Short opinion on procedural default

The 8th Circuit issued a short decision yesterday affirming the denial of habeas relief in Carney v. Fabian, No. 06-3150 (here). The petitioner claimed that the state court's failure to instruct the jury on "heat of passion" manslaughter violated his constitutional right to due process. While the petitioner did request the instruction at trial, he based his appeal of the trial court's decision solely on state law grounds, and did not present an argument based on federal law.

The court held that the petitioner's claim was procedurally defaulted because of his failure to raise the constitutional claim to the state court. While not the holding, here's a highlight:

Despite his failure to refer specifically to a federal constitutional provision or relevant case, Carney asserts that he is entitled to federal habeas review because the state law arguments that he presented to the Minnesota Supreme Court are identical to his due process arguments presented here. This argument lacks merit because, as we have previously noted, “[m]ere similarity between the state law claims and the federal habeas claims is insufficient . . . .” McCall, 114 F.3d at 757 (“‘If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.’”