Brown v. Cain

1 IN THE UNITED STATES COURT OF APPEALS
2
3 FOR THE FIFTH CIRCUIT
4
5 _____________________
6
7 No. 95-30870
8 _____________________
9
10
11 JOHN ASHLEY BROWN, JR.,
12
13 Petitioner-Appellant,
14
15 versus
16
17 BURL CAIN, Warden, Louisiana State
18 Penitentiary, Angola, Louisiana,
19
20 Respondent-Appellee,
21 and
22
23 RICHARD IEYOUB, Attorney General for the
24 State of Louisiana,
25
26 Additional Respondent.
27
28
29
30 Appeal from the United States District Court for the
31 Eastern District of Louisiana
32
33
34
35 January 21, 1997

36 Before JOLLY, JONES and STEWART, Circuit Judges.

37 E. GRADY JOLLY, Circuit Judge:
John Ashley Brown, who is sentenced by the state of Louisiana

to die, appeals the district court’s dismissal of his petition for

a writ of habeas corpus under 28 U.S.C. § 2254. Brown insists that

his conviction and death sentence are rendered unconstitutional by

a list of alleged errors, including prosecutorial misconduct,

ineffective assistance of counsel, and various defects in the jury

instructions. Brown’s most serious contention is that the jury’s

instruction on the “reasonable doubt” standard contained
constitutional error. After a careful review of our precedent on

this subject, we conclude that the district court did not err in

rejecting this allegation and the other arguments that Brown makes.

I

On September 7, 1984, Mr. and Mrs. Omer Laughlin were

returning to their parked car after dinner at a New Orleans

restaurant. Brown exited a nearby vehicle and confronted the

Laughlins. Brown pushed the couple against their car and demanded

money from Mr. Laughlin. As Mr. Laughlin handed over his wallet,

Mrs. Laughlin screamed and ran back toward the restaurant. When

Mrs. Laughlin returned shortly thereafter, Mr. Laughlin was dead.

He had been stabbed 13 times.

Mrs. Laughlin gave the police a description of Brown, and also

of the vehicle he had been sitting in before the attack. Mrs.

Laughlin told police that a woman with dark hair had been driving

the car. A short time later, an off-duty police officer, who had

heard the crime reported on his police radio, noticed the car as it

pulled into a service station. After watching Brown washing his

hands at a water hose, the officer apprehended Brown and his

companion, Anna Hardeman. The officer observed blood, scratches

and other marks on Brown’s forearms, and blood on Brown’s feet. A

New Orleans Shopper’s card belonging to Omer Laughlin was visible

on the floor of the car. Mr. Laughlin’s wallet and the murder

weapon, a Bowie knife, were later found in the car. Mrs. Laughlin

identified Brown from line-up photographs as the man who had

assaulted her husband.

2
 II

On September 20, Brown and Hardeman were indicted for first

degree murder. Hardeman entered into an agreement to plead guilty

to a lesser charge of accessory after the fact. In April 1985,

Hardeman’s counsel filed a motion concerning Hardeman’s right to a

speedy trial, in an apparent attempt to get Hardeman released

pending Brown’s trial. At a hearing on the motion, the prosecutor

stated that Hardeman was “no longer cooperating with the state’s

prosecution” and that any prior plea bargaining agreement was “no

longer in effect.” Brown’s trial began before a jury on June 13.

On the first day, the charges against Hardeman were severed, and

the prosecutor stated that Hardeman would be tried separately.

During the guilt phase of the trial, Brown did not call any

witnesses to testify on his behalf. He conceded that he had

committed the acts in question, but argued that he lacked the

requisite intent to be convicted of first degree murder, claiming

intoxication. The jury found Brown guilty of the premeditated

murder of Omer Laughlin. A penalty phase to determine Brown’s

sentence immediately followed. During the penalty phase, Brown

argued that he should not be sentenced to death because his actions

were partly attributable to his intoxication on the night he

attacked Laughlin, his longstanding drug addiction, and his

generally underprivileged childhood.

Brown called several witnesses during the penalty phase.

Brown’s mother testified to Brown’s impoverished childhood and his

early drug problems. Brown’s sister similarly testified to Brown’s

3
childhood problems. Brown’s sister also stated that Brown was a

heavy drug user in 1984, that he took drugs intravenously, and that

he behaved strangely when he was using drugs. In 1984, the sister

indicated, Brown was regularly using Mandex (a bootleg quaalude),

cocaine, and heroin. Brown presented expert testimony concerning

the effects of his drug use.

