James v. Cain

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 95-30354
                       _____________________


                ANTONIO JAMES
                                           Petitioner,
                v.

                BURL CAIN, Warden,
                Louisiana State Penitentiary,
                Angola, Louisiana,

                                           Respondent.

_________________________________________________________________

            Appeal from the United States District Court
                for the Eastern District of Louisiana

        On Application for Certificate of Probable Cause
                 and Motion for Stay of Execution
_________________________________________________________________
                         (April 17, 1995)

Before KING, JONES, and DUHÉ, Circuit Judges.

KING, Circuit Judge:

     Antonio James is scheduled to be executed on April 18, 1995

between the hours of 12:00 AM and 3:00 AM.       On April 13, 1995, the

district court denied Antonio James's fourth petition for writ of

habeas corpus in which James sought to set aside his December 1981

Louisiana   first-degree   murder   conviction    and   death   sentence.

James's applications for a certificate of probable cause and for a

stay of execution were similarly denied.    James has filed a notice

of appeal from the denial of his habeas petition, and the case is

now before us on James's application for a certificate of probable

cause and his motion for a stay of execution.       We find that James
has failed to make the required showing for a certificate of

probable cause, and therefore, we deny his application.            We also

find that he has failed to make the requisite showing for a stay of

execution, and as a consequence, we deny his motion for a stay.

                         I.   PROCEDURAL BACKGROUND

     James was charged in a July 12, 1979 indictment with the

first-degree murder of Henry Silver. Following a jury trial in the

Orleans Parish district court on December 14-16, 1981, James was

found guilty as charged and sentenced to death.         The circumstances

of the murder and the evidence adduced at trial are described in

some detail in the first of our two prior opinions addressing

James's earlier habeas petitions.         See James v. Butler, 827 F.2d

1006 (5th Cir. 1987), cert. denied, 486 U.S. 1046 (1988).               On

direct   appeal,   the    Louisiana   Supreme   Court   affirmed   James's

conviction and sentence, and the United States Supreme Court denied

his petition for writ of certiorari.        See State v. James, 431 So.

2d 399 (La.), cert. denied, 464 U.S. 908 (1983).

     James unsuccessfully sought state post-conviction relief, and

in November 1983, he filed his first petition for habeas relief in

federal district court.          In June of 1984, the district court

dismissed the petition without prejudice for failure to exhaust

state remedies.    Subsequently, James again attempted to seek post-

conviction relief in the Louisiana state courts, and once again, he

was unsuccessful.

     In late July of 1984, James filed his second habeas petition

in federal district court.        The district court granted a stay of


                                      2
execution and set an evidentiary hearing for October 4-5, 1984. On

October 17, 1985, the district court issued a lengthy opinion

rejecting each of James's claims, dismissing his petition with

prejudice, and vacating the previously entered stay.   James timely

filed a motion for new trial and requested a stay of execution.

Following a November 26, 1985 nonevidentiary hearing on these

matters, the district court granted a stay of execution and took

the motion for new trial under advisement.   On September 17, 1986,

the district court issued a memorandum opinion and order denying

the motion for new trial and vacating the stay of execution.   James

filed a notice of appeal to this court, and he applied for a

certificate of probable cause and a stay of execution pending

appeal.   In a lengthy opinion, we denied the application for CPC,

and we vacated the interim stay of execution that we had previously

entered. See James v. Butler, 827 F.2d 1006 (5th Cir. 1987), cert.

denied, 486 U.S. 1046 (1988).

     James then brought a series of state court attacks on his

December 1981 conviction and sentence, all of which were ultimately

denied by the Louisiana Supreme Court, without opinion, in orders

dated December 9, 1988, January 30, 1989, and February 9, 1989.   On

February 10, 1989, James brought his third federal habeas attack on

his December 1981 conviction and sentence.      The district court

granted a stay of execution, and on May 11, 1989, the court held an

evidentiary hearing on James's claim that the state withheld

exculpatory evidence.   On September 19, 1989, the court issued an

opinion denying all of James's claims and dismissing his petition.


                                 3
The district court granted a CPC, however, and stayed the execution

pending appeal.     In yet another lengthy opinion, we affirmed the

district court's judgment.         See James v. Whitley, 926 F.2d 1433

(5th Cir. 1991).

