IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-31101

ELMO HUMPHREY, III,

Petitioner-Appellant,

v.

BURL CAIN, Acting Warden,

Louisiana State Penitentiary,

Respondent-Appellee.

Appeal from the United States District Court

For the Eastern District of Louisiana

August 14, 1997

Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is a federal habeas petition seeking relief from a state

court conviction for aggravated rape. Elmo Humphrey, III, had no

criminal record but found himself accused of rape by a troubled

sixteen-year-old girl. The rapes allegedly took place more than

five years earlier. The victim had retracted an earlier accusation

against Humphrey and had no witnesses or medical testimony to

support her s tory. Nevertheless, a Louisiana jury convicted

Humphrey by a vote of 11 to 1.

We conclude that the reasonable doubt instruction did not give

the defendant the benefit of reasonable doubt as elucidated by the

Supreme Court in In Re Winship

, 3 97 U.S. 358, 90 S. Ct. 1068, 252

L. Ed. 2d 368 (1970), Cage v. Louisiana

, 498 U.S. 39, 111 S. Ct.

328, 112 L. Ed. 2d 339 (1990) (per curiam), and Victor v. Nebraska

,

511 U.S. 1, 11 4 S. Ct. 1239, 127 L. Ed. 2d 583 (1994). Circuit

precedent, however, requires us to hold that Humphrey’s claim rests

on a new rule and thus is unavailable in a habeas proceeding.

I.

Petitioner Elmo Humphrey was a friend of Kathy Calhou n when

she lived in Metairie, Louisiana. Starting in early 1980, Calhoun

engaged Humphrey to baby-sit her nine-year-old daughter J. and J.’s

b rother. Humphrey looked after the children regularly while the

Calhouns lived in Metairie and on one occasion after the family

moved. The trial evidence regarding the date of this move is

equivocal, but the jury could have concluded that the family moved

from Metairie in March of 1982. In 1987, J., then sixteen, told

her mother about sexual encounters with Humphrey. Calhoun informed

the police. On January 21, 1988, a Louisiana grand jury indicted

Humphrey for aggravated rapes occurring between January 1 , 1980,

and December 31, 1984.

The trial judge gave the following instruction to the jury:

If you entertain any reasonable doubt as to any fact or

element necessary to constitute the defendant’s guilt,

it is your sworn duty to give him the benefit of that

dou bt 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, one founded upon a 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 the unsatisfactory character of the

evidence; one that would make you feel that you had

not an abiding conviction to a moral certain[ty] of the3

defendant’s gu ilt. If, after giving a fair and

impartial con sideration to all of the facts in the

case, you find the evidence unsatisfactory upo n any single point indispensably necessary to constitute the

defendant’s guilt, this would give rise to such a

reasonable doubt as wou ld justify you in rendering a

verdict of not guilty. The prosecution must establish

guilt by legal and sufficient evide nce beyond a

reasonable doubt, but the rule does not go further and

require a preponderance of testimony. It is incumbent

upon the State to prove the offense charged, or legally

included in the Information, to your satisfaction and

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

man would seriously entertain. It is a serious doubt,

for which you could give good reason.

The jury convicted Humphrey of the rape charges by an 11-1

vote. The trial judge sentenced him to life in prison at hard

labor without parole. In his appeal, he argued that the reasonable

doubt instruction given to his jury was deficient. S tate v.

Humphrey , 544 So. 2d 1188 (La. Ct. App.), writ denied , 550 So. 2d

627 (La. 1989). Humphrey sought post-conviction relief in the

Louisiana courts. He raised the reasonable doubt issue again and

added a claim that he was prosecuted illegally because the statute

of limitations had expired. The Louisiana courts denied relief.

Humphrey then filed this federal habeas petition, which raises the

same issues. The district court rejected both contentions, but it

granted a certificate of probable cause, and we appointed counsel.

II.

The district court issued its certificate of probable cause on

November 27, 1995. While this appeal was pending, the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110

Stat. 1214 (1996), bec ame effective. This statute amended 284

U.S .C. § 2253 to require a certificate of appealability, rather

than a certificate of probable cause, be fore a final order in a

habeas proceeding may be appealed. It also modified the

circumstances in which federal courts may grant writs to state

prisoners. See 28 U.S.C. § 2254(d) (West Supp. 1997).

