* District judge of the Western District of Louisiana,

sitting by designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 99-30774

__________________

WILLIAM S. JOHNSON,

Petitioner-Appellee,

versus

BURL CAIN, WARDEN,

LOUISIANA STATE PENITENTIARY,

Respondent-Appellant.

______________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

______________________________________________

June 19, 2000

Before JONES and BENAVIDES, Circuit Judges, and WALTER, * District

Judge.

BENAVIDES, Circuit Judge:

William S. Johnson, a Louisiana state prisoner, sought a writ

of habeas corpus in the district court, pursuant to 28 U.S.C. §

2254, on, inter alia , the grounds that his trial was tainted by

improper jury instructions, in violation of Cage v. Louisiana

, 4982

U.S. 39 (1990), and that his confession, admitted at trial, was

obtained through the use of coercion. Finding merit on these two

grounds, the district court granted Johnson relief. The respondent

appeals fromthis decision. Finding the admission of Johnson’s

confession harmless, we reverse the district court on that issue.

Further, finding that the district court incorrectly determined

that the Cage issue was not procedurally barred, we remand with

instructions to allow the petitioner an opportunity to show cause

and prejudice with respect to the procedural bar.

I. FACTUAL AND PROCEDURAL HISTORY

Johnson was convicted by a state jury in Louisiana of first

degree murder in the death of his mother. He is now serving a life

sentence on this conviction. His sentence and conviction were

affirmed on direct appeal in the Louisiana Supreme Court. S ee

State v. Johnson , 438 So.2d 1091 (La. 1983).

The following facts of the mu rder are as determined and

recounted by the Louisiana Supreme Court:

During the early evening hours of January 16, 1978,

a young man rang the doorbell at the Washington Avenue

residence of Dr. and Mrs. Thomas Crumpler in Orleans

Parish. When Dr. Crumpler opened the door he found Kevin

Seward, a man unknown to him at the time, standing on the

steps. Seward pulled out a gun, forced his way inside

the house, and shot both Dr. and Mrs. Crumpler, seriously

injuring Dr. Crumpler and killing Mrs. Crumpler.

Defendant William Johnson, Mrs. Crumpler’s son, had

long nursed an intense and abiding hatred of his mother.

When told of her death, Johnson joyously announced: “The

bi tch is dead. This is the happiest day of my life.

I ’ll dance a jig on her grave.” Police investigation

thus quickly focused on Johnson and his lover, Kevin

Seward. Both Johnson and Seward were arrested by police3

on January 18, 1978. During the course of interrogation,

Johnson confessed to the murder of his mother

- a

confession admittedly false in its principal details. In

an effort to conceal Seward’s identity as the actual

assailant, Johnson told the p olice that a person named

Brent Engles had helped him commit the murder. The

authorities interviewed Engles, discounted him as a

suspect and then returned to ques tion Seward, who

subsequently confessed to his role in the murder. Dr.

Crumpler identified Seward as his assailant in a

photographic line-up conducted at the hospital.

According to the State’s theory of the case, Johnson

recruited Seward to kill his mother out of an unnatural

hatred of her and fear that he might l ose his

inheritance. The defendant argued in rebuttal that Kevin

Seward is a distur bed and violent individual who acted

entirely on his own in killing Mrs. Crumpler. The jury

rejected defendant’s argument and convicted him of first

degree murder.

Both Johnson and Seward filed pre-trial motions to suppress

their confessions, which were denied by the trial court, on the

grounds that the statements were not voluntarily given. Johnson

unsuccessfully sought review of t his ruling, pre-trial, in the

Louisiana Supreme Court. S ee State v. Johnson

, 363 So.2d 684 (La.

1978). Johnson again unsuccessfully raised this issue on direct

appeal. Johnson then filed at least fifteen applications for

superviso ry writs between 1978 and 1995 to the Louisiana Supreme

Court, none of which resulted in the granting of relief.

Johnson’s first federal habeas petition was filed in 1985. In

it, Johnson asserted that his confession had been coerced, the

transcript of his trial was inaccurate, and hears ay evidence had

been wrongly admitted at his trial. On July 16, 1987, the district

court, at Johnson’s request, stayed the federal proceeding

indefinitely, instructing the cle rk of the court “to close this2 D irect review of Seward’s conviction took close to n ine

years, “[f]or unexplained reasons.” S tate v. Seward , 509 So.2d

413, 414 (La. 1987).