Brown also called Hardeman to testify on his behalf during the

penalty hearing. Hardeman took the stand, but after a few

preliminary questions, the prosecutor interrupted the examination

and requested that the court determine whether Hardeman had

consulted with her attorney concerning her Fifth Amendment rights.

At this point, Hardeman had not yet pled guilty, although she later

did so under a plea bargaining agreement. Hardeman’s testimony was

suspended, and the court summoned Hardeman’s attorney, who advised

her to exercise her right against self-incrimination. When

Hardeman resumed the stand, the court permitted her to invoke the

Fifth Amendment over Brown’s objection.

The prosecution contested Brown’s claim that he was addicted

to drugs. During cross-examination, the prosector elicited a

concession from Brown’s expert that Brown showed no physical signs

of intravenous drug use. The prosecution called its own

psychiatrist who testified that Brown did not have track marks, a

scarring caused by intravenous drug use, and that Brown’s prison

records following his arrest did not reveal signs of physical

withdrawal.

4
 After deliberating, the jury unanimously decided that Brown

should be sentenced to death. The jury found two statutory

aggravating factors: (1) the murder was committed during the

perpetration of an armed robbery, and (2) the offense was committed

in an especially heinous, atrocious, and cruel manner.

Brown appealed his conviction and sentence to the Louisiana

Supreme Court, which affirmed. State v. Brown, 514 So.2d 99 (La.

1987), cert. denied, 486 U.S. 1017 (1988). Then, in 1988, Brown

began post-conviction proceedings in state court, where he was

represented by a new team of appointed counsel. Evidentiary

hearings in Brown’s state habeas proceedings were held in March and

May of 1993. The state trial court denied the application for

post-conviction relief in a written order entered August 9, 1993.

State ex rel Brown v. Whitley, No. 303-750 (La. Dist. Ct., Orleans

Parish, August 9, 1993) (unpublished). The Louisiana Supreme Court

denied Brown’s petitions for supervisory and remedial writs in

April 1995, and denied reconsideration in June 1995. Brown was

subsequently scheduled for execution on July 28, 1995.

After an initial dismissal for incomplete exhaustion and an

unsuccessful return to state court, Brown refiled his federal

application for habeas relief and was granted a stay of execution.

The district court reviewed Brown’s twenty-two claims for relief in

an exhaustive opinion, concluding that Brown’s application failed

to demonstrate any constitutional defect in his conviction or

sentence. Brown v. Cain, 1995 WL 495890 (E.D. La. August 18,

1995). The district court later entered a stay of execution

5
pending appeal and issued a certificate of probable cause. Brown

v. Cain, 1995 WL 527632 (E.D. La. September 1, 1995).

III

Brown raises three contentions that merit analysis our

consideration. First, Brown argues that certain acts of the

prosecution amount to prosecutorial misconduct that materially

affected the outcome of the trial. Second, Brown insists that he

was denied effective assistance of counsel. Third, Brown argues

that the jury instruction on reasonable doubt was constitutionally

defective.1

Before addressing Brown’s arguments, we must examine the

requirements imposed upon us by the recently enacted the

Antiterrorism and Effective Death Penalty Act of 1996 (the

“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which was

signed into law by the President on April 24, 1996. The AEDPA

substantially amends the federal habeas corpus provisions of

Title 28. Two changes, in particular, are important to Brown’s

appeal: the requirement that a habeas petitioner obtain a

“certificate of appealability” (“COA”), and the deferential

1
Brown raises a list of additional issues not addressed at
oral argument: that his sentence was unreliable; that he was denied
effective assistance of appellate counsel; that the verdict form’s
use of “recommends” rather than “determines” violated his Eighth
Amendment rights; that including the word “unanimous” on the life
sentence verdict form but not on the death sentence form violated
the Sixth, Eighth, and Fourteenth Amendments; and that the jury was
inadequately instructed on the consideration of mitigating
evidence. Having reviewed the record, the parties’ briefs, and the
reasoned opinion of the district court, we find these issues to be
without merit.

6
standard of review imposed upon the federal courts when reviewing

claims adjudicated on the merits in a state proceeding.

In Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), we held

that the habeas amendments enacted by the AEDPA apply to cases

pending before us on April 24, 1996, when the President signed the

AEDPA into law. Specifically, we held that a habeas appellant’s

application for a “certificate of probable cause” (“CPC”), the

procedural requirement before the AEDPA was enacted, appropriately

could be treated as an application for a COA, without violating the

dictates of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct.

1483 (1994). Drinkard, 97 F.3d at 756.