     On September 9, 1991, James again sought post-conviction

relief in the state courts, and the Louisiana Supreme Court granted

a stay of execution on September 12, 1991.              On September 23, 1994,

the Louisiana Supreme Court recalled the stay order and denied the

writ.    The United States Supreme Court denied certiorari on March

20, 1995.    On April 7, 1995, James again sought state court relief,

as he moved for a hearing and a stay of execution.                 The trial court

dismissed the petition on procedural objections advanced by the

state, and the Louisiana Supreme Court denied review on April 12,

1995.

     Thus,    on   April   13,   1995,       James   filed   his    fourth   habeas

petition in federal district court, seeking habeas relief as well

as a stay of execution.          On the same day, the district court

granted James's motion to consolidate his habeas petition (the

"Silver" petition) with his habeas petition in a separate case

where James had been convicted of first-degree murder and had

received a life sentence (the "Adams" petition).1                  In the district

court, James raised the following claims in his Silver petition:

1) a defective reasonable doubt jury instruction that impermissibly

     1
          On October 30, 1981, James was convicted of the first-
degree murder of Alvin Adams in the Orleans Parish district
court. The jury failed to reach a unanimous decision on
sentencing, and James was sentenced to life without the benefit
of probation, parole, or suspension of sentence.

                                         4
lowered the burden of proof was used in violation of the Sixth,

Eighth, and Fourteenth Amendments; 2) the effective assistance of

counsel   was    denied   in    violation    of    the   Sixth,      Eighth,   and

Fourteenth Amendments; 3) evidence of a prior murder conviction

(the Adams murder) was admitted in violation of due process and the

Eighth Amendment; and 4) a death sentence for James was requested

by the victim's widow in violation of the Eighth and Fourteenth

Amendments.2     On the same day, April 13, 1995, the district court

entered judgment dismissing both of James's habeas petitions and

denying James's application for a CPC and his motion for stay of

execution.

     Before us, on his application for a CPC and his motion for

stay of execution, James asserts only one claim -- a claim raised

in his Silver petition -- regarding the trial court's alleged use

of a defective reasonable doubt jury instruction that impermissibly

lowered   the    burden   of    proof   in   violation    of    the    Sixth   and

Fourteenth      Amendments.      According    to    James,     the    application

presents to us only "those issues which he feels deserves the

encouragement to proceed further." No other claims from the Silver

or Adams petitions filed in the district court are alleged.

                          II.   STANDARD OF REVIEW




     2
          James raised the following claims in his Adams
petition: 1) false evidence was presented and a false impression
from the evidence was created in violation of the rights to due
process and freedom from cruel and unusual punishment; and 2) the
effective assistance of counsel was denied in violation of the
Sixth, Eighth, and Fourteenth Amendments.

                                        5
     We have no jurisdiction to address the merits of James's

appeal from the district court's denial of habeas relief unless we

grant a CPC.   See Drew v. Scott, 28 F.3d 460, 462 (5th Cir.), cert.

denied, 115 S. Ct. 5 (1994).       To obtain a CPC, James must make a

substantial showing that he has been denied a federal right.      See

Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Jacobs v. Scott, 31

F.3d 1319, 1323 (5th Cir. 1994), cert. denied, 115 S. Ct. 711

(1995).     James must "demonstrate that the issues are debatable

among jurists of reason; that a court could resolve the issues [in

a different manner]; or that the questions are adequate to deserve

encouragement to proceed further."       Barefoot, 463 U.S. at 893 n.4

(citations omitted) (internal quotations omitted).       In a capital

case, although the court may properly consider the nature of the

penalty in deciding whether to grant a CPC, this alone does not

suffice to justify issuing a certificate.      See id. at 893; Jacobs,

31 F.3d at 1323. Furthermore, the Supreme Court has indicated that

"the issuance of a certificate of probable cause generally should

indicate that an appeal is not legally frivolous."      Barefoot, 463

U.S. at 894.   Similarly, we will grant a stay of execution only if

James shows that there are "substantial grounds upon which relief

might be granted."        Drew, 28 F.3d at 462 (internal quotation

omitted).

                   III.    ANALYSIS AND DISCUSSION

     After discussing the abuse of the writ doctrine, we turn to an

examination of James's argument.