4 matter administratively, until such time, if any, that petitioner

should wish to proceed with the case.” Apparently, Johnson sought

and received this stay so that he would have an opportunity to

present the issue of his coerced confessions anew to the state

courts. Johnson’s hope for relief from the state courts was

renewed in light of the Louisiana Supreme Court’s reversal of

Seward’s conviction on direct appeal, 2 on the Court’s determination

that his confession had been, in fact, coerced. S ee State v.

Seward , 509 So.2d 413 (La. 1987).

The instant federal habeas petition was filed on June 13,

1997, in which Johnson asserted the same grounds as in his 1985

petition in addition to a newly-asserted claim concerning his jury

instructions. Johnson stated that his jury-instruction claim had

been denied by the state trial court and by the Louisiana Supreme

Court, sometime in the 1990s, based on a state procedural rule

which provides for a thr ee-year prescription period in which an

attack on a final conviction is allowed. He further alleged that

he had sought state post-conviction relief on his coerced

confession in light of the reversal of Seward’s conviction but that

claim was also denied under the above noted procedural rule.

Upon the magistrate judge’s recommendation, the district court

dismissed this petition for failure to exhaust on November 10,5

1997. On November 18, 1997, Johnson filed a motion to delete his

unexhausted claims and/or a motion for reconsideration and review,

and requested that he be allowed to proceed with his exhausted

claims. On December 4, 1997, the district court vacated the

dismissal of the petition for failure to exhaust, deleted the

unexhausted claims, and referred the matter to the magistrate judge

for further proceedings.

Reaching the merits of Johnson’s petition, the district court

determined that the reasonable-doubt charge given in Johnson’s case

was the same charge given in Humphrey v. Cain

, 120 F.3d 5 26 (5 t h

Cir. 1997), adopted in pertinent part

, 138 F.3d 552, 553 (5 th Cir.

1998) (en banc), which had been deemed un constitutional by this

Court under the Cage doctrine. The district court concluded that,

as a result of this erroneous jury charge, Johnson was denied due

process and a constitutional jury trial and was entitled to habeas

relief on this claim.

The district court also determined that Johnson was entitled

to habeas relief on the grounds that his confession was coerced,

and, therefore, erroneously admitted at trial. Applying preAntiterrorism and Effective Death Penalty Act of 1996 (AEDPA) law,

the district court determined, based on the state supreme court’s

findings in c o-conspirator Seward’s case, that Johnson had not

freely confessed.

Specifically, the district court concluded that Johnson

overheard Seward being beaten by the police and confessed in order6

to avoid being beaten himself or to avoid further harm being

imposed on Seward, known to be Johnson’s lover. In reaching this

conclusion, the district court relied in part on the fact that the

state supreme court determined that the admission of Seward’s

confession at Seward’s trial was not harmless error and that his

conviction required reversal on this ground. S ee State v. Seward

,

509 So.2d 413 (La. 1987). The district court found that the state

court’s findings in Johnson’s case to the contrary were not

supported by the record, in light of these subsequent developments

and the evidence in the record, and further found that the

admission of this coerced confession was not harmless error.

The district court ordered that Johnson was to receive a new

trial or be released within ninety days. The respondent filed a

timely notice of appeal.

II. ANALYSIS

As the district court granted habeas relief on two separate

grounds, each ground will be discussed separately, in turn.

1. Did the district court properly reach the merits of Johnson’s

Cage claim and, accordingly, properly grant relief?

As note d above, Johnson’s C age claim was not initially

presented in his 1985 federal habeas petition. Rather, it first

appeared in his subsequent, 1997 petition. Nothing in the state

court record, however, indicates when Johnson first raised the Cage

issue in state court. In fact, as the district court noted, the

state court docket sheet indicate s no activity between 1988 and7

1997. Yet, it is not disputed that Johnson filed several petitions

for relief in the state court during this period. The state court

docket sheet does not reflect the full procedural history of this

case and appears to be missing several filings and rulings over the

course of several years. In an effort to reconstruct the

procedural and substantive history of Johnson’s case, the district

court enlisted the willing help of assistant district attorneys,

apparently with only mild success.

Thus, we are left with an incomplete record on which to assess

whether and, more importantly, when Johnson raised his Cage claim

in the state courts. This time-frame is critical to the proper

resol ution of this matter, as Louisiana applies a three-year

prescriptive period to all col lateral attacks on criminal

convictions, see La. C ode Crim. P. Ann. art. 930.8 (“[n]o

application for post conviction relief, . . . shall be considered

if it is filed more than three years after the judgment of

conviction and sentence has become final” ), although petitions

filed bef ore October 1, 1991, are excepted from this limitations

period, regardless of the date of conviction.