In Landgraf, the Supreme Court indicated that “changes in

procedural rules may often be applied in suits arising before their

enactment without raising concerns about retroactivity” because

procedural rules regulate “secondary” rather than “primary”

conduct. 511 U.S. at ___, 114 S.Ct. at 1502. The Court noted,

however, that “the mere fact that a new rule is procedural does not

mean that it applies in every pending case.” 511 U.S. at ___ n.29,

114 S.Ct. at 1502, n.29. The Court observed that with “procedural”

rules, “the applicability of such provisions ordinarily depends

upon the posture of the particular case.” Id. The reviewing court

must consider the concerns central to retroactivity analysis:

whether the new rule “attaches new legal consequences” to events

completed before its enactment, and whether application of the new

rule would upset settled expectations, disturb a party’s reasonable

reliance upon the “old” rule, or work a fundamental injustice.

7
 In Drinkard, we concluded that because the standard for

issuing a COA under the AEDPA required the same showing as the

standard under which CPCs were previously issued, no retroactivity

issue was actually raised: the difference was simply one of

nomenclature. Drinkard, 97 F.3d at 756. Here, however, Brown had

already obtained a CPC before the AEDPA was enacted. Brown had

requested and received the right to appeal; his “settled

expectation” was that he had successfully passed all procedural

hurdles to this court’s consideration of his claims. Landgraf

offered a nearly identical example: “[a] new rule concerning the

filing of complaints would not govern an action in which the

complaint had already been properly filed . . .” 511 U.S. at ___

n.29, 114 S.Ct. at 1502 n.29. Although the required showing is the

same, the AEDPA states that COAs must be issued by a circuit judge,

although this may be open to some dispute.2 Applying the AEDPA’s

COA requirement to Brown in a technical fashion would clearly raise

retroactivity concerns. We therefore hold that the COA requirement

of the AEDPA will not apply to habeas appellants who have already

obtained CPCs.

More importantly for our purposes, the AEDPA amended 28 U.S.C.

§ 2254, clarifying the level of deference that a federal court must

give to the prior judgments rendered by a state court on the merits

of a habeas petitioner’s claims:

2
As we noted in Drinkard, there is an apparent discrepancy
between the amended § 2253 and the amended version of Rule 22(b) of
the Federal Rules of Appellate Procedure, which appears to allow a
COA to be issued either by a district or circuit judge. Drinkard,
97 F.3d at 755-56 n.4.

8
 (d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim-

(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; or

(2) resulted in a decision that was based
upon an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.

AEDPA, § 104(3) (to be codified at 28 U.S.C. § 2254(d)) (emphasis

added). In Drinkard, we interpreted the second clause of

subsection (d)(1) to apply to challenged applications of law to

fact. For such claims, we concluded, the amended provision permits

federal court relief “only when it can be said that reasonable

jurists considering the question would be of one view that the

state court ruling was incorrect.” Id., 97 F.3d at 769. With this

requirement of substantial deference in mind, we address each of

Brown’s principal arguments in turn.

A

Brown raises three charges of “prosecutorial misconduct.”

Brown argues that (1) the prosecution improperly manipulated

Hardeman to prevent her from testifying on Brown’s behalf

concerning his drug addiction and drug use on the night in

question, (2) the prosecution withheld exculpatory evidence subject

to disclosure, and (3) the prosecution improperly “gave a false

impression” to the jury by disputing Brown’s claims of intoxication

and drug addiction.

9
 (1)

A prosecutor may not intimidate a witness into invoking the

Fifth Amendment in order to interfere with a criminal defendant’s

right to compulsory process. United States v. Whittington, 783

F.2d 1210, 1219 (5th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct.

269 (1986). However, a witness’ right against self-incrimination

will outweigh a defendant’s right to force that witness to testify.

Id. at 1218-19 (“the defendants’ sixth amendment rights do not

override the fifth amendment rights of others”) (citing United

States v. Lacouture, 495 F.2d 1237 (5th Cir.), cert. denied, 419

U.S. 1053, 95 S.Ct. 631 (1974)). Brown does not dispute the

Louisiana Supreme Court’s conclusion that Hardeman could invoke her

right against self-incrimination in the absence of a plea

agreement. Instead, Brown insists that Hardeman did have an

enforceable plea agreement and therefore had nothing to fear from

self-incrimination at the time of trial.

During Brown’s entire trial, Hardeman remained under

indictment for first degree murder, and she had not yet pled to

this or any other charge. In Brown’s direct appeal, the Louisiana

Supreme Court concluded that “[c]learly she had reasonable cause to

apprehend danger from direct answers concerning her whereabouts and

contacts with Brown on the day of the murder.” State v. Brown, 514

So.2d at 109. In his state habeas proceeding, Brown insisted the

Louisiana Supreme Court had not properly considered his argument

that Hardeman had an enforceable plea agreement at the time she

invoked the Fifth Amendment. Brown points to an altercation

10
between the prosecutor and Hardeman’s attorney, during which the

prosecutor allegedly threatened to “pull the deal,” as evidence

that an enforceable “deal” protected Hardeman.

