*2 JONES, Before BARKSDALE and *3 DENNIS, Judges. Circuit BARKSDALE, RHESA HAWKINS Judge: Circuit se, For pro peti- this successive habeas tion, pursuant applicable considered to the prior imposed by standards to those Penalty Antiterrorism and Effective Death (AEDPA), Act primarily of 1996 at issue is whether the district court abused its dis- determining challenged cretion in that the jury reasonable doubt instruction was not prejudicial for purposes. abuse writ The other claims were also treated similar- ly. We AFFIRM.
I. Anthony
Buford
Dupuy’s 1974 conviction
second-degree
for
murder and life-sen-
tence were affirmed in
December
(La.1975).
Dupuy,
State v.
mensions”.
1584, 71 L.Ed.2d
152, 170,
II.
(1982).
miscarriage of
Similarly,
court, Dupuy pro
in district
As
“extraordinary
only
those
occurs
in
justice
his second habeas
Because
pro se.
ceeds
violation
a constitutional
when
instances
AEDPA, pre
prior
filed
petition was
of one
the conviction
has caused
probably
Lindh
applies.
law
AEDPA habeas .
McCleskey, 499
the crime”.
of
innocent
Murphy, 521 U.S.
494, 111
U.S. at
Nevertheless,
dis
L.Ed.2d
actual
starters,
reviewing
in
for
For
certificate
AEDPA
an
granted
trict court
miscarriage of
or a fundamental
(COA)
prejudice
sev
four of the
appealability
of
con-
objections
reject Dupuy’s
justice, we
the substantive
A
COA
en claims.
by the
employed
procedure
CPC,
cerning the
Blank
pre-AEDPA
aof
equivalent
9(b) question:
Rule
court
this
n.
district
Johnson,
315 &
118 F.3d
enship v.
(1)
Dupuy’s substantive
analyzing
(5th Cir.1997); but,
pre-AEDPA
when
9(b)
context,
issues
the Rule
he has
always
den is
on
prosecution
higher
review;
been held to a
standard of
prove the
guilty beyond
accused
a rea-
(2) that there are unresolved factual issues
every
sonable doubt of
essential element
regarding
suppression
court
state
charged,
the crime
a defendant has
hearing which should not have
re-
been
the right
rely upon
the failure of the
(3)
evidentiary
solved without an
hearing;
prosecution to
proof.
establish such
A
erroneously
the district court
relied
may
defendant
rely upon
also
evidence
(4)
record;
on an uncertified
court
state
brought out on cross examination of a
that the State’s answer was served on him
prosecution.
witness for the
The law
exhibits,
copies
without
of the attached
never imposes upon a defendant
in a
the district court failed to rule on his
case,
criminal
the burden or duty of
motion to have the
provide
State
him those
producing any
A
evidence.
(5)
exhibits;
that an unresolved factual
doubt
in any
exists
case when after care-
remains;
dispute
the district
ful
impartial
consideration
all
order,
court’s
that no further motions
case,
evidence
jurors
do not
9(b)
would be
while the
entertained
Rule
convinced to make
[sic] moral
feel
issue
pending,
prohibited him from
certainty that the defendant
guilty
conducting discovery and prosecuting his
the charge against him.
sum,
habeas petition.
procedure
*5
added.)
(Emphasis
employed by the district court for this
9(b)
Rule
matter was proper.
Dupuy contends that the “moral certain-
ty” language suggests
higher
a
level of
A.
doubt
than that —reasonable doubt —re-
For
claim that the reason
quired for acquittal, citing Cage v. Louisi-
able
doubt and
intent instructions
ana,
unconstitutional,
were
we
review chal
(1990). There,
L.Ed.2d 339
the Court held
lenged instruction to determine whether it
that the charge
so infected the entire trial that the result
equated a reasonable doubt with a
ing conviction
process,
violated due
not
“grave uncertainty” and an “actual and
merely
undesirable,
whether it is
errone
doubt,”
substantial
and stated that what
ous, or
universally
even
condemned. Rod
required
was
awas
“moral certainty”
riguez, 104 F.3d at
n.
