Fenske v. Thalacker, 94-2865

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Citation: 60 F.3d 478
• Docket Number: No. 94-2865,94-2865
• Parties: Stan T. FENSKE, Petitioner-Appellant, v. John THALACKER, Respondent-Appellee.
• Decision Date: 07 September 1995

Page 478

60 F.3d 478 Stan T. FENSKE, Petitioner-Appellant,
v.
John THALACKER, Respondent-Appellee. No. 94-2865. United States Court of Appeals,
Eighth Circuit. Submitted March 16, 1995.
Decided July 17, 1995.
Rehearing and Suggestion for Rehearing En Banc Denied Sept. 7, 1995.

Page 479

Paul J. Papak, Federal Public Defender, Cedar Rapids, IA, argued, for appellant.

Thomas D. McGrane, Asst. Atty. Gen., Des Moines, IA, argued, for appellee.

Before McMILLIAN, FAGG, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

An Iowa jury convicted Stan T. Fenske of committing first degree burglary, assault with intent to inflict serious injury, and simple assault, in violation of Iowa law. A panel of the Iowa Court of Appeals reversed the burglary conviction with one judge in dissent, but the Supreme Court of Iowa vacated that opinion and affirmed Fenske's convictions in a unanimous decision. Thereafter, Fenske sought habeas corpus relief in federal district court, see 28 U.S.C. Sec. 2254, on the grounds that the state failed to prove all of the essential elements of burglary and that he received ineffective assistance of counsel. The district court ¹ denied relief, and Fenske appeals. We affirm.

I.

In the early morning hours of June 20, 1990, Stan Fenske, armed with a gun, together with William Weant walked up to a house in Grinnell, Iowa, looking for some acquaintances. Weant testified that Fenske was going there for a "confrontation," "to meet the challenge," or in other words, for a "fight." (Trial Tr. at 133-34.) The house was the residence of Maurine Creamer, a friend of Fenske, and was owned by Creamer's mother. Creamer, however, was out of town at the time of this incident. Fenske and Weant knocked at the door, then entered when no one responded. Michael Bown was asleep on the couch, and Danelle Besco was sleeping upstairs in her room. Besco was residing in the house with Creamer's permission while Creamer was out of town.

Fenske went upstairs and made unwelcome romantic advances toward Besco. After Besco repeatedly told Fenske to leave her alone and to leave the house, Fenske left her alone but did not leave the house. Instead, he went downstairs, threatened to shoot Bown, and then hit Bown several times in the head with the butt of his gun, knocking him unconscious. Fenske was charged with first degree burglary, assault with intent to inflict serious injury, simple assault, and going armed with intent.

At trial, Fenske presented evidence tending to show that he had permission to enter the home. Creamer testified that she had given him permission to check on the house and enter if necessary while she was away. Creamer testified that Fenske had permission to enter on the morning in question and that she had never said he did not have permission. To the contrary, however, the state presented rebuttal impeachment testimony from Bown, who testified that in a telephone conversation after the incident Creamer had told him that Fenske had no

Page 480

right to be in the house. The jury convicted Fenske of first degree burglary, assault with intent to inflict serious injury, and simple assault.

Fenske appealed his convictions, contending that there was insufficient evidence to sustain the burglary conviction and that his counsel rendered ineffective assistance by failing to request a limiting instruction for the impeachment testimony offered by the state. The Iowa Court of Appeals reversed the burglary conviction, holding that the state had failed to prove that Fenske had "no right, license, or privilege" to enter the residence, an essential element of burglary under Iowa law. Iowa Code Sec. 713.1. However, the Supreme Court of Iowa vacated the decision of the Court of Appeals and affirmed the burglary conviction, holding that there was evidence on which the jury could reasonably conclude that any permission given to Fenske to enter the house on other occasions was exceeded when he entered the house on this occasion. State v. Fenske, 500 N.W.2d 447 (Iowa 1992).

Fenske filed a petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254, asserting that no rational juror could have found all of the essential elements of burglary beyond a reasonable doubt and that his counsel rendered ineffective assistance by not requesting a limiting instruction for the state's impeachment evidence. The district court rejected both claims and denied habeas relief. Fenske appeals, raising the same issues he raised below.

II.

Fenske first contends that the evidence at trial was insufficient to establish every essential element of burglary under Iowa law. It is elementary that state law defines the elements of state-law crimes. Sidebottom v. Delo, 46 F.3d 744, 758 (8th Cir.1995). Iowa law defines burglary in relevant part as follows:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public....

Iowa Code Sec. 713.1 (1989). Fenske contends that the state failed to produce...