
was not relieved of its burden to prove the elements of second-degree murder because
in the State of Nebraska in 2004, "[t]he absence of a provocation [was] not an element
of second degree murder." Iromuanya 

.


                                          -7-
       At this point, the state of Nebraska law on second-degree murder and
manslaughter between 1994 and 2011 merits our attention. In State v. Ryan, 

, 137 (Neb. 1996), the court reaffirmed numerous of its prior holdings
that malice is, and has been for a very long time, an element of second-degree murder,
despite the fact that the Nebraska legislature omitted the term "malice" from the
statutory definition of second-degree murder in the 1977 revision of the Nebraska
code. However, merely two years later, in 

, the court
overruled Ryan and numerous other cases, and held that malice is not an element of
second-degree murder based on the statutory definition. See Neb. Rev. Stat. § 28-304
(Reissue 2016) (defining second-degree murder since 1977 as "caus[ing] the death
of a person intentionally, but without premeditation").

        Relatedly, manslaughter is defined in Nebraska as the killing of another,
without malice, either upon a sudden quarrel or by unintentionally causing the death
of another while committing an unlawful act. See State v. Pettit, 

,
896 (Neb. 1989) (citing Neb. Rev. Stat. § 28-305(1)). The Pettit court noted that
based upon the disjunctive nature of the statute and other common law principles,
intent is an essential element of manslaughter committed upon a sudden quarrel
(voluntary manslaughter) and intent is not an element of manslaughter when a person
is killed during the commission of an unlawful act (involuntary manslaughter). 

However, in State v. Jones, 

, 659 (Neb. 1994), the court
relied upon recent prior Nebraska cases defining "malice" and ultimately equated the
concept of "malice" with intent. 

Jones court held that because
manslaughter is defined to be a killing committed without malice, manslaughter is an
unintentional crime. 

the state of the law with regard to
manslaughter until 2011, when the court overruled Jones and held that voluntary
manslaughter is an intentional crime. Ronald 

.

       In Ronald Smith, the defendant was convicted of second-degree murder after
killing his girlfriend, following a night of drinking and methamphetamine use, as well

                                         -8-
as an ongoing argument between the two of them over money. Ronald pushed her
from the bed and as she lay motionless on the floor, he smothered her with a pillow
for one to two minutes. Before he left, he covered her with a blanket and absconded
until he was arrested in Illinois. 

On direct appeal, he argued (as
Iromuanya now argues), that the jury was incorrectly instructed because the step
instruction given did not allow the jury to consider whether his specific intent to kill
was the result of a sudden quarrel. 

The court acknowledged that at the
time of Ronald's trial post-Jones, because manslaughter was not an intentional crime,
the step instruction was the correct statement of the law at the time. 

court decided that Jones was wrongly decided (in part because it was based upon
malice cases that were subsequently overruled in Burlison) and held that the state
must prove intent to kill for a conviction for manslaughter upon a sudden quarrel. 

Thus, the court found the step jury instruction to be erroneous. 

However, the court also analyzed the evidence presented at trial and found that the
jury could not have reasonably concluded that Ronald committed sudden-quarrel
manslaughter, and therefore the erroneous jury instruction was not prejudicial. 

The court acknowledged that although Ronald and his girlfriend were arguing
and he was angry, there was no evidence that this anger would have provoked a
reasonable person in Ronald's position to obscure and disturb his power of reasoning
so as to make him smother her with a pillow for two minutes after he had knocked her
unconscious. 

v. William Smith (William Smith I), 

, 733 (Neb. Ct.
App. 2012), the Nebraska Court of Appeals explained that during the time between
Jones and Ronald Smith, "the crime of attempted voluntary manslaughter (even upon
a sudden quarrel) [did] not exist in Nebraska." 

This was so because an
attempt crime required the actor to take a substantial step toward committing the
crime, which was an intentional act. Because manslaughter was legally considered
an unintentional crime from 1994 through 2011, a person could not "perform the
same act both intentionally and unintentionally." 

can commit an

                                          -9-
unintentional crime, but one cannot attempt an unintentional crime. Furthermore,
also during this time frame, the absence of sudden-quarrel provocation could not be
considered an element of second-degree murder, again because of the unintentional
nature of manslaughter upon a sudden quarrel between the time of 1994 and 2011.
On further review to the Nebraska Supreme Court, the court ruled that the change in
law announced in Ronald Smith was not a new rule of constitutional law and could
therefore only be applied to cases pending on direct review (and by implication, not
to cases on collateral review). State v. William Smith (William Smith II), 

, 416 (Neb. 2012).

