IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31044
RAYMOND L. COCKERHAM,
Petitioner-Appellee,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
February 20, 2002
Before GARWOOD, HALL,1 and BARKSDALE, Circuit Judges.
1 GARWOOD, Circuit Judge:
Respondent-appellant Burl Cain, Warden, Louisiana State
Penitentiary (the State), appeals the district court’s grant of habeas
corpus relief as to Petitioner-appellee Raymond L. Cockerham’s
(Cockerham) 1986 Louisiana armed robbery convictions. We Affirm.
Facts and Proceedings Below
1
Cynthia Holcomb Hall, Circuit Judge of the Ninth Circuit, sitting
by designation.
On March 25, 1986, a jury of the Louisiana Orleans Parish Criminal
District Court found Cockerham guilty of two counts of armed robbery.
Cockerham was sentenced to two consecutive thirty year terms of
imprisonment which he is currently serving in the Louisiana prison
system. On direct appeal, Cockerham’s counsel filed an “errors patent”
brief that did not comply with Anders v. California, 386 U.S. 738
(1967). The Louisiana Fourth Circuit Court of Appeals affirmed. State
v. Cockerham, 497 So.2d 796 (La. App. 4 Cir. 1986). In April 1994, the
Fourth Circuit granted Cockerham an out of time appeal pursuant to
Lofton v. Whitley, 905 F.2d 885 (5th Cir. 1990). Cockerham’s conviction
was again affirmed. State v. Cockerham, 671 So.2d 967 (La. App. 4 Cir.
March 14, 1996), writ denied, 681 So.2d 363 (La. February 6, 1998).
Cockerham also filed a total of three State applications for post-
conviction relief. The first was filed and denied in 1990. The second
was filed in 1992 and was not considered because, as calculated from his
errors patent appeal, it was untimely. The third was filed in January
1997, after his out of time appeal. It was in this third application
that Cockerham first asserted that the reasonable doubt portion of his
jury instruction was constitutionally defective, under Cage v.
Louisiana, 111 S.Ct. 328 (1990). This application was denied by the
trial court on March 3, 1997. The Louisiana Fourth Circuit Court of
Appeals denied relief in June 1997. The Louisiana Supreme Court denied
Cockerham’s writ application in February 1998. State ex rel Cockerham
v. Louisiana, 709 So.2d 727 (February 6, 1998). All three denials of
2
relief as to Cockerham’s third application were without explanation.2
On April 8, 1998, Cockerham filed the present habeas petition
pursuant to 28 U.S.C. § 2254. One of the proposed bases for relief was
the Cage claim. On November 16, 1998, the district court ordered the
State to produce a transcript or other evidence of the actual jury
charge given at Cockerham’s trial as well as any objections thereto.
The State contacted the trial court but was informed that the trial
transcript of the jury charge could not be found. The minutes of
Cockerham’s trial reflect that defense counsel objected to the jury
instructions, but do not reveal the nature of the objection. In
February 1999, the district court appointed the federal public defender
to represent Cockerham. In May and June of 1999, Cockerham’s habeas
counsel filed the affidavits of Judge Leon A. Cannizzaro, Jr., the judge
who presided at Cockerham’s trial, and Philip R. Johnson, Cockerham’s
trial counsel. Judge Cannizzaro stated that it was his custom and
practice to give the same jury instruction found unconstitutional in
Cage and that he was not aware of any reason he would not have given
this instruction at Cockerham’s trial. Johnson stated that it was his
general practice to object to the reasonable doubt instruction that was
being read to jurors in that court during that time and that he has no
reason to believe he did not object thereto at Cockerham’s trial.
2
The trial court’s order stated that it had denied Cockerham’s
petition. The Fourth Circuit’s order stated that it found no error on
the part of the trial court. The Louisiana Supreme Court responded with
the single word “denied”.
3
Johnson also referred to a portion of the trial transcript (which was
found) in which he objected to a question by the prosecutor as to
whether the witness is “positive to a moral certainty” that Cockerham
was the perpetrator.
On August 27, 1999, the district court granted Cockerham’s petition
on the ground that the reasonable doubt instruction read to the jury was
unconstitutional. The district court found that the reasonable doubt
jury instruction given at Cockerham’s trial was identical to that given
in Cage and that defense counsel timely objected thereto. The district
court further held that even if the deferential standards of 28 U.S.C.
