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