699 8.
guilty.
defendant was
It
is
plain to us that the words “substantial”
“grave,”
they
as
are commonly un-
The reasonable
provid-
doubt instruction
derstood, suggest
higher
degree of
ed:
doubt than is required
acquittal
un-
A reasonable doubt
ais
fair doubt based
der the reasonable-doubt standard.
upon reason and common sense and
arising from a
state
evidence. It
Id. at
for. 1239, 127 (1994), L.Ed.2d 583 modified thing to an certainty. absolute Proof Cage. phrases The three were still disap- beyond a reasonable doubt is such as proved; accordingly, you would willing be rely and act upon in important the most trial your courts must avoid defining own reason- affairs. A defendant is never to con- able doubt so be to lead jury as victed on suspicions conjectures. mere or convict on a showing lesser than due A reasonable may only process [But, doubt arise not requires. for the] cases from the produced evidence review], [under but also conclude that we taken from a lack of whole, evidence. Since the bur- as a the instructions correctly lan- far less disfavored instruction has reasonable concept of conveyed and, ; Humphrey in additional- than guage jury. doubt to clarifying further instruction has ly, the 22,114 S.Ct. 1289. Id. reason- determining in language to assist Thereafter, Day, 78 F.3d Schneider 120 F.3d Humphrey, doubt vel non. able Cir.1996), our (5th example, 610, 611 and oth- (discussing why Schneider at 533 in- doubt the reasonable held court cases, phrase reason” “good faced with er there, employed which at issue struction unconstitutional, be- held instruction doubt”, “a seri- and substantial “an actual all the other disfa- not faced with cause you give could as such doubt ous sensible in- Humphrey in the as phrases vored for”, certainty”, “a moral good reason struction). Moreover, “good reason” doing, our court In so acceptable. much in the earlier requirement placed Victor, no “that there is and held applied emphasis. far less given instruction and ap- ... jury likelihood was not a successive Finally, Humphrey way that violated the instruction plied situation, is the writ as petition/abuse of at 611. Id. the Constitution”. case at hand. Cain, 138 F.3d Humphrey v. — U.S.-, denied, Cir.) (en banc), cert. the district conclude We and cert. in hold discretion court did not abuse its — U.S.-, requi has not ing shown (1998), panel adopted resulting from the instruc prejudice site (1997), concerning, 120 F.3d opinion, Humphrey, as example, tion. For unlike alia, the defendant whether inter not a “close case” infra, this is discussed in doubt by the reasonable prejudiced innocence. guilt as to at the provided, The instruction struction. if it end, acquit only jury “could that the *6 2. doubt, you could for which had serious jury pro- intent instruction The reason”; the employed earlier it give good vided: doubt”, uncer “grave terms “substantial The re certainty”.
tainty”, and “moral
rule it is reasonable
general
As a
to have a “seri
juror
that a
had
quirement
ordinarily intends all
a person
infer that
doubt,
give good
for
could
[he]
which
ous
consequences
and probable
the natural
disap
the
reason”,
with
conjunction
knowingly
done or
knowingly
acts
to violate due
was held
proved phrases,
So,
the evidence
him.
unless
by
omitted
the Sheriff testified that he
B.
course,
told [Dupuy], of
that we were
asserts
his due process
there to talk to him and that we were
rights were violated because his confession
going to read him
rights
his
or tell him
was elicited in violation of the Fifth and
rights
his
and that’s when he told us we
Sixth Amendments.
didn’t have to.
they
That
had already
And,
been read to him.
he already
Dupuy must demonstrate that his
his rights
knew
and that we didn’t have
confession was not voluntarily given and
to tell him rights.
his
this
inquiry,
abuse
writ
district court abused its
in de
discretion
The magistrate judge noted that
termining that he was not prejudiced. Dupuy had
any
not offered
evidence to
question whether,
“[T]he ultimate
under
demonstrate that he had not waived his
the totality
circumstances,
chal
[a]
and,
rights,
accordingly, determined that
lenged confession was obtained in a man Dupuy failed to
the presumption
overcome
compatible
ner
with
requirements
of of correctness that attaches to state-court
the Constitution is a matter for indepen
fact finding.
Scott,
See Mann v.
41 F.3d
dent federal determination.”
Muniz
(5th
Cir.1994),
denied,
cert.
Johnson,
Cir.),
F.3d
cert.
U.S.
based
being accidentally
Normand
that Edwards
per
rule,
created a new
se
shot during a “tussle”. Dupuy, 319 So.2d
it
apply
does not
retroactively to cases
301.)
at
on collateral
review.
See Solem v.
Dupuy’s
suppress
motion to
the confes-
Stumes,
638, 650,
465 U.S.
104 S.Ct.
sion, because he had not been
of
advised
1338,
(1984).