§ 2254(d) applied, rejection of Cockerham’s Cage claim was, as a matter
of fact and law, unreasonable. The district court also rejected the
State’s argument that Cockerham’s petition should be dismissed as a
“delayed petition” pursuant to Habeas Rule 9(a). The district court
ordered that the State retry Cockerham within 120 days or dismiss the
charges. The State appeals. On December 21, 1999, this Court granted
the State’s motion for stay pending completion of appeal. On March 12,
2000, this Court ordered supplemental briefing on two issues: the effect
of Williams v. Cain, 229 F.3d 468 (5th Cir. 2000) and when, for purposes
of a Williams analysis, Cockerham’s convictions became final.
Discussion
I. Standard of Review
We review the district court’s findings of fact for clear error and
its legal conclusions de novo. Fairman v. Anderson, 188 F.3d 635, 640
4
(5th Cir. 1999). As to the level of deference owed the state court’s
rejection of Cockerham’s Cage claim, we are willing to assume arguendo
that such rejection constituted an adjudication on the merits and that
the deferential standards of 28 U.S.C. § 2254(d) apply. These standards
dictate that the State’s denials of relief stand unless they were
contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the Supreme Court or were
predicated upon an unreasonable determination of the facts in light of
the evidence presented at the State proceeding.
II. Habeas Rule 9(a)
The State maintains that the district court erred in failing to
dismiss Cockerham’s petition as untimely under Habeas Rule 9(a). Rule
9(a) of the Rules Governing Section 2254 Petitions provides:
“Delayed Petitions. A petition may be dismissed if it
appears that the state of which the respondent is an officer
has been prejudiced in its ability to respond to the petition
by delay in its filing unless the petitioner shows that it
is based on grounds of which he could not have had knowledge
by the exercise of reasonable diligence before the
circumstances prejudicial to the state occurred.”
In order to discharge its “heavy burden” in seeking dismissal under this
rule, the State must: “(1) make a particularized showing of prejudice,
(2) show that the prejudice was caused by the petitioner having filed
a late petition, and (3) show that the petitioner has not acted with
reasonable diligence as a matter of law.” Walters v. Scott, 21 F.3d
683, 686-87 (5th Cir. 1994) (emphasis in original) (footnote omitted).
The district court found that the State could not make any of the
5
showings required by Walters. We need only observe that the State
cannot satisfy Walters’ second element because, as the State admits,
there is no evidence as to when, or at or about what stage of any of the
proceedings, the transcript or tapes of the jury charge were last
available. No reversible error has been demonstrated in the denial of
Rule 9(a) relief.3
III. Effect of Williams
The Anti Terrorism and Effective Death Penalty Act of 1996, 28
U.S.C. § 2254(d), forbids any federal court from granting habeas relief
based on a claim that was adjudicated on the merits in state court
unless the State adjudication involved, inter alia, “a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States.” (Emphasis added). In Williams v. Cain, 229 F.3d 468
(5th Cir. 2000), we considered the effect of the emphasized language on
the applicability of new rules on federal habeas. A new rule is one
that was not established until after the petitioner’s conviction became
final on direct appeal. Id. at 475 n.6. We held that unless the
Supreme Court has clearly established that the new rule falls within one
of the exceptions to the non-retroactivity principle of Teague v. Lane,
109 S.Ct. 1060 (1989), that new rule could not be considered with regard
3
The State has not on this appeal raised any issue of procedural
default (and none of the decisions of the Louisiana courts in
Cockerham’s case give any indication of relying on or having found any
procedural default).
6
to petitions governed by the AEDPA. Id. at 475. We also observed that
the Supreme Court had not yet held that the Cage rule satisfies any
Teague exception. In Tyler v. Cain, 121 S.Ct. 2478 (2001), the Supreme
Court made clear that it has indeed not yet held that the Cage rule
satisfies any Teague exception (and that, therefore, Cage does not come
within the 28 U.S.C. § 2244(b)(2)(A) exception to AEDPA’s bar of
successive petitions). Thus, under our decision in Williams, we can
consider Cockerham’s Cage claim only if his conviction became final
after Cage was decided.
IV. When Cockerham’s Conviction Became Final
Cockerham’s errors patent appeal was affirmed on October 9, 1986.
