Williams v. Cain

                IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                                No. 99-30340



     THOMAS J. WILLIAMS,

                                               Petitioner-Appellant,

           versus

     BURL CAIN, Warden, Louisiana State Penitentiary,

                                               Respondent-Appellee.



      Appeal from the United States District Court for the
           Eastern District of Louisiana, New Orleans


                              October 17, 2000

Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

     In 1981, petitioner-appellant Thomas J. Williams (Williams),

a Louisiana state prisoner, was convicted by a jury of first degree

murder and sentenced to death.         He was later resentenced to life

imprisonment.    Williams filed a state habeas corpus application,

alleging, inter alia, that the reasonable doubt instruction given

to the jury at his trial was constitutionally defective.               On

October   23,   1991,   the    state   trial   court   denied   Williams’s

application for habeas relief, and on July 17, 1994, the Louisiana

Supreme Court denied Williams’s request for supervisory and/or

remedial writs.     On April 22, 1997, Williams filed the instant
federal petition for habeas relief under 28 U.S.C. § 2254; in his

petition, he brought claims similar to those in his state habeas

application.     On March 9, 1999, the district court denied his

petition and dismissed his claims with prejudice.                 The district

court    then   denied     Williams’s       request   for   a   certificate   of

appealability (COA).       Williams sought a COA from this Court, which

granted his request in part, limited to the question of the

constitutionality of the reasonable doubt instruction.                  We now

affirm.

                         Facts and Proceedings Below

        On January 16, 1981, Williams entered a neighborhood bar near

his home in New Orleans.        He shot and killed one person, injured

another with a gunshot to the arm, and fired errant shots at other

bar patrons. In June, 1981, Williams was convicted of first degree

murder and later sentenced to death.             He made a direct appeal to

the Louisiana Supreme Court, which affirmed his conviction but

remanded for an evidentiary hearing regarding whether he had

received ineffective assistance of counsel during the sentencing

phase of his trial.         See State v. Williams, 480 So.2d 721 (La.

1985).     At the hearing, the trial court determined that while

Williams had received effective assistance of counsel during the

sentencing phase, he and his counsel had been misinformed by the

District Attorney’s Office regarding the nature of his criminal

record. The District Attorney’s records incorrectly overstated the


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seriousness of Williams’s prior convictions, a factor which had led

Williams not to testify during the sentencing phase (Williams did

not testify or present any evidence at the guilt/innocence stage).

The trial court ordered a new sentencing hearing and Williams was

resentenced to life imprisonment.          He is currently serving that

sentence at the Louisiana State Penitentiary in Angola, Louisiana.

     Williams later filed an application for state habeas relief.

In the application, he argued that the reasonable doubt instruction

given to the jury at his 1981 trial was constitutionally defective

under Cage    v.   Louisiana,    111   S.Ct.     328    (1990)   (per    curiam),

overruled on other grounds by Estelle v. McGuire, 112 S.Ct. 475,

482 n.4 (1991).      Williams also argued that the specific intent

instruction violated due process, and that he received ineffective

assistance   by    his   counsel’s     failing    to    object    to     the   jury

instructions and not allowing him to testify.             Concluding that any

error in the instruction was harmless, the state trial court denied

the application on October 23, 1991.           The Louisiana Supreme Court

denied, without opinion or statement of reasons, Williams’s request

for supervisory or remedial writs on June 17, 1994.

     On April 22, 1997, Williams filed the instant petition for

post-conviction relief pursuant to 28 U.S.C. § 2254.                       In his

petition,    Williams    again   contended       that     the    trial    court’s

reasonable doubt instruction was constitutionally defective; he

also argued that the specific intent instruction violated due


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process and that his counsel provided ineffective assistance by not

allowing him to testify on his own behalf at the guilt phase

regarding his level of intoxication at the time he committed the

offense. On March 8, 1999, the district court denied the petition.

Regarding the reasonable doubt instruction, the district court

found that because Williams filed his petition after the passage of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

he could not “overcome the formidable barriers set up by AEDPA” and

therefore the district court could not consider the merits of his

claim. The district court did not specify which barriers precluded

Williams from prevailing, and dismissed his claims with prejudice.

Williams filed a notice of appeal and moved for a COA, which the

district court denied. Williams then sought a COA from this Court.

This Court granted his request in part, limited to the question of

whether the   reasonable   doubt   instruction   was   constitutionally

defective, but declined to issue a COA on any other issue.

                             Discussion

     At the close of the guilt phase of Williams’s 1981 trial, the

trial court gave the following instruction to the jury:

     “The defendant is presumed to be innocent until he is
     proved guilty beyond a reasonable doubt. The consequence
     of this rule of law is, he is not required to prove his
     innocence, but may rest upon the presumption in his favor
     until it is overcome by positive affirmative proof. The
     onus, therefore, is on the State to establish to your
     satisfaction, and beyond a reasonable doubt, the guilt of
     the accused, as to the crime charged or any lesser one
     included in it.



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     If you entertain any reasonable doubt as to any fact or
     element necessary to constitute the defendant’s guilt, it
     is your own 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 found upon a real, tangible, substantial
     basis, and not upon mere caprice, fancy or conjecture.
     It must be such a doubt that 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.

     A reasonable doubt is not a mere possible doubt.     It
     should be an actual or substantial doubt. It is such a
     doubt as a reasonable person would seriously entertain.
     It is a serious doubt for which you could give a good
     reason.” (emphasis added).

          No objection was made to this instruction, nor was

     it complained of on direct appeal.

     Williams contends that the trial court’s use of the phrases

“grave uncertainty,” “moral certainty,” and “actual or substantial

doubt,” as well as its requirement that the jury have a “serious

doubt for which you could give a good reason,” rendered the

instruction constitutionally defective under Cage v. Louisiana and

Victor v. Nebraska, 114 S.Ct. 1239 (1994).       Williams’s appeal

returns this Court to increasingly familiar yet persistently thorny

terrain: post-AEDPA habeas challenges to alleged Cage-Victor errors

in convictions that became final before Cage and Victor appeared.

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Despite somewhat conflicting suggestions in our precedent, we

conclude that our opinion in Mulheisen v. Ieyoub, 168 F.3d 840 (5th

Cir.), cert. denied, 120 S.Ct. 81 (1999), controls this case and

compels our conclusion that under AEDPA Williams cannot avail

himself on habeas of Cage and its progeny.      Accordingly, we affirm.

I.    Background: Cage-Victor Error and Retroactivity

      The Due Process Clause of the Fourteenth Amendment “protects

the   accused   against   conviction   except   upon   proof   beyond   a

reasonable doubt of every fact necessary to constitute the crime

with which he is charged.”      In re Winship, 90 S.Ct. 1068, 1073

(1970); see also Jackson v. Virginia, 99 S.Ct. 2781, 2786 (1979).

In Cage, a direct appeal, the Supreme Court held that a reasonable

doubt instruction ran afoul of Winship and violated the Due Process

Clause because, when read “as a whole,” it “equated a reasonable

doubt with a