In Brown’s post-conviction proceedings, the state trial court

considered and rejected this argument as a factual matter. During

Brown’s post-conviction evidentiary hearing, Hardeman’s attorney

testified that he believed there was a deal in place before Brown’s

trial, but still advised Hardeman to take the Fifth out of caution.

The state court rejected this statement, stating that “[t]he fact

that Mr. Meyer, counsel for Ms. Hardeman, advised Ms. Hardeman to

invoke her Fifth Amendment privilege at the trial of petitioner

leads this Court to believe that he had grave doubts about the

enforceability of any plea bargain agreement.” State ex rel Brown

v. Whitley, No. 303-750 (La. Dist. Ct., Orleans Parish, August 9,

1993) (unpublished). The court further noted the prosecutor’s

statements at Hardeman’s speedy trial motion hearing, and the lack

of any evidence in the record that a plea bargain agreement

existed. Id.

The district court deferred to the state court’s conclusions

on this disputed factual issue, as must we. The state court was

required to assess the credibility of the witnesses who testified

at Brown’s evidentiary hearing, and we will not dispute that

court’s conclusions. We cannot say that the state court’s factual

determination was “unreasonable,” and Brown therefore fails to make

the showing required for relief under the amended § 2254(d).

11
 (2)

Brown further cites “prosecutorial misconduct” in the

prosecution’s failure to turn over “exculpatory evidence” of

Brown’s intoxication and drug abuse history, in violation of Brady

v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). The bulk of the

information Brown insists should have been turned over was

obviously known and available to Brown himself. The prosecution

had no obligation under Brady to produce for Brown evidence or

information already known to him, or that he could have obtained

from other sources by exercising reasonable diligence. United

States v. Dula, 989 F.2d 772, 775 n.7 (5th Cir.), cert. denied, 510

U.S. 859, 114 S.Ct. 172 (1993); United States v. Bermea, 30 F.3d

1539, 1574 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct.

1113 (1995).

The only evidence that arguably was withheld improperly under

Brady was the statement of the service station attendant, Edward

White, Jr., who stated that Brown appeared “kinda high” and that

Brown’s speech was somewhat slurred. Brown insists that this

statement is critical “non-specific statutory mitigating evidence”

that would have been relevant to the penalty phase. As the

district court observed, however, White’s statement also indicates

that Brown specifically requested permission to use the station’s

water hose, and that Brown evaded White’s inquiries concerning why

Brown was covered with blood. As such, whether White’s statement

was exculpatory or mitigating is open very much to question.

12
 On post-conviction review, the state trial court held

evidentiary hearings and reviewed the district attorney’s file--

containing White’s statement--to determine whether Brady material

was withheld. The court then rejected Brown’s Brady challenges.

Whether evidence must be produced under Brady presents a mixed

question of law and fact that was adjudicated on the merits by the

state court, and its determination that no Brady violation occurred

was not “an unreasonable application of clearly established federal

law.”

The statement was not clearly exculpatory, and neither the

Supreme Court nor this court has clearly held that statements of

individuals known by the defense to have personal knowledge of

relevant events must be delivered under Brady, where the defense is

equally free to conduct an interview. See, e.g., United States v.

Fogg, 652 F.2d 551, 559 (5th Cir. 1981), cert. denied, 456 U.S.

905, 102 S.Ct. 1751 (1982) (holding no Brady violation where

prosecution failed to turn over grand jury testimony of individuals

who were friends of defendant). Additionally, we agree with the

district court that even if the prosecution improperly withheld the

statement, Brown has failed to demonstrate a constitutional

violation because he has not demonstrated a “reasonable

probability” that, had the evidence been disclosed, the result

would have been different. See Kyles v. Whitley, ___ U.S. ___, 115

S.Ct. 1555, 1565 (1995).

13
 (3)

Finally, Brown argues that “prosecutorial misconduct”

violated his constitutional rights because the government knowingly

gave the jury a false impression that there was no evidence to

substantiate Appellant’s addiction to drugs and intoxication.