                          A.   Abuse of the Writ


                                     6
     In McCleskey v. Zant, 499 U.S. 467, 490 (1991), the Supreme

Court held that "the same standard used to determine whether to

excuse state procedural defaults should govern the determination of

inexcusable neglect in the abuse-of-the-writ context."              In other

words, a claim in a serial habeas petition must be dismissed as an

abuse of the writ unless the petitioner demonstrates that there was

"cause" not to have raised the claim in a previous federal habeas

petition, and "prejudice" if the court fails to consider the new

claim.   See Wainwright v. Sykes, 433 U.S. 72 (1977); Woods v.

Whitley, 933 F.2d 321, 323 (5th Cir. 1991).          The McCleskey Court

explained the cause standard as follows:

     In procedural default cases, the cause standard requires
     the petitioner to show that "some objective factor
     external to the defense impeded counsel's efforts" to
     raise the claim in state court. Objective factors that
     constitute cause include "`interference by officials'"
     that makes compliance with the state's procedural rule
     impracticable, and "a showing that the factual or legal
     basis for a claim was not reasonably available to
     counsel."

499 U.S. at 493-94 (quoting Murray v. Carrier, 477 U.S. 478, 488

(1986)) (emphasis added) (citations omitted).              In Selvage v.

Collins, 975 F.2d 131, 133 (5th Cir. 1992), cert. denied, 113 S.

Ct. 2445 (1993), we reiterated the notion that a failure to raise

a claim in an earlier habeas petition may not be excused for cause

"if the claim was reasonably available" at the time of the earlier

petition,   and   we   explicitly   referred   to   the   Supreme    Court's

admonition in Engle v. Isaac, 456 U.S. 107, 129-30 (1982), that

claims are "reasonably available" even where their assertion would

in all likelihood be "futile." We also noted that "`[A] comparison


                                     7
of Reed and Engle makes plain [that] the question is not whether

subsequent legal developments have made counsel's task easier, but

whether at the time of default the claim was `available' at all.'"

Selvage, 975 F.2d at 134 (quoting Smith v. Murray, 477 U.S. 527,

537 (1986)).   Thus, "an omission of a claim [in an earlier habeas

petition] may be excused for cause only if the question was so

novel that it lacked a reasonable basis in existing law."           Id. at

135 (emphasis added).    As we observed, "[a] claim is `novel' under

Engle and Reed if `counsel has no reasonable basis upon which to

formulate a constitutional question.'" Id. at 136 (quoting Reed v.

Ross, 468 U.S. 1, 14 (1984)); see also Engle, 456 U.S. at 134

("Where the basis of a constitutional claim is available, and other

defense counsel have perceived and litigated that claim, the

demands of comity and finality counsel against labeling alleged

unawareness of the objection as cause . . . .").

     Even if the petitioner is able to establish cause, he must

still demonstrate "`actual prejudice' resulting from the errors of

which he complains."     United States v. Frady, 456 U.S. 152, 168

(1982).   The improprieties upon which the petitioner bases his

claims must    have   "infect[ed]   his   entire   trial   with   error   of

constitutional dimensions."     Id. at 170.    Without this showing of

"actual prejudice," a serial habeas petition is still subject to

dismissal as an abuse of the writ.3

     3
          We note that James raised a claim of "actual innocence"
in the district court, but he has not renewed this claim in his
application for a CPC. Thus, James does not here allege that a
failure to grant his fourth federal habeas petition would result
in a fundamental miscarriage of justice.

                                    8
                       B.    Defective Jury Instruction

      James's claim is that the "reasonable doubt" definition given

to   the   jury   at   his    trial   was   defective   to   the   extent   that

"reasonable doubt" was defined as "an actual or substantial doubt,"