589 killed, it’s get “If I saying 1198, left a note 1205 Collins, F.2d 973 v. Self it.” Dupuy, that did 996, Anthony denied, 113 Cir.1992), 507 U.S. cert. (1993). Du- 173 1613, L.Ed.2d 123 S.Ct. for a is sufficient Obviously, the evidence an abuse demonstrated not puy has find, beyond a reason- juror to concluding the district court’s by discretion kill doubt, intended to Dupuy able did confession of the the admission not court did The district Normand. substantial and his “actual work not to its discretion. abuse trial with infecting entire his disadvantage, Mur dimensions”. constitutional error of D. 493, 478, 106 S.Ct. Carrier, 477 U.S. ray v. Louisiana, 419 Taylor v. Relying on (1986). 2639, L.Ed.2d 397 91 692, 690 42 L.Ed.2d 95 S.Ct. preju- that he was (1975), Dupuy contends C. systematically were because women diced juries. grand petit excluded from sufficiency next raises Louisiana, 31, 95 S.Ct. 420 U.S. v. Daniel kill Nor intent to his regarding challenge (1975), court held claim, consider we mand. For such applied retroac- not be Taylor would light “in the whether, viewing the evidence juries “convictions obtained tively to any ra prosecution, to the favorable most of that deci- the date empaneled prior to have found of fact could trier tional Dupuy’s sion”. beyond crime essential elements empaneled juries were petit grand Virginia, v. Jackson reasonable doubt”. prior Taylor. 2781, 61 307, 319, S.Ct. (1979). ap standard is This L.Ed.2d E. to the sub “explicit reference plied with offense as the criminal stantive elements reports police asserts that at 324 n. by state law”. Id. defined him in violation from withheld were law, ele 2781. Under Louisiana violation, Du To such Brady. establish (1) are murder degree ments of second withheld the State prove must puy (2) that being; and a human killing of favorable; that it evidence; that it was intent kill had defendant E.g., Little defense. to the was material bodily inflict harm. great La. Rev. Stat. (5th Cir.1998), Johnson, 162 F.3d Ann. 14:30.1. — U.S.-, cert. intent is “that Specific criminal report police that the Dupuy maintains cir when the exists of mind which state (1) fin- that Normand’s shown have would ac the offender indicate that cumstances home; Dupuy’s found gerprints were con criminal prescribed desired tively (3) that kidnaped; that Normand act or failure follow his sequences damaged and home was a table Williams, 714 So.2d act”. State *8 Normand’s matching samples blood that omitted). Cir.1998) (citation (La.App. 5 home; Dupuy’s found in were type blood fact which question is a intent Specific would that was evidence there the circumstances inferred from may be testimony that supported have 263. defendant. at and actions accidentally killed. had been Normand in proceedings post conviction During killing Normand. Dupuy admitted conviction, police his years after Normand’s throw Jesse Bordelon He had response in Dupuy to furnished was report to anoth Dupuy drove body bayou. into a Dupuy contends discovery request. the to a into gun threw the er location reports police are other there hogtied and had been bayou. Normand however, him; has he to provided not were Normand head. back of the shot in the not they demonstrated that in are exis- 2. tence. responded The State that all such Claiming that perjurious false and testi-
records were delivered Dupuy. to mony presented grand was to the jury that he had committed an aggravated kidnap- did demonstrate that ing, Dupuy contends attorney that his reports were withheld from him. Ac should have quash moved to original cordingly, the district court did not abuse indictment for degree first murder. Like- its discretion. wise, that, claiming the preliminary no
hearing, evidence presented to was show that there was a kidnaping, F. he as- serts that counsel should have moved to Dupuy claims that he illegally was suppress But, the indictment. he was nei- court, sentenced the trial because his tried, convicted, ther nor degree first sentence specify failed he would murder. eligible not be parole, probation, suspension of years. sentence for 20 In a 3. state collateral proceeding, the court ruled Dupuy contends that his attorney ren- that the sentence was not illegal. Louisi dered ineffective assistance in prosecuting 31,391 ana v. Dupuy, No. J.D.C. 27 suppress motion to the confession. As 1993) (motion
Aug. for resentencing). discussed, supra, Dupuy has not demon-
The district court determined that his prejudice. strated sentence illegally lenient and
therefore, Dupuy had not been prejudiced. 4. Dupuy has not demonstrated that conjunction with Dupuy’s contention wording of the court’s entry minute will that the evidence was prove insufficient to affect eligibility his for release. Accord- that he had specific intent to kill Nor- ingly, requisite abuse of discretion has mand, Dupuy contends that counsel failed not been shown. present motions at the conclusion of protect
trial to
rights. But,
his
he con-
cedes that counsel
moved
arrest
G.
judgment on grounds of insufficient evi-
For his ineffective assistance of counsel dence.
claim, Dupuy must show that
attor
his
neys’ performance was deficient and that
5.
prejudiced
this
his defense. Strickland v.
