*District Judge of the Western District of Louisiana, sitting

by designation.

 

**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this opinion should not be published and is not precedent except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. 97-30480

_____________________

OSCAR TUESNO,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana

State Penitentiary; RICHARD P.

IEYOUB, Attorney General,

State of Louisiana,

Respondents-Appellees.

_________________________________________________________________

Appeals from the United States District Court

for the Eastern District of Louisiana

(96-CV-3171-G)

_________________________________________________________________

October 7, 1999

Before JOLLY and SMITH, Circuit Judges, and TOM STAGG,* District

Judge.

PER CURIAM:**

The petitioner, Oscar Tuesno, was convicted of two counts of

attempted murder of two police officers. After his convictions

were affirmed, the petitioner sought habeas relief in the Louisiana

courts, which was denied. He then sought federal relief, which the

district court denied. Following our granting of the petitioner’s

motion for a certificate of appealability (“COA”), he asserts on
2

appeal that the reasonable doubt jury instruction given at trial

was violative of the Due Process Clause as defined by the Supreme

Court in Cage v. Louisiana, 498 U.S. 39 (1990), and that his trial

counsel’s failure to object to such a jury instruction rendered his

assistance ineffective. We hold that the petitioner’s Cage claim

is procedurally barred, and that his ineffective assistance of

counsel claim is without merit. We therefore affirm the district

court’s denial of habeas relief.

I

At approximately 2:00 a.m. on August 26, 1989, seven New

Orleans police officers went to 5291⁄2 Washington Avenue to serve a

search warrant, which authorized them to enter the dwelling and

search for drugs. After knocking and clearly announcing their

presence, shots were fired from inside the house as the officers

attempted to enter through the door. The bullets struck two police

officers. After entering the dwelling, the officers subdued its

occupants, Oscar Tuesno and Ms. Pegg. They found a .25 caliber

handgun hidden under a mattress. Ballistics established that the

bullets that struck the two officers were fired from the .25

caliber handgun.

On October 19, 1989, the state filed a bill of information

charging Tuesno with two counts of attempted first degree murder

and one count of possessing a firearm as a convicted felon. On

November 8, 1990, following a two-day trial, Tuesno was found

guilty on both counts of attempted murder. He was sentenced to two
 

1Tuesno raised the issue of a denial of due process as a

result of the jury instructions for the first time during his postconviction appeals. His trial counsel did not contemporaneously

object to the jury instructions when they were given, and the issue

was not raised on direct appeal to the Louisiana Fourth Circuit

Court of Appeal or the Louisiana Supreme Court. 

3

consecutive fifty-year terms. On direct appeal, Tuesno raised an

“ineffective assistance of counsel” and an “insufficiency of

evidence” claim. These claims were reviewed by both the Louisiana

Fourth Circuit Court of Appeals and the Louisiana Supreme Court.

The convictions were affirmed. See State v. Tuesno, 595 So.2d 1277

(La. App. 4 Cir. 1992), State v. Tuesno, 605 So.2d 1096 (La. 1992).

On November 10, 1992, Tuesno filed his first federal petition

for habeas relief, claiming “ineffective assistance of counsel.”

He later filed a motion to dismiss this petition to pursue

additional unexhausted post-conviction claims in Louisiana state

court. This motion to dismiss was granted, and the petition was

dismissed without prejudice. Following a string of post-conviction

appeals in state court, during which Tuesno raised for the first

time a claim that the jury instructions given at trial denied him

due process1, he filed a second habeas petition in federal court.

