1 IN THE UNITED STATES COURT OF APPEALS
2
3 FOR THE FIFTH CIRCUIT
4
5 _____________________
6
7 No. 95-30870
8 _____________________
9
10
11 JOHN ASHLEY BROWN, JR.,
12
13 Petitioner-Appellant,
14
15 versus
16
17 BURL CAIN, Warden, Louisiana State
18 Penitentiary, Angola, Louisiana,
19
20 Respondent-Appellee,
21 and
22
23 RICHARD IEYOUB, Attorney General for the
24 State of Louisiana,
25
26 Additional Respondent.
27
28
29
30 Appeal from the United States District Court for the
31 Eastern District of Louisiana
32
33
34
35 January 21, 1997
36 Before JOLLY, JONES and STEWART, Circuit Judges.
37 E. GRADY JOLLY, Circuit Judge:
John Ashley Brown, who is sentenced by the state of Louisiana
to die, appeals the district court’s dismissal of his petition for
a writ of habeas corpus under 28 U.S.C. § 2254. Brown insists that
his conviction and death sentence are rendered unconstitutional by
a list of alleged errors, including prosecutorial misconduct,
ineffective assistance of counsel, and various defects in the jury
instructions. Brown’s most serious contention is that the jury’s
instruction on the “reasonable doubt” standard contained
constitutional error. After a careful review of our precedent on
this subject, we conclude that the district court did not err in
rejecting this allegation and the other arguments that Brown makes.
I
On September 7, 1984, Mr. and Mrs. Omer Laughlin were
returning to their parked car after dinner at a New Orleans
restaurant. Brown exited a nearby vehicle and confronted the
Laughlins. Brown pushed the couple against their car and demanded
money from Mr. Laughlin. As Mr. Laughlin handed over his wallet,
Mrs. Laughlin screamed and ran back toward the restaurant. When
Mrs. Laughlin returned shortly thereafter, Mr. Laughlin was dead.
He had been stabbed 13 times.
Mrs. Laughlin gave the police a description of Brown, and also
of the vehicle he had been sitting in before the attack. Mrs.
Laughlin told police that a woman with dark hair had been driving
the car. A short time later, an off-duty police officer, who had
heard the crime reported on his police radio, noticed the car as it
pulled into a service station. After watching Brown washing his
hands at a water hose, the officer apprehended Brown and his
companion, Anna Hardeman. The officer observed blood, scratches
and other marks on Brown’s forearms, and blood on Brown’s feet. A
New Orleans Shopper’s card belonging to Omer Laughlin was visible
on the floor of the car. Mr. Laughlin’s wallet and the murder
weapon, a Bowie knife, were later found in the car. Mrs. Laughlin
identified Brown from line-up photographs as the man who had
assaulted her husband.
2
II
On September 20, Brown and Hardeman were indicted for first
degree murder. Hardeman entered into an agreement to plead guilty
to a lesser charge of accessory after the fact. In April 1985,
Hardeman’s counsel filed a motion concerning Hardeman’s right to a
speedy trial, in an apparent attempt to get Hardeman released
pending Brown’s trial. At a hearing on the motion, the prosecutor
stated that Hardeman was “no longer cooperating with the state’s
prosecution” and that any prior plea bargaining agreement was “no
longer in effect.” Brown’s trial began before a jury on June 13.
On the first day, the charges against Hardeman were severed, and
the prosecutor stated that Hardeman would be tried separately.
During the guilt phase of the trial, Brown did not call any
witnesses to testify on his behalf. He conceded that he had
committed the acts in question, but argued that he lacked the
requisite intent to be convicted of first degree murder, claiming
intoxication. The jury found Brown guilty of the premeditated
murder of Omer Laughlin. A penalty phase to determine Brown’s
sentence immediately followed. During the penalty phase, Brown
argued that he should not be sentenced to death because his actions
were partly attributable to his intoxication on the night he
attacked Laughlin, his longstanding drug addiction, and his
generally underprivileged childhood.
Brown called several witnesses during the penalty phase.
Brown’s mother testified to Brown’s impoverished childhood and his
early drug problems. Brown’s sister similarly testified to Brown’s
3
childhood problems. Brown’s sister also stated that Brown was a
heavy drug user in 1984, that he took drugs intravenously, and that
he behaved strangely when he was using drugs. In 1984, the sister
indicated, Brown was regularly using Mandex (a bootleg quaalude),
cocaine, and heroin. Brown presented expert testimony concerning
the effects of his drug use.