as well as a "grave" doubt.4          According to James, "the adjectives

      4
            The jury instruction stated the following:

      In charging you on reasonable doubt and the presumption
      of innocence, the law sets forth three basic
      principles. One, a person accused of a crime is
      presumed by law to be innocent until each element of
      the crime necessary to constitute his guilt is proven
      beyond a reasonable doubt. Secondly, it is the duty of
      the jury in considering the evidence and in 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 the lack of evidence in the
      case. And, thirdly, 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
      consequence of this rule is that the defendant is not
      required to prove his innocence, but may rest upon the
      presumption in his favor until it is overcome by
      positive, affirmative proof. Therefore, it is upon the
      State to establish to your satisfaction and beyond a
      reasonable doubt the guilt of the accused as to the
      crime charged in the bill of indictment or any lesser
      one included in it. The lesser verdicts, of course,
      you've heard a lot about and I will give you a copy of
      them when you retire to the jury room. It is incumbent
      on the state to prove the offense charged to your
      satisfaction beyond a reasonable doubt and before you
      can convict the accused you must be satisfied from the
      evidence that the defendant is guilty beyond a
      reasonable doubt. A reasonable doubt, ladies and
      gentlemen, is not a mere possible doubt. It is an
      actual or substantial doubt. It is a doubt based upon
      reason and common sense. It is such a doubt as a
      reasonable person would seriously entertain. It is a
      grave, serious, sensible doubt, such as you could give
      a good reason for. A reasonable doubt is present when
      after -- pardon me -- a reasonable doubt is present
      when after you carefully consider all of the evidence,
      you cannot say you are fully convinced of the truth of
      the charge. You must not resort to extraneous facts
      and circumstances in reaching your verdict. That is,

                                        9
defining reasonable doubt -- actual, substantial and grave -- . .

.   served to relax impermissibly the beyond-a-reasonable-doubt

standard," allegedly because the common understanding of these

adjectives suggests a higher degree of doubt than the degree

required for acquittal under the reasonable doubt standard.      James

contends that this "defect" in the jury instruction on reasonable

doubt violates the Fourteenth Amendment, see Cage v. Louisiana, 498

U.S. 39 (1990) (per curiam), and the Sixth Amendment, see Sullivan

v. Louisiana, 113 S. Ct. 2078 (1993).5

     The district court dismissed this claim of "defect" on abuse

of the writ grounds, noting that "this is also an issue that is

tainted with successiveness and abuse because, again, there was

simply no impediment to raising this issue before now."       In his

application for a CPC, James disagrees with this finding, arguing

that the novelty of this claim establishes cause for his failure to

raise the claim on an earlier habeas petition:

     Contrary to the district court's ruling, Petitioner
     asserts that the Sullivan Sixth Amendment claim could not


     you must not go beyond the evidence to find facts or
     circumstances to create guilt, but you must restrict
     yourselves to the evidence that you heard on the trial.
     However, the jury is not restricted to the evidence
     adduced from the witness stand for the creation of a
     reasonable doubt.

     5
          In Cage, the Supreme Court held that a reasonable juror
could have interpreted the reasonable doubt instruction in that
case to allow a finding of guilt based upon a degree of proof
below that required by the Due Process Clause of the Fourteenth
Amendment. See 111 S. Ct. at 328-30. In Sullivan, the Supreme
Court held that a Cage-like defective reasonable doubt
instruction also violated the Sixth Amendment right to jury
trial. See 113 S. Ct. at 2081.

                                10
     have been raised prior to 1993 when Sullivan was decided,
     nor has Petitioner found that this Sixth Amendment issue
     was being raised and discussed prior to 1993. While it
     may be true that reasonable doubt instruction claims
     under the Due Process Clause were being litigated, prior
     to 1990, the Cage opinion dealt specifically with the
     infirm definitions not found in prior cases.

     We   simply       cannot   accept        James's   overly-parsed    novelty

characterization, as we conclude that the defective instruction

claim had a reasonable basis in existing law and was reasonably

available at the time of James's earlier habeas petitions. Indeed,

in 1982, the Supreme Court of Louisiana decided State v. McDaniel,

410 So. 2d 754 (La. 1982), in which it reversed a criminal

conviction in part because "by redefining `reasonable doubt' as `a

doubt that would give rise to a great uncertainty' and `one that

would make you feel morally uncertain as to the defendant's guilt,'

the trial court's instruction created a reasonable possibility

[that] the jury was misled into applying an insufficient standard."