Neither of these changes affects Humphrey’s petition. We held

in Brown v. Cain , 104 F.3d 744, 749 (5th Cir.), cert. denied

, ___

U.S.

___, 117 S. Ct. 1489, 137 L. Ed. 2d 699 (1997), that the

AEDPA’s certificate-of-appealability requirements do not apply to

a petitioner who obtained a certificate of probable cause before

the new statute went into effect. And the Supreme Court recently

held that, except in certain capital cases, the new version of

sectio n 2254(d) does not apply retroactively to petitions filed

before the new statute’s effective date. L indh v. Murphy

,

___ U.S.

___, 117 S. Ct. 2059,

___ L. Ed. 2d

___ (1997); Shute v. Texas

, 117

F.3d 233, 235 (5th Cir. 1997) (on rehearing). Thus, we must

analyze Humphrey’s claims under the o ld version of the habeas

statute.

III.

A.

Because it is a threshold question, see Caspari v. Bohlen

, 510

U.S. 383, 389, 114 S. Ct. 948, 953, 127 L. Ed . 2d 236 (1994), we

turn first to the question of whether Humphrey can rely on Cage and

Victor

, decided by the Supreme Court after his convic tion became

final. In T eague v. Lane

, 489 U.S. 288, 109 S. Ct. 1060, 103

L. Ed. 2d 334 (1989), the Supreme Court narrowed the relief5

available to a habeas petitioner under 28 U.S.C. § 2254 by

confining a petitioner to rules of constitutional law in place when

certiorari is denied on direct appeal of his conviction. But

Teague did not withdraw two categorie s of newly announced rules.

Subscribing to Justice Harlan’s view of the central purposes of the

writ of habeas corpus, Teague accep ted two limitations on the

general prohibition against looking to new law.

First, a new rule should be applied retroactively if it

places “certain primary, private individual conduct

beyond the power of the criminal law-making authority

to proscribe. ” Mackey[v. United States] , 401 U.S.

[667,] 692 [(1971)]. Second, a new rule should be

applied retroactively if it requires the observance of

“those procedures that . . . are ‘implicit in the

concept of or dered liberty.’” I d. at 693 (quoting

Palko v. Connecticut

, 302 U.S. 319, 325 (1937)

(Cardozo, J.)).

489 U.S. at 307, 109 S. Ct. at 1073. T eague added to the limits of

Justice Harlan’s suggested withdrawal of federal habeas review of

state convictions the requirement that the error must also

implicate the accuracy of the fact determination; that it must

“seriously diminish the likelihood of obt aining an accurate

conviction.” I d. at 1078. S ee also Sawyer v. Smith

, 497 U.S. 227,

242, 110 S. Ct. 2822, 2831, 111 L. Ed. 2d 193 (1990 ) (explaining

that a new rule within Teague ’s second exception must both

implicate accuracy and alter “our und erstanding of the ‘bedrock

procedural elements’ essential to the [fundamental] fairness of a

proceeding”).

In our view, the Supreme Court ha s made it plain that C age

Victor errors fit with the second Teague exception. The Court in

Sullivan v. Louisiana

, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d6

182 (1993), explained that denying the right to a jury verdict

beyond a reasonable doubt is a structural defect. Such an error

takes away a “‘basic protectio[n]’ whose precise effe cts are

unmeasurable, but without which a cri minal trial cannot reliably

serve its function.” I d. at 281, 113 S. Ct. at 2083. In other

words, a jury that purports to convict based on a constitutionally

defective reasonable-doubt instruction has in fact not rendered any

conviction at all.

Other circuits have reached the same conclusion. According to

the Eleventh Circuit, Sullivan and Cage

, when taken together,

indicate that “an improper reasonable doubt instruction undermines

the fundamental fairness of every trial in which it is used.”

Nutter v. White , 39 F.3d 1154, 1158 (11th Cir. 1994) (emphasis in

original). The Fourth Circuit reached a different result in A dams

v. Aiken

, 965 F.2 d 1306 (4th Cir. 1992), c ert. denied

, 508 U.S.

