* Local Rule 47.5 provides: "The publication of opinions that

have no pre cedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-30247

Summary Calendar

_____________________

FELIX ANTHONY PRICE,

Petitioner-Appellant,

versus

BURL CAIN, Acting Warden,

Louisiana State Penitentiary,

and RICHARD P. IEYOUB, Attorney

General, State of Louisiana,

Respondents-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana

(94-CV-3379-E)

_________________________________________________________________ (July 6, 1995)

Before KING, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM: *

I

Felix A. Price was convicted for first degree murder and is

serving a life sentence at the Louisiana State Penitentiary. Price

now appeals the denial of his fourth federal petition for a writ of-2-

habeas corpus. Price's first petition was denied for failure to

exhaust state remedies. Price's second petition was denied on the

merits. In his second petition, Price raised the following issues:

(1) Denial of due process in overruling objection to

questioning of witness James Floyd on redirect;

(2) Denial of due process in overruling objection to

questioning of defendant on his opinion of testimony of

state witnesses;

(3) Insufficient evidence to convict--evidence was sufficient

to support conviction for manslaughter only;

(4) Jury charge on "specific intent to kill" and first degree

murder were err oneous because they shifted burden of

proof to the defense; and

(5) Denial of adequate appeal because court's erroneous jury

charges were not included in transcript.

In his third petition, which was denied as an abuse of the writ or,

alternatively, on the merits, Price raised the following issues:

(1) Insufficient evidence to convict--evidence was sufficient

to support conviction for manslaughter only;

(2) Jury charge o n difference between malice and "heat of

passion" was insufficient, court did not distinguish

between first degree murder and manslaughter; and

(3) Ineffective assistance of counsel--failure to object

contemporaneously to trial court's erroneous charge on specific intent.

In his fourth petition, Price has raised the following issues:

(1) Insufficient evidence--evidence showed that he acted in

self-defense;

(2) Jury instruction on reasonable doubt was constitutionally

impermissible under Cage v. Louis iana , 498 U.S. 39

(1990); and

(3) Ineffective assistance of counsel--failure to object to

jury instruction on reasonable doubt.-3- II

First, the magistrate judge found that Price's sufficiency of

the evidence claim was barred under Rule 9(b) of the Rules

Governing § 2254 P roceedings. Second, because the C age issue

involved a new claim, not firmly established at the time of his

trial, the magistrate judge concluded that Pr ice had established

cause for his procedural default. The magistrate judge also

concluded, however, that Price was not entitled to relief under

Cage . The district court adopted the findings and conclusions of

the magistrate judge. Price appealed to us and the district court

issued a certificate of probable cause.

Rule 9(b) of the Rules Governing § 2254 Cases, provides:

A second or successive petition may be dismissed if

the judge finds that it fails to allege new or different

grounds for relief and the prior determination was on the

merits or, if new and different grounds are alleged, the

judge finds that the failure of the petitioner to assert

those grounds in a prior petition constituted an abuse of

the writ.

We review dismissals pursuant to Rule 9(b) under the abuse-ofdiscretion standard. S ee Saahir v. Collins

, 956 F.2d 115, 120 (5th

Cir. 1992).

"[A] serial habeas petition must be dismissed as an abuse of

the writ unless the petitioner has demonstrated `c ause' for not

raising the point in a prior federal habeas petition and

`prejudice' if the court fails to consider the new point." I d. at

118

. To establish cause, the petitioner must show that some

external impediment, suc h as government interference or the-4-

rea sonable unavailability of the factual or legal basis for the

claim, prevented him from raising the claim initially. McCleskey

v. Zant

, 499 U.S. 467, 497 (1991). "Once [he] has established

cause, he must show `actual prejudice' resulting from the errors of

which he complains." Id. at 494 (internal quotation and citation

omitted). Even if a petitioner cannot show cause and prejudice, he

may still obtain federal habeas corpus review if he can show that

"a fundamental miscarriage of justice would result from a failure

to entertain the claim." Id. at 494-95.

III

Price contends that he has new evidence showing that he acted

in self-defense and that he has shown cause and prejudice excusing

his fa ilure to assert this issue in an earlier petition. Price

contended in his petition and on appeal that exculpatory statements

of witnesses, David Neunier and Scott Fruchtnicht, were withheld by

the state during the trial in violation of Brady v. Maryland , 373

U.S. 83 (1963). Other than the fact that the witnesses were not

called by the s tate to testify at trial, Price has offered no

e xplanation for his belief that the statements were exculpatory.

Price's conclusional allegations do not raise a const itutional

issue and are insufficient to show that the district court was

required to permit discovery or to conduct an evidentiary hearing.

See Ross v. Estelle

, 694 F.2d 1008, 1012 & n.2 (5th Cir. 1983).

They are also insufficient to state cause and prejudice or a-5-

miscarriage of justice excusing the failure to raise these issues

in an earlier habeas petition.

IV

The magistrate judge found that the unavailability of the Cage

claim was cause for Price's failure to raise it in an earlier

petition. Recently, in James v. Cain , 50 F.3d 1327, 1332-33 (5th

Cir. 1995), we held that the petitioner's defective rea sonable

doubt instruction had been reasonably available to the petitioner

"at least since 1982." Under J ames

, the Cage claims were available

to Price at the time he filed his third habeas petition in 1990.