        So, when Iromuanya committed and was tried for this crime in 2004, malice
was not an element of second-degree murder, and a conviction for manslaughter did
not require proof of intent. The effect of the foregoing was that the crime of
attempted sudden-quarrel manslaughter did not exist (and therefore could not be
considered by the jury as a lesser included offense for the attempt charge), and the
absence of provocation was not an element of second-degree murder. Given all of
this, the Nebraska Supreme Court found that there was no due process violation and
the state was not relieved of its burden to prove the elements of second-degree murder
in 2004 during Iromuanya's trial. Iromuanya 

. This was not
contrary to, nor an unreasonable application of, Supreme Court precedent.

       However, Iromuanya argues that In re Winship, 

(1970),
Mullaney v. Wilbur, 

(1975), Patterson v. New York, 

(1977), and dicta from Martin v. Ohio, 

(1987) compel a contrary
conclusion. In re Winship sets forth the outer boundaries of our inquiry as it held that
the Due Process Clause "protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which
he is 

. Five years later in Mullaney, the Supreme Court
granted habeas corpus relief because the State of Maine placed the burden of proof
on the defendant to prove that he acted "in the heat of passion" to avoid a conviction

                                         -10-
for murder (and its resulting life sentence) and reduced the homicide charge to

, 700-01. The State of Maine at that time recognized
two forms of homicide–murder and manslaughter. Once the state had proved that a
killing was both unlawful and intentional, the jury would then consider the distinction
between murder and manslaughter. In so doing, the jury was instructed that malice
aforethought was implied "unless the defendant proved by a fair preponderance of the
evidence that [the defendant] acted in the heat of passion on sudden provocation."

The Court held that the malice presumption, though subject to rebuttal,
relieved the state of its due process burden to prove every element of the crime
beyond a reasonable doubt, as required by In re Winship. 

       A few years later, however, in Patterson, the Court distinguished Mullaney and
found no due process violation where the accused was required to prove self defense
by a preponderance of the evidence. 

This was because the New York
murder statute at issue did not have malice as an element (and did not allow the jury
to presume an element, unlike in Mullaney), and thus the state was not required to
"disprove beyond a reasonable doubt every fact constituting any and all affirmative
defenses related to the culpability of an accused." 

216. Ten years after
Patterson, in Martin, the Court held that the State of Ohio likewise did not
unconstitutionally shift the burden by requiring the defendant to prove the elements
of self defense. However, the Court went on to state:

      It would be quite different if the jury had been instructed that
      self-defense evidence could not be considered in determining whether
      there was a reasonable doubt about the State's case, i.e., that self-defense
      evidence must be put aside for all purposes unless it satisfied the
      preponderance standard. Such an instruction would relieve the State of
      its burden and plainly run afoul of Winship's mandate.

.



                                         -11-
        To summarize applicable Supreme Court precedent: due process requires the
state to prove, beyond a reasonable doubt, every fact necessary to constitute the crime
with which a defendant is charged. In re 

. Due process does
not, however, require the state to disprove every possible fact that would mitigate or
excuse the defendant's culpability. 

. Nor does a state
legislature violate a defendant's due process rights when it allocates the burden of
proving an affirmative defense to the defendant when the defense merely excuses
conduct that would otherwise be punishable. 

. But when a
"defense" necessarily negates an element of an offense, it is not a true affirmative
defense, and the legislature may not allocate to the defendant the burden of proving
the defense. 

.

       Iromuanya argues that his "sudden-quarrel provocation" defense would have
negated an element of the offense of attempted second-degree-murder in violation of
the Mullaney rule, and that the step instruction, precluding consideration of sudden-
quarrel provocation until an acquittal on second-degree-murder, violates due process
as explicated by the Martin dicta, quoted above. However, the Nebraska Supreme
Court's determination that there was no due process violation in connection with the
sudden-quarrel instructions was not an unreasonable application of Supreme Court
precedent. The state was required to prove all the elements of second-degree-murder
at the time of Iromuanya's trial, in keeping with In re Winship. Sudden-quarrel
provocation did not negate any element of second-degree-murder as contemplated by
Mullaney because it (manslaughter) was not considered an intentional crime at the
time of trial. Therefore, the finding of a sudden quarrel would not negate proof of
intent, an element of second-degree murder. As the Ronald Smith court
acknowledged, the argument about the step instruction was foreclosed by Nebraska
law at the time of Iromuanya's 

.

