Opinion
Civil Action No. 00-3026, SECTION "A"
June 27, 2001
MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S § 2254 APPLICATION
Before the Court is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by a state prisoner, Leroy Polk ("Polk"), challenging conviction for the murder Ms. Cynthia Gray in violation of La. R.S. 14:30.1 on two bases: (1) allegedly the state court's violated his right to Due Process when it rejected his state habeas claim pursuant to Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) finding it procedurally defaulted; and (2) alleged violation of the Due Process Clause/Sixth Amendment because the allegedly erroneous reasonable doubt instruction reasonable doubt instruction violated Cage, supra, which was allegedly made applicable to his post-AEDPA claim by the Fifth Circuit's decision in Humphrey. Additionally, petitioner submits that even if the Court finds petitioner's Cage claim procedurally defaulted petitioner submits that failure to review his claim would result in a "fundamental miscarriage of justice" and the alleged constitutional violation has resulted in the conviction of one who is actually innocent. In this vein, petitioner argues that "had the jury not been given a reasonable doubt jury charge which allowed a finding of guilt based on a degree of proof below that which is constitutionally required, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt . . . in light of all of the evidence.'" See Petition for Writ of Habeas, at p. 14. [Fed.Rec.Doc. No. 1].
See Polk's Petition for Writ of Habeas, Statement of the Issues, at page v [Fed.Rec.Doc. No. 1].
In Cage, the United States Supreme Court found that use of the phrases "grave uncertainty," "actual substantial doubt," and "moral uncertainty," when defining reasonable doubt lessened the state's burden of proof in violation of the Due Process Clause. Petitioner submits that the jury instruction given to the jury on reasonable doubt at the close of the guilt phase in his 1984 murder trial utilized the three allegedly constitutionally deficient phrases in violation of his Due Process rights as construed in the United States Supreme Court's November 13, 1990 Cage decision.
Petitioner argues that the state courts erroneously rejected his Cage claim on the basis of Louisiana's contemporaneous objection rule which was not evenhandedly applied. Both the state trial court and the Louisiana Fourth Circuit Court of Appeal did reject his Cage claim on the basis of Louisiana's contemporaneous objection rule, however, the Louisiana Supreme Court rejected petitioner's Cage claim on December 10, 1999 on the basis of yet another procedural rule [ i.e., specifically citing Glover v. State, 660 So.2d 1189 (La. 1995) and Louisiana Code of Criminal Procedure Article 930.8, which provides a three-year limitations period post-final judgment of conviction for filing state habeas applications. Petitioner argues that Louisiana's contemporaneous objection rule is not "adequate" to bar his constitutional claims because it is allegedly not evenhandedly apply. His submissions regarding whether the state procedural rule is "adequate" and "independent" to bar his constitutional claim ignores the fact that highest state court, the Louisiana Supreme Court, rested its December 10, 1999 ruling that his claims were procedurally barred on the basis of Louisiana's Code of Criminal Procedure Article 930.8. As discussed herein below in much greater detail, the federal Fifth Circuit held in Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997), that the three-year limitations period for filing state applications for post-conviction relief set forth in Article 930.8 violated neither the United States Constitution nor the Louisiana Constitution of 1974. The federal Fifth Circuit further noted that Louisiana courts have regularly invoked the statute to bar untimely claims and found nothing to trump the presumption of "adequacy" of the rule. It further held that "independence" requirement with respect to 930.8 was met because the last state court rendering judgment "clearly and expressly" indicated its ruling rested on that state procedural rule. In denying Glover's application, the Louisiana Supreme Court clearly and expressly indicated that its ruling was premised on untimeliness of the claim citing both Article 930.8 and Glover v. State, 660 So.2d at 1201-02. See Glover v. Cain, 128 F.3d at 902. As previously mentioned, the Louisiana Supreme Court's December 10, 1999 ruling denying the instant petitioner's writ application was premised on untimeliness, specifically cited Article 930.8 and Glover v. State, supra. There is no suggestion in this case that article 930.8 has been applied selectively or irregularly or that the Louisiana Supreme Court's December 10, 1999 holding in the case at bar is not sufficient to fulfill the "independence" requirement of the procedural default doctrine.
Humphrey v. Cain [Humphrey I], 120 F.3d 526 (5th Cir.), reasoning adopted on reh'g en banc, Humphrey v. Cain [Humphrey II], 138 F.3d 552 (5th Cir. 1998), cert. denied, 525 U.S. 935, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998) and 525 U.S. 943, 119 S.Ct. 365, 142 L.Ed.2d 301 (1998). The Court here notes at the outset that Humphrey, supra, was decided under pre-AEDPA caselaw and its holding regarding the retroactivity of Cage to applications for post-conviction relief is not applicable to cases governed by the AEDPA. See Williams v. Cain, 229 F.3d 468, 474 (5th Cir. 2000) (holding that "the clear import of Muhleisen is that a lower federal court's holding that Cage and Victor apply retroactively is insufficient to make them retroactive under the AEDPA" and noting that nothing in the United States Supreme Court's decision in Williams v. Taylor 120 S.Ct. 1495 (2000) is contrary to the rule of Muhleisen regarding the non-retroactivity of Cage to post AEDPA claims).
In its formal response to petitioner's application filed in December of 2000, the State submits that although petitioner has exhausted his state court remedies in connection with his federal habeas claims, his federal application for § 2254 relief is time-barred since it was not filed within a year of the date that his that his second degree murder conviction became final consistent with the requirements of Title 28, United States Code, Section 2244(d), as Amended by the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), P.L. 104-132m 110 Stat. 1220, which became effective on April 24, 1996 and governs the subject federal application. The State submits that petitioner's application for relief was "most untimely" being filed approximately 1,229 days late. See State's Response, pp. 5-6. The State further submits that there is no basis which appears in the record which would support equitable tolling. The State further argues in the alternative that petitioner's claim is procedurally barred pursuant to Coleman. Additionally, in the alternative, the State submits that petitioner's contention "lacks merit because the state trial court's jury instruction passes the current federal constitutional test for allegedly ambiguous jury instructions" and in any event, the Fifth Circuit's decision in Humphrey, a case decided under pre-AEDPA standards, does not govern in the instant case which is instead governed by the AEDPA. See State's Response, at p. 12 (emphasis in original).
In Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct.2546, 2565, 115 L.Ed.2d 640 (1991), the Court held:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the procedural default and actual prejudice as a result of the alleged constitutional violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
The petitioner has had well over six months to reply to State's Objections and apparently rests on his arguments submitted in support of his original application which allege "actual innocence," "cause" and "prejudice" for the procedural default, and that Louisiana's contemporaneous objection rule as to Cage claims is unevenly applied, inter alia. The matter is deemed submitted for decision on basis of the briefs and documents of record.