Brown also called Hardeman to testify on his behalf during the
penalty hearing. Hardeman took the stand, but after a few
preliminary questions, the prosecutor interrupted the examination
and requested that the court determine whether Hardeman had
consulted with her attorney concerning her Fifth Amendment rights.
At this point, Hardeman had not yet pled guilty, although she later
did so under a plea bargaining agreement. Hardeman’s testimony was
suspended, and the court summoned Hardeman’s attorney, who advised
her to exercise her right against self-incrimination. When
Hardeman resumed the stand, the court permitted her to invoke the
Fifth Amendment over Brown’s objection.
The prosecution contested Brown’s claim that he was addicted
to drugs. During cross-examination, the prosector elicited a
concession from Brown’s expert that Brown showed no physical signs
of intravenous drug use. The prosecution called its own
psychiatrist who testified that Brown did not have track marks, a
scarring caused by intravenous drug use, and that Brown’s prison
records following his arrest did not reveal signs of physical
withdrawal.
4
After deliberating, the jury unanimously decided that Brown
should be sentenced to death. The jury found two statutory
aggravating factors: (1) the murder was committed during the
perpetration of an armed robbery, and (2) the offense was committed
in an especially heinous, atrocious, and cruel manner.
Brown appealed his conviction and sentence to the Louisiana
Supreme Court, which affirmed. State v. Brown, 514 So.2d 99 (La.
1987), cert. denied, 486 U.S. 1017 (1988). Then, in 1988, Brown
began post-conviction proceedings in state court, where he was
represented by a new team of appointed counsel. Evidentiary
hearings in Brown’s state habeas proceedings were held in March and
May of 1993. The state trial court denied the application for
post-conviction relief in a written order entered August 9, 1993.
State ex rel Brown v. Whitley, No. 303-750 (La. Dist. Ct., Orleans
Parish, August 9, 1993) (unpublished). The Louisiana Supreme Court
denied Brown’s petitions for supervisory and remedial writs in
April 1995, and denied reconsideration in June 1995. Brown was
subsequently scheduled for execution on July 28, 1995.
After an initial dismissal for incomplete exhaustion and an
unsuccessful return to state court, Brown refiled his federal
application for habeas relief and was granted a stay of execution.
The district court reviewed Brown’s twenty-two claims for relief in
an exhaustive opinion, concluding that Brown’s application failed
to demonstrate any constitutional defect in his conviction or
sentence. Brown v. Cain, 1995 WL 495890 (E.D. La. August 18,
1995). The district court later entered a stay of execution
5
pending appeal and issued a certificate of probable cause. Brown
v. Cain, 1995 WL 527632 (E.D. La. September 1, 1995).
III
Brown raises three contentions that merit analysis our
consideration. First, Brown argues that certain acts of the
prosecution amount to prosecutorial misconduct that materially
affected the outcome of the trial. Second, Brown insists that he
was denied effective assistance of counsel. Third, Brown argues
that the jury instruction on reasonable doubt was constitutionally
defective.1
Before addressing Brown’s arguments, we must examine the
requirements imposed upon us by the recently enacted the
Antiterrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), which was
signed into law by the President on April 24, 1996. The AEDPA
substantially amends the federal habeas corpus provisions of
Title 28. Two changes, in particular, are important to Brown’s
appeal: the requirement that a habeas petitioner obtain a
“certificate of appealability” (“COA”), and the deferential
1
Brown raises a list of additional issues not addressed at
oral argument: that his sentence was unreliable; that he was denied
effective assistance of appellate counsel; that the verdict form’s
use of “recommends” rather than “determines” violated his Eighth
Amendment rights; that including the word “unanimous” on the life
sentence verdict form but not on the death sentence form violated
the Sixth, Eighth, and Fourteenth Amendments; and that the jury was
inadequately instructed on the consideration of mitigating
evidence. Having reviewed the record, the parties’ briefs, and the
reasoned opinion of the district court, we find these issues to be
without merit.
6
standard of review imposed upon the federal courts when reviewing
claims adjudicated on the merits in a state proceeding.
In Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), we held
that the habeas amendments enacted by the AEDPA apply to cases
pending before us on April 24, 1996, when the President signed the
AEDPA into law. Specifically, we held that a habeas appellant’s
application for a “certificate of probable cause” (“CPC”), the
procedural requirement before the AEDPA was enacted, appropriately
could be treated as an application for a COA, without violating the
dictates of Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct.
1483 (1994). Drinkard, 97 F.3d at 756.
