IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30931
MICHAEL STEWARD,
Petitioner-Appellee,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
July 20, 2001
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
GARWOOD, Circuit Judge:
Respondent-appellant Burl Cain, Warden, Louisiana State
Penitentiary, (Louisiana) appeals the district court’s grant of
petitioner-appellee Michael Steward’s petition for writ of habeas
corpus. We reverse.
Facts and Proceedings Below
1
Circuit Judge of the Ninth Circuit, sitting by designation.
In September 1987, Steward was convicted of first-degree robbery
and sentenced to forty years in prison. The jury in Steward’s trial was
given an instruction indistinguishable from that this Court, in Morris
v. Cain, 186 F.3d 581, 585-86 (5th Cir. 2000), found unconstitutional
under Estelle v. McGuire, 112 S.Ct. 475, 482 & n.4 (1991) and Victor v.
Nebraska, 114 S.Ct. 1239, 1243 (1994).2 Steward’s counsel failed to
object to this instruction at trial. After “errors patent” and an out-
of-time appeals repeatedly resulted in his conviction being affirmed,
Steward filed a motion for post-conviction relief in state court on
November 26, 1996.3
In his state habeas petition, Steward asserted three grounds for
relief: 1) ineffective assistance of counsel for counsel’s failure to
impeach a government witness about an inconsistent statement offered at
another Steward trial; 2) ineffective assistance of counsel for
counsel’s failure to object to the introduction of an allegedly
incriminating statement made by Steward; and 3) the jury instruction
2
Estelle and Victor modified the test of Cage v. Louisiana, 111
S.Ct. 328 (1990), and established that a jury instruction is
unconstitutional if there is a reasonable likelihood that the jury
applied the instruction unconstitutionally, i.e. if the jury interpreted
the instructions as allowing conviction upon less than proof beyond a
reasonable doubt.
3
The Louisiana Fourth Circuit Court of Appeal affirmed Steward’s
conviction in the errors patent appeal on June 29, 1989. State v.
Steward, 545 So.2d 1317 (La. Ct. App. 1989). After Steward was granted
an out-of-time appeal, his conviction was affirmed by Louisiana’s Fourth
Circuit on August 31, 1993. State v. Steward, 622 So.2d 877 (La. Ct.
App. 1993). The Louisiana Supreme Court affirmed on November 29, 1993.
State v. Steward, 629 So.2d 418 (La. 1993).
2
pertaining to reasonable doubt was unconstitutional. On July 11, 1997,
the state trial court denied relief on all claims. The court did not
reach the merits of Steward’s jury instruction claim, specifically
stating that because Steward failed to object to the instruction at
trial, the issue had not been preserved for any further review.4
On September 15, 1997, the Louisiana Fourth Circuit Court of Appeal
affirmed, referring to the jury instruction only as follows: “Counsel’s
performance was not deficient due to counsel’s failure to object to the
jury instruction on reasonable doubt six years before that instruction
was held to be unconstitutional. State v. Wolfe, 630 So.2d 872, 883
(La. App. 4th Cir. 1993), writ denied 94-0448 (La. Oct. 28, 1994), 664
So.2d 648.” State v. Steward, No. 97-K-1576 (La. App. 4 Cir. 9/15/97),
writ denied, 97-2605 (La. 4/24/98). The Louisiana Supreme Court
affirmed without comment. State v. Steward, 717 So.2d 1159 (La. 1998).
Steward filed his federal habeas petition on February 1, 1999,
maintaining that the reasonable doubt instruction violated due process.
Before the district court, Louisiana argued that because Steward had
procedurally defaulted the Cage claim in state court federal habeas
review of that claim was improper. The district court disagreed,
finding that as a result of the court of appeal’s opinion the procedural
bar relied upon by the trial court ceased to be an independent state
procedural ground for refusing to hear Steward’s jury instruction claim.
At the same time, the district court found that under Miller v. Johnson,
4
In Louisiana, this is known as the contemporaneous objection rule.
3
200 F.3d 274, 281 (5th Cir. 2000), Steward’s Cage claim had not been
adjudicated on the merits, and that, therefore, the deferential
standards of 28 U.S.C. § 2254(d) did not apply. The district court then
proceeded to hold that the jury instruction was unconstitutional and
granted the writ on that basis. The district court denied relief as to
Steward’s ineffective assistance of counsel claims.
Louisiana appeals the district court’s finding that Steward’s Cage
claim may be heard on federal habeas.5
Discussion
If a state court refuses to hear a state prisoner’s federal claims
because the prisoner failed to comply with a regularly enforced state
procedural requirement, the independent and adequate state ground
doctrine serves to bar federal habeas for those claims. Coleman v.
Thompson, 111 S.Ct. 2546, 2554 (1991); Amos v. State, 61 F.3d 333, 338
(5th Cir. 1995). In Muhleisen v. Ieyour, 168 F.3d 840, 843 (5th Cir.
1999), this Court held that Louisiana’s contemporaneous objection rule,
as applied to Cage claims, is constitutionally adequate. Thus, when a
state court relies upon the contemporaneous objection rule to reject a
prisoner’s claims, federal habeas review of those claims is improper.
There is no question that the state trial court relied on the
contemporaneous objection rule in refusing to hear Steward’s Cage claim.
However, “state procedural bars are not immortal” and “may expire
because of later actions by state courts. If the last state court to
5
Steward has not cross-appealed or filed any brief in this Court.
4
be presented with a particular federal claim reaches the merits, it
removes any bar to federal-court review that might otherwise have been
available.” Ylst v. Nunnemaker, 111 S.Ct. 2590, 2593 (1991). Ylst
commands that, when determining whether subsequent action by a state
court causes the procedural bar to expire, we apply the following
presumption: “[w]here there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding that
judgment or rejecting the same claim rest upon the same ground.” Id.
at 2594. This presumption is appropriate because “silence implies
consent” and courts affirm “without further discussion when they agree,
not when they disagree, with the reasons given below.” Id. at 2595.
