## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-30523

_______________



### S TEPHEN 

### Q UATREVINGT



### ,

Petitioner-Appellee,

VERSUS



### B URL 

### C AIN



### ,

WARDEN

, L OUISIANA S TATE P ENITENTIARY

,



### Respondent-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

_________________________ November 15, 2001

Before S MITH and E MILIO M. G ARZA

, Circuit

Judges, and C UMMINGS , District Judge. *

J ERRY E. S MITH , Circuit Judge: ** The State of Louisiana, through its warden,

appeals a grant of habeas corpus relief to Stephen Quatrevi n gt regarding his murder

conviction. Finding no cognizable constitutional error, we reverse.

I. * District Judge

of the Northern District of

Texas, sitting by designation.

** Pursuant to 5 TH C IR. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

(continued...) ** (...continued)

limited circumstances set forth in 5 TH C IR

. R.

47.5.4.2

Quatrevingt was convicted in 1990 of first

degree murder while in the perpetrati on or attempted perpetrati on of an aggrava ted rape.

He pursued dir ect appeals unsuccessfully. In

1999, he filed a habeas corpus petition in federal court alleging numerous constitutional errors. The state raised four objections t o the

petition: (1) The petition was time barred under the one-year statute of limitations found in

28 U.S.C. § 2244(d); (2) the petition should be

denied for failure to exhaust state remedies;

(3) the petition should be rejected for failure to

sa t isfy the Louisiana contemporaneous objection rule under the procedural bar doctrine;

a n d (4) the petition should be rejected on the

merits.

Pursuant to 28 U.S.C. § 636(b)(1)(B), the

matter was referred to a mag istrate j udge

(“MJ” ), who recommended rejecting all the

state’s procedural objectio ns to the peti ti on

and granting habeas relief on the ground t hat

the charge to the jury was unconstitutional.

The state failed to object t o the MJ’s

recommendatio ns within the ten-day period

provided by the order. See 28 U.S.C. §

636(c). 1

The di stri ct court adopted the

recomm endations of the MJ after conducting

de novo r eview of the portions objected to.

The only modification the court noted was a

slightly differ ent approach to finding the

charge to the jury unconstitutional. The MJ

had recommended that the init ial charge be

found unconstitutional; the district court found

the init ial charge valid, but the state tri al

court’s response to a

jury question for

clarification of the charge unconstitutional.

II. The state’s first three o bjections are

procedural. The MJ recommended that all of

these claims ar e meritless and should be

resolved in favor of Quatrevingt; t he district

court adopted these recommendations without

objection. The state’s failure timely to object

to the findings and recommenda t ions affects

our standard of review.

The recommendations and conclusions of a

MJ are reviewed for plain error if not objected

to within ten days of their issuance. S ee

Douglass v. United Servs. A u to. Ass’n

, 79

F.3d 1415, 1429 (5th Cir. 19 96) (en banc).

The report and recommendation of the MJ was

is sued on October 27, and the state di d not

offer its objections until December 4, well after

the ten-day limi

t . Where the district court

conducts de novo review of the unobjected-to

MJ ’s report, however, we ordinarily will not

enforce the forfeiture rule against the pa r ty

failing to object. S ee Meister v. Tex. Adjutant

General’s Dep’t

, 233 F.3d 332, 336 ( 5th Cir.),

cert. denied

, 121 S. Ct. 2194 (2001). 2 We

thus review the district court’s findings of fact

under our usual clear error standard. S ee Perillo v. Johnson

, 20 5 F.3d 775, 781 (5th Ci r.

2000).

III.

The state contends that Quatrevingt’s petition was untimely. In relevant part, the Antiterrorism and Effecti v e Death Penalty Act of

1996 (“AEDPA”) imposes a one-year statute

of li m itations on habeas petitions, running

1 The state ultimately filed objections. 2 T here is a limited exception to this rule not

applica ble here. If the district court rules in the

alternative that, not only did a party fail to object

to a certain point, but, even if he did, the objection

is without merit, we may affirm on the basis of

lack of a proper objection. S ee Douglass

, 79 F.3d

at 1429.3

from the time the conviction becomes final. 28

U.S.C. § 2244(d)(1)(A). This limit is tolled

while any “properly-filed state post-conviction

or othe r collateral relief” is pending. 28

U .S.C. § 2244(d)(2). Quatrevingt’s direct

review process unquestionably ended with the

denial of certiorari on October 15, 1996. 3 His

fede ral habeas petition was filed on July 9,

1999, well after the one-year limit

. He claims,

however, to have filed a state collateral action

on April 27, 1997.