For the reasons set forth in detail herein below, the Court is of the opinion that petitioner's federal habeas claims are time-barred since the petitioner has the burden of demonstrating circumstances that justify equitable tolling and his assertions are insufficient to meet the burden. Alternatively, the Court finds that petitioner's claims are procedurally barred, the State's highest court's ruling ( i.e., the Louisiana Supreme Court's December 10, 1999 ruling) resting on "adequate" and "independent" state procedural grounds — that is, untimeliness citing Louisiana Code of Criminal Procedure Article 930.8. Petitioner's claim of actual innocence is not supported by the record in this matter. Alternatively, petitioner's claims in this matter have no merit. Accordingly, his petition should be DENIED and his claims DISMISSED WITH PREJUDICE.
BACKGROUND
Petitioner, Leroy Polk, is a Louisiana State prisoner currently serving a life sentence at the Louisiana State Penitentiary in Angola, Louisiana, pursuant to his January 17, 1984 conviction for the murder of Ms. Cynthia Gray in violation of La. R.S. 14:30.1 in the matter entitled " State of Louisiana v. Leroy Polk," No. 293,386 "B" on the docket of the Orleans Parish Criminal District Court. On March 9, 1984, petitioner was sentenced to the mandatory life sentence. On March 9, 1984 defense counsel filed a Notice and Motion for Appeal. [State Record, Vol. 2 of 5].
Leroy Polk and James Gilmore were charged via December 2, 1982 grand jury indictment with first degree murder in violation of L.S.A.-R.S. 14:30 and tried separately. [State Record, Vol. 1 of 5]. Polk's first degree murder trial commenced on January 16, 1984 and culminated in a verdict of guilty as charged and unanimous recommendation of life imprisonment after only a little over an hour's time of deliberation. See January 17, 1984 Article 905.7 Jury Recommendation that Polk be sentenced to life imprisonment; January 17, 1984 Jury Verdict finding Polk "guilty." [State Record, Vol. 2 of 5]; and Transcript of January 16-17, 1984 Jury Trial at pp. 335-36. [State Record, Vol. 4 of 5]. On March 9, 1984, petitioner was sentenced to life imprisonment. See Transcript of March 9, 1984 Sentencing [State Record, Vol. 3 of 5]. On direct appeal, the Louisiana Fourth Circuit Court vacated petitioner's first degree murder conviction "and since the evidence supported a conviction for second degree murder, a judgment of conviction of the lesser and included offense of second degree murder [was] entered." See Louisiana Fourth Circuit's Opinion in State of Louisiana v. Leroy Polk, CA No. KA 2376, at p. 8 [State Record, Vol. 3 of 5]. Petitioner did not seek review of the Louisiana Fourth Circuit's February 14, 1986 judgment, either with the Louisiana Court's or the United States Supreme Court. His conviction became final on February 28, 1996, when the period for application for rehearing to the appellate court expired.
On appeal, the Louisiana Fourth Circuit upon considering the petitioner's challenge of his first degree murder conviction on the basis of sufficiency of the evidence, vacated his first degree murder conviction and issued a judgment of conviction on the lesser included offense of second degree murder. The Louisiana Fourth Circuit also affirmed petitioner's life sentence. Thereafter, petitioner did not apply for rehearing with the Louisiana Fourth Circuit or for supervisory writs to the Louisiana Supreme Court.
See Louisiana Fourth Circuit's Opinion in State of Louisiana v. Leroy Polk, CA No. KA 2376, at p. 8 [State Record, Vol. 3 of 5].
The facts and evidence regarding the subject crime recited below are taken directly from the Louisiana Fourth Circuit's February 14, 1986 opinion affirming petitioner's conviction and sentence and comport with the transcript of the January 16-17, 1984 jury trial which comprises a large part of volume three and the entirety of volume four of the five-volume state record in this case.
The defendant, Leroy Polk, was arrested on November 24, 1982 and subsequently charged with first degree murder, a violation of R.S. 14:30. Polk pled not guilty at his arraignment on December 14, 1982. Following a two-day trial on January 16-17, 1984, Polk was found guilty as charged by a unanimous vote of the twelve member jury. The jury unanimously recommended that the defendant be sentenced to life imprisonment. On March 9, 1984, Polk was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.
On November 23, 1982, at approximately 9:30 p.m. Cynthia Gray, the victim, was speaking on the telephone to Octavia Edinburgh, a close friend. Ms Gray stated she heard bumping noises from under her house.
Kenneth and Corliss Taitt lived in the apartment next door to the victim. Kenneth Taitt heard noises in the backyard at about 10:30 p.m., found the rear gate open, but no one was in the backyard. Ten minutes later he and his wife heard fighting or scuffling in the victim's bedroom, the room adjacent to the Taitt's daughter's bedroom. They heard the victim say "Help me . . . Corliss, they're trying to rape me." Kenneth Taitt then ran to the victim's apartment, broke a small window pane and entered through the front door. He saw the victim standing in the living room wearing nightgown with a small blood stain "about chest high." The victim appeared to be in shock. Mr. Taitt returned to his apartment, Ms. Gray was still standing; However, she collapsed shortly thereafter and died within several minutes. Corliss Taitt also entered the victim's apartment but after Ms. Gray had fallen on the couch.
Mr. Terry lived in a house approximately fifty yards from the victim's apartment. On the evening of November 23, 1982, the defendant and James Gilmore knocked on Mr. Santiago's front door. He answered the door and saw that the defendant was not wearing a shirt and he appeared exhausted, as if he had been running. James Gilmore had a knife with a pointed tip in his hand and the defendant asked if the knife had blood on it. Gilmore responded "No, but the bitch's gown had blood all over it." Mr. Santiago told them both to leave. Several minutes later he heard an ambulance which he followed to the victim's residence. When he discovered that the victim had been killed, he told Kevin Johnson, a police officer living in the neighborhood, of the previously encounter with the defendant and James Gilmore. Mr. Santiago also saw James Gilmore and the defendant playing with the neighborhood children when the victim was being removed from her apartment.
Based on the information supplied by Mr. Santiago, an arrest warrant was issued and the defendant was arrested at 6:00 a.m. the next day.
Detective Ray Miler conducted an investigation of this crime and discovered that the perpetrator's had made a forcible entry through the rear door of the victim's apartment. Miller arrested the defendant and took a statement from him later that morning. The defendant stated that James Gilmore approached him seeking to steal the victim's stereo. Gilmore broke the glass on the rear door. According to the defendant, as he was standing outside the front door, he saw the victim come out of her bedroom, and saw Gilmore grab her and stab her twice. The defendant denied entering the house or attempting to rape the victim. The defendant said that Gilmore wore a stocking over his face and used a knife with a curved eight inch blade.