See Ward v. Cain , ___ F.3d ___ (5th Cir. May 15, 1995, No.

95-30442), 1995 WL 296 041 at *1 (construing J ames broadly),

petition for cert. filed (U.S. May 15, 1995, No. 94-9266).

Therefore, he has failed to establish cause for failing to raise

these claims in an earlier habeas petition. "The effect of James

is to relegate [Price]'s efforts to avoid the limitation of Rule

9(b) to the fundamental-miscarriage-of-justice exception. As

defined by the Supreme Court, that exception is confined to cases

of actual innocence, where the petitioner shows, as a factual

matter, that he did not commit t he crime of conviction." I d.

Under this standard, Price must show that "it is more likely than

not that no reasonable juror would have found him guilty if given

a correct instruction." Id.

Price's principal substantive arg ument is that he acted in

self-defense and did not act with the intent to commit first degree-6-

murder. Price contends that the jury would not have convicted him

if it had been given an appropriate reasonable doubt instruction.

In its opinion rejecting Pr ice's state habeas application, the

Louisiana appellate court noted that the state bore the burden of

showing beyond a reasonable doubt that Price could not have

reasonably believed that he was "in imminent danger of losing his

life or receiving great bodily harm and that the killing is

necessary to save himself from that danger." A person who was the

aggressor, however, could not claim the right of self-defense

unless he withdrew from the conflict in good faith and in such a

manner that his adversary knew or should have known that he desired

to withdraw. Id. The court summarized the evidence as follows:

In this case, the testimony indicates t h at the

defendant first called out to [Robert] Johnson's

companions. After the defendant and [Jimmy] James

passed, Johnson called James. James testified that the

defendant began removing a knife from a brown pouch

before Johnson arrived near them. Johnson then initiated

contact with th e defendant by asking if they knew each

another. James and Floyd testified that Johnson

threatened the defendant and asserted he was going to

kill the defendant. However, Floyd said Johnson

threatened to kill the defendant the next time they met.

A fight started with the defendant throwin g the first

punch after Johnson threw the beer. The defendant stated

that when they fell to the ground he heard a knife

opening and he grabbed the knife out of Johnson's hand to

protect himself. However, Brown, Floyd and James all

testified that Johnson did no t have a knife and was

holding a can of beer. James testified that Johnson

never tried to strike the defendant.

Id. Johnson received fatal knife wounds during the altercation.

Id. at 1300. These findings are consistent with the trial

testimony and are presumptively correct under 28 U.S.C. § 2254(d).-7-

Price's version of the testimony does not substantially vary from

this characterization.

The question raised is what reasonable doubt instruction would

hav e met constitutional muster under these circumstances. The

Federal Judicial Center has developed the following reasonable

doubt instruction:

"Proof beyond a reasonable doubt is proof that leaves you

fi rmly convinced of the defendant's guilt. There are

very few things in this world that we know with absolute

certainty, and in criminal cases the law does not require

proof that overcomes every possible doubt. If, based on

your consideration of the evidenc e, you are firmly

convinced that the defendant is guilty of the crime

charged, you must find him guilty. If on the other hand,

you think there is a real possibility that he is not

guilty, you must give him the benefit of the doubt and

find him not guilty."

Victor v. Nebraska

, 114 S.Ct. 1239, 1253 (1994) (Ginsberg, J.,

concurring) (quoting Federal Judicial Center, Pattern Criminal Jury

Instructions 17-18 (1987) (instruction 21)). Thus, we will assume,

for purposes of determining whether Price has suffered manifest

injustice on account of a constitutionally deficient instruction,

that Price should have received the instruction quoted above. Even

so, Price cannot show that there was a manifest miscarriage of

justice because a reasonable juror still could have concluded that

Price did not reasonably believe that he was in imminent danger of

losing his life or receiving great bodily harm. Because there is

no showing of man ifest injustice, Price's C age claims are barred

under Rule 9(b) and the district court did not abuse its discretion

in denying these claims. S ee Bickford v. Int'l Speedway Corp.

, 654-8-

F.2d 1028, 1031 (5th Cir. 1981) (judgment may be affirmed on

alternative grounds).

V

Although the magistrate judge did not expressly consider the

issue, in concluding that Price was not entitled to relief under

Cage

, the magistrate judge implicitly concluded that Price was not

prejudiced by his attorney's failure to make a contempo raneous

objection to the reasonable doubt instruction. See Strickland v.

Washington

, 466 U.S. 668, 687 (1984). Price reurges his

ineffective assistance claim on appeal. Ineffective assistance of

counsel is cause for Rule 9(b) pu rposes. M cCleskey

, 499 U.S. at

493-94. To prevail, Price would have to show, i nter alia

, that his

attorn ey's conduct fell outside of the wide range of reasonable

professional assistance. S trickland

, 466 U.S. at 689. As the

cou rt's opinion in J ames indicates, the legality of overly

restrictive reasonable doubt instructions was not "percolating"

through the state courts until the early 1980s. S ee James

, 50 F.3d

at 1333. The failure of Price's attorney to identify this issue at

the time of the trial, in 1979, was not professionally unreasonable

under Strickland

.

VI

Price's fourth federal habeas petition was properly dismissed

pursuant to Rule 9(b). The district court's judgment is

A F F I R M E D.