The state does not argue that Quatrevingt’s

limitations period should not be tolled because

h is application for post-conviction relief was

either improperly filed or is no longer pending.

Cf

. Wil l iams v. Cain

, 217 F.3d 303 (5th Cir.

2000) (discu s sing requirement of proper

filing)

. 4 The state argues, instead, that his

state application was not filed at all. The MJ

found the state had filed a “Motion to Dismiss

Petitioner’s Post-Conviction Applicati on” on

April 28, 1997, as evidence Quatrevingt had

filed his state petition within the one-year per iod. The state courts apparently have not

ruled on this p et it io n, and it thus remains

pending. This in turn tolls limitations, making

Quatrevingt’s federal habeas petition t imely

under § 2244(d)(1)(A).

On appeal, the state argues that its motion

to dismiss Quatrevingt’s petition is not proper evidence of the time of filing. This argument

is raised for the first time on appeal; we do not

consider theories presented for the first time

on appeal. 5 L everette v. Louisville Ladder

Co.

, 183 F.3d 339, 342 (5th Cir. 1999). The

district cou r t did not commit clear error by

finding Quatrevingt’s federal habeas petition

t imely filed.

IV.

The state challenges Quatrevingt ’ s habeas

petiti o n fo r failure to exhaust his claims in

state court. AEDPA requires a state prisoner

seeking federal habeas relief to exhaust statecourt remedies absent circumstances that “rende r such processes ineffective.” 28 U.S.C.

§ 2254(b)(1). This finding is also reviewed for

clear error, because the MJ’s unob jected-to

recommendation was reviewed de novo by the

district court.

A federal habeas petitioner has not

exhausted his federal claims “if he has the right

u n der the law of the State to raise, by any

availabl e procedure, the question presented.”

28 U.S.C. § 2254(c ). A petitioner has

exhausted his state law remedies if he has

presented the argument for relief to the state’s

highest court at least once. S ee United States

v. Sones , 61 F.3d 410, 415 (5th Cir. 1995). 6

3 See State v. H

offman , 768 So. 2d 592 (La.

2000) (recognizing denial of certiorari as one

ground for finality of direct review).

4 Our review of this determination does not

implicate the question whether Quatrevingt’s petition was “properly filed” (a legal question we review de novo

. J

ohnson v. Cain

, 215 F.3d 489,

494 (5th Cir. 2000)). Our inquiry here is limited to

the factual question whether the petition was filed

at all. 5 The state did object to the MJ’s re port, but

only is a “vague manner.” This vague objection in

not sufficient to permit a new argument on appeal.

6 See also O’Sullivan v. Boerckel , 526 U.S.

838, 845 (1999) (“Because the exhaustion doctrine

is d esigned to give the state courts a full and fair

opportunity to resolve federal constitutional claims

before those claims are presen ted to the federal

courts, we conclude that state prisoners must give

the state courts one full opportunity to resolve any

constitutional issues by invoking one c o mplete

(continued...)4

The MJ found that Quatrevingt had argued

t he constitutionality of the jury charge to the

Louisiana Supreme Court. This determination

did not involv e asking whether a legal theory

h a d been presented to that court, but only

whether Quatrevingt actually had presented

this very argument.

S pecifically, the state alleges Quatrevingt

di d not “take this issue” to the Louisiana

Supreme Court. This is a factual matter.

Factual questions ra i sed by habeas petitions

are reviewed for clea r error, as are any other

civil factual questions. See Donahue v. Cain

, 231 F.3d 1000, 1003 (5th Cir. 2000). There is

no clear error in the finding that the jury

charge argument was presented to the

Louisiana Supreme Court.

V.

The state’s final procedura l argument is

based on the doctrine of procedural bar. Bec ause the MJ’s report on this issu e was

reviewed de novo

, we apply our normal

standard of review and review de novo

. B oyd

v. Scott , 45 F.3d 876, 879 (1994).