Lucien Watts, an employee at Central Lock-Up, searched the defendant after his arrest and found a high school graduation ring, subsequently identified as the victim's. Octavia Edinburgh saw the victim wearing this ring the Sunday prior to the murder and testified that Ms. Gray kept her jewelry on a nightstand in her bedroom.
Dr. Paul McGarry, a pathologist, performed an autopsy on the victim and found that she died from a stab wound which pierced the pulmonary artery. Dr. McGarry also found bruises and lacerations on the victim's face and a knife wound on her forearm which was consistent with a defense wound. Dr. McGarry stated the victim also suffered lacerations around the vaginal opening which were consistent with forcible sexual intercourse. All of these bruises, lacerations and stab wounds were inflicted at about the same time. The vaginal lining was swabbed and examined for the presence of seminal fluid. The test was negative but Dr. McGarry stated that this would not be inconsistent with forcible sex because the forceful tearing of the lining caused hemorrhaging, which would wash away the semen.
Tests performed on the defendant's clothes were negative for blood and seminal fluid; however, tests on James Gilmore's clothes were positive. The blood found on James Gilmore's clothes did not match that of the victim.See February 14, 1986 Opinion in State of Louisiana v. Leroy Polk, CA No. KA-2376 at pp. 1-3 [State Record, Vol. 3 of 5].
In any event, the Louisiana Fourth Circuit determined on appeal, utilizing the standard enunciated in Jackson v. Virginia, and after a careful review of the record that the evidence although it did not support a conviction for first degree murder, did support a conviction on the lesser included offense, second degree murder. The Louisiana Fourth Circuit Court of Appeal observed:
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
In the instant case, evidence presented at the trial must be sufficient, when viewed in the light most favorable to the prosecution, to prove beyond a reasonable doubt that the defendant had the specific intent to kill the victim or inflict great bodily harm when engaged in the perpetration or attempted perpetration of an aggravated rape or aggravated burglary. The evidence adduced at trial was sufficient to show that the defendant and James Gilmore were principals to the perpetration of an aggravated burglary. Both perpetrators had an intent to commit a theft of property from a dwelling where a person was present. Gilmore was armed with a dangerous weapon when he entered the premises. Also, the victim's screams that "They're trying to rape me" is sufficient to prove that Polk was also engaged in an aggravated rape or attempted aggravated rape.Id., at p. 6 (emphasis in original).
The state record reflects that petitioner did not apply to the Louisiana Fourth Circuit for rehearing following the appellate court's ruling which also affirmed his life sentence. Petitioner did not apply for supervisory writs with Louisiana Supreme Court. Petitioner's sentence and conviction became final on February 28, 1986, after expiration of the fourteen day period for application for rehearing to the Louisiana Fourth Circuit Court of Appeal.
Louisiana Code of Criminal Procedure article 922, entitled "Finality of Judgment on Appeal" provides:
A. Within fourteen days of rendition of the judgment of the supreme court or any appellate court, in term time or out, a party may apply to the appropriate court for rehearing. The court may act upon the application at any time.
B. A judgment rendered by the supreme court or other appellate court becomes final when the delay for applying for rehearing has expired and no application therefor has been made.
C. If an application for rehearing has been made timely, a judgment of the appellate court becomes final when the application is denied.
D. If an application for writ of review is timely filed with the supreme court, the judgment of the appellate court from which the writ of review is sought becomes final when the supreme court denies the writ.
Petitioner filed his first application for state post-conviction or other collateral relief with the state court until on October 9, 1986 on the grounds of the state's alleged failure to provide Brady material and ineffective assistance of counsel, which application was denied that date by the State trial court on November 9, 1986. [State Record, Vol. 2 of 5].
Then on June 7, 1994, petitioner filed a second application for post conviction relief requesting that the state trial court waive the prescriptive period contained in Louisiana Code of Criminal Procedure article 930.8 based on a Cage instruction and ineffective assistance. [State Record, Volume 1 of 5]. On June 22, 1994, the state trial court issued judgment denying petitioner's application on state procedural grounds, citing Louisiana's contemporaneous objection rule for the purpose of denying petitioner's Cage claim and finding his ineffective assistance claim barred by article 930.8. See June 22d 1994 Judgment of the Honorable Patrick G. Quinlan filed on June 29, 1994 in the matter of State v. Leroy Polk, Orleans Parish Criminal District Court, No. 293-386 "B" [State Record, Vol. 1 of 5]. Petitioner did not apply for supervisory writs with either the Louisiana Fourth Circuit Court of Appeal in connection with either his first or his second application for post conviction relief filed with the state trial court.
Louisiana Code of Criminal Procedure article 930.8 provides that with certain enumerated exceptions "no application for post-conviction relief . . . shall be considered if it is filed more than three years after judgment and sentence is final under the provisions of Article 914 or 922."
Approximately 4 1/2 years later on March 25, 1999, petitioner filed his third application for post-conviction relief with the state trial court arguing that his application fell under the exception provided at article 930.8(A)(2), alleging that the his application involved an issue based upon a new interpretation of constitutional law made retroactive to petitioner's case by the federal Fifth Circuit Court of Appeals in Humphrey v. Cain, 120 F.3d 526 (5th Cir. 1997), arguing that he filed his third application for post-conviction relief within one year of the final ruling in Humphrey, supra. The claims recited in his third application with the state trial court was that he was deprived due process of law and was denied his Sixth Amendment right to trial by jury because the state trial court erroneously instructed the jury concerning reasonable doubt. See Petitioner's March 25, 1999 application for post conviction relief [State Record, Vol. 5 of 5]. On April 12, 1999, the state trial court again denied petitioner's Cage claim citing Louisiana's contemporaneous objection rule. See April 12, 1999 Judgment of the Honorable Patrick G. Quinlan in Orleans Parish Criminal District Court Docket No. 293-986 "B" [Vol. 5 of 5].