Cockerham was granted an out of time appeal in 1994 which he pursued
until the Louisiana Supreme Court denied review on February 6, 1998.
Cage was decided on November 13, 1990. Whether Cage represents a new
rule turns on when Cockerham’s conviction became final—after resolution
of his 1986 errors patent appeal or after his 1994-98 out of time
appeal. Because a primary purpose behind the AEDPA and Teague’s non-
retroactivity rule is respect for the finality of state court judgments,
we believe consideration of Cage is only appropriate if, under Louisiana
law, Cockerham’s conviction did not become final until his out of time
appeal was resolved.
The Louisiana Code of Criminal Procedure sheds no determinative
light on this question. Two decisions from the Louisiana Supreme Court
do. First, in State v. Fournier, 395 So.2d 749 (La. 1981), Fournier was
7
convicted of simple burglary in 1973 and failed to appeal. At that
time, the Louisiana Supreme Court had extended the statutory presumption
of La.R.S. 15:432 “that the person in the unexplained possession of
property recently stolen is the thief” to simple burglary.
Subsequently, in State v. Searl, 339 So.2d 1194 (La. 1976), the
Louisiana Supreme Court held that this presumption, as applied to simple
burglary, was unconstitutional. After Searl was decided, Fournier
obtained an out of time appeal. The Fournier court, after observing
that it had previously “held that the rule of Searl was applicable to
those cases not yet final prior that decision”, went on to state “[T]his
case is now before us as an out-of-time appeal and therefore defendant’s
conviction was not final prior to our decision in Searl.” Fournier, 395
So.2d at 750. The dissent disagreed with the majority’s conclusion that
“an out-of-time appeal can affect the finality of the trial court’s
judgment.” Id. at 751 (Chiasson, J. dissenting). Second, in State v.
Counterman, 475 So.2d 336, 340 (La. 1985), the Louisiana Supreme Court
characterized an out of time appeal as a “reinstatement of [the
defendant’s] right to appeal.” The Louisiana Third Circuit Court of
Appeal interpreted this language to mean that an out of time appeal
should be treated as rendering the conviction non-final until resolution
of the out-of-time appeal so as to entitle the defendant to the benefit
of rules established before the out of time appeal was resolved. State
v. Boyd, 503 So.2d 747, 750 (La. Ct. App. 3 Cir. 1987) (holding that the
rule of State v. Jackson, 480 So.2d 263 (La. 1985), which stated that
8
it applied to “convictions which have not become final” when Jackson was
decided, applied to cases which otherwise became final prior to Jackson
but in which out-of-time appeal was granted after Jackson). Contra
State v. Johnson, 598 So.2d 1288, 1292 (La. Ct. App. 4 Cir. 1992)
(refusing to apply a state rule established before the defendant’s
second out of time appeal was resolved); State v. Patterson, 572 So.2d
1144, 1148 (La. Ct. App. 1 Cir. 1990) (refusing to apply Batson v.
Kentucky, 476 U.S. 79 (1986) notwithstanding that the defendant’s out
of time appeal was resolved after Batson).
Fournier compels the conclusion that, for the purpose of
determining whether the defendant may avail himself of a particular rule
in challenging his conviction, the Louisiana Supreme Court would not
consider Cockerham’s conviction final until after his out of time appeal
was resolved. We agree with the Boyd court that Counterman supports
this conclusion as well. Neither Johnson nor Patterson cite Fournier.
We conclude that the Louisiana Supreme Court’s decision in Fournier, on
point and never called into question by that court, controls.
Accordingly, because Cockerham’s out of time appeal was not resolved
until after Cage was decided, Cockerham may avail himself of the benefit
of Cage.
V. Cockerham’s Cage claim
The State maintains that under the deferential standards of
the AEDPA, its denials of relief to Cockerham cannot be disturbed.
28 U.S.C. § 2254(d) provides:
9
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless
the adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”
In Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000) (concurring
opinion), the Supreme Court clarified section 2254(d)(1)’s
standards:
“Under the ‘contrary to’ clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law
or if the state court decides a case differently than this
Court has on a set of materially indistinguishable facts.
Under the ‘unreasonable application’ clause, a federal habeas
court may grant the writ if the state court identifies the
correct governing legal principle from this Court’s decisions
but unreasonably applies that principle to the facts of the
prisoner’s case.”