The state court record clearly indicates, and the parties do

not appear to dispute, that Johnson filed an application for postconviction relief in June, 1992, in which Johnson raised the Cage

issue. It was dismissed as procedurally barred by the Louisiana

Supreme Court in September, 1995. The district court, however,

determined additionally that Johnson filed an application with his3 The district court does not discuss the fact that this

r eceipt is for papers filed with the Louisiana Supreme Court,

rendering this filing

- even if it was otherwise a petition for

post-conviction relief - improper as filed, in the wrong court.

4 Johnson maintains that he did, in fact, file a petition on

September 26, 1991, but he asserts that the state courts never

ruled on that petition.

8 Cage claim in September, 1991

- four days prior to the date the

a bove-described procedural bar came into effect. The district

court, in so determining, noted that it was i n possession of a

r eceipt, dated September 26, 1991, showing that Johnson had s ent

some othe rwise unidentified “legal” documents to the Louisiana

Supreme Court. 3 The district court determined that “[i]t appears

very likely it was in fact a receipt for his PCR [post-conviction

relief] application, which included the Cage issue.” The district

court went on to determine that an order dated May 5, 1992, in

which the Louisiana state district court dismissed a petition for

post-conviction relief as time-barred under article 930.8, in fact

referred back to the September 26 filing. 4

Thus, the district court reached the merits of Johnson’s Cage

c laim, determining, according to a time-line of its own making,

that the state court improperly applied the statutory prescriptive

period. This determination rests on the district court’s finding

that Johnson filed his claim in advance of October 1, 1991.

In habeas appeals, we review the district court’s rulings of

law de novo

. “Thus, we review de novo this appeal which challenges

. . . the district court’s determination that [Johnson’s] claim was9

not barred procedurally. . . .” B oyd v. Scott

, 45 F.3d 876, 87 9

(5 th Cir. 1994).

Our de novo review of the district court’s ruling convinces us

that the district court erred. The record simply does not support

the district court’s findings. In fact, the record fairly demands

that we recognize the state court’s application of its procedural

r ules, such that we do not reach the merits of an issue that the

state courts determined was not properly presented.

Ordinarily, in ord er to determine whether the AEDPA governs

the instant petition, we would be required to determine whether to

treat Johnson’s instant federal habeas petition as an amendment to

the earlier-filed and subsequently-stayed petit ion of 1985, or,

alternatively, as a new petition first filed in 1997. In this

case, however, it does not matter. The record indicates that the

state courts were presented with the Cage issue in 1992, and later

rejected it as time-barred in 1995. Under either regime, pre-AEDPA

or AEDPA, if the state court does not reach the merits of a

petitioner’s claim, we review t he issues presented d e novo

.

However, we only reach the merits of the petition if petitioner

demonstrates cause for the default and actual prejudice resulting

from the default. See Engle v. Issac , 456 F.2d 107, 129 (1982).

This rule stems from the long-standing principle that federal

courts do not sit to r eview questions of state law. S ee Id

. at

119; Dickerson v. Guste

, 932 F.2d 1142, 1145 (5 t h Cir. 1991) (“We10

will not review a state court’s interpretation of its own law in a

federal habeas corpus proceeding.”)

Thus, as the record offers nothing to indicate otherwise, we

f ind that the Louisiana Supreme Court applied its own procedu ral

rule to dismiss Johnson’s Cage claim in 1995. Unlike the district

court, we are not convinced b y the presence of a receipt and

petitioner’s assurances that he filed his claim in advance of the

October 1, 1991, deadline. In fact, as stated above, we are bound

to credit the later filing and ruling

- which is in the record

- in

which the state court applied its own procedural bar to dismiss the

petition. As Johnson offers nothing to rebut the presumption that

the rule is adequate and independent

- i.e., it is regularly

followed

- and, as t he district court made no finding to this

effect, we recognize Louisiana’s application of its own procedural

rule. S ee Hughes v. Johnson , 191 F.3d 607, 614 (5 t h Cir. 1999),

cert. denied

, 120 S.Ct. 1003 (2000) (The doctrine of procedural

default in a § 2254 action “presumes that a state procedural ground

is adequate and independent

- the rule must, for instance, be

regularly followed

- and ordinarily, the burden is on the habeas

petitioner to demonstrate otherwise.”)