On May 7th, 1999, petitioner applied for supervisory writs to the Louisiana Fourth Circuit in connection with the State trial court's ruling denying his third application for post-conviction relief. [State Record, Vol. 5 of 5]. On June 7, 1999, the Louisiana Fourth Circuit denied petitioner's application for supervisory writs, finding "no error in the judgment of the district court denying relator's application for post-conviction relief." See June 7, 1999 Ruling of the Louisiana Fourth Circuit Court of Appeals, denying writs in State of Louisiana v. Leroy Polk, CA No. 99 K 1192 [State Record, Vol. 5 of 5]. On July 20, 1999, which was more than a decade after petitioners judgment was final and close to a decade after the United States Supreme Court's decision in Cage issued, petitioner sought supervisory writs with the Louisiana Supreme Court. See Petitioner's Application for Supervisory Writs filed with the Louisiana Supreme Court on July 20, 1999 in State ex rel Leroy Polk v State, No. 99 KH 2147 [State Record, Vol. 5 of 5]. On December 10, 1999, the Louisiana Supreme Court ruled, denying writs on the basis of untimeliness, specifically citing Louisiana Code of Criminal Procedure article 930.8 and State ex ref Glover v. State, 660 So.2d 1189 (La. 1995). See State ex rel Polk v. State, 751 So.2d 252 (La. 1999) [State Record, Vol. 5 of 5].
In Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997), the federal Fifth Circuit held that the three-year limitations period for filing State applications for post-conviction relief set forth in Louisiana Code of Criminal Procedure article 930.8 violated neither the United States Constitution nor the Louisiana Constitution of 1974. Specifically, the court held that because a state's failure to provide any post-conviction relief procedure at all does not violate the Fourteenth Amendment Due Process Clause, art. 930.8, which merely limits an inmate's avenues for state post-conviction relief, cannot violate that clause. Id.
Approximately nine months later, on September 4, 2000, petitioner filed the instant application for federal habeas corpus relief.
ANALYSIS
AEDPA STANDARDS
The United States Fifth circuited courtly of Appeals addressed the AEDPA's standard of review for issuing habeas relief in state court cases in Knox v. Johnson, 224 F.3d 470, 475 (5th Cir. 2000), as follows:
Under the AEDPA, we may not issue a writ of habeas corpus with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the State court's highest adjudication of the claim resulted in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court . . .; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d). As the Supreme Court has recently explained, a decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached [by the Supreme Court] on a question of law or if the state court decides a case differently than [the] courtly has on a set of materially indistinguishable facts." Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We may issue a writ based on the State Court's unreasonable application of Federal law only "if the state court identifies the correct governing legal principal . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. We presume state court factual findings to be correct and will defer to these findings "unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (quoting 28 U.S.C. § 2254 (d)(2)).
The Antiterrorism and Death Act of 1996 (AEDPA), which comprehensively revised federal habeas legislation including 28 U.S.C. § 2254 and which became effective on April 24, 1996, applies to the instant § 2254 application, since it was filed after the Act's effective date. Section 2244(d)(1) of the amended statute requires a state petitioner to bring his federal habeas corpus claims within one year of the date his conviction became final. Petitioner's federal application was filed with this Court on September 4, 2000 pursuant to the "mailbox rule," and thus, the AEDPA governs the disposition of his federal habeas claims.
Under the AEDPA deference scheme, pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), and questions of fact are reviewed under § 2254(d)(2).
When reviewing a purely legal question we must defer to the state court unless its decision rested on a legal determination that was contrary to clearly established federal law as determined by the Supreme Court. See Lockhart v. Johnson, 104 F.3d 54, 57 (5th Cir.), cert. denied, 521 U.S. 1123, 117 S.Ct. 2518, 138 L.Ed.2d 1019 (1997); Drinkard, 97 F.3d at 768. Additionally, a federal court "will not disturb a state court's application of law to facts unless the state court's conclusions involved an `unreasonable application' of clearly established federal law as determined by the Supreme Court." Davis, 158 F.3d at 812 (quoting 28 U.S.C. § 2254 (d)(1)); see Lockhart, 104 F.3d at 57. An application of federal law is unreasonable only "when it can be said that reasonable jurists considering the question would be of one view that the state court ruling was incorrect." Drinkard, 97 F.3d at 769; see Davis, 158 F.3d at 812; Corwin, 150 F.3d at 47 1-72. State factual findings are presumed correct unless rebutted by clear and convincing evidence. See Davis, 158 F.3d at 812; Jackson v. Johnson, 150 F.3d 520, 524 (9th Cir. 1998).
Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir. 1999) (citing Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998) and Drinkard, 97 F.3d at 767-68).
Trevino v. Johnson, 168 F.3d at 181.
EVIDENTIARY HEARING
Whether to hold an evidentiary hearing, is now a statutorily mandated determination under 18 U.S.C. § 2254 (e)(2), which narrowly prescribes a federal habeas court's authority to conduct any such hearing. See McDonald v. Johnson, 139 F.3d 1056, 1059 (5 th Cir. 1998). A habeas petitioner's entitlement to an evidentiary hearing, when he has failed to develop the factual basis of a claim, is restricted to narrow exceptions of subsection (e)(2) which provides as follows:
"(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered by exercise of due diligence; and
(B) the facts underlying the claim show by clear and convincing evidence that, but for the constitutional error, no reasonable juror would have found the applicant guilty of the underlying offense." See 28 U.S.C. § 2254 (e)(2).
These exceptions are applicable where the failure to develop a factual basis is the result of a decision or omission of the petitioner himself. Even in cases where the narrow restrictions of the aforesaid statutory provisions may apply, and petitioner's is not one of those cases, such would not guarantee an evidentiary hearing. Instead, it merely opens the door. The federal district court retains discretion over the decision to grant an evidentiary hearing, and the denial of an evidentiary hearing is reviewed under the abuse of discretion standard. See Murphy v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000), cert. denied, 121 S.Ct. 380 (2000). To find abuse of discretion, a reviewing court must: (1) find that the State did not afford the petitioner a full and fair hearing; and (2) be convinced that if the allegations were proven true, petitioner would be entitled to relief. A full and fair hearing does not require live testimony and a paper hearing will suffice to afford such a hearing on factual issues underlying a petitioner's claims. Murphy v. Johnson, 205 F.3d at 815-16.
Whereas here the disposition of the petitioner's claims turns on the basis the AEDPA's time bar, and the facts petitioner's claims and the State's objections/response are readily discernible from the record, and not subject to serious dispute, no evidentiary hearing is required.
TIMELINESS
As previously mentioned, a review of the record shows that petitioner filed this federal habeas petition on September 4, 2000. A federal habeas application must be filed in accordance with the requirements of Title 28, United States Code, § 2244(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1217. Generally, the AEDPA requires that a petitioner bring his § 2254 claims within one year of the date his conviction became final.
The AEDPA applies to this case since it was filed after the effective date of the AEDPA.
Specifically, under the amended Section 2244(d),
(d)(1) a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244 (d)(1). Also, subsection 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244 (d)(2); see also Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998).