We now review the legal principles governing Cockerham’s Cage
claim. 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). In Cage, 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 ‘grave uncertainty’ and
an ‘actual substantial doubt,’ and stated that what was required was a
10
‘moral certainty’ that the defendant was guilty.” Id., 111 S.Ct. at
329. The combination of these terms resulted in an instruction
authorizing conviction based on a lesser degree of proof than required
by the Due Process Clause.
In Estelle v. McGuire, 112 S.Ct. 475, 482 n.4 (1991), the Supreme
Court clarified that the standard was not whether a reasonable juror
“could have interpreted” the instruction unconstitutionally, as stated
in Cage, but rather whether there was a reasonable likelihood of
unconstitutional interpretation. In Victor v. Nebraska, 114 S.Ct. 1239,
1242 (1994), the Court upheld two instructions that contained some, but
not all, of the three suspect phrases in Cage. The Court reasoned that
the phrases “moral certainty” and “substantial doubt” did not
impermissibly lower the government’s burden of proof because the context
of the instructions clarified the meaning of the terms as being
congruent with reasonable doubt.
The district court found that the reasonable doubt instruction
given at Cockerham’s trial was identical to that given in Cage. The
State does not contest this finding and, in any event, it is not clearly
erroneous. We agree with the district court that if the State’s
unexplained denials of relief on the Cage claim were predicated on some
other determination of the facts, such determination was unreasonable
under 28 U.S.C. § 2254(d)(2) because there is nothing to indicate that
the state courts which may have ruled on the Cage claim had before them
any evidence as to what reasonable doubt charge was given at Cockerham’s
11
trial.
It is also possible that the Louisiana courts denied relief as a
matter of law, i.e. that they found that the instruction in Cage was not
unconstitutional under McGuire’s “reasonable likelihood” test. The
State accurately points out that the Supreme Court has never held the
Cage instruction unconstitutional under the McGuire standard. The State
also calls attention to the fact that in Sullivan v. Louisiana, 113
S.Ct. 2078 (1993), the Court observed in respect to an instruction
“essentially identical to the one held unconstitutional in Cage”,
Sullivan at 2080, that, because the State had not properly raised the
issue, the Court would not address whether such an instruction “would
survive review” under the McGuire test. Sullivan at 2081 n.1. We are
ultimately not persuaded by this line of argument, however abstractly
appealing it may be. Here the district court’s unchallenged finding is
that the instruction given was identical to that given in Cage. In Cage
the Supreme Court held that such an instruction was constitutionally
erroneous as authorizing conviction on a lesser degree of proof than
required by the beyond a reasonable doubt standard mandated by the due
process clause.4 What the State asks us to do is essentially to hold
4
We note that here the district court found that the evidence
against Cockerham was not in any way compelling. We agree. The State
does not argue that if the instruction were constitutionally erroneous
as improperly diluting the beyond a reasonable doubt requirement that
any such error was nevertheless harmless because the evidence was
compelling. We also observe in Sullivan the Court held that an
instruction which authorized conviction on a lesser degree of proof than
required by the beyond a reasonable standard of the due process clause
12
that the very instruction which Cage held to be constitutionally
erroneous is not constitutionally erroneous. We must,
however, leave any such overruling of the precise holding in Cage to the
Supreme Court. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). The
State also relies on Victor v. Nebraska, 114 S.Ct. 1239 (1994). While
Victor stated that the constitutional validity of a reasonable doubt
instruction was to be judged under the “reasonable likelihood” test of
McGuire, see Victor at 1243, Victor clearly based its holding that the
instructions there were not constitutionally invalid on the differences
in the wording of the instructions then before it from those held
invalid in Cage. Victor at 1248-51. Since the instructions at issue
here are identical to those in Cage, Victor cannot carry the day for the
State.
Accordingly, any decision by the Louisiana courts that the
reasonable doubt instruction here was constitutionally valid was
contrary to clearly established Federal law, as determined by the
Supreme Court of the United States, inasmuch as the identical
instruction was held constitutionally invalid by the Supreme Court in
Cage. Accordingly, since Cockerham’s conviction did not become final
until after Cage had been handed down, section 2254(d) does not bar
habeas relief in his case.
Conclusion
was “structural” error and not subject to harmless error analysis.
13
For the reasons stated, we affirm the district court’s grant of
Cockerham’s petition for writ of habeas corpus.
AFFIRMED
14