* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-30961

Summary Calendar

 

KENNETH VINCENT,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 99-CV-764-B

- - - - - - - - - -

September 14, 2000

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Kenneth Vincent, Louisiana prisoner # 95434, appeals from

the denial of his application for habeas corpus relief filed

pursuant to 28 U.S.C. § 2254. He has filed a motion for panel

review of the one-judge order granting his certificate of

appealability (“COA”) in part and denying his COA in part. 

Because he failed to file his motion within 14 days after entry

of the challenged order, his motion is DENIED as untimely. See

FED. R. APP. P. 27(c); 5TH CIR. R. 27.2.
No. 99-30961

-2-

Vincent argues that the prosecution’s failure to disclose

favorable evidence to him violated his constitutional rights as

set forth in Brady v. Maryland, 373 U.S. 83, 86-87 (1963). This

issue was adjudicated on the merits in state court. Accordingly,

habeas corpus relief is only available regarding this issue if

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; or

(2) 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). After consideration of Vincent’s Brady

claim, we have determined that he has failed to meet this

standard. The district court’s denial of the instant claim was

therefore not error.

Vincent also contends that he was denied due process because

the jury was given a reasonable-doubt instruction that was

constitutionally impermissible under Cage v. Louisiana, 498 U.S.

39, 41 (1990). The instant Cage issue was not adjudicated on the

merits in state court, and is therefore reviewed de novo. See

Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997). Vincent

procedurally defaulted the instant issue by failing to object

contemporaneously to the challenged instruction. See Muhleisen

v. Ieyoub, 168 F.3d 840, 843 (5th Cir. 1999)(Louisiana’s

application of the contemporaneous-objection rule to Cage claims

is adequate constitutionally to establish procedural default). 

We may nonetheless review the merits of Vincent’s Cage claim

because he has overcome the procedural bar by showing cause and
No. 99-30961

-3-

prejudice for failing to object contemporaneously. See Fairman

v. Anderson, 188 F.3d 635, 641 (5th Cir. 1999)(applicant may

overcome procedural bar by showing cause and prejudice for the

procedural default).

The reasonable-doubt instruction given to the jury at

Vincent’s criminal trial was essentially identical to the

reasonable-doubt instruction held unconstitutional in Humphrey v.

Cain, 138 F.3d 552, 553 (5th Cir.)(en banc), cert. denied, 523

U.S. 935, 943 (1998). The challenged instruction was therefore

constitutionally impermissible under Cage. See 498 U.S. at 40-

41.

Accordingly, the district court’s denial of the instant

§ 2254 application as to the Cage claim is REVERSED and the case

is REMANDED to district court with instructions to grant the writ

of habeas corpus unless the State of Louisiana retries Vincent

within a reasonable time.

MOTION DENIED; REVERSED AND REMANDED.