Our determination that the Louisi ana state courts properly

applied their own procedural rule, however, d oes not end our

treatment of this issue. It is also a longstanding rule that a

state may forfeit the right to assert a procedural bar defense by

not raising it in the district court. S ee Fisher v. Texas

, 16911

F.3d 295, 301 (5 th Cir. 1999). As the respondent failed to raise

the procedural bar with respect to the Cage claim in his initial or

supplementa l response filed with the district court, we must

consider whether this defense has been forfeited.

“[A] federal distr ict court may, in the exercise of its

discretion, raise a habeas petitioner’s procedural de fault sua

sponte and then apply that default as a bar to further litigation

of petitioner’s claims.” Magouirk v. Phillips , 144 F.3d 348, 358

(5 th Cir. 1998) . In this case, the district court discussed the

state court’s application of the procedural bar in 1995, but

declined to credit this state court determination, finding instead,

as discussed above, that the receipt dated September 26, 1991,

demonstrated an earlier and appropriately filed petitio n. As we

noted, this finding is not supported by the record, given our

required deference to state court application of state law. While

there is no established rule in this Circuit concerning whether a

district court is authorized to raise a procedural bar sua sponte

and reject it without pleadings from the respondent, we find, on

the unique facts of this case, that the district court erred in not

doing so here.

Thus, we reverse the district court’s grant of habeas relief

on the Cage issue, and we remand the issue back to the district

court to provide Johnson with an opportunity to demonstrate cause

and prejudice, or actual innocence, as required by applicable law,

as well as to allow the respondent an opportunity to respond to any12

issues raised by Johnson’s efforts. We emphasize that this remand

is limited only to the issue of cause and prejudice as we find the

Cage issue is otherwise procedurally barred.

We now consider the second ground for relief.

2. Was the admission of Johnson’s allegedly coerced confession

harmful, thus requiring a grant of relief?

The district court additionally gran ted relief on Johnson’s

claim that his confession was coerced and admission of it at trial

constitutes reversible error. As with the previous claim, it is

unclear whether this issue, as raised in the 1997 petition, should

be reviewed under pre-AEDPA law, because it was initially raised in

the earlier 1985 petition, or whether the entire 1997 petition,

including this issue, warrants review under the AEDPA. We decline,

however, to settle this issue and instead assume that the issue

deserves revie w under the more generous pre-AEDPA scheme.

We further assume, for purposes of this appeal only, that

Johnson’s confession was coerced in violation of the United States

Constitution. Thus, the only issue we decide is whether the

admission of Johnson’s confession at trial warrants habeas relief

under the harmless-error doctrine.

It is wel l settled that the admission of an involuntary

statement is subject to a harmless-error analysis. A rizona v.

Fulminante , 499 U.S. 279, 310-11 (1991). As this is a 28 U.S.C.

§ 2254 habeas case, it is properly analyzed under the harmless

error standard set forth in Brecht v. Abrahamson

, 507 U.S. 6195 The district c ourt states that detectives first learned of

Carter as a potential witness through the coerced con fession of

Seward. As such, concludes the district court, Carter’s testimony

does not warrant consideration in the harmless error analysis, as

13 (1993), and adopted by this Court in Woods v. Johnson

, 75 F.3d 1017

(5th Cir. 1996). An error requires habeas relief only if it "'had

[a] substantial and injurious effect or influence in determining

the jury's verdict.'" Brecht

, 507 U.S. at 623 (quoting Kotteakos v.

United States

, 328 U.S. 750 (1946)). Further, we review the

district court’s harmless error determination de novo

. S ee Shaw v.

Collins , 5 F.3d 128, 132 (5 th Cir. 1993).

As noted, the district court determined that the admission of

Johnson’s confession was harmful error. Again, we disagree. In

light of the overwhelming evidence of Johnson’s guilt presented at

trial, we are convinced, as we are required to be, th at the

admission of Johnson’s false confession did not have a substantial

injurious effect or influence on the jury’s verdict. We summarize

the pertinent evidence:

W i tness John Carter testified that Seward, Johnson’s coconspirator and a former roommate of Carter’s, intimated that a man

who lived uptown had offered Seward $2000 - $1000 up-front, $1000

at completion

- to kill the man’s mother, as his grandmother was on

her deathbed and he feared his mother would take away his

inheritance unless she died first. Carter identified Johnson as

the man he ha d previously seen with Seward. Upon hearing of the

murder in the newspaper, Carter contacted a detective; 5it is tainted by the illegality of its source. Setting aside the

more-difficult question as to whether evidence obtained through the

coerced confession of a co-conspirator is inadmissable, our review

of Seward’s confession reveals that he did not, in fact, name

Carter as a witness. Thus, Carter’s testimony that he first

contacted the police is unrebutted in the record, and we will

consider his testimony in our harmless error calculation.