Brown focuses on the prosecution’s examination of the medical

experts, where the prosecution elicited testimony that Brown did

not have track marks and had not experienced withdrawal following

his arrest. Brown insists this was unconstitutionally misleading

because the examinations (for track marks) did not take place until

months after his arrest. Brown ignores the review of his records

back to the time of his arrest, and does not indicate why any

“misleading” impression was not corrected on cross or redirect

examination. Brown’s allegations of misconduct in this respect

clearly fail. Brown’s addiction and intoxication were centrally

disputed issues, and the prosecution was not obligated to accept as

true Brown’s claim that he was intoxicated based upon the

statements of Brown and Hardeman.

B

Brown next contends that his conviction and sentence are

unconstitutional because he was denied effective assistance of

counsel. Specifically, Brown argues that he was denied effective

counsel because (1) his counsel failed adequately to investigate

his background, including school, medical and juvenile records, and

to interview additional acquaintances and employers, (2) counsel

14
failed to deliver such records to his psychiatric expert, and (3)

counsel failed to retain a toxicologist as an expert witness.

Ineffective assistance of counsel claims are analyzed under

the two-prong test of Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052 (1984). Under Strickland, Brown must show both that his

counsel’s performance was deficient and that the deficient

performance prejudiced his defense such that he was deprived of a

“fair trial, a trial whose result is reliable.” Id. at 687, 104

S.Ct. at 2064. Brown was represented at trial by two competent

attorneys with substantial experience in capital cases. Brown’s

demonstration that they were ineffective must overcome “a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689, 104 S.Ct. at

2065.

Both the state trial court in Brown’s post-conviction

proceedings and the district court below considered Brown’s

arguments at length and found them unavailing. Both courts found

that Brown’s attorneys’ investigation was not deficient, and that

additional testimony concerning Brown’s drug use and deprived past

would simply have been cumulative to the testimony of Brown’s

mother and sister. The state court specifically found that this

alleged deficiency “fails to rise to the level of Strickland.”

State ex rel Brown v. Whitley, No. 303-750 (La. Dist. Ct., Orleans

Parish, August 9, 1993) (unpublished). We agree with this

conclusion.

15
 Brown attempts to substantiate his argument that his

psychiatric expert was inadequately educated by pointing to the

testimony of Dr. Alec Whyte during the post-conviction evidentiary

hearing in state court. Dr. Whyte essentially testified that Brown

suffered from certain mental disorders that were not revealed in

expert testimony at trial. Brown suggests that his trial expert

must have been inadequately educated on his background, or he, too,

would have reached the same conclusion. The state court, however,

dismissed Whyte’s testimony, observing that Whyte was the only

expert among five retained by Brown who concluded that Brown

suffered from the identified disorders. Id. This evidence is

simply inadequate to establish a constitutional violation under

Strickland.

Brown’s argument that counsel was constitutionally ineffective

by failing to retain a toxicologist--particularly at a time when

toxicologists were not commonly retained for criminal trials--is

unavailing. As the state court correctly concluded, neither the

Sixth Amendment nor Strickland demanded that Brown’s counsel retain

an expert with the label “toxicologist.” Id.

All of Brown’s “ineffective assistance” issues involve the

application of existing law to the facts of Brown’s case. His

arguments were presented fully to the state court during his post-

conviction proceeding, and the court adjudicated his claims on the

merits. With respect to each argument raised here, the state court

specifically found that the alleged deficiency did not rise to the

level of a Strickland violation. We cannot say that the state

16
court’s considered judgment was based upon an unreasonable

application of clearly established federal law--in fact, we find it

was unquestionably correct.

C

We turn now to Brown’s most serious contention: that the

trial court incorrectly instructed the jury on the “reasonable

doubt” standard. Brown argues that the reasonable doubt

instruction was unconstitutional under the Supreme Court’s decision

in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328 (1990) (per

curiam), and that this error requires that his petition for habeas

relief be granted. We find that Brown is incorrect on both points.

(1)

Once a criminal defendant’s conviction has been affirmed in

the state appeals process, and no additional appeals may be taken,

the conviction is “final.” Without a strong showing of error, the

conviction must be considered to have been fully and fairly

adjudged. The writ of habeas corpus, which allows a court to

vacate a conviction after it has become final, serves a unique and

limited purpose. As the Supreme Court explained in Teague v. Lane,

the writ ensures the fundamental fairness of criminal proceedings

by acting as “a necessary additional incentive for trial and

appellate courts throughout the land to conduct their proceedings

in a manner consistent with established constitutional standards.”

489 U.S. 288, 306, 109 S.Ct. 1060, 1073 (1989) (plurality opinion)

(quoting Desist v. United States, 394 U.S. 244, 262-3, 89 S.Ct.

1030, 1041 (1969) (Harlan, J., dissenting)).

