Lyle E. Nelson v. Herman Solem, Warden, South Dakota State Penitentiary ( 1986 )

PER CURIAM.

Lyle Nelson appeals from the order of the district court¹ denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We reject the appeal and affirm.

Nelson is presently serving a seventeen-year sentence for grand theft in the South Dakota State Penitentiary. Nelson’s efforts to obtain relief from his conviction have extended over five years. He unsuccessfully appealed the conviction to the South Dakota Supreme Court, State v. Nelson, 310 N.W.2d 777 (S.D.1981), and then filed a petition for habeas relief to the federal district court, Nelson v. Solem, Civ. 81-3071 (D.S.D. August 23, 1982), which the district court dismissed for failure to exhaust available state remedies. We affirmed on appeal. Nelson v. Solem, 714 F.2d 57 (8th Cir.1983). Nelson subsequently exhausted his state remedies, but to no avail. Thereafter, he filed another petition for a writ of habeas corpus in the federal district court, which the court denied. Nelson, with the assistance of appointed counsel, brought this appeal from the district court’s denial of his petition.

On appeal, Nelson contends that the state trial court violated his rights to due process and a fair trial by instructing the jury that the state need not prove the exact date and time of the alleged grand theft. The district court instructed the jury that the state must only prove that the crime occurred “on or about” a specified date. Nelson argues that the district court erred in giving this instruction when accomplice testimony asserted that the crime had occurred on a specific date, and Nelson established an alibi for that date.

Nelson further contends the trial court’s instruction on the inference of guilt resulting from Nelson’s unexplained possession of recently stolen property unconstitutionally shifted the burden of proof to Nelson by requiring him to explain his possession. Nelson asserts that the challenged instruction also permitted the jury to convict him of grand theft through his mere possession of the stolen property.

The district court, in a thorough and well-reasoned opinion, concluded that the jury instructions did not so “infect[] the entire trial that the resulting conviction violate[d] due process.” Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973)). After carefully examining the record, we find no error of law or fact requiring reversal of Nelson’s conviction. Therefore, for the reasons set forth in the district court’s unpublished decision, we affirm the denial of the petition for writ of habeas corpus. See 8th Cir.R. 14.

1 . The Honorable Donald J. Porter, Chief Judge, United States District Court for the District of South Dakota.