974, 113 S. Ct. 2966, 125 L. Ed. 2d 666 (1993), but after deciding

Sullivan

, the Supreme Court granted certiorari on rehearing and

remanded for reconsideration. 511 U.S. 1001, 114 S. Ct. 1365, 128

L. Ed. 2d 42 (1994). With the benefit of S ullivan ’s concept of

structural er ror, the court of appeals decided that C age

- Victor

errors fall within Teague ’s second exception. Adams v. Aiken , 41

F.3d 175, 179 (4th Cir. 1994), c ert. denied

, 515 U.S. 1124, 115

S. Ct. 2281, 132 L. Ed. 2d 284 (1995).

We need not fear that finding no Teague bar to claims such as

Humphrey’s will spawn sco res of new habeas petitions. Prisoners

w ho file petitions after April 24, 1996, must surmount the1 Panels of this court have declined to rest on S mith v.

Stalder when a habeas petitioner would be unable to prevail on the

merits in any case. S ee Schneider v. Day

, 73 F.3d 61 0 (5th Cir.

1996) (per curiam); Weston v. Ieyoub , 69 F.3d 73 (5th Cir. 1995);

Gaston v. Whitley , 67 F.3d 121 (5th Cir. 1995), cert. denied

, ___ U.S.

___, 116 S. Ct. 2561, 135 L. Ed. 2d 1078 (1996) (all reaching

t he merits and denying relief based on Victor without explici tly

holding that Cage

- Victor errors are available retroactively).

7 for midable barriers erected by the Anti-terrorism and Effective

Death Penalty Act. Of course, we do not have occasion to measure

how high those barriers might be. We note only that the one-year

statute of limitations, see 28 U.S.C. § 2244(d) & 2255, the

restrictions on successiv e petitions, s ee 28 U.S.C. § 2244(b) &

2255, and the heightened standard of review f or state prisoners,

see 28 U.S.C. § 2254(d)(1), could shut out future petitioners in

Humphrey’s situation.

Our circuit precedent, however, requires us to hold that Cage

and V ictor do not fall within an exception to Teague

. The state

directs our attention to Johanson v. Whitley

, No. 94-30098 (5th

Cir. 1994) (unpublished), cert. denied , 513 U.S. 1175, 115 S. Ct.

1155, 130 L. Ed. 2d 1112 (1995). Two other panels of this court

recently cited an even earlier unpublished opinion holding that

Cage

- Victor analy sis is not available on habeas review. U nited

States v. Shunk

, 113 F.3d 31, 37 (5th Cir. 1997); B rown v. Cain

,

104 F.3d 744, 753 (5th Cir.), cert. d enied , ___ U.S. ___, 117

S. Ct. 1489, 137 L. Ed. 2d 699 (1997) (both citing Smith v.

Stalder

, No. 93-3683 (5th Cir. 1994) (per curiam) (unpublished)). 1

These unpublished opinions were binding when filed, a nd absent

relief from the court sitting en banc this panel must abide them.2 Humphrey has represented himself throughout the habeas

process. He filed an appellate brief on January 11, 1996. Because

this court opted to hear oral argument, we appointed counsel six

months later and gave leave to file a supplemental brief on

Humphrey’s behalf. We are obliged to construe Humphrey’s pro se

brief liberally. See Guidroz v. Lynaugh , 852 F.2d 832, 834 (5th

Cir. 1988). The later filing of a brief by appointed counsel does

not alter this obligation. S ee Blankenship v. Estelle

, 545 F.2d

510, 514 (5th Cir. 1977) (refusing to find waiver where appointed

counsel filed a brief in federal district court that omitted

grounds for habeas because the petitioner raised those grounds in

state habeas proceedings and in his pro se application for habeas

relief).

8 5 TH C IR

. L OCAL R. 47.5.3 (“Unpublished opinions issued before January

1, 1996 are precedent.”); Brown , 104 F.3d at 753 (“A panel is not

at liberty to disagree with the decision of a prior panel.”). In

spite of our view that Sullivan makes Cage available retroactively,

this panel may not grant Humphrey the relief he requests.

B.

Of course, en banc cons ideration of the availability of

collateral attack on the reason able-doubt instruction would be

futile if Humphrey is destined to defeat on the merits. We believe

that Humphrey’s claim has merit. In other words, we believe that

his trial involved a reversible Cage -type error. Because Humphrey

must seek relief from the en banc court in any event, we examine

the merits simply to show that his contention has force and that

—

in the absenc e of a T eague bar

— the full court’s attention will

not be in vain.

Humphrey argues that the instructions given to the jury at his

trial, when considered as a whole, were defective under Cage and

Victor

. 2 We must therefore look to see if the combination of

phrases defining reasonable doubt

— “gr ave uncertainty,” “moral9

certainty,” “actual or substantial doubt,” and “a serious doubt,

for which you could give good reason”

— denied him a constitutional

jury trial.