17
 The Court in Teague reiterated that the purpose of the writ is

satisfied if habeas review determines that the conviction rests

upon a correct application of constitutional law at the time the

conviction became final. Id., 104 S.Ct. at 1073. Accordingly,

“new” constitutional rules are retroactively applied to criminal

cases that became final before the rule was announced only in two

circumstances. First, if the rule “places certain kinds of

primary, private individual conduct beyond the power of the

criminal law-making authority to proscribe,” the new interpretation

may be applied to cases on collateral review. Id. at 311, 109

S.Ct. at 1075. Second, if the new ruling establishes a “watershed”

rule of criminal procedure that implicates the “fundamental

fairness and accuracy of the criminal proceeding,” justice requires

that it be applied retroactively. Id., 109 S.Ct. at 1076.

Cage was decided in 1990, after the Louisiana Supreme Court

had affirmed Brown’s conviction in an extensive and reasoned

opinion. Brown’s access to federal habeas relief on Cage grounds

is therefore controlled by Teague. In Skelton v. Whitley, 950 F.2d

1037 (5th Cir.), cert. denied, 506 U.S. 883, 113 S.Ct. 102 (1992),

we considered whether Cage introduced a “new rule” within the

meaning of Teague, and, if so, whether it fell within the second

Teague exception. Skelton first held that Cage created a “new

rule” subject to Teague limitations. Skelton further held that the

new rule did not fall within the second exception, because the

inadvertent dilution of the reasonable doubt standard caused by a

Cage error did not seriously diminish the likelihood of obtaining

18
an accurate verdict. Id. at 1043, 1045. The state court in

Brown’s post-conviction proceeding concluded on the basis of

Skelton that Brown could not raise a Cage challenge to his

reasonable doubt instruction. State ex rel Brown v. Whitley, No.

303-750 (La. Dist. Ct., Orleans Parish, August 9, 1993)

(unpublished).

Brown argues that Skelton was implicitly overruled by the

Supreme Court’s subsequent decision in Sullivan v. Louisiana, 508

U.S. 275, 113 S.Ct. 2078 (1993), which again addressed the issue of

Cage errors. In Sullivan, the Court unanimously held that a

constitutionally defective instruction on the reasonable doubt

standard is not subject to “harmless error” review. Id. at 281,

113 S.Ct. at 2082. A Cage error, the Court indicated, creates a

“structural error” in the trial, undermining a “basic

protection . . . without which a criminal trial cannot reliably

serve its function.” Id. at 281, 113 S.Ct. at 2083 (internal

quotation omitted).

Brown argues that the Court’s holding in Sullivan “directly

undermines” the analysis in Skelton, which had concluded that Cage

error was not of a “structural” nautre. Brown’s argument, however,

has already been rejected by this court. In Smith v. Stalder, No.

93-3683, (5th Cir. June 16, 1994) (per curiam) (unpublished), the

court refused habeas relief on Cage grounds in a similar case. The

court took note of Sullivan, but concluded that it did not speak to

the issue decided by Skelton: “Sullivan was a direct appeal . . .

19
[it] did not discuss the retroactive application of Cage because

the question was not an issue in the case.” Id.

Although Smith was an unpublished decision, we are bound by

its holding. See Local Rule 47.5.3 (“Unpublished opinions issued

before January 1, 1996 are precedent”). A panel is not at liberty

to disagree with the decision of a prior panel. Absent action by

the Supreme Court, any error Brown sees in Smith may be corrected

only by this court sitting en banc. FDIC v. Dawson, 4 F.3d 1303,

1307 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2673

(1994); Burlington Northern R.R. v. Brotherhood of Maintenance of

Way Employees, 961 F.2d 86, 89 (5th Cir. 1992), cert. denied, 506

U.S. 1071, 113 S.Ct. 1028 (1993). Accordingly, we hold that Brown

may not invoke Cage to attack his conviction on collateral review.

(2)

Although we conclude that, under Fifth Circuit precedent,

Teague bars the consideration of Brown’s Cage challenge on

collateral review, we are persuaded to consider the federal

district court’s alternate ground of dismissal, which was not

addressed by the state courts: that Brown failed to demonstrate

that the jury instruction was unconstitutional under Cage. We

agree.3

3
We need not address whether the AEDPA’s deferential standard
applies to alternative grounds of decision that the state courts
did not reach in rejecting a habeas petitioner’s claim for relief,
because we find that Brown’s argument that his reasonable doubt
instruction was unconstitutional fails regardless of the standard
of review we apply. We note that the Seventh Circuit has
determined that the AEDPA’s deferential standard would apply, Lindh
v. Murphy, 96 F.3d 856, 874-5 (7th Cir. 1996), but we leave that
question for another case.

