Weston v. Ieyoub

United States Court of Appeals,

Fifth Circuit.

No. 94-30696.

Revert WESTON, Petitioner-Appellant,

v.

Richard P. IEYOUB, Attorney General, State of Louisiana and Burl
Cain, Warden, Louisiana State Penitentiary, Respondents-Appellees.

Nov. 22, 1995.

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

Before GARWOOD, DUHÉ and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

I. INTRODUCTION

Revert Weston ("Weston") was convicted of murder and

aggravated rape in a jury trial conducted in May 1976. His

convictions and sentences were affirmed on direct appeal. Weston

applied for post-conviction relief in 1991 in the state trial

court, alleging that the trial court's jury instruction on

reasonable doubt violated his due process rights by improperly

reducing the State's burden of proof. He later amended his

pleadings, alleging that (1) he was denied due process of law on

direct appeal when the Louisiana Supreme Court failed to completely

consider one of his designated assignments of error due to an

incomplete transcript; and (2) he was denied effective assistance

of counsel on appeal. The trial court denied relief and the

Louisiana Supreme Court affirmed the ruling.

Weston raised the same three claims in the instant federal

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habeas petition. The district court denied relief and dismissed

the petition. Weston timely appealed and a certificate of probable

cause was granted.

II. ANALYSIS

A. Jury Instructions:

The jury charge in Weston's trial in 1976 as it relates to

reasonable doubt stated the following:

If you entertain any reasonable doubt as to any fact or
element necessary to constitute the defendant's guilt, it is
your sworn duty to give him the benefit of that doubt and
return a verdict of acquittal. Even where the evidence
demonstrates a probability of guilt, yet if it does not
establish it beyond a reasonable doubt, you must acquit the
accused. This doubt 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 minds
by reason of the unsatisfactory character of the evidence;
one that would make you feel that you had not an abiding
conviction to a moral certainty of the defendant's guilt. If,
after giving a fair and impartial consideration to all of the
facts in the case, you find the evidence unsatisfactory upon
any single point indispensably necessary to constitute the
defendant's guilt, this would give rise to such a reasonable
doubt as would justify you in rendering a verdict of not
guilty.

The prosecution must establish guilt by legal and
sufficient evidence beyond a reasonable doubt, but the rule
does not go further and require a preponderance of testimony.
It is encumbent [sic] upon the State to prove the offense
charged, or legally included in the Information, to your
satisfaction and beyond a reasonable doubt. It should be an
actual or substantial doubt. It is such a doubt as a
reasonable man would seriously entertain. It is a serious
doubt, for which you could give good reason.

In Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d

339 (1990), the Supreme Court ruled that a charge very similar to

this one was unconstitutional because it allowed a finding of guilt

based on a degree of proof below that required by the due process

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clause of the Fourteenth Amendment. Weston argues that Sullivan v.

Louisiana, --- U.S. ----, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993),

mandates that Cage be applied retroactively in accordance with

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334

(1989).

In Gaston v. Whitley, 67 F.3d 121 (5th Cir.1995), this court

considered the same issue and noted that Victor v. Nebraska, ---

U.S. ----, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), modified the

Cage standard of reviewing allegedly erroneous jury instructions.

Thus, we held, if Sullivan and Teaguecommand retroactivity here, it

is now Victor, not Cage, which should be applied retroactively.

Gaston, supra.

Applying Victor, we note that Weston's instruction, like the

Cage instruction, used the words "grave uncertainty" and "moral

certainty," the phrases which the Supreme Court warns should be

avoided.1 However, the Cage instruction stated that "[w]hat is

required is ... a moral certainty," whereas Weston's instruction

stated that what is required is "an abiding conviction to a moral

certainty." "Instructing the jurors that they must have an abiding

conviction of the defendant's guilt does much to alleviate any

concerns that the phrase moral certainty might be misunderstood in

the abstract." Victor, at ----, 114 S.Ct. at 1250. Furthermore,

the jurors were told to give a "fair and impartial consideration to

1
The Court advised states that the use of such terms in the
future could possibly "put the whole instruction at risk."
Victor, at ----, 114 S.Ct. at 1251 (Kennedy, J., concurring);
see Gaston, supra.

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all of the facts" and that they "must not go beyond the evidence to

find facts" but must restrict themselves to the evidence heard

during the trial. Accordingly, there is no reasonable likelihood

that the jurors understood the charge to allow conviction on an

insufficient standard or to allow conviction on factors other than

the government's proof. Victor, at ----, 114 S.Ct. at 1251. Thus,

there is no reasonable likelihood that the jury in this case

applied the instructions in a way that violated the Constitution.

Therefore, following Victor, we similarly disapprove of the wording

in Weston's charge but hold that it did not render the instruction

unconstitutional in this case.

B. Due Process on Direct Appeal:

Weston claims that he was denied due process of law on direct

appeal when the Louisiana Supreme Court failed to completely

consider one of his designated assignments of error due to an

incomplete transcript. Specifically, before the charge was read to

the jury, the trial court made some general introductory comments.2

The trial court then read the jury the charge, a copy of which was

provided to Weston. The trial court overruled Weston's objection

that he should have been provided a copy of the introductory

remarks, and Weston later raised this argument on direct appeal.

However, because the record did not contain the introductory

remarks given by the trial court, the Louisiana Supreme Court did

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The trial court (1) acknowledged that it had been a long
trial; (2) showed the jury the indictment; (3) told the jury
that the indictment was "not evidence of the defendant's guilt"
and had "no probative value whatsoever"; and (4) read the
indictment to the jury.

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not address the claim.

The remarks Weston refers to were simply introductory remarks

and not jury instructions. Moreover, even if they were

instructions, Weston does not challenge their accuracy, and

reversal would have been required in the state courts only if they

were inadequate. See State v. Hawthorne, 623 So.2d 899, 903

(La.App.), writ denied, 629 So.2d 417 (1993). Accordingly, there

was no due process violation.

C. Ineffective Assistance of Counsel:

Weston argues that his trial counsel rendered ineffective

assistance in preparing the direct appeal since he failed to obtain

a complete record. However, as discussed above, even if the record

had been complete, there was no possibility for reversal because

Weston did not argue that the oral remarks were erroneous. Thus,

Weston cannot show prejudice as required for this claim. See

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

Accordingly, the district court's denial of Weston's petition

is hereby AFFIRMED.

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