If a state court rejects a challenge to a criminal conviction on the basis of a sta t e

procedural rule, federal habeas relief may be

foreclosed. This bar operates only where the

d ecision of the last state court to which the

petitioner presented the federal claims “fai rly

appeared to re st primarily on resolution of

those claims, or be interwove n with those

c laims, and did not clearly and expressly re l y

on an independent and adequate state ground.”

Coleman v. Thompso n , 501 U.S. 722, 735

(1991). The requirement that a state court “clearly

and expressly” demonstrate reliance on a state

ground is not automatic. This duty is

triggered only where the stat e court decision

gives the federal habeas court “good reaso n”

to suspect the decision is based on federal law

by “fairly appearing” to do so or b y

interweaving the claims. I d

. at 739. “The key

is not the clarity of the state court’s language,

or even whether the state court addressed the

merits of the federal claim, but whether the

state court may have based its decision on its

understanding of federal law.” Y oung v. Herring

, 938 F.2d 543, 553-54 (5th Cir. 1991) (en

banc). Where the state court has addressed

the merits of the federal claim, we may infer

waiver, absent a clear and express statement of

r eliance on the state procedural ground. S ee

id . at 553 n.12.

The Louisiana Supreme Court’s entire discussion of the jury charge consisted of the following:

Despite the absence of a

contemporaneous objection at trial,

defendant contends that the trial court’s

ju r y instruction on reasonable doubt

requires reversal under Cage and

Sullivan

. . . . The reading of this

charge, with its use of the terms ‘grave

uncertainty,’ ‘moral c ertainty,’ and

‘actual and substantial doubt,’ no longer

mand at es relief. See State v. Smith.

According to the United States Supreme

Court’s reexamination of its reasonable

doubt jurisprudence undertaken in

Victor v. Nebraska a n d this Court’s

implementation of Victor in Smith, the

in st ruction in the instant case did not

allow the jury to convict without

satisfying the reasonable doubt

requirements of In re Winship. The 6 (...continued)

round of the State’s established appel l ate review

process.”)

.5

foregoing terms do not suggest a higher

degree of do ubt than is required for

a cquittal under the reasonable do ubt

standard. Nor do the foregoing terms

suggest that ‘reasonable doubt’ is mere

speculation.

State v. Quatrevingt

, 670 So. 2d 197, 211 (La.

1996).

This analysis le a ves little doubt the

Louisi ana Supreme Court did not rely on the

state procedural ground or even hold in the

alternative. The attention the court paid to the

federal con st itutional ground permits us to

infer reliance o n it without a “clear and

express” statement to the contr ary. S ee

Young , 938 F.2d at 553 n.12.

At best, the state court’s treatment of the

issue interwove the state and federal grounds.

Where this is the case, there is good reason for

us to rej ect an explanation for the decision

ground ed solely on a state procedural

foundation. The state may have based its

decision on federal grounds; this permits us to

find no independent and adequate state ground

precluding our review.

VI.

The subst a

nce of Quatrevingt’s habeas petition challenges the jury charge and subsequent

explanation to the jury of the mea ning of

reasonable doubt. Because the district court

reviewed de novo the MJ’s conclusion on the

merits of the habeas claim, we employ our

usual standard of review. M eister

, 233 F.3d at

336. Our review of a district court’s legal

conclusions in habeas proceedings is de novo

. Clark v. Scott , 70 F.3d 386, 388 (5th Cir.

1995). The substance of a habeas claim,

however, is reviewed under t he highlydeferential frame work of AEDPA, under which the burden is on the habeas petitioner to

demonstrate that the state court decision “was

contrary to, or involved an unreasonable

application of, clearly established Federal law,

as det ermined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).

AEDPA affords two avenues of relief. The

petitioner must show the state court

construction was either “contrary to” federal

law or an “unreasonable application” of it. To

be “co n trary to” federal law, the state court

must apply a

rule t hat contradicts a rule laid

down by the Supreme Court. S ee Williams v.

Taylor , 529 U.S. 363, 405 (2000).

A second avenue of relief is available where

t he state court unreasonably applies federal

law. This inquiry involves asking “whether the

state cour t’s interpretation of cl earl y

established federal law was objectively

unreasonable.” Id.

Some of our recent cases have fleshed out

the meaning of “objectively unreasonable.” In

Martin v. Cain

, 246 F.3d 471, 476 (5th Ci r.