In Landgraf, the Supreme Court indicated that “changes in
procedural rules may often be applied in suits arising before their
enactment without raising concerns about retroactivity” because
procedural rules regulate “secondary” rather than “primary”
conduct. 511 U.S. at ___, 114 S.Ct. at 1502. The Court noted,
however, that “the mere fact that a new rule is procedural does not
mean that it applies in every pending case.” 511 U.S. at ___ n.29,
114 S.Ct. at 1502, n.29. The Court observed that with “procedural”
rules, “the applicability of such provisions ordinarily depends
upon the posture of the particular case.” Id. The reviewing court
must consider the concerns central to retroactivity analysis:
whether the new rule “attaches new legal consequences” to events
completed before its enactment, and whether application of the new
rule would upset settled expectations, disturb a party’s reasonable
reliance upon the “old” rule, or work a fundamental injustice.
7
In Drinkard, we concluded that because the standard for
issuing a COA under the AEDPA required the same showing as the
standard under which CPCs were previously issued, no retroactivity
issue was actually raised: the difference was simply one of
nomenclature. Drinkard, 97 F.3d at 756. Here, however, Brown had
already obtained a CPC before the AEDPA was enacted. Brown had
requested and received the right to appeal; his “settled
expectation” was that he had successfully passed all procedural
hurdles to this court’s consideration of his claims. Landgraf
offered a nearly identical example: “[a] new rule concerning the
filing of complaints would not govern an action in which the
complaint had already been properly filed . . .” 511 U.S. at ___
n.29, 114 S.Ct. at 1502 n.29. Although the required showing is the
same, the AEDPA states that COAs must be issued by a circuit judge,
although this may be open to some dispute.2 Applying the AEDPA’s
COA requirement to Brown in a technical fashion would clearly raise
retroactivity concerns. We therefore hold that the COA requirement
of the AEDPA will not apply to habeas appellants who have already
obtained CPCs.
More importantly for our purposes, the AEDPA amended 28 U.S.C.
§ 2254, clarifying the level of deference that a federal court must
give to the prior judgments rendered by a state court on the merits
of a habeas petitioner’s claims:
2
As we noted in Drinkard, there is an apparent discrepancy
between the amended § 2253 and the amended version of Rule 22(b) of
the Federal Rules of Appellate Procedure, which appears to allow a
COA to be issued either by a district or circuit judge. Drinkard,
97 F.3d at 755-56 n.4.
8
(d) 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
upon an unreasonable determination of the
facts in light of the evidence presented in
the State court proceeding.
AEDPA, § 104(3) (to be codified at 28 U.S.C. § 2254(d)) (emphasis
added). In Drinkard, we interpreted the second clause of
subsection (d)(1) to apply to challenged applications of law to
fact. For such claims, we concluded, the amended provision permits
federal court relief “only when it can be said that reasonable
jurists considering the question would be of one view that the
state court ruling was incorrect.” Id., 97 F.3d at 769. With this
requirement of substantial deference in mind, we address each of
Brown’s principal arguments in turn.
A
Brown raises three charges of “prosecutorial misconduct.”
Brown argues that (1) the prosecution improperly manipulated
Hardeman to prevent her from testifying on Brown’s behalf
concerning his drug addiction and drug use on the night in
question, (2) the prosecution withheld exculpatory evidence subject
to disclosure, and (3) the prosecution improperly “gave a false
impression” to the jury by disputing Brown’s claims of intoxication
and drug addiction.
9
(1)
A prosecutor may not intimidate a witness into invoking the
Fifth Amendment in order to interfere with a criminal defendant’s
right to compulsory process. United States v. Whittington, 783
F.2d 1210, 1219 (5th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct.
269 (1986). However, a witness’ right against self-incrimination
will outweigh a defendant’s right to force that witness to testify.
Id. at 1218-19 (“the defendants’ sixth amendment rights do not
override the fifth amendment rights of others”) (citing United
States v. Lacouture, 495 F.2d 1237 (5th Cir.), cert. denied, 419
U.S. 1053, 95 S.Ct. 631 (1974)). Brown does not dispute the
Louisiana Supreme Court’s conclusion that Hardeman could invoke her
right against self-incrimination in the absence of a plea
agreement. Instead, Brown insists that Hardeman did have an
enforceable plea agreement and therefore had nothing to fear from
self-incrimination at the time of trial.