      It is the state's prerogative to define the elements of its crimes. Bounds v. Delo,

, 1118 (8th Cir. 1998) ("The elements of state law crimes are defined

                                          -12-
by state law."); cf. 

("It goes without saying that preventing
and dealing with crime is much more the business of the States than it is of the
Federal Government . . . ."). After Jones, there was no requirement of an intention
to kill in committing voluntary manslaughter and thus attempted sudden-quarrel
manslaughter did not exist in Nebraska. William Smith 

. And
the characterization of sudden-quarrel manslaughter as an unintentional crime further
precluded it from being an element of second-degree murder. The Iromuanya II court
recognized the unique timing at issue in this case:

      So under Jones, the district court correctly instructed the jurors that they
      could not consider a sudden quarrel provocation in deciding whether
      Iromuanya was guilty or not guilty of attempted second degree murder
      for shooting at Jenkins. It is true that we have recently overruled our
      decision in Jones and held that sudden quarrel manslaughter is an
      intentional killing. But this decision was issued well after Iromuanya's
      trial and direct 

(footnotes omitted). Had Iromuanya's trial occurred after Ronald
Smith, the case that overruled Jones, Iromuanya's jury likely would have been
instructed differently. But while Ronald Smith changed Nebraska manslaughter law,
it did so on Ronald Smith's direct appeal, and this change was not retroactively
applied to other cases pending on collateral review. William Smith 

-16 (noting that Ronald Smith "did not announce a new constitutional rule").
Indeed, the change in law announced in Ronald Smith did not even help Ronald
Smith, as the court found that there was no evidence of sudden-quarrel provocation
introduced at trial, and thus he was not prejudiced by the newly erroneous step jury
instruction. Ronald 

.

       To the extent Iromuanya implicitly complains about Ronald Smith not applying
retroactively, this again is a state law problem, not a federal due process problem.
See Estelle v. McGuire, 

, 71-72 (1991). A federal court may grant habeas


                                         -13-
relief on the basis of a faulty state law jury instruction only if the erroneous
instruction "so infected the entire trial that the resulting conviction violates due
process." 

(quoting Cupp v. Naughten, 

, 147 (1973)). The
stringent Estelle standard cannot be met here, because similar to Ronald Smith, there
was likely a lack of evidence from which the jury could have concluded4 that
Iromuanya committed sudden-quarrel manslaughter instead of second-degree murder.
See Ronald 

. The Nebraska Supreme Court's factual
recitation of Iromuanya's case indicates that sudden-quarrel provocation was not
really an issue during Iromuanya's trial. The jury heard Iromuanya's videotaped
statement that while he was angry that he had been accused of stealing the shot
glasses, he did not intend to hit Jenkins, but just wanted to scare him away. Further,
Iromuanya admitted that when he fired the shot, he knew that he was no longer
suspected of stealing the shot glasses. Most importantly, five minutes had passed
between the initial shoving match between Iromuanya and Jenkins, and when
Iromuanya fired the fatal shot. Iromuanya 

. These recitations
are presumed to be correct. 28 U.S.C. § 2254(e). Thus, any possible error did not
infect the entire trial so as to result in a denial of due process, 

,
because sudden-quarrel provocation was likely not a viable theory given the evidence
presented at trial. See Ronald 

.




      4
        Although Iromuanya (understandably) relies upon the jury question asking if
it could consider sudden-quarrel manslaughter for the attempt charge, we really have
no way of knowing what the jury was thinking when it submitted that question. It is
quite possible the jury was confused by the comparison of the attempted second-
degree-charge's instructions (and noted the lack of any mention of sudden-quarrel
manslaughter), with the second-degree instructions which included sudden-quarrel
manslaughter as a lesser included offense of second-degree murder. Having wrestled
with applicable Nebraska law while considering this case, we can easily comprehend
the jury's possible confusion over why the crime of attempted sudden-quarrel
manslaughter did not exist in 2004.

                                           -14-
III.   CONCLUSION

       The Nebraska Supreme Court determined that due process was not offended
by either the lack of jury instructions, or the step jury instruction, with regard to
sudden-quarrel manslaughter. This adjudication was not contrary to, nor did it
involve an unreasonable application of, clearly established Supreme Court precedent.
The adjudication also was not based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings. We affirm.
                       ______________________________




                                        -15-