On April 25, 1997, the district court dismissed the petition with

prejudice. On June 19, 1997, we granted Tuesno’s COA on three

issues: (1)whether the jury instruction given in this case violates

Cage v. Louisiana, 498 U.S. 39 (1990), (2) whether counsel was

ineffective for failing to object to the instruction, and (3)
 

2”An adequate rule is one that state courts strictly or

regularly follow, and one that is applied evenhandly to the vast

majority of similar claims.” Muhleisen, 168 F.3d 843, citing

Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997)(citations

omitted). Since 1996, the Louisiana Supreme Court has followed the

consistent rule that failure to lodge a contemporaneous objection

to a reasonable doubt jury instruction procedurally barred its

review under Cage. See State v. Taylor, 669 So.2d 364 (La. 1996),

State v. Hart, 691 So.2d 651 (La. 1997), Muhleisen, 168 F.3d at 843

(stating “Louisiana’s Supreme Court’s consistent[ly] apply[] the

contemporary objection rule”).

4

whether the issue (counsel’s ineffective assistance) is cognizable

in a habeas proceeding.

II

A

The State of Louisiana contends that Tuesno is procedurally

barred from habeas relief on the basis of the erroneous jury

instruction because Tuesno’s trial counsel failed

contemporaneously to object it. We have previously addressed this

procedural bar in Muhleisen v. Ieyoub, 168 F.3d 840 (5th Cir.

1999). In Muhleisen, the court stated: “If a state court decision

rejecting a federal habeas petitioner’s constitutional claim rests

on an adequate and independent state procedural bar, this court may

not review the merits of the federal claim absent a showing of

cause and prejudice for the procedural default, or a showing that

failure to review the claim would result in a complete miscarriage

of justice.” Id. at 843, citing Boyd v. Scott, 45 F.3d 876, 879-80

(5th Cir. 1994). The court went on to analyze the constitutional

sufficiency of the Louisiana contemporary objection rule as applied

to Cage claims and held it “constitutionally adequate.”

2 Id.
5

Thus, absent a showing of “cause and prejudice” or “a complete

miscarriage of justice,” Tuesno is procedurally barred from raising

this claim in a federal habeas petition by an adequate and

independent state procedural rule.

In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d

397 (1986), the Supreme Court outlined the “cause and prejudice”

requirements. The court defined “cause” as a showing that “some

objective factor external to the defense impeded counsel’s efforts

to comply with the State procedural rule.” Id. at 488. “Attorney

error short of ineffective assistance of counsel does not

constitute cause for a procedural default. . . .” Id. at 492. The

Court defined “prejudice” as more than a showing that “errors”

created a possibility of prejudice, but that “they worked to his

actual and substantive disadvantage, infecting his entire trial

with errors of constitutional dimensions.” Id. at 494. “Such a

showing of pervasive actual prejudice can hardly be thought to

constitute anything other than a showing that the prisoner was

denied fundamental fairness at trial.” Id. Tuesno’s only claim of

prejudice is that the jury instruction was so far off the mark that

it tainted the jury’s verdict. We conclude that when the

reasonable doubt jury instruction is viewed in the light of the

entire jury charge, it did not rise to the level of prejudice

required under Murray.

First, the jury did not receive a copy of the written

instruction to review while it decided the case. As such, it was
6

unable to debate the meaning of each individual word or phrase

contained in the jury instruction. Second, the trial court

repeatedly instructed the jury that if it entertained any

reasonable doubt as to any fact or element necessary to constitute

guilt, that it was duty bound to deliver a verdict in favor of the

defendant. In fact, the very jury instruction under inquiry

includes the phrase beyond a reasonable doubt two separate times.

Third, in subsequent jury instructions, the trial judge instructed

the jury that it was the exclusive judge of fact and that in order

to return a conviction based on circumstantial evidence alone, the

circumstantial evidence “must be strong and convincing enough to

exclude every reasonable theory of innocence.” Further, the judge

instructed the jury that if it found “the evidence unsatisfactory

or lacking upon any single point necessary to prove the defendant’s

guilt,” this would give rise to a reasonable doubt and justify a

verdict of not guilty. Finally, the jury was specifically

instructed as to the meaning of “specific intent” and that if it

had a reasonable doubt “as to any or all grades of the offenses

charged, [it] must find the defendant not guilty.” Thus, when

viewed in the light of the entire jury charge, it is clear that any

error in the reasonable doubt jury instruction did not result in a

fundamentally unfair trial or jury verdict. 