Ylst defined an unexplained order as “an order whose text or
accompanying opinion does not disclose the reason for the judgment.”
Id. at 2594.
The district court acknowledged that the Louisiana trial court
explicitly relied upon the contemporaneous objection rule in rejecting
Steward’s Cage claim, but did not view the trial court’s decision as the
last reasoned state judgment. It viewed the court of appeal’s decision
as the last reasoned state judgment and concluded that the court of
appeal misconstrued Steward’s Cage claim as an ineffective assistance
of counsel claim and disposed of that claim on the merits without
invoking the contemporaneous objection rule. Therefore, according to
the district court, that rule can no longer be considered an independent
state ground. This analysis is flawed in several respects.
5
First, the district court erred when it considered the court of
appeal’s decision to be the last reasoned state court judgment. The
district court appears to have taken the position that unless an
affirmance is without opinion, the presumption of Ylst does not apply.
We disagree. While the court of appeal’s opinion was reasoned as to
some issues, it was silent, and therefore not reasoned, as to Steward’s
Cage claim. Ylst makes clear that where “the last reasoned opinion on
the claim explicitly imposes a procedural default, we will presume that
a later decision rejecting the claim did not silently disregard that bar
and consider the merits.” Id. We believe this presumption applies
unless there is some significant, meaningful indication in the last
reasoned state court opinion that the court is no longer relying upon
the procedural bar, i.e. that the court considered, on the merits, the
particular claim that had been held procedurally barred.6 This is in
harmony with the rule that a plain statement of a state court’s reliance
upon a state procedural bar is only required “when it fairly appears
that a state court judgment rested primarily on federal law or was
interwoven with federal law.” Hogue v. Johnson, 131 F.3d 466, 493 (5th
Cir. 1997) (quoting Coleman v. Thompson, 111 S.Ct. 2546, 2559 (1991)).
The district court should have “looked through” to the last reasoned
consideration in a state court judgment of Steward’s Cage claim, here
the state trial court’s opinion which wholly relied upon the
6
Of course, the presumption can be rebutted. See Ylst, 111 S.Ct.
at 2595. However, there is nothing present here to rebut the
presumption.
6
contemporaneous objection rule.
Although we believe the court of appeal’s judgment should be viewed
as silent toward Steward’s Cage claim, we note that the court’s citation
to State v. Wolfe, 630 So. 2d 872, 883 (La. App. 4 Cir. 1993), implies
agreement with the trial court’s invocation of the contemporaneous
objection rule. On the cited page, the Wolfe court finished explaining
that the defendant had argued a Cage violation and that counsel was
ineffective for failing to object to the instruction, then proceeded to
discuss each issue separately. The court found that the defendant’s
Cage claim was meritless “because there was no contemporaneous
objection.” Id. In a new paragraph, the court decided that failure to
object to the jury instruction was not ineffective assistance of
counsel7 because the United States Supreme Court had not yet declared
the instruction unconstitutional. Id. There was no need for the court
of appeal in Steward to discuss the procedural bar aspect of Wolfe
because it agreed with the trial court’s handling of that issue. See
Ylst, 111 S.Ct. at 2595. Had the court of appeal disagreed with the
trial court’s invocation of the contemporaneous objection rule, it would
have been necessary to address the Cage claim on the merits and explain
its disagreement with its prior reliance on the contemporaneous
objection rule in Wolfe. The court of appeals did neither, and in fact
7
And hence, inferentially, did not relieve the petitioner of the
consequences of failure to comply with the contemporaneous objection
rule.
7
cited Wolfe with approval. To the extent, then, that the court of
appeal’s opinion could be read as referring to Steward’s Cage claim, it
supports the continued vitality and independence of the procedural bar
erected by the trial court.
Finally, the district court erred in concluding that the court of
appeal misconstrued Steward’s Cage claim as a claim of ineffective
assistance of counsel and that this misconstruction caused the
procedural bar relied upon by the trial court to expire. It is very
unlikely that the court of appeal misconstrued Steward’s Cage claim.
Steward’s pro se brief to that court clearly described his Cage claim.
The court of appeal’s statement that failure to object to the
instruction did not constitute ineffective assistance of counsel likely
reflects no more than that court’s desire to address the only
permutation of Steward’s Cage claim that could have surmounted the
procedural bar.8 Even if the court of appeal did, somehow, misconstrue
Steward’s Cage claim (as presented to it) as being an ineffective
assistance of counsel claim, that is not equivalent to any consideration
of the Cage claim as such on its merits (or otherwise) or any character
of abandonment of the trial court’s reliance upon the contemporaneous
objection rule. Any such misconstruction is equivalent to and should
be treated as silence respecting the Cage claim itself and the trial
8
Again, under this reading of the court of appeal’s opinion, which
we believe to be the correct one, the opinion was silent as to the trial
court’s disposition of Steward’s Cage claim.
8
court’s unquestionably proper disposition of it.
Before the district court, Steward argued that his case represented
an exception to the contemporaneous objection rule, but he did not
alternatively argue cause and prejudice for the default. There is
nothing in the record to support such an argument. Accordingly, as the
last reasoned state court judgment rejecting Steward’s Cage claim did
so based on an independent and adequate state ground, the
contemporaneous objection rule, federal habeas review is barred. See
Coleman v. Thompson, 111 S.Ct. 2546, 2554 (1991).
Conclusion
For the reasons stated, the district court’s grant of Steward’s
petition for writ of habeas corpus is
REVERSED.
9