20
 In Cage, the U.S. Supreme Court concluded that a Louisiana

jury instruction on reasonable doubt was constitutionally defective

because it improperly raised the degree of “doubt” that would

demand acquittal in a criminal trial to something more than

“reasonable” doubt. The challenged instruction in Cage read:

If you entertain a reasonable doubt as to any fact or
element necessary to constitute the defendant’s guilt, it
is your duty to give him the benefit of that doubt and
return a verdict of not guilty. Even where the evidence
demonstrates a probability of guilt, if it does not
establish such guilt beyond a reasonable doubt, you must
acquit the accused. This doubt, however, must be a
reasonable one; that is one that is founded upon a real
tangible substantial basis and not upon mere caprice and
conjecture. It must be such doubt as would give rise to
a grave uncertainty, raised in your mind by reasons of
the unsatisfactory character of the evidence of lack
thereof. A reasonable doubt is not a mere possible
doubt. It is an actual substantial doubt. It is a doubt
that a reasonable man can seriously entertain. What is
required is not an absolute or mathematical certainty,
but a moral certainty.

111 S.Ct. at 329 (emphasis added by U.S. Supreme Court). The Court

considered the instruction as a whole, and noted that the use of

words such as “substantial” and “grave” could suggest a higher

degree of doubt than “reasonable doubt.” The Court then found that

these references, added to the suggestion that the jury might

convict upon the basis of a “moral” rather than “evidentiary”

certainty, created a likelihood that a reasonable juror might have

found guilt upon something less than the Due Process Clause

demanded. Id. at 330.

Brown argues that the reasonable doubt instruction in his case

was similarly unconstitutional. During Brown’s trial, the jury was

instructed, in relevant part, that:

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 If you entertain a reasonable doubt as to any fact or
element necessary to constitute the guilt of the
defendant, it is your sworn duty to give him the benefit
of the doubt and return a verdict of not guilty. This
doubt, however, must be a reasonable one, that is, one
founded upon a real, tangible, substantial basis and not
upon mere caprice, fancy, or conjecture. It must be such
a doubt as would give rise to a grave uncertainty raised
in your mind by the unsatisfactory character of the
evidence. Likewise, if the State has proved the guilt of
the defendant to your satisfaction and beyond a
reasonable doubt, it is your duty to return a verdict of
guilty.

Brown argues that because his reasonable doubt instruction contains

one of the phrases, i.e., a reference to “grave uncertainty,” that

the Supreme Court scrutinized in finding the Cage instruction

unconstitutional, his instruction must also be declared

unconstitutional. We disagree.

The Supreme Court determined that the Cage instruction was

unconstitutional after it had examined the instruction as a whole,

which is the general rule applied in reviewing a challenged jury

instruction. We will similarly examine Brown’s jury charge as a

whole in order to determine whether it is unconstitutional under

the reasoning of Cage.

Although Brown’s instruction does contain an identical “grave

uncertainty” comment, the trial court in Brown’s case clearly did

not equate “reasonable doubt” with “actual substantial doubt.” The

instruction employs the “grave uncertainty” comment in reference to

an admonition that reasonable doubt itself should be based upon the

evidence or lack thereof: “. . .upon a real, substantial basis and

not upon mere caprice, fancy, or conjecture . . . [i]t must be such

doubt as would give rise to a grave uncertainty raised in your mind

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by the unsatisfactory character of the evidence.” (Emphasis

added). Furthermore, the court never suggested that the jury might

convict on the basis of a “moral certainty.” In short, the trial

court’s charge to the jury includes only one of the questionable

phrases challenged in Cage, while the surrounding text of the

charge is unobjectionable and repeatedly reiterates that the

standard is “reasonable doubt,” and that verdict must be reached

upon the evidence alone.4

4
The instruction was insistent in its repetitious description
of the State’s burden as proof beyond a reasonable doubt, and also
reminded the jurors at several points that they could base their
verdict only upon the evidence presented:

