Timothy L. Cox v. Superintendent, Jefferson City Correctional Center , 26 F.3d 126 ( 1994 )

26 F.3d 126

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes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.
Timothy L. COX, Petitioner-Appellant,
v.
SUPERINTENDENT, Jefferson City Correctional Center,
Respondent-Appellee.

No. 93-3460.

United States Court of Appeals,
Eighth Circuit.

Submitted: May 10, 1994.
Filed: May 17, 1994.

Appeal from the United States District Court for the Western District of Missouri.

Before LOKEN, Circuit Judge, BRIGHT, Senior Circuit Judge, and HANSEN, Circuit Judge.

W.D.Mo.

AFFIRMED.

PER CURIAM.

1

Following a jury trial, Timothy L. Cox was convicted in the Circuit Court of Ray County, Missouri, of first degree assault, armed criminal action, and kidnapping. His conviction was affirmed on appeal. See State v. Cox, 820 S.W.2d 532 (Mo. App. 1991). He then filed this petition for a writ of habeas corpus, alleging (i) that the jury instructions improperly permitted the jurors to find him guilty without being unanimous in their view of his involvement in the crimes; and (ii) that count III of the information omitted an essential element of the offense of kidnapping because it did not allege that the purpose of the kidnapping was to inflict physical injury upon the victim.

2

The district court1 denied Cox relief without a hearing, concluding (i) that the alleged instructional error was not a fundamental defect that deprived Cox of a fair trial, see Berrisford v. Wood, 826 F.2d 747, 752 (8th Cir. 1987), cert. denied, 484 U.S. 1016 (1988), because "under the specific facts of this case, there was no likelihood that the jury was not unanimous in its view of [Cox's] involvement in the crime"; and (ii) that the information met the requirements of due process by sufficiently apprising Cox of the charges against him, which allowed him to plead a prior conviction or acquittal as protection against double jeopardy, see Hamling v. United States, 418 U.S. 87, 117 (1974).

3

Cox argues on appeal the same issues he presented to the district court. Having carefully considered the record, we affirm for the reasons stated in the district court's order of May 7, 1993. See 8th Cir. Rule 47B.

1

The HONORABLE DEAN WHIPPLE, United States District Judge for the Western District of Missouri