We examine the reason able doubt instruction given here to

determine “whether there is a reasonable likelihood that the jury

understood the in structions to allow conviction based on proof

insufficient to m eet the Winship standard.” V ictor v. Nebraska

,

511 U.S. 1 , 6, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583 (1994).

Humphrey’s jury was instructed that it could acquit only if it had

“a serious doubt, for which you could give good reason.” As we

will explain, this instruction, in tandem with the language of

“moral certainty,” “grave uncertainty,” and “substantial doubt,”

denied the jury in Humphrey’s case the guidance demanded by due

process and required by In re Winship

.

Courts have long struggled with the task of instructing juries

regarding “reasonable doubt.” Efforts often collapse into

tautological restatements

— such as that reasonable doubt is a

doubt based on reason. This resistance to capture reflects the

reality that reasonable doubt is the quintessential black box

decision

— a decision which demands the answer “yes or no,” but in

which we should not insist on an exhaustive explanation. “I just

wasn’t convinced” is a permissible response but may be difficult to

support with articulable reasons.

To insist, as the trial judge did here, that the jury must

find a “serious doubt for which you could give good reason”

lightens the state’s burden and removes a substantial protection10

assured defendants. Faced with the uncertainties of conflicting

testimony, and conscious of their awesome responsibility to guard

justice, juries routinely scrutinize their instructions for help in

sorting out the complexities presented by opposing counsel. A

reasonable doubt instruction is not a technical nicety; for a jury,

it is a basic proposition of its constitution. Undecided jurors

may analyze their own doubts time after time in light of the

instruction before settling on a decision. By the same token,

jurors who have already made up their minds may recite the

instruction time after time in or der to bring undecided jury

members over to their side. Insisting that a juror be able to

articulate a reason is a troublesome step upon residual doubt. But

our focus today is upon an instruction that went further. A juror

favoring guilt would have a powerful tool if he could demand that

undecided jurors articulate good reasons for considering an

acquittal. Such a juror could use Humphrey’s reasonable-doubt

instruction to argue that it’s not en ough to have a reason to

acquit

— that one must have an especially strong, compelling, or

persuasive reason for doubting the defe ndant’s guilt. He could

plausibly assert that a paucity of government evidence should not

count as a “good” reason. Under this sort of pressure,

inarticulate and undecided jurors are less likely to give

defendants the benefit of their doubts. Requiring articulation of

good reasons, then, skews the deliberation process in favor of the

state by suggesting that those with doubts must perform certain11

actions in the jury room

— actions that many individuals find

difficult or intimidating — before they may vote to acquit.

This cardinal vice in the charge might alone deprive a

defendant of an essential element of his right to trial by jury in

a criminal case

— an issue we do not consider

— for it surely does

so in tandem with the use of “substantial doubt,” “grave

uncertainty,” and “moral certainty,” criticized by this court and

the Supreme Court. S ee Victor

, 511 U.S. at 19-22, 11 4 S. Ct. at

1250-51 (disapproving of the use of “moral certainty” and

“substantial doubt”); Schneider v. Day

, 73 F.3d 610, 612 (5th Cir.

1996) (same); Weston v. Ieyoub , 69 F.3d 73, 75 (5th Cir. 1995)

(same); Gaston v. Whitley

, 67 F.3d 121, 123 (5th Cir. 1995) (same),

cert. denied , ___ U.S. ___, 116 S. Ct. 2561, 135 L. Ed. 2d 1078

(1996). In V ictor

, the Supreme Court returned to its earlier Cage

decision and expl ained that not every use of these phrases in a

reasonable doubt instruction is constitutional error. At the same

time, the Court reaffirmed the principle of Cage and Winship that

the charge mu s t not allow the jury to convict unless it is

convinced that the evidence demonstrates guilt beyond a reasonable

doubt. It left no uncertainty that the inquiry continues to be

“not whether the instruction ‘could have’ been applied in [an]

unconstitutional manner, but whether there is a reasonable

likelihood that the jury did so apply it.” 511 U.S. at 6, 114

S. Ct. at 1243 (emphasis in original) (citing Estelle v. McGuire

,

502 U.S. 62, 72-73 & n.4, 112 S. Ct. 475, 482 & n.4, 116 L. Ed. 2d

385 (1991)). Here we have an effort to define reasonable doubt3 In Robinson v. Callahan

, 694 F.2d 6, 7 (1st Cir. 1982), the

First Circuit , without providing any reasoning, held that an

instruction describing reasonable doubt as doubt “for which you

12 with all the phrases that (although panned by the Court) survived

c onstitutional attack in V ictor

, but they are coupled with an

additional potent qualifier. Arguably, jurors were not allowed to

entertain doubt without being able to express a good reason. The

abiding conviction of guilt to a moral certainty could abide only

if the juror could offer a good explanation.