B

Turning to Tuesno’s ineffective assistance of counsel claim,

the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
 

3The Supreme Court handed down its decision in Cage v.

Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339, on

November 13, 1990. The jury was instructed and returned a guilty

7

S.Ct. 2052, 80 L.Ed.2d 674 (1984), set out the standard for

measuring whether a criminal defendant received ineffective

assistance of counsel. The defendant must show: (1) “that

counsel’s performance was deficient,” and (2) “the deficient

performance prejudiced the defense.” Id. at 687. Failure to

establish either prong is fatal to the claim. Id., Murray v.

Maggio, 736 F.2d 279, 281 (5th Cir. 1984). “Judicial scrutiny of

counsel’s performance must be highly deferential.” Strickland, 466

U.S. at 689. Such deference carries with it a “strong presumption

that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. Conclusory allegations are not

enough; the defendant must “affirmatively prove prejudice.” Id.

at 693. The defendant must show not only that counsel’s assistance

was in some way deficient, but also that the alleged deficiency

“actually had an adverse effect on the defense.” Id. Absent a

showing that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different,” the defendant’s claim will fail. Id. at 694.

Tuesno asserts that his trial counsel was deficient in failing

to object to the reasonable doubt jury instruction. Beyond mere

conclusory allegations, he points only to the Supreme Court’s

decision in Cage to provide the basis for his claim. The Cage

decision, however, was decided after Tuesno’s trial.3 This court
verdict in Tuesno’s trial on November 8, 1990. 

8

has repeatedly held that a lawyer’s performance cannot be measured

against a standard not in effect at the time of the trial. See

Schneider v. Day, 73 F.3d 610, 611 (5th Cir. 1996), Gaston v.

Whitley, 67 F.3d 73, 123 (5th Cir. 1995). Although counsel’s

objection would have placed him among attorneys with a superior

understanding of constitutional law, his failure to object does not

render his assistance constitutionally ineffective. 

Further, even if Tuesno’s trial counsel is held to the

standard handed down in Cage, the overwhelming evidence of Tuesno’s

guilt presented at trial indicates that there is “no reasonable

probability” of a different outcome. See Green v. Lynaugh, 868

F.2d 176, 177 (stating “if the facts adduced at trial point so

overwhelmingly to the defendant’s guilt . . . then the defendant’s

ineffective assistance claim must fail”). The prosecution

introduced the uncontroverted testimony of Ms. Pegg, the only other

occupant of the residence at the time of the shooting, and the

police officers, all of whom testified that the bullets that struck

the two officers were fired by Tuesno. Additionally, ballistics

tests established that the bullets that struck the two officers

were fired from the .25 caliber handgun found under a mattress in

the room where Tuesno was arrested. When this evidence is

considered in its “totality,” it clearly establishes Tuesno’s

guilt. See Strickland, 466 U.S. at 695 (stating “a court hearing

an ineffectiveness claim must consider the totality of the evidence
 

4The court need not address the merits of Tuesno’s third

ground of appeal. Whether or not the issue of the

unconstitutionality of a jury instruction is cognizable in a habeas

proceeding need not be addressed. Even if such a ground for appeal

is cognizable in a federal habeas proceeding, Tuesno has failed to

make a sufficient showing that the jury instruction was in any way

unconstitutional or that his trial counsel’s failure to object was

in any way prejudicial. Thus, the court expresses no opinion in

this regard.

9

before the judge or jury”). Thus, because Tuesno has failed to

meet his burden, his claim for ineffective assistance of counsel

fails.4

III

In conclusion, we hold that Tuesno is procedurally barred from

raising a Cage error in his federal habeas petition. Further,

Tuesno has failed to show that the assistance he received from his

trial counsel was constitutionally ineffective. Tuesno’s petition

for habeas relief is

D E N I E D.