There presently exists no Supreme Court precedent making Cage retroactively applicable to cases on collateral review. The federal Fifth Circuit held in 1998 in the context of pre-AEDPA cases, that Cage is retroactively applicable to such cases on collateral review. See Humphrey v. Cain, 138 F.3d 552 (5th Cir.) (en banc), cert. denied, 525 U.S. 935, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998). There also, currently exists no Fifth Circuit law making Cage retroactively applicable to post-AEDPA cases on collateral review. See Williams v. Cain, 229 F.3d 468 (5th Cir. 2000) (holding that in order for a "new rule" to be available under the AEDPA to section 2254 petitioners, the Supreme Court itself must have held that the rule is retroactive and it has not done so with respect to Cage errors and regardless of the contours of post-AEDPA habeas retroactivity, Fifth Circuit precedent in Muhleisen controls, its basic holding being that "the AEDPA barred relief because the conviction had become final on direct appeal before Cage was handed down and there was then no Supreme Court holding that the instruction was constitutionally erroneous . . ." 229 F.3d at 474 n. 5.
Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after the petitioner's conviction and/or sentence become final. 28 U.S.C. § 2244 (d)(1)(A). Petitioner's conviction became final well-prior to the effective date of AEDPA. On the effective date of the AEDPA, April 24, 1996, petitioner had no applications for post-conviction or other collateral relief pending with the state courts. Thereafter, petitioner filed no pleadings with the state trial court, the Louisiana Fourth Circuit Court of Appeal, or the Louisiana Supreme Court until his untimely application for post-conviction relief filed with the state trial court on March 25, 1999, alleging that his conviction should be reversed pursuant to Cage and arguing that Louisiana's contemporaneous objection rule is not "adequate" since it was not evenhandedly applied to Cage claims. [State Record, Vol. 5 of 5].
However, the latest he should have filed his application consistent with the time bar provision of the AEDPA is April 24, 1997 — that is, giving petitioner the benefit of the one-year grace period after the effective date of the Act.
The record does not reveal any unconstitutional State action that impeded petitioner in filing his federal application. Also, the record in this case does not reveal any extraordinary circumstances beyond the petitioner's control that made it impossible for him to timely file a federal writ of habeas corpus.
Proceeding pro se is not an a "rare and exceptional" circumstance because it is typical of those bringing habeas claims. Cf. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (noting that the AEDPA's one-year grace period affected hundreds of prisoners, none of whom learned of it on its effective date); and United States v. Flores, 981 F.2d 231, 236 (9th Cir. 1993)( pro se status not an external factor excusing failure to time file). It is well settled that ignorance of the law and lack of legal assistance, even for an incarcerated prisoner, generally do not excuse prompt filing. See Molo v. Johnson, 207 F.3d 773 775 (5th Cir. 2000) (holding that even assuming petitioner's contentions regarding ineffective assistance of counsel were correct, alleged violation of right to effective assistance of appellate counsel did not toll limitations period for filing habeas petitioner).
Petitioner may not rely on either his pro se status or any lack of skill in the law to excuse his delay. See United States v. Flores, 981 F.2d 231, 236 (5th Cir. 1993) (neither an inmates pro se status, illiteracy, deafness, or lack of legal training amounts to factors external to the inmate to excuse an abuse of writ). Additionally, actual ignorance of the existence of the one-year limitations period, even if attributable to the newly enacted statute's complete unavailability to inmates, does not serve as a basis for equitable tolling. Felder v. Johnson 204 F.3d 168, 171-73 (5th Cir. 2000).
A person seeking the tolling of the statute of limitations period has the burden of showing circumstances exist that justify tolling. The time bar is ultimately the result of petitioner's own failure to diligently pursue his habeas claims in state court until well more than a more than a decade after his conviction and sentence became final and at least eight years post- Cage.
Petitioner's argument regarding actual innocence finds no support in the record. The transcript of trial admits no such conclusion. This Court observes that the Louisiana Fourth Circuit reviewed petitioner's sufficiency of the evidence claim on direct appeal and it did so utilizing the appropriate standard enunciated in Jackson v. Virginia. The Louisiana Fourth Circuit held that the evidence adduced at trial was sufficient to support a conviction for second degree murder.
The federal Fifth Circuit in Knox v. Johnson explained AEDPA's standard of review applicable to this case, as follows:
224 F.3d 470, 475 (5th Cir. 2000).
As the Supreme Court has recently explained, a decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached [by the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). We may issue a writ based on the State Court's unreasonable application of Federal law only "if the state court identifies the correct governing legal principal . . . but unreasonably applies that principle to the facts of the prisoner's case." Id. We presume state court factual findings to be correct and will defer to these findings "unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding'. Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000) (quoting 28 U.S.C. § 2254 (d)(2)).
Id.
An application of law to facts is unreasonable only when it is so clearly incorrect that it would not be debatable among reasonable jurists. Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir. 1999), cert. denied, 527 U.S. 1056, 120 S.Ct. 22, 144 L.Ed.2d 825 (1999). This Court, having reviewed the record in the case at bar with this deference standard in mind, finds that Polk has failed to demonstrate the Louisiana Fourth Circuit's decision on the merits regarding sufficiency of the evidence his second-degree murder conviction was "so clearly incorrect that it would not be debatable among reasonable jurists." Id. Thus, petitioner has shown no extraordinary circumstances which would invoke the peal of equitable tolling.
The procedural default doctrine is, in general terms, that a federal court will not review a question of federal law decided by a state court if that decision rests on a state ground that is both independent of the federal question and adequate to support the judgment. Amos v. Scott, 61 F.3d 333, 338 (5th Cir.), cert. denied, 516 U.S. 1005, 116 S.Ct. 557 (1995). It applies to bar federal habeas when the state court declines to address petitioner's federal claims because the prisoner has failed to meet a state procedural requirement. Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 2554 (1991). Like the "exhaustion doctrine," the procedural default doctrine is also rooted in the dual concerns of comity and federalism. Id. A federal district court may, in the exercise of its judicial discretion, raise procedural default sua sponte. Magouirk v. Phillips, 144 F.3d 348, 359 (5th Cir. 1998).
As previously mentioned the State objected claims on the grounds that they are procedurally defaulted since the last state court addressing those issues rested the decision on "adequate" and "independent" state procedural grounds.
The state court record reflects that the petitioner has raised his challenge with respect to his Cage claim in his second application to the state trial court and in his third application for postconviction relief in state trial court, the Louisiana Fourth Circuit and the Louisiana Supreme Court. The last decision of the State's highest court ruling on the matter [i.e., the Louisiana Supreme Court in its December 10, 1999 decision denying writs on the basis of untimeliness] found such procedural default specifically citing Louisiana Code of Criminal Procedure article 930.8 and State ex rel Glover v. State, 660 So.2d 1189 (La. 1995). See State ex rel Polk v. State, 751 So.2d 252 (La. 1999) [State Record, Vol. 5 of 5].
In Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997), the Fifth Circuit held that the three-year limitations period for filing State applications for post-conviction relief set forth in Louisiana Code of Criminal Procedure article 930.8 violated neither the United States Constitution nor the Louisiana Constitution of 1974. Specifically, the court held that because a state's failure to provide any post-conviction relief procedure at all does not violate the Fourteenth Amendment Due Process Clause, art. 930.8, which merely limits an inmate's avenues for state post-conviction relief, cannot violate that clause. Id. The Fifth Circuit further held that the state procedural rule was both adequate and independent to bar petitioner's constitutional claims. Id.
Generally, a federal court will not review a question of federal law decided by state court, if that decision rests on a state ground that is both independent of the federal question and adequate to support the judgment. Amos v. Scott, 61 F.3d 333, 338 (5th Cir. 1995), cert. denied, 116 S.Ct. 557 (1995)( citing Harris v. Reed, 489 U.S. 255, 260 (1982)). This rule applies whether the state law ground is procedural or substantive. Coleman v. Thompson. 111 S.Ct. 2546, 2554 (1991). The Coleman Court explained:
In the context of direct review of a state court judgment, the independent and adequate state ground is jurisdictional. Because this Court has no power to review a state court determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision would not affect the judgment and would therefore be advisory. See Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct. 459, 462-464 (1945)("We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review would amount to nothing more than an advisory opinion").Id.
The independence requirement is fulfilled when the last state court rendering a judgment in a case "clearly and expressly" indicates that its judgment is independent of federal law and rests on a state procedural bar. Amos, 61 F.3d at 338; Harris, 489 U.S. at 263. In denying petitioner's application in the case at bar, the Louisiana Supreme Court expressly relied on Article 930.8's prohibition against applications for post-conviction beyond the three years past final judgment. The record in this case reflects that petitioner's judgment became final on February 28, 1986.
The Louisiana Supreme Court's December 10, 1999 ruling suffices to fill the independence requirement described above. In so holding this Court is mindful of the exception to the three year limitation period prescribed at Louisiana Code of Criminal Procedure article 930.8(A)(2), involving a "claim asserted in the petition based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling." La.C.Cr. Proc. Article 930.8 (A)(2) (emphasis added). Petitioner argues, that the federal Fifth Circuit's decision in Humphrey v. Cain, 138 F.3d 552 (5th Cir.), cert. denied, 119 S.Ct. 365 (1998) is applicable to his case. Petitioner's contention finds no support in the applicable law.
The federal Fifth Circuit's decision in Humphrey did not make Cage retroactively applicable to post-AEDPA habeas applications. See Williams v. Cain, 229 F.3d 468, 474 (5th Cir. 2000)("the clear import of Muhleisen is that a lower federal court's holding that Cage and Victor apply retroactively is insufficient to make them retroactive under the AEDPA" and in order for the rule to apply to post-AEDPA applications for post-conviction relief, "the Supreme Court itself must hold that the rule is retroactive.").
In Humphrey, a federal Fifth Circuit case decided under pre-AEDPA law, the court: (1) overruled circuit precedent and that Cage/Victor were retroactive under Teague; and (2) examined the state court jury instruction under Victor analysis and found that the instruction improperly lowered the State's burden of proof.
Petitioner filed his state court application for habeas relief and his federal petition for a writ of habeas corpus after the effective date of the AEDPA. That statute alters the standards and scope of the federal court's review in habeas corpus petitions filed after the effective date. Humphrey is not binding on post-AEDPA filings and instead Muhleisen governs post-AEDPA Cage claims. See Williams v. Cain, 229 F.3d 468, 474 (5th Cir. 2000).
See Muhleisen v. Ieyoub, 168 F.3d 840, 844 (5th Cir. 1999). The federal Fifth Circuit in Muhleisen observed that since the Humphrey decision, the AEDPA altered the landscape ( i.e., the standards and scope of review in connection with petitions filed after the effective date of the AEDPA). Considering that Muhleisen filed his petition for writ of habeas after the effective date of the AEDPA, that the Supreme Court handed down the Cage decision thirteen years after Muhleisen's conviction became final, and that Cage was the first and only instance the Supreme Court held a definition of reasonable doubt violated the Due Process Clause, the Fifth Circuit held: "We are therefore bound by the AEDPA to deny Muhleisen's petition for writ of habeas corpus."
Thus, this Court is of the opinion that Polk failed to establish that he fell within Louisiana Code of Criminal Procedure article 930.8 (A)(2)'s exception to the three year limitations period. This Court cannot say that the Louisiana Supreme Court either incorrectly denied Polk's application based on article 930.8 or that the rule was unevenly applied or was not "adequate" and "independent."
As alluded to above, the state procedural rule must be "adequate." An "adequate" rule is one that the state courts strictly and regularly follow, and one that is applied evenhandedly to the vast majority of similar claims. Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997)( citing Amos, 61 F.3d at 339). A state procedural rule enjoys a presumption of adequacy when the state court expressly relies upon it in deciding not to review a claim for collateral relief. Id. ( citing Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996).
This Court finds that the state procedural rule at issue bars federal review of petitioner's claims in the instant case because "adequate" and "independent" state grounds to support the December 10, 1999 ruling of the Louisiana Supreme Court, unless he can show cause for the procedural default and actual prejudice. See Coleman v. Thompson, 111 S.Ct. 2546, 2553-54 (1991); Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir. 1998)("Procedural default may be excused upon a showing of cause and prejudice or that application of the doctrine will result in a fundamental miscarriage of justice.").
CAUSE AND PREJUDICE
Under Coleman, supra, if a petitioner can show cause for the defaultand actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a "fundamental miscarriage of justice," the petitioner may overcome procedural default. Coleman, 111 S.Ct. at 2564. To demonstrate cause, the petitioner must prove that some condition external to the defense impeded his efforts to comply with the procedural rules, that the factual or legal basis of a claim was not available to counsel, or that governmental interference rendered procedural compliance impractical. Murray v. Carriere, 106 S.Ct. 2639, 2645 (1986). Petitioner has made no such showing in the case at bar. In fact, petitioner raised his Cage claim earlier in 1994, but did not pursue the denial of his claim beyond the state trial court. It is noteworthy that the Cage decision issued on November 13, 1990 and petitioner allowed four years elapse prior to petitioner's first application for state post-conviction relief alleging a Cage claim.