Even before Cage was announced, a reasonable doubt instruction

that required articulation of a good reason was of dubious

constitutionality, standi ng alone and apart from its dissipating

effect upon the context essential to the survival of the

instruction in Victor

. In D unn v. Perrin

, 570 F.2d 21, 23 (1st

Cir.), cert. denied

, 437 U.S. 91 0, 98 S. Ct. 3102, 57 L. Ed. 2d

1141 (1978), the First Circuit criticized an instruction that cast

reasonable doubt as “doubt as for the existence of which a

reasonable person can give or suggest a good and sufficient

reason.” While acknowledging that this error by itself might not

merit reversal, the court stated that such an instruction

“suggest[s] that a doubt based on reason was not enough to acquit,

implicitly putting petitioners to the task of proving that the

reason was ‘good and sufficient.’” I d. (footnote omitted). In

conjunction with the phrase “strong and abiding conviction,” id. at

24, and authorization to convict even without verifiable

information, id.

, this inst ruction rose to a violation of due

process. 3could give a reason” (emphasis supplied) was not constitutional

error. R obinson relied on an earlier opinion, Tsoumas v. State

, 611 F.2d 412 (1st Cir. 1980). But T soumas examined language quite

different: “It is not a frivolous or fanciful doubt, nor is it one

that can easily be explained away.” I d. at 412. In fact, T soumas explicitly upheld the reasoning of Dunn , which, as noted, cut the

oth er way. It is unclear what, if anything, R obinson stands for

today. S ee also Gilday v. Callahan

, 59 F.3d 257, 261 (1st Cir.

1995) (approving an instruction that “a reasonable doubt is an uncertainty ‘based upon a reason’” without mentioning D unn

, Tsoumas

, or Robinson ), cert. denied

,

___ U.S.

___, 116 S. Ct. 1269,

134 L. Ed. 2d 216 (1996).

13 It is true that the Second Circuit and other courts have

refused to reverse convictions with articulation-demanding

reasonable-doubt instructions. But none of these cases has faced

the array of reasonable-doubt qualifiers contained in the charge to

Humphrey’s jury. In V arg as v. Keene , 86 F.3d 1273, 1277-79 (2d

Cir.), cert. denied

,

___ U.S.

___, 117 S. Ct. 240, 136 L. Ed. 2d

169 (1996), the S econd Circuit held that an instruction survived

due-process scrutiny in spite of its characterization of reasonable

doubt as “doubt for which you can give a reason if called upon to

do so by a fellow jur or in the jury room.” But the instruction

apparently did not contain the other problematic phrases that

appeared in Humphrey’s jury charge. Significantly, it did not

require jurors to be able to articulate a “good” reason. The court

concluded tha t the entirety of the instruction did not eliminate

the jurors’ authorization to acquit based on residual doubt.

“Viewed in context, the challenged language simply does not suggest

that a doubt formulated within one’s own mind

— reasonable, but not

articulable — is insufficient for acquittal.” Id. at 1278.14

The Vargas court relied in part on another post- C age Second

Circuit case that approved a similar instruction. The court in

Chalmers v. Mitchell

, 73 F.3d 1262, 1268-69 (2d Cir.)

, cert.

den ied , ___ U.S. ___, 117 S. Ct. 106, 136 L. Ed. 2d 60 (1996),

approved an instruction that defined a reasonable doubt as “a doubt

for which some good reason can be given.” In the process, however,

it warned that defining reasonable doubt by reference to a “good

reason” is “an incorrect statement of law which should never be

made.” Id. at 1266. It described D unn with approval and

distinguished Dunn based on the absence of other troubling phrases

and the presence of corrective language.