14 Dr. Crumpler te stified that he and his wife had been

threatened by Johnson on several occasions beginning in 1971. On

one such occasion, Johnson, wielding a gun, threatened: “I’m going

to get rid of both of you. I’m not going to do it myself. I’ve

g ot lots of friends who’ll be quite willing to do it fo r a very

small amount of money, and, you can be sure when I do it, I’ll have

a good alibi. . . .” In addition to threats, Dr. Crumpler

testified that Johnson struck his mother on one occasion and had

unleashed a tear bomb in his mother’s home. The doctor further

testified that Johnson had a long-term concern about receiving his

share of his grandfather’s estate, now in his g randmother’s

possession;

Dr. Crumpler identified Seward in court as the shooter, after

previously giving a tentative ide ntification from a photographic

line-up;

Johnson’s cousin, India Bradley, testified that when she went

to her grandmother’s home shortly after the shooting to inform

Johnson and her grandmother of the tragic event, she found Johnson

there with Seward. Bradley testified that Johnson replied “[t]he

bitch is dead” upon being informed of his mother’s death. Johnson15

further inquired as to whethe r Dr. Crumpler would live before

Bradley even had an opportunity to report that he had been shot as

well. Bradley testified that Johnson subsequently stated that

“[t]his is the happiest day of my life. I’ll dance a jig on her

grave;”

Johnson’s roommate, Allen Armstrong, corroborated Bradley’s

testimony that Johnson was joyous about his mother’s death;

Thomas Johnson, Johnson’s brother, te s tified that in the

months prior to the murder, Johnson talked a great deal about his

desire for their mother’s death and about having her killed. In

August and September of 1997, Johnson told his brother on at least

three occasions that he was not going to kill his mother himself,

but that he would hire someone to do the job, and he would perfect

his alibi. Johnson’s brother testified that Johnson told him all

the siblings would benefit from his taking the risk because they

would each get an inheritance from his grandmother. Johnson’s

brother corroborated the earlier testimon y that Johnson feared

losing his inheritance if his grandmother dies while his mother was

sill alive. Johnson apparently related to his brother his belief

that hi s mother changed her citizenship from Louisiana to North

Carolina, in order to avoid the law of forced heirship. In

September, 1977, Johnson’s brother testified that Johnson informed

him that it was crucial that his mother die before his grandmother

and that he would have to kill her soon;

F inally, police recovered a pellet from a tree in Johnso n’s6 As not ed previously, the confession itself was a false

confession, in which Johnson stated that he shot both Dr. and Mrs.

Crumpler. Whatever his motivation in providing this false

confession

- perhaps in an effort to secure the release of the only

eye-witness, as respondent speculates

- the state did not rely upon

it in presenting its case to the jury, a fact which only bolsters

our conclusion, albeit unnecessarily, that admission of the

statement was harmless.

16 backyard, which an expert in firearms identification testified was

fired from the same gun used to shoot Mrs. Crumpler.

Thus, our review of the sum of the evidence, disregarding

Johnson’s confession, 6 convinces us that the jury was presented

with more than sufficient evidence to find Johnson guilty beyond a

reasonable doubt. We pause only briefly to note that the district

court did not consider the bulk of this evidence in reaching the

opposite conclusion on harmfulness. The admission of the confession

did not have a substantial and injurious influence on the jury’s

verdict, therefore, the admission of the confession was h armless

and the district court erred in granting relief on this issue.

III. CONCLUSION

Because we find that the district court erred in not

recognizing the state procedural bar to Johnson’s C age claim, we

REVERSE the district court’s grant of habeas relief as to this

claim, and REMAND the issue to the district court for further

proceedings. As we further find that the admission of Johnson’s

confession was harmless error, we also REVERSE the district court’s

grant of habeas relief as t o this claim and RENDER judgement in

favor of respondent.17

REVERSED and REMANDED, in part.