During Brown’s entire trial, Hardeman remained under
indictment for first degree murder, and she had not yet pled to
this or any other charge. In Brown’s direct appeal, the Louisiana
Supreme Court concluded that “[c]learly she had reasonable cause to
apprehend danger from direct answers concerning her whereabouts and
contacts with Brown on the day of the murder.” State v. Brown, 514
So.2d at 109. In his state habeas proceeding, Brown insisted the
Louisiana Supreme Court had not properly considered his argument
that Hardeman had an enforceable plea agreement at the time she
invoked the Fifth Amendment. Brown points to an altercation
10
between the prosecutor and Hardeman’s attorney, during which the
prosecutor allegedly threatened to “pull the deal,” as evidence
that an enforceable “deal” protected Hardeman.
In Brown’s post-conviction proceedings, the state trial court
considered and rejected this argument as a factual matter. During
Brown’s post-conviction evidentiary hearing, Hardeman’s attorney
testified that he believed there was a deal in place before Brown’s
trial, but still advised Hardeman to take the Fifth out of caution.
The state court rejected this statement, stating that “[t]he fact
that Mr. Meyer, counsel for Ms. Hardeman, advised Ms. Hardeman to
invoke her Fifth Amendment privilege at the trial of petitioner
leads this Court to believe that he had grave doubts about the
enforceability of any plea bargain agreement.” State ex rel Brown
v. Whitley, No. 303-750 (La. Dist. Ct., Orleans Parish, August 9,
1993) (unpublished). The court further noted the prosecutor’s
statements at Hardeman’s speedy trial motion hearing, and the lack
of any evidence in the record that a plea bargain agreement
existed. Id.
The district court deferred to the state court’s conclusions
on this disputed factual issue, as must we. The state court was
required to assess the credibility of the witnesses who testified
at Brown’s evidentiary hearing, and we will not dispute that
court’s conclusions. We cannot say that the state court’s factual
determination was “unreasonable,” and Brown therefore fails to make
the showing required for relief under the amended § 2254(d).
11
(2)
Brown further cites “prosecutorial misconduct” in the
prosecution’s failure to turn over “exculpatory evidence” of
Brown’s intoxication and drug abuse history, in violation of Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963). The bulk of the
information Brown insists should have been turned over was
obviously known and available to Brown himself. The prosecution
had no obligation under Brady to produce for Brown evidence or
information already known to him, or that he could have obtained
from other sources by exercising reasonable diligence. United
States v. Dula, 989 F.2d 772, 775 n.7 (5th Cir.), cert. denied, 510
U.S. 859, 114 S.Ct. 172 (1993); United States v. Bermea, 30 F.3d
1539, 1574 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct.
1113 (1995).
The only evidence that arguably was withheld improperly under
Brady was the statement of the service station attendant, Edward
White, Jr., who stated that Brown appeared “kinda high” and that
Brown’s speech was somewhat slurred. Brown insists that this
statement is critical “non-specific statutory mitigating evidence”
that would have been relevant to the penalty phase. As the
district court observed, however, White’s statement also indicates
that Brown specifically requested permission to use the station’s
water hose, and that Brown evaded White’s inquiries concerning why
Brown was covered with blood. As such, whether White’s statement
was exculpatory or mitigating is open very much to question.
12
On post-conviction review, the state trial court held
evidentiary hearings and reviewed the district attorney’s file--
containing White’s statement--to determine whether Brady material
was withheld. The court then rejected Brown’s Brady challenges.
Whether evidence must be produced under Brady presents a mixed
question of law and fact that was adjudicated on the merits by the
state court, and its determination that no Brady violation occurred
was not “an unreasonable application of clearly established federal
law.”
The statement was not clearly exculpatory, and neither the
Supreme Court nor this court has clearly held that statements of
individuals known by the defense to have personal knowledge of
relevant events must be delivered under Brady, where the defense is
equally free to conduct an interview. See, e.g., United States v.
Fogg, 652 F.2d 551, 559 (5th Cir. 1981), cert. denied, 456 U.S.
905, 102 S.Ct. 1751 (1982) (holding no Brady violation where
prosecution failed to turn over grand jury testimony of individuals
who were friends of defendant). Additionally, we agree with the
district court that even if the prosecution improperly withheld the
statement, Brown has failed to demonstrate a constitutional
violation because he has not demonstrated a “reasonable
probability” that, had the evidence been disclosed, the result
would have been different. See Kyles v. Whitley, ___ U.S. ___, 115
S.Ct. 1555, 1565 (1995).