Dupuy asserts that counsel should have
Washington,
668, 687,
objected to the court’s reasonable doubt
Schneider,
591 Cain, F.3d v. 138 Humphrey and denied), women (motion because ment Cir.l998)(en banc). agree I Thus grand 552 either the on impaneled not were suffered no majority Dupuy that with the jury. petit Cage error. assis- ineffective concerning the sum, Rule claims, requisite the of counsel tance 275, Louisiana, 113 U.S. v. 508 Sullivan The district 9(b) lacking. prejudice (1993), Ias 182 124 L.Ed.2d S.Ct. in so discretion its not abuse did court that a possibility it, the precludes read concluding. sufficiently prejudi- may not be Cage error to required showing the satisfy cial to III. In Sul- writ dismissal. of the avoid abuse that to demonstrate Dupuy has failed uncertain livan, in no stated Justice Scalia prejudice in either result his claims any of subject to is not Cage error that a terms miscarriage justice. of fundamental aor operates it review because harmless error that demonstrated has not Accordingly, he defen- deprivation complete as a in its discretion abused court the district jury trial right to Amendment dant’s Sixth the on petition habeas denying his second require- Fifth Amendment the and violates Therefore, the writ. of of abuse basis doubt. beyond a reasonable proof ment of peti- habeas second of dismissal because, many unlike result obtains This tion errors, an instruc- jury other instruction AFFIRMED. of misdescribing the burden tional error findings such jury’s the all proof vitiates concurring: DENNIS, Judge, Circuit in only engage “can reviewing courts that I the court. of judgment in I concur the what a rea- view of speculation pure —its view, the because, in my separately write And when have done. jury sonable would had that erroneously concludes majority judge[s] entity the wrong ‘the it does ” his habeas Cage a error Dupuy established Sullivan, 508 U.S. guilty.’ defendant been sub- have might nevertheless petition quoting 280-81, (citing 2078 the writ of for abuse ject to dismissal Clark, Rose v. necessarily is not Cage a error because (1986)). 460 92 L.Ed.2d as to prejudicial sufficiently pervasive that we are I not believe resulting do Accordingly, trial that infect the entire so majority opinion conclude, as the free process.1 due violated conviction may be Cage error that suggests, in this case Preliminarily, agree I had been if Surely prejudicial. taken as instructions doubt reasonable jury sentenced without convicted and “[tjhere is infirm because are not whole “worked have only it could guilt, finding jurors likelihood no disadvantage, substantial actual and to his applied guilt petitioner’s determined who error trial withe his entire infecting violated way ain instructions United States dimension.” constitutional Nebraska, 511 v. Victor Constitution.” 152, 170, 102S.Ct. Frady, 456 U.S. 583 1239, 127 L.Ed.2d 1, 6, 114 S.Ct. U.S. (1982). Thus, Dupuy was when evident especially This is was a only there required prove and con- compared are instructions instant error, by Sullivan as defined Louisiana, Cage Cage to those trasted prej- requisite Victor, to show the in order 39, 111 S.Ct. U.S. Cage error (1991), that a contend do not majority I court and As both the district enough for required would be of itself cause as in and issue of pretermitted the only prejudice in a showing abuse of of actual to a avoid dismissal addition writ— satisfy petition rais- subsequent habeas pre-AEDPA Cage error is sufficient Zant, claim, McCleskeyv. ing see showing prejudice. a new requisite 467, 494, L.Ed.2d *10 udice to overcome dismissal for abuse of
the writ.
NEW ORLEANS COLD STORAGE & CO., LTD.,
WAREHOUSE Petitioner- Cross-Respondent, NATIONAL LABOR RELATIONS
BOARD, Respondent-Cross-
Petitioner. No. 98-60653. United States Court of Appeals,
Fifth Circuit. Jan.