Id. at 756.        The court noted that "[e]ven when the phrase `great

uncertainty' is viewed in the context of the whole charge it

overstates the degree of uncertainty required for a reasonable

doubt."      Id.     Similarly, the court observed that "`[m]orally

uncertain' could be interpreted to mean that the uncertainty must

be based on feeling, i.e., lack of moral indignation rather than a

reasonable    doubt     about   an   essential      fact."    Id.       This   was

problematic, as the McDaniel court explained:

     An instruction which misleads or confuses the jury as to
     the meaning of reasonable doubt may create an error of
     constitutional dimensions.    As stated by the United
     States Supreme Court in recognizing the inevitability of
     error even in criminal cases, "[w]here one party has at
     stake an interest of transcending value -- as a criminal

                                         11
       defendant his liberty -- this margin of error is reduced
       as to him by the process of placing on the other party
       the burden . . . of persuading the factfinder at the
       conclusion of the trial of his guilt beyond a reasonable
       doubt."    Speiser v. Randall, 357 U.S. 513, 525-526
       (1958). In 1970, the high court explicitly held that the
       [D]ue [P]rocess [C]lause "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, 397 U.S. 358, 364 (1970).

410 So. 2d at 756 (emphasis added) (citations omitted).

       After   McDaniel,    challenges   to    the   "reasonable     doubt"

definition in jury instructions and questions as to whether the

definitions impermissibly lowered the burden of proof were raised

and litigated in numerous Louisiana cases, and a host of published

opinions were rendered.     See, e.g., State v. Clark, 446 So. 2d 293,

300 (La. 1984) (challenging the use of "serious doubt"); State v.

Holmes, 516 So. 2d 184, 188 (La. Ct. App. 1987) (analyzing a

challenged instruction that included "actual or substantial doubt"

and "serious doubt," and noting that the defendant "alleges that

the use of the words `serious', `actual', and `substantial' render

this jury instruction defective"); State v. Augustine, 482 So. 2d

150, 152-53 & n.6 (La. Ct. App. 1986) (analyzing a challenged

instruction that included "actual or substantial doubt" and "grave

uncertainty"); State v. Rodney, 459 So. 2d 669, 670-71 (La. Ct.

App.   1984)   (analyzing   a   challenged    instruction   that   included

"actual doubt" and "serious doubt"); State v. Moore, 439 So. 2d

1178, 1178-80 (La. Ct. App. 1983) (challenging the use of "grave

uncertainty").    It is important to note that these challenges are

strikingly similar to James's current attack on the adjectives



                                    12
"actual," "substantial," and "grave" that were used in his jury

instruction.

     Because it is clear that claims of defective "reasonable

doubt" instructions have been percolating in the Louisiana courts

at least since 1982, there is no excuse for James's failure to

allege the definitional defect in his prior 1983, 1984, or 1989

habeas petitions.       Even if the identical language of James's

reasonable doubt definition was not litigated in prior cases, there

clearly was a reasonable basis for James's defective instruction

claim in the existing law, especially considering that, at least

since   1982,   the     Louisiana     courts    had    been    looking    for

constitutional error in various permutations of the reasonable

doubt definition.

     James argues, however, that even if the Louisiana courts were

entertaining claims of defective reasonable doubt instructions, the

claims were all couched in a due process context, rather than in a

Sixth   Amendment     context.      According   to    James,   Sullivan    v.

Louisiana's 1993 holding that the Sixth Amendment was violated by

an infirm reasonable doubt instruction "was new in every sense of

the word."   See Sullivan, 113 S. Ct. 2078, 2081 (concluding that a

jury instruction which lowers the burden of proof for conviction

violates a defendant's Sixth Amendment right to jury trial).

     We disagree with James's attempt to characterize the Sixth

Amendment impact that arises from a claim of defective reasonable

doubt instruction as a "new" claim that constitutes cause. Indeed,

the basis for the claim -- whether it affects the defendant's


                                     13
rights under the Fifth Amendment, the Fourteenth Amendment, or the

Sixth Amendment -- is the same; it stems from the same allegedly

defective nature of the jury instruction and the same alleged

lowering of the burden of proof for conviction.        As the Sullivan

Court recognized:

     It is self-evident, we think, that the Fifth Amendment
     requirement of proof beyond a reasonable doubt and the
     Sixth Amendment requirement of a jury verdict are
     interrelated. It would not satisfy the Sixth Amendment
     to have a jury determine that the defendant is probably
     guilty, and then leave it up to the judge to determine
     (as Winship requires) whether he is guilty beyond a
     reasonable doubt.    In other words, the jury verdict
     required by the Sixth Amendment is a jury verdict of
     guilty beyond a reasonable doubt. Our per curiam opinion
     in Cage, which we accept as controlling, held that an
     instruction of the sort given here does not produce such
     a verdict. Petitioner's Sixth Amendment right to jury
     trial was therefore denied.