13
(3)
Finally, Brown argues that “prosecutorial misconduct”
violated his constitutional rights because the government knowingly
gave the jury a false impression that there was no evidence to
substantiate Appellant’s addiction to drugs and intoxication.
Brown focuses on the prosecution’s examination of the medical
experts, where the prosecution elicited testimony that Brown did
not have track marks and had not experienced withdrawal following
his arrest. Brown insists this was unconstitutionally misleading
because the examinations (for track marks) did not take place until
months after his arrest. Brown ignores the review of his records
back to the time of his arrest, and does not indicate why any
“misleading” impression was not corrected on cross or redirect
examination. Brown’s allegations of misconduct in this respect
clearly fail. Brown’s addiction and intoxication were centrally
disputed issues, and the prosecution was not obligated to accept as
true Brown’s claim that he was intoxicated based upon the
statements of Brown and Hardeman.
B
Brown next contends that his conviction and sentence are
unconstitutional because he was denied effective assistance of
counsel. Specifically, Brown argues that he was denied effective
counsel because (1) his counsel failed adequately to investigate
his background, including school, medical and juvenile records, and
to interview additional acquaintances and employers, (2) counsel
14
failed to deliver such records to his psychiatric expert, and (3)
counsel failed to retain a toxicologist as an expert witness.
Ineffective assistance of counsel claims are analyzed under
the two-prong test of Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052 (1984). Under Strickland, Brown must show both that his
counsel’s performance was deficient and that the deficient
performance prejudiced his defense such that he was deprived of a
“fair trial, a trial whose result is reliable.” Id. at 687, 104
S.Ct. at 2064. Brown was represented at trial by two competent
attorneys with substantial experience in capital cases. Brown’s
demonstration that they were ineffective must overcome “a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id. at 689, 104 S.Ct. at
2065.
Both the state trial court in Brown’s post-conviction
proceedings and the district court below considered Brown’s
arguments at length and found them unavailing. Both courts found
that Brown’s attorneys’ investigation was not deficient, and that
additional testimony concerning Brown’s drug use and deprived past
would simply have been cumulative to the testimony of Brown’s
mother and sister. The state court specifically found that this
alleged deficiency “fails to rise to the level of Strickland.”
State ex rel Brown v. Whitley, No. 303-750 (La. Dist. Ct., Orleans
Parish, August 9, 1993) (unpublished). We agree with this
conclusion.
15
Brown attempts to substantiate his argument that his
psychiatric expert was inadequately educated by pointing to the
testimony of Dr. Alec Whyte during the post-conviction evidentiary
hearing in state court. Dr. Whyte essentially testified that Brown
suffered from certain mental disorders that were not revealed in
expert testimony at trial. Brown suggests that his trial expert
must have been inadequately educated on his background, or he, too,
would have reached the same conclusion. The state court, however,
dismissed Whyte’s testimony, observing that Whyte was the only
expert among five retained by Brown who concluded that Brown
suffered from the identified disorders. Id. This evidence is
simply inadequate to establish a constitutional violation under
Strickland.
Brown’s argument that counsel was constitutionally ineffective
by failing to retain a toxicologist--particularly at a time when
toxicologists were not commonly retained for criminal trials--is
unavailing. As the state court correctly concluded, neither the
Sixth Amendment nor Strickland demanded that Brown’s counsel retain
an expert with the label “toxicologist.” Id.
All of Brown’s “ineffective assistance” issues involve the
application of existing law to the facts of Brown’s case. His
arguments were presented fully to the state court during his post-
conviction proceeding, and the court adjudicated his claims on the
merits. With respect to each argument raised here, the state court
specifically found that the alleged deficiency did not rise to the
level of a Strickland violation. We cannot say that the state
16
court’s considered judgment was based upon an unreasonable
application of clearly established federal law--in fact, we find it
was unquestionably correct.
C
We turn now to Brown’s most serious contention: that the
trial court incorrectly instructed the jury on the “reasonable
doubt” standard. Brown argues that the reasonable doubt
instruction was unconstitutional under the Supreme Court’s decision
in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328 (1990) (per
curiam), and that this error requires that his petition for habeas
relief be granted. We find that Brown is incorrect on both points.
(1)
Once a criminal defendant’s conviction has been affirmed in
the state appeals process, and no additional appeals may be taken,
the conviction is “final.” Without a strong showing of error, the
conviction must be considered to have been fully and fairly
adjudged. The writ of habeas corpus, which allows a court to
vacate a conviction after it has become final, serves a unique and
limited purpose. As the Supreme Court explained in Teague v. Lane,
the writ ensures the fundamental fairness of criminal proceedings
by acting as “a necessary additional incentive for trial and
appellate courts throughout the land to conduct their proceedings
in a manner consistent with established constitutional standards.”