Now, a person accused of a crime is presumed by our law
to be innocent until each element of the crime necessary
to constitute his guilt is proven beyond a reasonable
doubt. It is the duty of the jury in considering and
applying to that evidence the law as given by the Court
to give the defendant the benefit of every reasonable
doubt arising out of the evidence or lack of evidence in
the case. It is the duty of the jury if not convinced of
the guilt of the defendant beyond a reasonable doubt to
find him not guilty. The defendant is not required to
prove his innocence, but may rest upon the presumption of
innocence until it is overthrown by positive, affirmative
proof offered by the State. The burden, therefore, is
upon the State to establish to your satisfaction and
beyond a reasonable doubt, the guilt of the defendant as
to the crime charged. If you entertain a reasonable
doubt as to any fact or element necessary to constitute
the guilt of the defendant, it is your sworn duty to give
him the benefit of the doubt and return a verdict of not
guilty. This doubt, however, must be a reasonable one,
that is, one founded upon a real, tangible, substantial
basis and not upon mere caprice, fancy, or conjecture.
It must be such a doubt as would give rise to a grave
uncertainty raised in your mind by the unsatisfactory
character of the evidence. Likewise, if the State has
proved the guilt of the defendant to your satisfaction
and beyond a reasonable doubt, it is your duty to return
a verdict of guilty . . . You are to find from the
evidence which facts have been proved and which facts
have not been proved . . . Evidence includes sworn

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 Cage found the connections between the three challenged

phrases critical: “[w]hen those statements are then considered

with the reference to ‘moral certainty,’ rather than evidentiary

certainty, it becomes clear that a reasonable juror could have

interpreted the instruction to allow a finding of guilt based upon

a degree of proof below that required by the Due Process Clause.”

498 U.S. at 41, 111 S.Ct. at 330 (emphasis added). In fact, in a

later case the Supreme Court found two different reasonable doubt

instructions, one containing the phrase “moral certainty” and the

other citing “substantial doubt,” to be constitutional when the

instructions were considered as a whole. Victor v. Nebraska, 511

U.S. 1, ___, 114 S.Ct. 1239, 1247, 1250 (1994). The Court observed

that its opinion in Cage did not hold that the three challenged

phrases were each unconstitutional: “we did not hold that the

reference to substantial doubt alone was sufficient to render the

instruction unconstitutional. 511 U.S. at ___, 114 S.Ct. at 1250.

Although the Court disapproved of the use of the ambiguous “moral

certainty,” the Court noted that, on review, “the moral certainty

language cannot be sequestered from its surroundings,” and

concluded that the instruction as a whole properly charged the jury

on their duty to consider the evidence. 511 U.S. at ___, 114 S.Ct.

at 1248.

testimony of witnesses, exhibits admitted into the
record, and facts which may have been stipulated to by
the attorneys for the State and the defense. You cannot
consider as evidence any statements made by the lawyers
during the trial. You cannot go beyond the evidence just
referred to to convict the defendant of the crime
charged.

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 Considered in its entirety, the instruction in Cage appeared

to create a downward swing in the prosecution’s burden of proof:

the instruction began appropriately with “reasonable” doubt, moved

to “grave uncertainty,” and then to “substantial” doubt, and

concluded by suggesting that the jury could convict on the basis of

a “moral certainty” rather than an evidentiary certainty. The

challenged portion of Brown’s jury charge, by contrast, begins and

ends with “reasonable” doubt, and indicates clearly that the State

must prove guilt beyond a reasonable doubt--with no suggestion that

a “moral certainty” might suffice in the absence of evidentiary

proof. We also note that, later in the charge, the jury was

reminded of the severity of the State’s burden with the admonition

that Brown should not be convicted “unless the facts proved by the

evidence exclude every reasonable hypothesis of his innocence.”

Thus, there is a vast difference between the charge given in the

case before us and the charge given in Cage.

Furthermore, the standard of appellate review applied by the

Court in Cage has been modified by the Court’s decision in Estelle

v. McGuire, 502 U.S. 62, 112 S.Ct. 475 (1991). The question, as

Estelle explained, is not whether there is a possibility that a

juror “could have” applied the instruction in an unconstitutional

manner, but whether there is a “reasonable likelihood” that the

jury did apply the instruction unconstitutionally. Id. at 61 &

n.4, 112 S.Ct. at 482 & n.4; Victor, 511 U.S. at ___, 114 S.Ct. at

1243. Given the trial court’s numerous references to “reasonable

doubt” and the severity of the State’s evidentiary burden, we

25
conclude that there is no reasonable likelihood that the jury

applied the challenged instruction in an unconstitutional manner.

IV

In conclusion, Brown has failed to establish that his

conviction and sentence are unconstitutional. His various claims

have been fully and fairly adjudicated both in the Louisiana state

courts and by the district court below. The judgment of the state

court concerning Brown’s allegations was neither “contrary to” nor

“involved an unreasonable application of” clearly established

federal law. Nor was the state court’s decision “based on an

unreasonable interpretation of the facts.” Brown’s petition for

habeas relief under 28 U.S.C. § 2254 therefore fails. We AFFIRM

the judgment of the district court, and hereby VACATE the stay of

execution granted pending appeal.

AFFIRMED; stay VACATED.

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