Rollins v. Cain

               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this opinion should not be published and is not precedent except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.




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     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


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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.




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