Opinion
Civil Action No. 97-3596 Section: E/3
February 22, 2002.
MEMORANDUM AND ORDER
This civil action is before the Court on remand from the Fifth Circuit Court of Appeals (record doc. #29) of a petition by Lawyer Winfield, Jr., (record doc. # 1) for habeas relief under 28 U.S.C. § 2254. On June 24, 1999, this Court entered its Memorandum and Order denying petitioner's application for habeas relief (record doc. #17), and judgment was entered against petitioner. (Record doc. # 18). This Court held that the claim was procedurally barred. Petitioner appealed the adverse decision only as to the Cage claim. The Fifth Circuit reversed based on its finding that the Louisiana appellate court's simple statement that "[t]he claims raised by [Winfield] in his application for post conviction relief are without merit," was a determination on the merits as opposed to a finding of procedural default, Winfield v. Cain, (unpublished opinion) No. 99-30834 (5th Cir. Jan. 15, 2001), p. 6 (emphasis added), and remanded for this Court's determination of Winfield's Cage claim on the merits.
Petitioner raised multiple grounds for relief in his initial habeas petition, but the appeal concerned only his claim that the reasonable doubt jury instructions given by the state trial court violated his due process rights pursuant to Cage v. Louisiana, 498 U.S. 39 (1990).
ANALYSIS
Winfield filed his application for federal habeas relief after April 24, 1996. It is therefore subject to the provisions of the AEDPA.See Mercadel v. Cain, 179 F.3d 274 (5th Cir. 1999). Pursuant to AEDPAI 28 U.S.C. § 2254(d)(1) provides as follows:
Anti-Terrorism and Effective Death Penalty Act of 1996.
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States LI
Under this standard, this Court can grant a writ of habeas corpus "only if the state court's determination of law, on a de novo review, violated Supreme Court precedent in existence at the time of the petitioner's conviction." Mulheisen v. Ieyoub, 168 F.3d 840, 844 (5th Cir. 1999),cert. denied, 528 U.S. 828, 120 S.Ct. 81, 145 L.Ed.2d 69 (1999)
Winfield's conviction was affirmed on direct appeal to the Louisiana Fourth Circuit Court of Appeal on January 31, 1991. His conviction became final when the Louisiana Supreme Court denied his writ application on May 2, 1991. The Cage decision was handed down on November 13, 1990. The merits of Winfield's petition must therefore be considered in light ofCage. See Williams v. Cain, 229 F.3d 468, 475 at n. 7 (5th Cir. 2000).
The jury instruction concerning "reasonable doubt" about which Winfield complains is as follows:
This doubt must be a reasonable one. That is one founded upon real tangible and a substantial basis and not upon a mere caprice, a fancy or a conjecture. It must be such a doubt as would give rise to grave uncertainty, raised in your mind by the 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 to justify in returning 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 the testimony. It is encumbered upon the State to prove the offense charged or legally include it in the Bill of Information to your satisfaction and beyond a reasonable doubt. A reasonable doubt is not a mere possible doubt. It should be an actual and a substantial doubt. It is such a doubt as a reasonable man would seriously entertain. It is a serious doubt for which you can give a good reason. (Emphasis added.)
Winfield argues that in Cage, the Supreme Court held that in its definition of "reasonable doubt", the Cage instruction used three phrases — "grave uncertainty", "actual substantial doubt" and "moral certainty" — which rendered the instruction unconstitutional. See Cage v. Louisiana, 498 U.S. 39, 113. S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62, 112 S.Ct. 475, 482 n. 4, 116 L.Ed.2d 385 (1991). He further argues that several recent Fifth Circuit decisions have found the jury instructions given at those trials to be "functionally equivalent" to theCage instructions, and therefore unconstitutional. He argues that because his instructions are nearly identical to those, this Court should find that his instructions are also unconstitutional.
Mulheisen v. Ieyoub, 168 F.3d 840 (5th Cir. 1999), cert. denied, 120 s.ct. 81 (1999); Humphrey v. Cain, 138 F.3d 552, (5TH Cir. 1998) (en banc), cert. denied, No. 98-55, 1998 WL 396303 (Oct. 13, 1998); Morris v. Cain, 186 F.3d 581 (5TH Cir. 1999); Wilson v. Cain, No. 97-1551, Sec. IJIJM (EDLA 2/18/99).
