IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30247
Summary Calendar
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FELIX ANTHONY PRICE,
Petitioner-Appellant,
versus
BURL CAIN, Acting Warden,
Louisiana State Penitentiary,
and RICHARD P. IEYOUB, Attorney
General, State of Louisiana,
Respondents-Appellees.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
(94-CV-3379-E)
_________________________________________________________________
(July 6, 1995)
Before KING, JOLLY, and DeMOSS, Circuit Judges.
PER CURIAM:*
I
Felix A. Price was convicted for first degree murder and is
serving a life sentence at the Louisiana State Penitentiary. Price
now appeals the denial of his fourth federal petition for a writ of
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
habeas corpus. Price's first petition was denied for failure to
exhaust state remedies. Price's second petition was denied on the
merits. In his second petition, Price raised the following issues:
(1) Denial of due process in overruling objection to
questioning of witness James Floyd on redirect;
(2) Denial of due process in overruling objection to
questioning of defendant on his opinion of testimony of
state witnesses;
(3) Insufficient evidence to convict--evidence was sufficient
to support conviction for manslaughter only;
(4) Jury charge on "specific intent to kill" and first degree
murder were erroneous because they shifted burden of
proof to the defense; and
(5) Denial of adequate appeal because court's erroneous jury
charges were not included in transcript.
In his third petition, which was denied as an abuse of the writ or,
alternatively, on the merits, Price raised the following issues:
(1) Insufficient evidence to convict--evidence was sufficient
to support conviction for manslaughter only;
(2) Jury charge on difference between malice and "heat of
passion" was insufficient, court did not distinguish
between first degree murder and manslaughter; and
(3) Ineffective assistance of counsel--failure to object
contemporaneously to trial court's erroneous charge on
specific intent.
In his fourth petition, Price has raised the following issues:
(1) Insufficient evidence--evidence showed that he acted in
self-defense;
(2) Jury instruction on reasonable doubt was constitutionally
impermissible under Cage v. Louisiana, 498 U.S. 39
(1990); and
(3) Ineffective assistance of counsel--failure to object to
jury instruction on reasonable doubt.
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II
First, the magistrate judge found that Price's sufficiency of
the evidence claim was barred under Rule 9(b) of the Rules
Governing § 2254 Proceedings. Second, because the Cage issue
involved a new claim, not firmly established at the time of his
trial, the magistrate judge concluded that Price had established
cause for his procedural default. The magistrate judge also
concluded, however, that Price was not entitled to relief under
Cage. The district court adopted the findings and conclusions of
the magistrate judge. Price appealed to us and the district court
issued a certificate of probable cause.
Rule 9(b) of the Rules Governing § 2254 Cases, provides:
A second or successive petition may be dismissed if
the judge finds that it fails to allege new or different
grounds for relief and the prior determination was on the
merits or, if new and different grounds are alleged, the
judge finds that the failure of the petitioner to assert
those grounds in a prior petition constituted an abuse of
the writ.
We review dismissals pursuant to Rule 9(b) under the abuse-of-
discretion standard. See Saahir v. Collins, 956 F.2d 115, 120 (5th
Cir. 1992).
"[A] serial habeas petition must be dismissed as an abuse of
the writ unless the petitioner has demonstrated `cause' for not
raising the point in a prior federal habeas petition and
`prejudice' if the court fails to consider the new point." Id. at
118. To establish cause, the petitioner must show that some
external impediment, such as government interference or the
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reasonable unavailability of the factual or legal basis for the
claim, prevented him from raising the claim initially. McCleskey
v. Zant, 499 U.S. 467, 497 (1991). "Once [he] has established
cause, he must show `actual prejudice' resulting from the errors of
which he complains." Id. at 494 (internal quotation and citation
omitted). Even if a petitioner cannot show cause and prejudice, he
may still obtain federal habeas corpus review if he can show that
"a fundamental miscarriage of justice would result from a failure
to entertain the claim." Id. at 494-95.
III
Price contends that he has new evidence showing that he acted
in self-defense and that he has shown cause and prejudice excusing
his failure to assert this issue in an earlier petition. Price
contended in his petition and on appeal that exculpatory statements
of witnesses, David Neunier and Scott Fruchtnicht, were withheld by
the state during the trial in violation of Brady v. Maryland, 373
U.S. 83 (1963). Other than the fact that the witnesses were not
called by the state to testify at trial, Price has offered no
explanation for his belief that the statements were exculpatory.
Price's conclusional allegations do not raise a constitutional
issue and are insufficient to show that the district court was
required to permit discovery or to conduct an evidentiary hearing.
See Ross v. Estelle, 694 F.2d 1008, 1012 & n.2 (5th Cir. 1983).
They are also insufficient to state cause and prejudice or a
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miscarriage of justice excusing the failure to raise these issues
in an earlier habeas petition.
IV
The magistrate judge found that the unavailability of the Cage
claim was cause for Price's failure to raise it in an earlier
petition. Recently, in James v. Cain, 50 F.3d 1327, 1332-33 (5th
Cir. 1995), we held that the petitioner's defective reasonable
doubt instruction had been reasonably available to the petitioner
"at least since 1982." Under James, the Cage claims were available
to Price at the time he filed his third habeas petition in 1990.