113 S. Ct. at 2081 (emphasis added) (footnote omitted).

     Simply put, the claim's due process and Sixth Amendment

ramifications do not alter the fact that it is a claim based upon

the same underlying flaw.      It is true that the consequences that

flow from an alleged defect could vary once a reasonable doubt

defect has been established -- i.e., a Sixth Amendment violation is

a "structural defect" which is not amenable to "harmless-error"

analysis, see Sullivan, 113 S. Ct. at 2082-83, while a due process

violation may be harmless error, see id. at 2081 -- but the

threshold determination as to whether the burden of proof has been

impermissibly   lowered   is   the   same.   Thus,   despite   differing

consequences and impacts, the underlying claim of a defective

"reasonable doubt" instruction that lowers the burden of proof was

reasonably available to James at the time of his earlier habeas

                                     14
petitions.6    James, however, has never previously raised the claim

at all -- either with due process consequences or Sixth Amendment

consequences -- and he offers no explanation for why a reasonable

lawyer would have been required to wait for a fleshing out of the

claim's impact on the defendant's Sixth Amendment right to jury

trial before raising the "defective instruction" claim at all.

      Put   another   way,   we    could   say   that   the   Sixth   Amendment

challenge to the jury instruction is a different "claim" from a Due

Process Clause challenge to the same instruction, both in terms of

the constitutional provision upon which it is based, and in terms

of the consequences which would flow from a finding of a violation.

But   where,   as   here,    the   Sixth   Amendment    violation     would   be

predicated on a finding that the jury instruction is flawed under

the Due Process Clause, see Sullivan, 113 S. Ct. at 2081, and where

similar due process challenges were being made in the Louisiana

courts in the early 1980s, we think that James had a reasonable

basis upon which to formulate the predicate due process challenge


      6
          We recognize that we have found Cage's "rule" regarding
a defective reasonable doubt instruction to be a "new rule" for
purposes of Teague v. Lane, 489 U.S. 288 (1989). See Skelton v.
Whitley, 950 F.2d 1037, 1043 (5th Cir.), cert. denied, 113 S. Ct.
102 (1992). Nevertheless, this is not inconsistent with our
finding today that James's claim of a defective reasonable doubt
instruction is not a new claim for "novelty" and "cause" purposes
in an abuse of the writ context. As we later concluded in
Selvage, "not all rules found to be `new' under Teague are novel
for cause purposes. Such symmetry would obtain if `novelty' had
the same breadth under Engle and Reed as it does under Teague.
The two standards, however, are guided by sharply different
definitions of `new.'" 975 F.2d at 136. Because of our
disposition of James's application for a CPC on novelty and cause
grounds in an abuse of the writ context, it is unnecessary for us
to address the Teague issue.

                                      15
to the jury instruction given in his case.              Fidelity to the

principles   which   animate   Rule    9(b)'s   proscription   of   abusive

petitions cautions against allowing James to use the advent of

Sullivan to escape his earlier obligation to raise the due process

claim on which a successful Sixth Amendment claim under Sullivan

would be predicated.     This is particularly so where counsel is

unable to articulate why the advent of Sullivan was a necessary

precursor to James's challenge to his allegedly defective jury

instruction.

     In summary, we do not think that the question of whether cause

exists for James's failure to raise his defective jury instruction

in his first habeas petition is debatable among jurists of reason

or deserves encouragement to proceed further.7

                           IV.   CONCLUSION

     For the foregoing reasons, James's application for a CPC and

his motion for stay of execution are DENIED.




     7
          While we need not and do not address the merits of
James's challenge to the reasonable doubt instruction given to
the jury at his trial for the Silver murder, we note that his
argument proceeds by isolating three words -- actual, substantial
and grave -- and by arguing that those words were not accompanied
by the same types of explanations that salvaged the instructions
in Victor v. Nebraska, 114 S.Ct. 1239 (1994). What James fails
to do, however, is to examine the allegedly defective language in
the light of the jury charge as a whole. The district court did
so and found that "the instruction given is not constitutionally
tainted within the meaning of Sullivan and Cage, especially after
the decision in Victor v. Nebraska."

                                      16