Winfield's arguments fail for several reasons. First, under the AEDPA, the only precedent that this Court can consider is the holdings of the United States Supreme Court. See Williams v. Cain, 229 F.3d at 475 (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Writing for the Supreme Court in Williams v. Taylor, Justice O'Connor observed that the "clearly established Federal law" phrase in section 2254(d)(1) "restricts the source of clearly established law to this Court's jurisprudence". Id. at 1523. In the same case, Justice Stevens likewise concluded as follows:
AEDPA has added . . . a clause limiting the area of relevant law to that "determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) . . . If this Court has not broken sufficient legal ground to establish an asked-for constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity sufficient to satisfy the AEDPA bar.Id. at 1506-07. Therefore, this Court cannot consider constitutional precedent or "principle" as determined by the Fifth Circuit Court of Appeals.
Secondly, the Supreme Court's Cage holding is not as expansive as Winfield would have it. The Cage Court reasoned that the words "grave" and "substantial" used in the phrases "grave uncertainty" and "actual substantial doubt", as they are commonly understood, merely "suggest a higher degree of doubt" than is actually required for acquittal under the reasonable doubt standard. Cage, 111 S.Ct. at 329. That Court held as follows:
When those statements are then considered with the reference to "moral certainty," rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.Id. at 330. The constitutional infirmity of the Cage state court's instruction's is the lack of reference to, or in other words, the failure to direct the jury to base its determination of guilt on a consideration of, the evidence and facts adduced at the trial. It is not the mere presence of the suspect phrases.
Furthermore, in Estelle, the Supreme Court disapproved the "could have understood" standard of review language for jury instructions used inCage in favor of a "reasonable likelihood" standard. Estelle, 112 S.Ct. at 482 n. 4. Thus, this Court must consider whether there is a reasonable likelihood that the Winfield jury understood the jury instructions to require a lower standard of proof of Winfield's guilt than that required by the Due Process Clause. See Victor v. Nebraska/Sandoval v. California, 511 U.S. 1, 114 S.Ct. 1239, 1243, 127 L.Ed.2d 583 (1994),reh'g denied, (May 16, 1994)
In Victor/Sandoval, using the "reasonable likelihood" standard, the Supreme Court considered Cage challenges in two cases. In each case, the Supreme Court emphasized that the "suspect" phrases, and particularly the "moral certainty" phrase, must be considered within the context of the whole jury instruction. Id. 114 S.Ct. at 1247, 1248, 1250. The Court noted that in Cage, there was nothing in the instruction to lend meaning to the phrase moral certainty. Id. at 1248. The Court approved theSandoval instruction that told the jury that a reasonable doubt is "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." Id. The Court noted that the instruction "explicitly told the jurors that their conclusion had to be based on the evidence in the case", and that other instructions reinforced the message. Id. Victor likewise challenged the "moral certainty" portion of his jury instruction. Again, the Supreme Court stated that "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." Id. at 1250.
Winfield's jury was instructed in pertiment part:
It must be such a doubt as would give rise to grave uncertainty, raised in your mind by the 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.
That language was followed immediately by another strong instruction to the jury to "giv[e] a fair and impartial consideration to all of the facts in the case . . ." and to consider the evidence. That instruction is followed by a sentence clearly stating the state's burden to "establish guilt by legal and sufficient evidence". Clearly, following Supreme Court precedent, the phrase "moral certainty" as used in Winfield's jury instruction passes constitutional muster.
Victor also complained that equating reasonable doubt with "substantial doubt" overstated the degree of doubt necessary for acquittal. Id. at 1250. Victor's instruction stated "A reasonable doubt is an actual and substantial doubt . . . as distinguished from a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture." Id. (Emphasis in original). The Court explained that the "explicit distinction between a substantial doubt and a fanciful conjecture was not present in the Cage instruction", but even in Cage, the Court did not hold that the reference to substantial doubt alone rendered that instruction unconstitutional. Id. The concern was that the jury might interpret the term "substantial doubt" as equivalent to the preceding reference to "grave uncertainty". Id. The Supreme Court reasoned that the context of the term as used in the Victor instruction clarifies that the term was used in the sense of existence rather than magnitude of the doubt. Id. The Court further noted that Victor's instruction also included an alternative definition of reasonable doubt — "a doubt that would cause a reasonable person to hesitate to act." Id.