The trial court’s next sentence after men tioning the

contested “good reason” explained that “[t]he doubt, to

be reasonable , must t herefore arise because of the

nature and quality of the evidence in the case, or from

the lack or insufficiency of the evidence in the case.”

Thus th e trial court’s use of the word “good” was

intended , and likely understood, to mean that the

proper foundation o f a reasonable doubt was in fact

rather than fantasy.

Id. at 1268 (emphasis in original). S ee also Beverly v. Walker

,

___ F.3d

___, ___, 1997 WL 358601, at *4 (2d Cir. 1997)

(“[A]lthough the [requirement of a] ‘good sound substantial’

[reason] shou ld not be used, and we applaud the [New York state

court] for condemning it in the exercise of its supervisory

authority, we cannot conclude that the entire charge was

constitutionally deficient.”), petition for cert. filed

,

___

U.S.L.W.

___ (U.S. Jul. 17 , 1997) (No. 97-5232). Because

Humphrey’s instruction contained the expressions “grave

uncertainty,” “moral certainty,” and “actual or substantial doubt,”15

as well as the qualifier “good,” this case presents a more serious

due process problem than the Vargas or Chalmers courts faced.

A handf ul of other cases have affirmed convictions when the

court instructed the jury that it must articulate its doubts, but

only one case had the benefit of Cage

. In that case, the D.C.

Circuit approved a pattern instruction that defined reasonable

doubt as “a doubt for which you can give a reason.” U nited States

v. Dale

, 991 F.2d 819, 853 (D.C. Cir.) (per curiam), cert. denied

,

510 U.S. 906, 114 S. Ct. 286, 126 L. Ed. 2d 236, and cert. denied

,

510 U.S. 1030, 114 S. Ct. 650, 126 L. Ed. 2d 607 (1993). As in

Vargas and Chalmers

, the instruction steered clear of further

reasonable-doubt shoals. The court quickly concluded that it was

substantially equivalent to Cage ’s definition of reasonable doubt

as doubt “founded upon a real tangible substantial basis and not

upon mere caprice and conjecture.” Id. Like the pre- Cage cases,

Dale did not discuss whether an articulation requirement

compromises due process rights when given in conjunction with other

problematic instructions. S ee Leecan v. Lopes

, 893 F.2d 1434,

1443-44 (2d Cir.) (following precedent and holding that a

petitioner who did not object at trial could not obta in a writ

where the instruction referred to “a doubt for which a reasonable

man can give a valid reason” and failed to state that lack of

evidence can be a basis for reasonable doubt), cert. denied

, 496

U.S. 929, 110 S. Ct . 2627, 110 L. Ed. 2d 647 (1990); M urphy v.

Holland

, 776 F.2d 470, 47 6-79 & n.4 (4th Cir. 1985) (allowing an

instruction referring to “a doubt for which a reason can be given,”16

“actual and substantial” doubt, and “not a mere possible doubt,”

but noting that inarticulable doubt can be reasonable doubt and

emphasizing lengthy curative instructions), vacated on other

grounds , 475 U.S. 1138, 106 S. Ct. 1787, 90 L. Ed. 2d 334 (1986);

United States v. Davis

, 328 F.2d 864, 867-68 (2d Cir. 1964)

(Friendly, J.) (criticizing an articulation-demanding reasonable

doubt instruction prior to Winship

, but refusing to analyze its

constitutiona lity because the petitioner failed to object at

trial).

The offending language in Humphrey’s case has been contained

in cases in which this court has rejected other reasonable-doubt

objections. S ee, e.g.

, Schneide r v. Day , 73 F.3d 610 (5th Cir.

1996) (a similar instruction containing t he phrases “substantial

doubt” and “moral certainty” and requiring articulation of a good

reason); Weston v. Ieyoub

, 69 F.3d 73 (5th Cir. 1995) (an identical

instruction); Bias v. Ieyoub

, 36 F.3d 479, 481 (5th Cir. 1994)

(same). Those panels, however, were not faced with and did not

consider whether the requirement that a juror be able to articulate

a good reason, in addition to the phrases “grave uncertainty,”

“moral certainty,” and “actual or substantial doubt,” made the

proffered instruction unconstitutional. In other words, we have

not decided the issue we face today. As discussed above, where a

jury instruction has been weakened by the phrases disapproved of in

Cage and Victor

, the requirement that a juror be able to articulate

a good reason leaves the constitutionality of the instruction

beyond repair.17

The facts of this case offer a powerful example of the

centrality to criminal trials of the role of reasonable doubt and

t he importance of its explanation to the jury. This was a close

and difficult case. There was only one witness against Humphrey.

