IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-30990
_____________________
NATHAN ROLLINS,
Petitioner-Appellant,
v.
BURL CAIN, Warden, Louisiana State Penitentiary;
RICHARD P IEYOUB, Attorney General, State of Louisiana,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(96-CV-4166-M)
_________________________________________________________________
April 7, 1999
Before KING, Chief Judge, REYNALDO G. GARZA and JOLLY, Circuit
Judges.
PER CURIAM:*
Nathan Rollins appeals the district court’s dismissal of his
habeas corpus application, arguing that the jury instruction
defining reasonable doubt given in his state court trial violated
his rights under the Due Process Clause. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Nathan Rollins was convicted in state court of three counts
of armed robbery in August 1990 and is currently serving a
ninety-nine year sentence without the benefit of pardon or parole
in the Louisiana State Penitentiary in Angola, Louisiana. After
Rollins exhausted his direct appeals, he filed a habeas corpus
petition in state court, which was rejected by the state district
court and on appeal by the state appellate and supreme courts.
Rollins filed a federal habeas corpus application pursuant
to 28 U.S.C. § 2254 in federal district court on January 10,
1997. In his habeas application, Rollins argued that the trial
court’s instruction regarding reasonable doubt violated his
constitutional rights under Cage v. Louisiana, 498 U.S. 39, 41
(1990), that his identification was not proven beyond a
reasonable doubt, that his adjudication as a habitual felon was
illegal because the predicate offense was not final before the
conviction of the later offense, and that he received ineffective
assistance of counsel.
The respondents filed a response to Rollins’s habeas
application asserting, inter alia, that his Cage claim was
procedurally barred due to his failure to object when the jury
instruction was initially given. The case was referred to a
magistrate judge who issued a report and recommended that
Rollins’s application be denied. Specifically, the magistrate
judge found that the Cage claim was procedurally barred, and, in
the alternative, that the claim lacked merit.
2
Rollins filed objections to the magistrate judge’s report
and recommendation. The district court adopted the magistrate’s
report and entered judgment dismissing Rollins’s application.
Rollins timely appealed, and this court granted him a certificate
of appealability (COA) limited to: (1) whether Cage claims are
cognizable retroactively in habeas corpus petitions, (2) whether
the state courts’ decisions relied upon Rollins’s failure to
object to the Cage instruction when denying relief, (3) whether
Rollins’s Cage claims are procedurally barred, and (4) whether
the jury instruction given in his case violated Cage.
II. DISCUSSION
We review a district court’s denial of federal habeas review
based on state procedural grounds de novo and its findings of
fact for clear error. See Glover v. Cain, 128 F.3d 900, 902 (5th
Cir. 1997), cert. denied, 118 S. Ct. 1811 (1998); Amos v. Scott,
61 F.3d 333, 338 (5th Cir. 1995). Rollins filed his habeas
application after April 24, 1996, and it is therefore subject to
the terms of the Anti-Terrorism and Effective Death Penalty Act
of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
A panel of this court recently considered an appeal from the
dismissal of a habeas application in a similar procedural posture
as the instant case. See Muhleisen v. Ieyoub, No. 97-30622, 1999
WL 104888 (5th Cir. Mar. 2, 1999). The appellant in that case,
like Rollins, filed his habeas application after the passage of
AEDPA. See id. at *1. As we stated in Muhleisen, this court has
determined that Cage claims are retroactively cognizable in
3
habeas applications. See id. at *3 (citing Humphrey v. Cain, 138
F.3d 552, 553 (5th Cir.) (en banc), cert. denied, 119 S. Ct. 348
(1998)). However, as we noted in Humphrey, and explained in
Muhleisen, AEDPA’s “heightened standard of review for state
prisoners, see 28 U.S.C. § 2254(d)(1), could shut out”
petitioners asserting retroactive Cage claims. Humphrey v. Cain,
120 F.3d 526, 529 (5th Cir. 1997), adopted by Humphrey, 138 F.3d
at 553; see Muhleisen, 1999 WL 104888, at *4-*5.
We therefore proceed to consider whether Rollins’s Cage
claim is procedurally barred. If a state court decision
rejecting a federal habeas petitioner’s constitutional claim
clearly and expressly rests on an adequate and independent state
procedural bar, this court is precluded from reviewing the merits
of the claim absent a showing of cause and prejudice for the
procedural default or a showing that failure to review the claim
would result in a complete miscarriage of justice. See
Muhleisen, 1999 WL 104888, at *3; Boyd v. Scott, 45 F.3d 876,
879-80 (5th Cir. 1994).