489 U.S. 288, 306, 109 S.Ct. 1060, 1073 (1989) (plurality opinion)
(quoting Desist v. United States, 394 U.S. 244, 262-3, 89 S.Ct.
1030, 1041 (1969) (Harlan, J., dissenting)).
17
The Court in Teague reiterated that the purpose of the writ is
satisfied if habeas review determines that the conviction rests
upon a correct application of constitutional law at the time the
conviction became final. Id., 104 S.Ct. at 1073. Accordingly,
“new” constitutional rules are retroactively applied to criminal
cases that became final before the rule was announced only in two
circumstances. First, if the rule “places certain kinds of
primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe,” the new interpretation
may be applied to cases on collateral review. Id. at 311, 109
S.Ct. at 1075. Second, if the new ruling establishes a “watershed”
rule of criminal procedure that implicates the “fundamental
fairness and accuracy of the criminal proceeding,” justice requires
that it be applied retroactively. Id., 109 S.Ct. at 1076.
Cage was decided in 1990, after the Louisiana Supreme Court
had affirmed Brown’s conviction in an extensive and reasoned
opinion. Brown’s access to federal habeas relief on Cage grounds
is therefore controlled by Teague. In Skelton v. Whitley, 950 F.2d
1037 (5th Cir.), cert. denied, 506 U.S. 883, 113 S.Ct. 102 (1992),
we considered whether Cage introduced a “new rule” within the
meaning of Teague, and, if so, whether it fell within the second
Teague exception. Skelton first held that Cage created a “new
rule” subject to Teague limitations. Skelton further held that the
new rule did not fall within the second exception, because the
inadvertent dilution of the reasonable doubt standard caused by a
Cage error did not seriously diminish the likelihood of obtaining
18
an accurate verdict. Id. at 1043, 1045. The state court in
Brown’s post-conviction proceeding concluded on the basis of
Skelton that Brown could not raise a Cage challenge to his
reasonable doubt instruction. State ex rel Brown v. Whitley, No.
303-750 (La. Dist. Ct., Orleans Parish, August 9, 1993)
(unpublished).
Brown argues that Skelton was implicitly overruled by the
Supreme Court’s subsequent decision in Sullivan v. Louisiana, 508
U.S. 275, 113 S.Ct. 2078 (1993), which again addressed the issue of
Cage errors. In Sullivan, the Court unanimously held that a
constitutionally defective instruction on the reasonable doubt
standard is not subject to “harmless error” review. Id. at 281,
113 S.Ct. at 2082. A Cage error, the Court indicated, creates a
“structural error” in the trial, undermining a “basic
protection . . . without which a criminal trial cannot reliably
serve its function.” Id. at 281, 113 S.Ct. at 2083 (internal
quotation omitted).
Brown argues that the Court’s holding in Sullivan “directly
undermines” the analysis in Skelton, which had concluded that Cage
error was not of a “structural” nautre. Brown’s argument, however,
has already been rejected by this court. In Smith v. Stalder, No.
93-3683, (5th Cir. June 16, 1994) (per curiam) (unpublished), the
court refused habeas relief on Cage grounds in a similar case. The
court took note of Sullivan, but concluded that it did not speak to
the issue decided by Skelton: “Sullivan was a direct appeal . . .
19
[it] did not discuss the retroactive application of Cage because
the question was not an issue in the case.” Id.
Although Smith was an unpublished decision, we are bound by
its holding. See Local Rule 47.5.3 (“Unpublished opinions issued
before January 1, 1996 are precedent”). A panel is not at liberty
to disagree with the decision of a prior panel. Absent action by
the Supreme Court, any error Brown sees in Smith may be corrected
only by this court sitting en banc. FDIC v. Dawson, 4 F.3d 1303,
1307 (5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 2673
(1994); Burlington Northern R.R. v. Brotherhood of Maintenance of
Way Employees, 961 F.2d 86, 89 (5th Cir. 1992), cert. denied, 506
U.S. 1071, 113 S.Ct. 1028 (1993). Accordingly, we hold that Brown
may not invoke Cage to attack his conviction on collateral review.
