IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30340
THOMAS J. WILLIAMS,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans
October 17, 2000
Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.
GARWOOD, Circuit Judge:
In 1981, petitioner-appellant Thomas J. Williams (Williams),
a Louisiana state prisoner, was convicted by a jury of first degree
murder and sentenced to death. He was later resentenced to life
imprisonment. Williams filed a state habeas corpus application,
alleging, inter alia, that the reasonable doubt instruction given
to the jury at his trial was constitutionally defective. On
October 23, 1991, the state trial court denied Williams’s
application for habeas relief, and on July 17, 1994, the Louisiana
Supreme Court denied Williams’s request for supervisory and/or
remedial writs. On April 22, 1997, Williams filed the instant
federal petition for habeas relief under 28 U.S.C. § 2254; in his
petition, he brought claims similar to those in his state habeas
application. On March 9, 1999, the district court denied his
petition and dismissed his claims with prejudice. The district
court then denied Williams’s request for a certificate of
appealability (COA). Williams sought a COA from this Court, which
granted his request in part, limited to the question of the
constitutionality of the reasonable doubt instruction. We now
affirm.
Facts and Proceedings Below
On January 16, 1981, Williams entered a neighborhood bar near
his home in New Orleans. He shot and killed one person, injured
another with a gunshot to the arm, and fired errant shots at other
bar patrons. In June, 1981, Williams was convicted of first degree
murder and later sentenced to death. He made a direct appeal to
the Louisiana Supreme Court, which affirmed his conviction but
remanded for an evidentiary hearing regarding whether he had
received ineffective assistance of counsel during the sentencing
phase of his trial. See State v. Williams, 480 So.2d 721 (La.
1985). At the hearing, the trial court determined that while
Williams had received effective assistance of counsel during the
sentencing phase, he and his counsel had been misinformed by the
District Attorney’s Office regarding the nature of his criminal
record. The District Attorney’s records incorrectly overstated the
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seriousness of Williams’s prior convictions, a factor which had led
Williams not to testify during the sentencing phase (Williams did
not testify or present any evidence at the guilt/innocence stage).
The trial court ordered a new sentencing hearing and Williams was
resentenced to life imprisonment. He is currently serving that
sentence at the Louisiana State Penitentiary in Angola, Louisiana.
Williams later filed an application for state habeas relief.
In the application, he argued that the reasonable doubt instruction
given to the jury at his 1981 trial was constitutionally defective
under Cage v. Louisiana, 111 S.Ct. 328 (1990) (per curiam),
overruled on other grounds by Estelle v. McGuire, 112 S.Ct. 475,
482 n.4 (1991). Williams also argued that the specific intent
instruction violated due process, and that he received ineffective
assistance by his counsel’s failing to object to the jury
instructions and not allowing him to testify. Concluding that any
error in the instruction was harmless, the state trial court denied
the application on October 23, 1991. The Louisiana Supreme Court
denied, without opinion or statement of reasons, Williams’s request
for supervisory or remedial writs on June 17, 1994.
On April 22, 1997, Williams filed the instant petition for
post-conviction relief pursuant to 28 U.S.C. § 2254. In his
petition, Williams again contended that the trial court’s
reasonable doubt instruction was constitutionally defective; he
also argued that the specific intent instruction violated due
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process and that his counsel provided ineffective assistance by not
allowing him to testify on his own behalf at the guilt phase
regarding his level of intoxication at the time he committed the
offense. On March 8, 1999, the district court denied the petition.
Regarding the reasonable doubt instruction, the district court
found that because Williams filed his petition after the passage of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
he could not “overcome the formidable barriers set up by AEDPA” and
therefore the district court could not consider the merits of his
claim. The district court did not specify which barriers precluded
Williams from prevailing, and dismissed his claims with prejudice.
Williams filed a notice of appeal and moved for a COA, which the
district court denied. Williams then sought a COA from this Court.
This Court granted his request in part, limited to the question of
whether the reasonable doubt instruction was constitutionally
defective, but declined to issue a COA on any other issue.
Discussion
At the close of the guilt phase of Williams’s 1981 trial, the
trial court gave the following instruction to the jury:
“The defendant is presumed to be innocent until he is
proved guilty beyond a reasonable doubt. The consequence
of this rule of law is, he is not required to prove his
innocence, but may rest upon the presumption in his favor
until it is overcome by positive affirmative proof. The
onus, therefore, is on the State to establish to your
satisfaction, and beyond a reasonable doubt, the guilt of
the accused, as to the crime charged or any lesser one
included in it.
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If you entertain any reasonable doubt as to any fact or
element necessary to constitute the defendant’s guilt, it
is your own sworn duty to give him the benefit of that
doubt and return a verdict of acquittal. Even where the
evidence demonstrates a probability of guilt, yet if it
does not establish it beyond a reasonable doubt, you must
acquit the accused. This doubt must be a reasonable one,
that is, one found upon a real, tangible, substantial
basis, and not upon mere caprice, fancy or conjecture.
It must be such a doubt that would give rise to a grave
uncertainty, raised in your minds by reason of the
unsatisfactory character of the evidence; one that would
make you feel that you had not an abiding conviction to
a moral certainty of the defendant’s guilt. If, after
giving a fair and impartial consideration to all of the
facts in the case, you find the evidence unsatisfactory
upon any single point indispensably necessary to
constitute the defendant’s guilt, this would give rise to
such a reasonable doubt as would justify you in rendering
a verdict of not guilty.
A reasonable doubt is not a mere possible doubt. It
should be an actual or substantial doubt. It is such a
doubt as a reasonable person would seriously entertain.
It is a serious doubt for which you could give a good
reason.” (emphasis added).
No objection was made to this instruction, nor was
it complained of on direct appeal.
Williams contends that the trial court’s use of the phrases
“grave uncertainty,” “moral certainty,” and “actual or substantial
doubt,” as well as its requirement that the jury have a “serious
doubt for which you could give a good reason,” rendered the
instruction constitutionally defective under Cage v. Louisiana and
Victor v. Nebraska, 114 S.Ct. 1239 (1994). Williams’s appeal
returns this Court to increasingly familiar yet persistently thorny
terrain: post-AEDPA habeas challenges to alleged Cage-Victor errors
in convictions that became final before Cage and Victor appeared.
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Despite somewhat conflicting suggestions in our precedent, we
conclude that our opinion in Mulheisen v. Ieyoub, 168 F.3d 840 (5th
Cir.), cert. denied, 120 S.Ct. 81 (1999), controls this case and
compels our conclusion that under AEDPA Williams cannot avail
himself on habeas of Cage and its progeny. Accordingly, we affirm.
I. Background: Cage-Victor Error and Retroactivity
The Due Process Clause of the Fourteenth Amendment “protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged.” In re Winship, 90 S.Ct. 1068, 1073
(1970); see also Jackson v. Virginia, 99 S.Ct. 2781, 2786 (1979).
In Cage, a direct appeal, the Supreme Court held that a reasonable
doubt instruction ran afoul of Winship and violated the Due Process
Clause because, when read “as a whole,” it “equated a reasonable
doubt with a