Whereas under certain circumstances ineffective assistance of counsel in failing to contemporaneously object to a jury instruction may constitute the requisite "cause," it would not in this particular case for a number of reasons, including that the Louisiana Supreme Court denied his writ application on the basis of untimeliness/930.8 and not the contemporaneous objection rule.
Also, under the deficient performance prong of Strickland analysis, "it is necessary to `judge . . . counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993). "An attorney's performance, which enjoys a strong presumption of adequacy, is deficient if it is objectively unreasonable." United States v. Walker, 68 F.3d 931, 934 (5th Cir.), cert. denied, 516 U.S. 1165, 116 S.Ct. 1056, 134 L.Ed.2d 201 (1996). The petitioner must prove that the conduct of trial counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. United States v. Faubion, 19 F.3d 226, 228 (9th Cir. 1994). The analysis must take into consideration the reasonableness of counsel's actions in light of all of the circumstances. Strickland, 104 S.Ct. at 2065. The petitioner "carries the burden of proof . . . and must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance." Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir.), cert. denied, 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d 728 (1986).
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating ineffective assistance of counsel claims, to wit: (1) petitioner must demonstrate deficient performance of counsel; and (2) that such deficient performance actually prejudiced his defense. If a court finds that petitioner has made an insufficient showing as to either one, it may dispose of the claim without addressing the other facet of the analysis.
It bears noting at this juncture that Cage was not decided by the United States Supreme Court until long after petitioner's trial and also well-after petitioner's judgment of conviction became final. Here, there is no reason to question the effectiveness of counsel's performance at all.
Turning to the broader issue of ineffective state process, "infirmities in state habeas proceedings do not constitute grounds for relief in federal court." Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied 527 U.S. 1056, 120 S.Ct. 22, 144 L.Ed.2d 825 (1999); Vail v. Procunier, 747 F.2d 277, 277 (5th Cir. 1984).
Also, the court notes that a procedurally defaulted ineffective-assistance claim may serve as cause to excuse the procedural default of another habeas claim only if the habeas petitioner can satisfy the "cause and prejudice" standard with respect to the ineffective-assistance claim itself. The procedural default doctrine and its attendant "cause and prejudice" standard are grounded in comity and federalism concerns and apply whether the default occurred at trial, on appeal, or on state collateral review. See Edwards v. Carpenter, 120 S.Ct. 1587, 1591 (2000) (citing Coleman v. Thompson, 111 S.Ct.2546 (1991)and Murray v. Carriere, 106 S.Ct. 2639 (1986)). The doctrine's purposes would be frustrated if federal review were available to a prisoner who had presented his claim in state court, but in such a manner that the state court could not under its procedural rules, have entertained it. Id.
"Not just any deficiency in counsel's performance will do, however; the assistance must have been so ineffective as to violate the Federal Constitution. In other words, ineffective assistance adequate to establish cause for the procedural default of some other constitutional claim is itself an independent constitutional claim." Edwards v. Carpenter, 120 S.Ct. 1587, 1591 (2000).
Petitioner in the case at bar has not and cannot demonstrate either cause or prejudice in connection with regard his procedurally defaulted claims. The one exception to that rule is the circumstance in which a habeas petitioner can demonstrate a sufficient probability that the federal court's failure to review his habeas claim will result in a "fundamental miscarriage of justice." Such would exist in extraordinary circumstances where the constitutional violation has possibly resulted in the conviction of an individual who is actually innocent. Murray, 106 S.Ct. at 2645. As discussed above, petitioner has failed to demonstrate any such fundamental miscarriage of justice. The evidence adduced at trial against the petitioner was compelling and the Louisiana's Fourth Circuit's decision in this regard is entitled to the requisite deference consistent with the standards prescribed by the AEDPA.
THE MERITS
Only out of an abundance of caution does this Court here address the merits of petitioner's Cage claims. Under the AEDPA, this Court can grant a writ of habeas corpus only if the state court's decision violated Supreme Court precedent in existence at the time of the petitioner's conviction. Muhleisen v. Ieyoub, 168 F.3d 840, 844 (5th Cir.)( citing Drinkard, 97 F.3d at 768). As Cage had not been decided at the time of Polk's conviction in 1986, and the retroactivity of Cage has not been resolved by the United States Supreme Court, the state court's decisions in this matter cannot be characterized as contrary to clearly established Supreme Court precedent. The United States Supreme Court has still not ruled on whether Cage/Victor should be applied retroactively to cases on collateral review. Also, the Louisiana Fifth Circuit has determined that Cage/Victor are not retroactively applicable to post-AEDPA cases on collateral review. See Williams v. Cain, 229 F.3d 468 (5th Cir. 2000). A decision of the state supreme court to deny petitioner relief under the circumstances on the basis of timeliness/930.8 discussed in detail above, could not be considered contrary to established Federal law, much less Federal law as established by the United States Supreme Court.
Implicit in the December 1999 procedural default ruling by the Louisiana Supreme Court in petitioner's case was that Polk failed to demonstrate that the federal Fifth Circuit's Humphrey decision was applicable to his case (i.e., a post-AEDPA case) on collateral review. The implicit finding in this regard comports with the applicable law set forth in Williams and Muhleisen, supra, considering the undisputed pertinent facts ( i.e., that petitioner's case is governed by the AEDPA and not the more deferential standards which governed pre-AEDPA cases).
The Court now turns to a discussion of the jury instruction given in petitioner's case and the law regarding the triage of phrases discussed in Cage in connection with the definition of "reasonable doubt." At the outset, this Court notes that "[t]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof Rather, taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury." Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 1243 (citations and internal quotations omitted); Morris v. Cain, 186 F.3d 581 (5th Cain, 1999); Earhart v. Johnson, 132 F.3d 1062 (5th Cir. 1998).
Williams v. Cain, 229 F.3d 468 (5th Cir. 2000) is a recent Fifth Circuit case that interpreting a reasonable doubt instruction containing the terms "grave uncertainty," "actual or substantial doubt," and "moral uncertainty", as well as the qualifier known as the "articulation requirement." The reasonable doubt instruction given in the Williams case and discussed therein by the Fifth Circuit is identical to the instructions given in Polk's case. Ultimately, the Williams court held that plaintiffs Cage claim was barred by the AEDPA, as this Court has done in the instant case. However, the Williams court thoroughly discussed "the constellation of factors that rendered the instruction in Cage constitutionally defective" and held that the instruction given in Williams's case was not. Id., at 476.
The Mulheisen court discussed the three phrases, characterized as "problematic from a Due Process perspective" and explained the qualifier known as the "articulation requirement" as follows: "The most important is what in prior decisions we have described as an `articulation requirement', i.e., the description that a reasonable doubt is one for which you could give good reason." 168 F.3d at 844 (citing Humphrey, supra).