(2)
Although we conclude that, under Fifth Circuit precedent,
Teague bars the consideration of Brown’s Cage challenge on
collateral review, we are persuaded to consider the federal
district court’s alternate ground of dismissal, which was not
addressed by the state courts: that Brown failed to demonstrate
that the jury instruction was unconstitutional under Cage. We
agree.3
3
We need not address whether the AEDPA’s deferential standard
applies to alternative grounds of decision that the state courts
did not reach in rejecting a habeas petitioner’s claim for relief,
because we find that Brown’s argument that his reasonable doubt
instruction was unconstitutional fails regardless of the standard
of review we apply. We note that the Seventh Circuit has
determined that the AEDPA’s deferential standard would apply, Lindh
v. Murphy, 96 F.3d 856, 874-5 (7th Cir. 1996), but we leave that
question for another case.
20
In Cage, the U.S. Supreme Court concluded that a Louisiana
jury instruction on reasonable doubt was constitutionally defective
because it improperly raised the degree of “doubt” that would
demand acquittal in a criminal trial to something more than
“reasonable” doubt. The challenged instruction in Cage read:
If you entertain a reasonable doubt as to any fact or
element necessary to constitute the defendant’s guilt, it
is your duty to give him the benefit of that doubt and
return a verdict of not guilty. Even where the evidence
demonstrates a probability of guilt, if it 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 of 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.
111 S.Ct. at 329 (emphasis added by U.S. Supreme Court). The Court
considered the instruction as a whole, and noted that the use of
words such as “substantial” and “grave” could suggest a higher
degree of doubt than “reasonable doubt.” The Court then found that
these references, added to the suggestion that the jury might
convict upon the basis of a “moral” rather than “evidentiary”
certainty, created a likelihood that a reasonable juror might have
found guilt upon something less than the Due Process Clause
demanded. Id. at 330.
Brown argues that the reasonable doubt instruction in his case
was similarly unconstitutional. During Brown’s trial, the jury was
instructed, in relevant part, that:
21
If you entertain a reasonable doubt as to any fact or
element necessary to constitute the guilt of the
defendant, it is your sworn duty to give him the benefit
of the doubt and return a verdict of not guilty. This
doubt, however, must be a reasonable one, that is, one
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 a grave uncertainty raised
in your mind by the unsatisfactory character of the
evidence. Likewise, if the State has proved the guilt of
the defendant to your satisfaction and beyond a
reasonable doubt, it is your duty to return a verdict of
guilty.
Brown argues that because his reasonable doubt instruction contains
one of the phrases, i.e., a reference to “grave uncertainty,” that
the Supreme Court scrutinized in finding the Cage instruction
unconstitutional, his instruction must also be declared
unconstitutional. We disagree.
The Supreme Court determined that the Cage instruction was
unconstitutional after it had examined the instruction as a whole,
which is the general rule applied in reviewing a challenged jury
instruction. We will similarly examine Brown’s jury charge as a
whole in order to determine whether it is unconstitutional under
the reasoning of Cage.
Although Brown’s instruction does contain an identical “grave
uncertainty” comment, the trial court in Brown’s case clearly did
not equate “reasonable doubt” with “actual substantial doubt.” The
instruction employs the “grave uncertainty” comment in reference to
an admonition that reasonable doubt itself should be based upon the
evidence or lack thereof: “. . .upon a real, substantial basis and
not upon mere caprice, fancy, or conjecture . . . [i]t must be such
doubt as would give rise to a grave uncertainty raised in your mind
22
by the unsatisfactory character of the evidence.” (Emphasis
added). Furthermore, the court never suggested that the jury might
convict on the basis of a “moral certainty.” In short, the trial
court’s charge to the jury includes only one of the questionable
phrases challenged in Cage, while the surrounding text of the
charge is unobjectionable and repeatedly reiterates that the
standard is “reasonable doubt,” and that verdict must be reached
upon the evidence alone.4
4
The instruction was insistent in its repetitious description
of the State’s burden as proof beyond a reasonable doubt, and also
reminded the jurors at several points that they could base their
verdict only upon the evidence presented:
Now, a person accused of a crime is presumed by our law
to be innocent until each element of the crime necessary
to constitute his guilt is proven beyond a reasonable
doubt. It is the duty of the jury in considering and
applying to that evidence the law as given by the Court
to give the defendant the benefit of every reasonable
doubt arising out of the evidence or lack of evidence in
the case. It is the duty of the jury if not convinced of
the guilt of the defendant beyond a reasonable doubt to
find him not guilty. The defendant is not required to
prove his innocence, but may rest upon the presumption of
innocence until it is overthrown by positive, affirmative
proof offered by the State. The burden, therefore, is
upon the State to establish to your satisfaction and
beyond a reasonable doubt, the guilt of the defendant as
to the crime charged. If you entertain a reasonable
doubt as to any fact or element necessary to constitute
the guilt of the defendant, it is your sworn duty to give
him the benefit of the doubt and return a verdict of not
guilty. This doubt, however, must be a reasonable one,
that is, one 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 a grave
uncertainty raised in your mind by the unsatisfactory
character of the evidence. Likewise, if the State has
proved the guilt of the defendant to your satisfaction
and beyond a reasonable doubt, it is your duty to return
a verdict of guilty . . . You are to find from the
evidence which facts have been proved and which facts
have not been proved . . . Evidence includes sworn
23
Cage found the connections between the three challenged
phrases critical: “[w]hen 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 upon
a degree of proof below that required by the Due Process Clause.”