However, because Rollins failed to present his Cage claim to
the Louisiana state courts, no Louisiana state court explicitly
considered Rollins’s Cage claim, much less clearly and expressly
relied on a state procedural bar in rejecting it. Rollins
initially stated in his state habeas petition that “the trial
court gave an erroneous instruction to the jury defining
reasonable doubt.” However, his only argument with respect to
the jury charge was that his trial counsel was ineffective for
4
failing to object to the language of the charge, not that the
charge itself violated Cage. The state habeas court rejected
Rollins’s ineffective assistance of counsel argument, concluding
that “Cage . . . effected a dramatic change in the law regarding
the definition of reasonable doubt, and accordingly, criminal
defense attorneys were not constitutionally ineffective for
failing to object to such an instruction.” On appeal to the
Louisiana Court of Appeals and the Louisiana Supreme Court,
Rollins did not argue that the state habeas court failed to
address his Cage claim and raised the issue only in relation to
his ineffective assistance of counsel claim, which was denied by
both state appellate courts.
The requirement that the state court have clearly and
expressly based its ruling on a state procedural bar thus does
not apply to this case, because “the claim was never presented to
the state courts.” Muniz v. Johnson, 132 F.3d 214, 220 (5th
Cir.) (internal quotation marks omitted), cert. denied, 118 S.
Ct. 1793 (1998). We must therefore “look to, and apply, state
procedural default rules in making the congressionally mandated
determination whether adequate remedies are available in state
court.” Id. at 220 n.10 (internal quotation marks omitted).
Rollins failed to object to the jury instruction regarding
reasonable doubt at his trial. Louisiana courts have strictly
and regularly followed a contemporaneous objection rule in
barring Cage claims when the petitioner did not object to the
jury instruction at trial. See State v. Wilson, 631 So. 2d 1213,
5
1218-19 (La. Ct. App. 1994); State v. Berniard, 625 So. 2d 217,
220 (La. Ct. App. 1993) (on rehearing); see also State ex rel.
Ross v. Blackburn, 403 So. 2d 719, 721-22 (La. 1981) (stating
that erroneous jury instruction is not patent error and therefore
court may not consider issue absent contemporaneous objection).
“Louisiana’s use of the contemporary objection rule, as applied
specifically to Cage claims, is constitutionally adequate.”
Muhleisen, 1999 WL 104888, at *3. Rollins’s failure to object to
the jury instruction regarding reasonable doubt during his trial
therefore precludes our consideration of the issue unless Rollins
makes the requisite showing of cause and actual prejudice, or
that a fundamental miscarriage of justice would result from our
failure to address his claim. See Muniz, 132 F.3d at 220-21.
Rollins does not assert that he is actually innocent, and
therefore our failure to consider his claim would not result in a
fundamental miscarriage of justice. See id. at 221 n.12 (“In
order to prove a fundamental miscarriage of justice, the prisoner
must assert his actual innocence.”) (internal quotation marks
omitted). In addition, Rollins has failed to demonstrate cause
for his procedural default; this court has stated on numerous
occasions that Cage claims have been “reasonably available” since
1982, well before Rollins was convicted. James v. Cain, 50 F.3d
1327, 1333 (5th Cir. 1995); see Ward v. Cain, 53 F.3d 106, 108
(5th Cir. 1995). The district court therefore properly dismissed
Rollins’s habeas application as procedurally barred.
6
Furthermore, we note, as did the panel in Muhleisen, that
the newly amended 28 U.S.C. § 2254(d)(1) effectively precludes
relief to petitioners asserting retroactive Cage claims. This
court has interpreted that section to provide that “we can grant
a writ of habeas corpus only if the state court’s determination
of law, on a de novo review, violated Supreme Court precedent in
existence at the time of the petitioner’s conviction.”
Muhleisen, 1999 WL 104888, at *4 (citing Drinkard v. Johnson, 97
F.3d 751, 768 (5th Cir. 1996), cert. denied, 117 S. Ct. 1114
(1997)). Rollins was convicted in August 1990, and the Supreme
Court did not decide Cage, which was “the first, and so far the
only, time the Supreme Court has held a definition of reasonable
doubt to have violated the Due Process Clause,” id. at *5, until
November 13, 1990. See Cage, 498 U.S. at 39. Thus, even if we
construe Rollins’s state petition to have raised the Cage claim,
and the denial of relief by the Louisiana state courts to have
rejected it, Rollins cannot prevail because Cage was not in
existence at the time of Rollins’s conviction.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
7