2001), cert. denied

, 122 S. Ct. 194 (2001), we

stressed that to be un

reasonable, the state

court application of federal law must be more

than merely erroneous. Our role under this inquiry is not to determine w hether the state

court co nstruction of federal law was merely

wrong, but whether it was wrong to the point

of being unreasonable. Stated another way

, “mere disagreement with the state court is not

enough.” Orman v. Cain , 228 F.3d 616, 619

(5th Cir. 2000). The question here is whether

the Louisiana state court misapplied a federal

standard or whether the state court’s decision

that the instructions to the jury did not violate

the Constitution is objectively unreasonable.

The jury charge contained the p hrases6

“grave uncertainty,” “substantia l doubt,”

“moral uncertainty,” and “a serious doubt for

which you can give good reasons” to describe

more fully the meaning of reasonable doubt. 7

7 The charge in its entirety read:

Ladies and gentlemen, the defendant is

presumed to be innocent until proven guilty

beyo nd a reasonable doubt. The consequence of this rule of law, he is not

required to prove his innocence but may rest

upon the presumption in his f avor and to

overturn by positive affirmative proof. The

onus, the refore is on the State to establish,

to your satisfaction, and beyond a reasonable doubt, the guilt of the accused as to

the crime charged or any lesser one included

therein. If you entertain any reasonable

doubt as to an y of the facts or elements

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 Not

Guilty

. Even where the evidence demonstrates a probabili ty of guilt, yet if it does

not establish it beyond a reasonable doubt,

you must acquit the doubt. This doubt must

be a reasonable doubt, that is one founded

upon real, tangible, and subst antial basis,

and not upon a mere caprice or fancy or a

c onjecture. It must be such a doubt as

would give rise to grav e uncertainty raised

in your mind by the r eason or the

unsatisfactory character of the evidence, one

that would make you feel that you had not,

an abiding conviction to a moral certainty of

the defendant’s guilt. If, after giving a fair

and impartial consideration of a ll the facts

in the case, you find the evidence

unsatisfactory upon any single point

indisputa bly necessary to constitute the

d efendant’s guilt, this would give rise to

such a reasonable doubt as would justif y

you returning a verdict of Not Guilty. The

prosecution must establish guilt by legal and

(continued...) 7 (...continued)

sufficient evidence beyond a reasonable

doubt, but the rule does not go further and

require a preponderance of the testimony. It

is incumbent u pon the State to prove the

o ffense charged, or legally included in th e

indictment, to your satisfaction and beyond

a reasonable doubt.

A reasonable doubt is not a mere possible doubt. It should be an actual and substantial doubt. It is such a doubt as a

reasonable man would seriously entertain.

It is a serious doubt for which you can give

a reason. In other words, ladies and

g entlemen, when you go back and you’re

going to decide this case, and somebody announces, I have a dou bt. The duty of the

other eleven is to ask the question, Why do

you have the doubt? Why do you have the

doubt? You’ve got to be able to articulate

why they have the doubt, because a

reas onable doubt is a doubt that you can

assign a reason why you have that doubt

and it’s the obligation of

the prosecutor to

prove it beyond that standard. The mere

feeling that you got, the jury would say, I

just feel, I feel, my feelings are not good

enough, then l ook a t the evidence in the

case

. Let’s all decide it on the evidence of

the case or the lack of evidence. You’ve got

to be able to articulate. You’ve got tp be

able to say, This is the reason I why I have

the doubt, and it’s the obligation of the State

to prove it beyond a reasonable doubt. You

are prohibited by law, in your oath, in going

beyond the e v idence to convict the

defendant. You must confine yourselves

strictly to dispassionate consideration of the

t e stimony given upon the trial. You must

not reso rt to any extraneous facts and

circumstances in reaching your ver d ict.

That is, you must restrict yourself to the

evidence you’ve heard on the trial of t his

(continued...)7

After a period of deliberation, the jury

submitted a question asking “Could you just

reinstruct on the one par t as to what

constit ut es considerable doubt?” The court

referred t he jury to a part of the instruction

already given by repeating a substantial porti on

of that instruction. 8 After an additional period of deliberation, the jury returned a guilty

verdict.

The MJ and the dist r ict court found

constitutional problems with this series of

7 (...continued)

case. However, the lack of testimony

adduced at the trial may be relied upon as

the basis for the establishmen t of a

reasonable doubt.