J. testified that Humphrey had sex with her “more than twenty

times” and that these incidents happened “[t]he whole time [J.]

lived” at the home in Metairie. She could not state the specific

dates of any of the rapes. She could not state how many rapes

occurred. She could not say when she moved from the home in

Metairie, only that it was “in 1981 or ‘82.” By the age of

fourteen, J. was using drugs and engaging in promiscuous behavior.

When she failed the ninth grade, J. claimed her mother neglected

her. J. admitted that she had problems with depression and alcohol

abuse and that she had previously accused Humphrey of inappropriate

sexual touching but later changed her story. J.’s mother admitted

that at that time J. was unreliable and untruthful.

The state gave the jury little in support of J.’s version of

events. It did not call J.’s brother as a witness, even though he

was present on many or all of the baby-sitting occasions. The

state did not call J.’s grandmother, to whom J. first reported the

sexual abuse and later recanted. The state presented no medical

evidence of J.’s condition. Instead, the state relied on a “child

sexual abuse accommodation syndrome” expert. This “expert” had an

undergraduate degree in sociology, a masters degree in social work,

and had attended workshops sponsored by grou ps active in rape

issues. She had never examined J. However, over objection, she18

offered her expert opinion that children subjected to inc est may

repress the memory for years, engage in drug abuse or promiscuous

b ehavior, and report the incident and then retract it. That is,

this syndrome was used to explain J.’ s erratic behavior. On the

other hand, the defense offered expert testimony of a 65% false

reporting phenomenon in child abuse cases.

Of course, a case need not be close in order for us t o find

reversible error in the reasonable-doubt instruction. But

Humphrey’s is a close case nevertheless and makes clear the

importance of affording defendants the rights established in Cage

and reinforced in Victor . This is not to suggest that Humphrey’s

conviction was not supported by sufficient evidence; only that the

evidence was meager and the conviction unpredictable.

While the Court has noted that the reasonable doubt standard

“defies easy expl ication,” V ictor

, 511 U.S. at 5, 114 S. Ct. at

1242, we think that limiting reasonable doubt to doubt for which a

good reason can be articulated, in co njunction with the other

instructional errors in Humphrey’s charge, creates a lower standard

of proof than due process requires. We do not suggest that a jury

ought to be instructed that it needs no reason. Rather, inability

to articul ate a good reason for doubt does not make the doubt

unreasonable. In sum, we find it reasonably likely that the jurors

understood the instruction to permit conviction upon a lesser

burden than reasonable doubt as required by Cage

- Victor

.

IV.19

Humphrey also argues that there is insufficient evidence of an

offense within the limitations period. At the time of the offense,

the statute of limitations wa s six years. S ee L A

. C ODE C RIM

. P ROC

.

A NN

. art. 572(1) (West 1981). The indictment was filed January 21,

1988, so Louisiana could prosecute any rape occurring on or after

January 21, 1982. Effective September 10, 1987, Louisiana enacted

a tolling provision: “The time limitations

. . . shall not commence

to run . . . until the relationship or status involved has ceased

to exist where:

. . . The offense charged is

. . . aggravated rape

. . . and the victim is under the dominion or control of the

offender while under seventeen years of age.” 1987 L A

. S ESS

. L AW

S ERV

. Act 587 (West). Louisiana follows the rule that amendments

to the statute of limitations are valid retroactively only to

crimes that are not prescribed when the ame ndment takes effect.

See Louisiana v. Adkisson

, 602 So. 2d 718 (La. 1992) (per curiam).

The p rescriptive bite of Louisiana law is unclear when a

defendant is convicted under an indictment that covers a period of

time that is partly barred by the statute of limitations and partly

within the statute of limitations. Assuming without deciding that

the trial court here misapplied Louisiana law, the misapplication

of Louisiana law does not rise to the level of a deprivation of

constitutional right.

V.

Even though we find Humphrey’s argument that the reasonabledoubt instruction given at his trial violates the standards

promulgated by the Supreme Court in Cage and Victor

, we are barred20

from granting relief by previous decisions in this circuit. This

matter would be better considered by an en banc cou rt with the

power to reconsider the entirety of the issue.

The district court’s judgment denying the habeas petition is

AFFIRMED.