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
2
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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