In Winfield's instructions, the terms "substantial doubt" and "grave uncertainty" are not used in conjunction with one another. The jurors were instructed that "A reasonable doubt is not a mere possible doubt. It should be an actual and substantial doubt. It is such a doubt as a reasonable man would seriously entertain." The instruction gave Winfield's jurors both an alternative definition and distinguished "substantial" from a "mere possible" doubt. The sentence in which the term "grave uncertainty" is used describes that term as one "raised in your mind by the reason of the unsatisfactory character of the evidence." The preceding sentence defines a reasonable doubt as one not founded upon "a mere caprice, a fancy or a conjecture." Reading Winfield's challenged instructions as a whole, jurors were repeatedly directed to consider the evidence and the facts in determining the defendant's guilt. As inVictor, the phrases "grave uncertainty" and "substantial doubt" as used in Winfield's instructions do not implicate the concern that they might suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard.
Based on the Supreme Court's reasoning and precedent in Cage, Estelle and Victor/Sandoval, and on a careful review of the challenged jury instructions, this Court concludes that there is no reasonable likelihood that Winfield's jurors understood the instructions to suggest a higher degree of doubt than that required by the constitution.
Recently the Fifth circuit considered two cases, Mulheisen v. Ieyoub, 168 F.3d 840 (5Z Cir. 1999), cert. denied, 120 s.ct. 81 (1999), and Williams v. Cain, 229 F.3d 468 (5Z cir. 2000), involving Cage challenges in which the jury instruction was very similar to Williams' challenged instruction. In Mulheisen, the jury instructions included the phrases "grave uncertainty", "actual or substantial doubt" and "one for which you could give good reason". The court held that it was bound by the AEDPA to deny Mulheisen's petition because Cage became law thirteen years after Mulheisen's conviction became final, therefore Cage was not in existence and was not the law at the time of his conviction. At footnote 2, however, the court alternatively held that Mulheisen's jury instruction was not contrary to the Supreme court's decision in Cage,Id. at 844, n. 2. Mulheisen's instruction did not include a reference to "moral certainty", thus did not implicate the concern of the Cane court that the jury might understand that only a moral certainty of guilt was required for a conviction. The Mulheisen panel did not consider the "articulation requirement" as problematic because "the supreme Court has never expressed disfavor with such language." Id.
In Willaims v. Cain, the challenged jury instruction was virtually identical to Winfield's challenged instruction, and included the same three suspect phrases challenged by Winfield. The only difference between the two instructions is that Winfield's instruction includes two sentences explicitly instructing the jury as to the prosecution's burden of proof which were not in Williams' instruction. See Williams at 471 for the text of Williams' jury instruction. The Fifth Circuit rejected Williams' petition pursuant to its precedent in Mulheisen that the petition was barred by the application of the AEDPA. The Fifth circuit then noted in passing that Williams' challenge would probably not be successful since the instruction did not have "the same constellation of factors that rendered the instruction in Cage constitutionally defective", because the context in which the "moral certainty" term was used strongly resembled the constitutionally permissible instructions given in Victor. Id. at 476. In Williams' instruction, as in Winfield's, the jury was instructed that "a reasonable doubt is "one that would make you feel that you had not an abiding conviction to a moral certainty of the defendant's guilt.'" Id. The Fifth Circuit observed that the Victor Court considered two similar phrases and noted that both instructions included language instructing the jurors to base their conclusions on the evidence, thus in context the use of the phrase did not suggest that moral certainty alone was enough to convict. Id. at 477. Following the Supreme court's precedent, the Williams Court determined that "[w]ithout a defective "moral certainty' phrase, the other two phrases in and of themselves do not render the instruction constitutionally defective."Id.
Accordingly,
Winfield's Petition for habeas corpus is DENIED, and judgment will be entered dismissing his Petition.