498 U.S. at 41, 111 S.Ct. at 330 (emphasis added). In fact, in a
later case the Supreme Court found two different reasonable doubt
instructions, one containing the phrase “moral certainty” and the
other citing “substantial doubt,” to be constitutional when the
instructions were considered as a whole. Victor v. Nebraska, 511
U.S. 1, ___, 114 S.Ct. 1239, 1247, 1250 (1994). The Court observed
that its opinion in Cage did not hold that the three challenged
phrases were each unconstitutional: “we did not hold that the
reference to substantial doubt alone was sufficient to render the
instruction unconstitutional. 511 U.S. at ___, 114 S.Ct. at 1250.
Although the Court disapproved of the use of the ambiguous “moral
certainty,” the Court noted that, on review, “the moral certainty
language cannot be sequestered from its surroundings,” and
concluded that the instruction as a whole properly charged the jury
on their duty to consider the evidence. 511 U.S. at ___, 114 S.Ct.
at 1248.
testimony of witnesses, exhibits admitted into the
record, and facts which may have been stipulated to by
the attorneys for the State and the defense. You cannot
consider as evidence any statements made by the lawyers
during the trial. You cannot go beyond the evidence just
referred to to convict the defendant of the crime
charged.
24
Considered in its entirety, the instruction in Cage appeared
to create a downward swing in the prosecution’s burden of proof:
the instruction began appropriately with “reasonable” doubt, moved
to “grave uncertainty,” and then to “substantial” doubt, and
concluded by suggesting that the jury could convict on the basis of
a “moral certainty” rather than an evidentiary certainty. The
challenged portion of Brown’s jury charge, by contrast, begins and
ends with “reasonable” doubt, and indicates clearly that the State
must prove guilt beyond a reasonable doubt--with no suggestion that
a “moral certainty” might suffice in the absence of evidentiary
proof. We also note that, later in the charge, the jury was
reminded of the severity of the State’s burden with the admonition
that Brown should not be convicted “unless the facts proved by the
evidence exclude every reasonable hypothesis of his innocence.”
Thus, there is a vast difference between the charge given in the
case before us and the charge given in Cage.
Furthermore, the standard of appellate review applied by the
Court in Cage has been modified by the Court’s decision in Estelle
v. McGuire, 502 U.S. 62, 112 S.Ct. 475 (1991). The question, as
Estelle explained, is not whether there is a possibility that a
juror “could have” applied the instruction in an unconstitutional
manner, but whether there is a “reasonable likelihood” that the
jury did apply the instruction unconstitutionally. Id. at 61 &
n.4, 112 S.Ct. at 482 & n.4; Victor, 511 U.S. at ___, 114 S.Ct. at
1243. Given the trial court’s numerous references to “reasonable
doubt” and the severity of the State’s evidentiary burden, we
25
conclude that there is no reasonable likelihood that the jury
applied the challenged instruction in an unconstitutional manner.
IV
In conclusion, Brown has failed to establish that his
conviction and sentence are unconstitutional. His various claims
have been fully and fairly adjudicated both in the Louisiana state
courts and by the district court below. The judgment of the state
court concerning Brown’s allegations was neither “contrary to” nor
“involved an unreasonable application of” clearly established
federal law. Nor was the state court’s decision “based on an
unreasonable interpretation of the facts.” Brown’s petition for
habeas relief under 28 U.S.C. § 2254 therefore fails. We AFFIRM
the judgment of the district court, and hereby VACATE the stay of
execution granted pending appeal.
AFFIRMED; stay VACATED.
26