For openers, the Williams court found it unnecessary to even consider whether the articulation requirement ( i.e., the phrase "a serious doubt, one for which you could give good reason") might have corrupted the reasonable doubt instruction because the Supreme Court has never expressed disfavor with such language. Id., at 476 ( citing Muhlcisen, 168 F.3d at 844).
Williams stands for the proposition that the articulation portion of the jury instruction cannot be considered deficient. This holding goes "hand-in-hand" with the standard enunciated by the AEDPA's § 2254(d)(1) — "the district court may only grant habeas relief if the constitutional `new rule' relied upon by the petitioner was either clearly established by the Supreme Court at the time his conviction became final, or if the Supreme Court has held the new rule retroactive on habeas." Id., at 474 (citing 28 U.S.C. § 2254 (d)(1).
The Williams court observed:
In Muhleisen, we acknowledged Humphrey II's holding that in pre-AEDPA cases Cage and Victor applied retroactively on habeas, but concluded that we were "bound by AEDPA" to dismiss the petition. The clear import of Muhleisen is that a lower federal court's holding that Cage and Victor apply retroactively is insufficient to make them retroactive under AEDPA. It therefore seems plain to us that under Muhleisen in order for a "new rule" to be available under AEDPA to section 2254 petitioners, the Supreme Court itself must have held that the rule is retroactive. It has not done so with respect to Cage errors. Muhleisen, Smith, 142 F.3d at 835-36.
The Williams court then proceeded to diffuse the alternative holding in Muhleisen stating that: "This alternative footnote holding does not deprive Muhleisen's basic holding — that AEDPA barred relief because the conviction had become final on direct appeal before Cage was handed down and there was then no Supreme Court holding that the instruction was constitutionally erroneous — of its own binding precedential force." 229 F.3d at 474 n. 5.
The Fifth Circuit further explained that:
Nothing in the Supreme Court's recent decision in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), is contrary to this rule of Muhleisen. * * * Indeed, if anything the emphasis in Justice O'Connor's opinion for the Williams Court that habeas relief can only be based on Supreme Court jurisprudence as reflected in Supreme Court holdings, not dicta, only serves to strengthen Muhleisen.
Regardless of the precise contours of post-AEDPA habeas retroactivity, Muhleisen controls and mandates the dismissal of Williams's petition. As of the present time, the Supreme Court has not held (or even stated in dicta) that the Cage-Victor rule applies retroactively on collateral review, and thus Williams cannot benefit from that rule under the second Teague exception, as he could have done pre-AEDPA under Humphrey II. See Muhleisen, 168 F.3d at 844.Williams, 229 F.3d at 468.
In Williams, the Fifth Circuit was careful to distinguish it distinguish its decision in Morris v. Cain, 186 F.3d 581 (5th Cir. 1999) granting habeas relief to a Louisiana prisoner whose post-AEDPA federal petition alleged Cage-Victor error by noting an "important distinction" between Muhleisen and Morris, to wit: Morris's conviction did not become final before on November 29, 1990, and Cage being decided on November 13, 1990 was handed down before Morris's conviction became final on direct appeal. Thus, application of Cage to Morris's conviction could not violate the non-retroactivity rule of Teague. See Williams, 229 F.3d at 476 n. 7 (further noting that even if there is some conflict, Muhleisen, the earlier decision, is controlling precedent).
After having reviewed the "constellation of factors" that rendered the jury instruction in Cage defective, the Fifth Circuit in Williams concluded based upon its reading of Cage and Victor, that Williams failed to demonstrate a reasonable likelihood that the jury applied the instruction unconstitutionally. Id., at 477. Here, as in the Williams case, the case is not even remotely close regarding Polk's guilt or innocence. The jury instruction given in the case at bar is virtually if not absolutely identical to instructions approved of by the Fifth Circuit in Williams. The William's Court found that the "moral certainty" phrase in an identical instruction of reasonable doubt and its surrounding context "bear a stronger resemblance to the constitutionally permissible instructions in Victor," noting that the "moral certainty" phrase in Cage stated that "`[w]hat is required is not an absolute or mathematical certainty, but a moral certainty.'" Williams, 229 F.3d at 476 (citing Cage, 111 S.Ct. at 329 (emphasis in original). The Williams court observed that the Victor court, considering two similar phrases, did not suggest that moral certainty might be enough to convict and pointed out that the moral certainty phrase under its consideration was immediately preceded and followed by instructions that reasonable doubt would spring from "the unsatisfactory character of the evidence." 229 F.3d at 477. Citing Muhleisen, the Williams court concluded that "without a defective `moral certainty' phrase, the other two phrases [ i.e., "grave uncertainty" and "actual or substantial doubt"] in and of themselves do not render the instruction constitutionally defective." Id.
At the close of guilt phase of Polk's 1984 trial, the trial court gave the following instruction to the jury:
"Ladies and Gentlemen of the Jury, there are three basic principles that govern every trial. One, the person accused of the crime is presumed by law to be innocent until each element of the crime necessary to constitute guilt is proven beyond a reasonable doubt. Secondly, it is the duty of the jury in considering the evidence, and in applying the evidence, and the law as given by the Court to give the defendant the benefit of every reasonable doubt arising out of the evidence, or lack of evidence in a 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 of law is that the defendant is not required to prove his innocence, but may rest upon the presumption in his favor until it is overthrown by positive affirmative proof.
Therefore, the burden is on the State to establish to your satisfaction beyond a reasonable doubt the guilt of the accused as to the crime charged in the indictment or any lesser one included in here. The lesser verdicts will be given to you, and the list of responsive verdicts.
If you entertain reasonable doubt as to any fact 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 founded upon 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 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 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 as would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty.
It is incumbent upon the State to prove the offense charged or legally included in the indictment to your satisfaction beyond a reasonable doubt. 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's a serious doubt for which you could give good reason." See Transcript of January 1984 Trial in State of Louisiana v. Leroy Polk, Orleans Parish Criminal District Court No. 293-386 (emphasis added for purposes of comparison to the identical reasonable doubt charge discussed in Williams)[State Record, Vol. 4 of 5, at pp. 298-300]. Compare Williams v. Cain, 229 F.3d at 471.
In summary, considering a reasonable doubt instruction identical to the one given in Polk's case, the Fifth Circuit concluded that "even if we were to find that Cage and Victor apply retroactively to Williams's petition, it is indeed doubtful that Williams would prevail." 229 F.3d at 477.
Accordingly, and for all of the above and foregoing reasons,
IT IS ORDERED that petitioner's § 2254 application is DENIED and his federal habeas claims are DISMISSED WITH PREJUDICE.