UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-30305
____________________
ALFRED MITCHELL,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary;
RICHARD IEYOUB, Attorney General, State of Louisiana,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-1848-J)
_________________________________________________________________
July 9, 1999
Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:1
Alfred Mitchell, Louisiana prisoner #65291, contests, pro se,
the denial of his 28 U.S.C. § 2254 habeas petition, claiming that,
under Cage v. Louisiana, 498 U.S. 39 (1990), the reasonable doubt
jury instruction was unconstitutional. We AFFIRM.
I.
Mitchell was convicted of second-degree murder in November
1989. The instruction provided in part:
1
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this opinion should not be published and is not precedent except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.
Now while the State must prove guilt beyond a
reasonable doubt, it does not have to prove
guilt beyond all possible doubt. Reasonable
doubt is doubt based on reason and common
sense and is present when, after you have
carefully considered all of the evidence, you
can not say that you are firmly convinced of
the truth of that charge.
Now more on reasonable doubt. A reasonable
doubt must be just that, a reasonable one.
That is one that is 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 an
uncertainty raised in your minds by reason of
the unsatisfactory character of the evidence.
A reasonable doubt is not a mere possible
doubt. It’s an actual or a substantial doubt.
It is such a doubt as a reasonable person
would seriously entertain. It’s a serious
doubt, a doubt for which you can give a
reason.2
Mitchell’s conviction and life sentence were affirmed on
direct appeal. State of Louisiana v. Mitchell, 572 So.2d 800 (La.
App. 4th Cir. 1990), writ denied, 576 So.2d 47 (La. 1991). His
1994 petition for state habeas relief was denied; the Louisiana
Supreme Court denied a supervisory writ in October 1996.
Mitchell filed the present § 2254 petition in July 1997,
challenging the instruction and claiming ineffective assistance of
counsel. The district court denied relief. Our court granted a
2
In his state and federal habeas applications, Mitchell
erroneously stated that the instructions included “grave
uncertainty” and “moral certainty”.
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certificate of appealability on the instruction issue. See 28
U.S.C. § 2253(c)(1)(A).
II.
Of course, we review de novo a district court’s conclusions on
issues of law, such as a due process challenge to a reasonable
doubt definition. E.g., Graham v. Johnson, 168 F.3d 762, 772 (5th
Cir. 1999).
Federal habeas relief is barred for state prisoners on “any
claim that was adjudicated on the merits in State court
proceedings”, unless, for issues of law, the adjudication ran afoul
of “clearly established Federal law, as determined by the Supreme
Court of the United States”. 28 U.S.C. § 2254(d). This rule,
added to § 2254 by the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1218 (1996) (AEDPA),
applies to petitions, like Mitchell’s, filed after AEDPA’s
effective date, 24 April 1996. E.g., Muhleisen v. Ieyoub, 168 F.3d
840, 844 (5th Cir. 1999).3
On reviewing the record, we conclude that the state court
denied Mitchell’s instruction claim on the merits; the court gave
3
While 28 U.S.C. § 2244(d)(1), also added by AEDPA, sets a
one-year period for seeking federal habeas relief after a state
conviction has become final, this limitations period begins on 24
April 1996 (AEDPA’s effective date) for persons convicted before
then, e.g., Fields v. Johnson, 159 F.3d 914, 914 (5th Cir. 1998),
and is tolled while state habeas relief is pursued, id.; 28 U.S.C.
§ 2244(d)(2). Accordingly, because his state application was
pending until October 1996, Mitchell’s July 1997 federal
application was timely.
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no hint of a procedural disposition. See Fisher v. Texas, 169 F.3d
295, 300 (5th Cir. 1999) (substantive, non-procedural dispositions
are “on the merits” under § 2254). Accordingly, we only consider
the Supreme Court’s statement of the law at the time Mitchell’s
conviction became final — March 1991. Muhleisen, 168 F.3d at 844.
Then, as now, the only Supreme Court invalidation of a reasonable-
doubt instruction was Cage, decided in November 1990. Id.
Cage held the following instruction violative of due process:
If [the evidence] 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 or 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.
498 U.S. at 40 (emphasis by Supreme Court). The Court concluded
that
the words “substantial” and “grave,” as they
are commonly understood, suggest a higher
degree of doubt than is required for acquittal
under the reasonable-doubt standard. When
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
on a degree of proof below that required by
the Due Process Clause.
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Id. at 41.4 Accordingly, the Court in Cage was troubled by the
cumulative effect of “actual substantial doubt”, “grave
uncertainty”, and “moral certainty” on jurors.
Our court has recently held, however, that even a charge
replicating all of the elements challenged by Mitchell — “actual or
substantial doubt”, “serious doubt ... for which you could give [a]
reason”, “[doubt] founded upon real, tangible, substantial basis
and not upon caprice, fancy or conjecture”, “such a doubt as a
reasonable man would seriously entertain” — and also adding the
problematic “grave uncertainty”, not present here, and requiring a
juror to “give good reason” (emphasis added), not just “give a
reason”, as here, does not violate Cage. Muhleisen, 168 F.3d at
843-44 & n.2.
III.
Accordingly, the denial of habeas relief is
AFFIRMED.
4
The “could have interpreted” passage, suggesting a different
standard of review than whether a “reasonable likelihood” existed
that a juror interpreted a jury instruction unconstitutionally, was
later disavowed. Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991).
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