See Ward v. Cain, ___ F.3d ___ (5th Cir. May 15, 1995, No.
95-30442), 1995 WL 296041 at *1 (construing James broadly),
petition for cert. filed (U.S. May 15, 1995, No. 94-9266).
Therefore, he has failed to establish cause for failing to raise
these claims in an earlier habeas petition. "The effect of James
is to relegate [Price]'s efforts to avoid the limitation of Rule
9(b) to the fundamental-miscarriage-of-justice exception. As
defined by the Supreme Court, that exception is confined to cases
of actual innocence, where the petitioner shows, as a factual
matter, that he did not commit the crime of conviction." Id.
Under this standard, Price must show that "it is more likely than
not that no reasonable juror would have found him guilty if given
a correct instruction." Id.
Price's principal substantive argument is that he acted in
self-defense and did not act with the intent to commit first degree
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murder. Price contends that the jury would not have convicted him
if it had been given an appropriate reasonable doubt instruction.
In its opinion rejecting Price's state habeas application, the
Louisiana appellate court noted that the state bore the burden of
showing beyond a reasonable doubt that Price could not have
reasonably believed that he was "in imminent danger of losing his
life or receiving great bodily harm and that the killing is
necessary to save himself from that danger." A person who was the
aggressor, however, could not claim the right of self-defense
unless he withdrew from the conflict in good faith and in such a
manner that his adversary knew or should have known that he desired
to withdraw. Id. The court summarized the evidence as follows:
In this case, the testimony indicates that the
defendant first called out to [Robert] Johnson's
companions. After the defendant and [Jimmy] James
passed, Johnson called James. James testified that the
defendant began removing a knife from a brown pouch
before Johnson arrived near them. Johnson then initiated
contact with the defendant by asking if they knew each
another. James and Floyd testified that Johnson
threatened the defendant and asserted he was going to
kill the defendant. However, Floyd said Johnson
threatened to kill the defendant the next time they met.
A fight started with the defendant throwing the first
punch after Johnson threw the beer. The defendant stated
that when they fell to the ground he heard a knife
opening and he grabbed the knife out of Johnson's hand to
protect himself. However, Brown, Floyd and James all
testified that Johnson did not have a knife and was
holding a can of beer. James testified that Johnson
never tried to strike the defendant.
Id. Johnson received fatal knife wounds during the altercation.
Id. at 1300. These findings are consistent with the trial
testimony and are presumptively correct under 28 U.S.C. § 2254(d).
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Price's version of the testimony does not substantially vary from
this characterization.
The question raised is what reasonable doubt instruction would
have met constitutional muster under these circumstances. The
Federal Judicial Center has developed the following reasonable
doubt instruction:
"Proof beyond a reasonable doubt is proof that leaves you
firmly convinced of the defendant's guilt. There are
very few things in this world that we know with absolute
certainty, and in criminal cases the law does not require
proof that overcomes every possible doubt. If, based on
your consideration of the evidence, you are firmly
convinced that the defendant is guilty of the crime
charged, you must find him guilty. If on the other hand,
you think there is a real possibility that he is not
guilty, you must give him the benefit of the doubt and
find him not guilty."
Victor v. Nebraska, 114 S.Ct. 1239, 1253 (1994) (Ginsberg, J.,
concurring) (quoting Federal Judicial Center, Pattern Criminal Jury
Instructions 17-18 (1987) (instruction 21)). Thus, we will assume,
for purposes of determining whether Price has suffered manifest
injustice on account of a constitutionally deficient instruction,
that Price should have received the instruction quoted above. Even
so, Price cannot show that there was a manifest miscarriage of
justice because a reasonable juror still could have concluded that
Price did not reasonably believe that he was in imminent danger of
losing his life or receiving great bodily harm. Because there is
no showing of manifest injustice, Price's Cage claims are barred
under Rule 9(b) and the district court did not abuse its discretion
in denying these claims. See Bickford v. Int'l Speedway Corp., 654
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F.2d 1028, 1031 (5th Cir. 1981) (judgment may be affirmed on
alternative grounds).
V
Although the magistrate judge did not expressly consider the
issue, in concluding that Price was not entitled to relief under
Cage, the magistrate judge implicitly concluded that Price was not
prejudiced by his attorney's failure to make a contemporaneous
objection to the reasonable doubt instruction. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Price reurges his
ineffective assistance claim on appeal. Ineffective assistance of
counsel is cause for Rule 9(b) purposes. McCleskey, 499 U.S. at
493-94. To prevail, Price would have to show, inter alia, that his
attorney's conduct fell outside of the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689. As the
court's opinion in James indicates, the legality of overly
restrictive reasonable doubt instructions was not "percolating"
through the state courts until the early 1980s. See James, 50 F.3d
at 1333. The failure of Price's attorney to identify this issue at
the time of the trial, in 1979, was not professionally unreasonable
under Strickland.
VI
Price's fourth federal habeas petition was properly dismissed
pursuant to Rule 9(b). The district court's judgment is
A F F I R M E D.
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