8 In full, this second instruction was:

I am going to tell you that the

defendant is presumed to be innocent until

proven guilty beyond a reasonable doubt.

The consequence of this law is that he is not

required to prove his innocence. There is a

Fifth Amendment of the United States Constitution that says that the State must prove

its case that it presents beyond a reasonable

doubt. But even though the State had the

obligation to pr ove its case beyond a

reasonable d oubt, it does not have the

obligation to prove it beyond all doubt.

Now beyond SS

beyond a reasonable doubt

a s I talked to you before, is if you have

d oubt and you can assign a reason to it,

that’s a reasonable doubt. A reasonable

doubt can be established by evidence or the

lack of evidence in a case; one of the two

ways or any other way that you want to look

at it. If you entertain any reasonable doubt

as to any of the facts and elements necessary

to constitute the defendant’s guilt, it is your

sworn duty to give him the benefit of the

doubt and return a verdict of Not Guilty.

Even where the evidenc e demonstrates a

probability of guilt, yet it does not establish

it beyond a reasonable doubt, you must acquit the accused. This doubt must be a rea-

(continued...) 8 (...continued)

sonable one, and when I say reasonable one,

using the term reason as being the common

denominator, the thing to look to SS a reason,

a reasonable doubt, not a whim or fancy or

conjecture. Its got to be a reasonable doubt.

It must be such doubt as would give rise to

grave uncertainty raised in your mind by the

reason of the unsatisfactory character of the

evidence, one that would make you feel that

you had not embodied a conviction to a

moral certainty of the defendant’s guilt.

If, after having given a fair and

impartial consideration of all of the facts in

the case, you find the evidence

unsatisfactory, upon any single point

indispens ably necessary to constitute the

defendant’s guilt, this would g i ve rise to

such a reasonable doubt as justifying

returning a verdict of Not Guilty. The

prosecution must establish guilt by legal and

sufficient evidence beyond a reasonable

doubt. But the rule does not go further and

require a preponderance of testimony. What

it means in that statement is that it means

that the prosecutor doesn’t have to prove the

case beyond ALL doubt, the feeling in your

stomach, or whatever you may want to call

it, but he’s got to prove it to you beyond a

reasonable doubt, a doubt you can say this

is the reason I have doubt. A reasonable

dou bt is not a mere possible doubt. We’re

not talking about probabi lities. We’re

talking about a reasonable doubt. It should

be an actual and s ubstantial doubt. It

should be a doubt as a reasonable man

would seriously entertain. It has to be a

serious doubt to whic h you can assign

reason.8

instructions. Although the precise reason for

the MJ’s recommendation that the instructions

were unconstitutional is not obvious, the MJ

and the court reasoned that the original charge

and the response to the jury question, taken

together, were constitutionally inadequate to

protect Quatrevingt’s Fourteenth Amendment

rights. The court, though, explicitly based its

decision to grant habeas relief on the

subsequent instruction. The court found that

providi ng only another version of the instructions that confused the jury the first time

did not satisfy the requireme n ts of due

process.

The due process standard for jury charges

does not require the use of any specific

formulation; all that is required is that the jury

be instructed to find the defendant’s guilt

beyond a reasonable doubt. S ee Victor v.

Neb.

, 511 U.S. 1, 5 (1994). The relevant

question is “whether there is a reason a ble

likelihood that the jury understood the

instructions to allow conviction based on proof

insufficient to meet the Winship standa rd.” 9

Quatrevingt’s ch allenge focuses on four

phrases found in his initial charge: “ a serious

d oubt for which you can give a good

reason,” 10 “grave uncertainty,” “substantial

doubt” and “moral uncertainty.”

In Cage v. La.

, 498 U.S. 39, 40 (1990), the Court held that an instruction c ont aining the

phrases “grave uncertainty,” “substantial

doubt,” and “moral certainty” violated due

process. 11 The Court has handed down two

important cases since Cage but before Quatrevingt’s conviction became final. 12

In Estelle v. McGuire

, 502 U.S. 62 (1991),

the Court replaced the previous wording of the

constitutional test as found in Cage

, 498 U.S.

at 41: “how reasonable jurors could have understood the charge as a whole.” M c Guire

, 502 U.S. at 72 & n.4, resolved the possible

confusion over this standard and settled on the

for mulation used in V

ictor

, asking whether

9 See In re Winship

, 397 U.S. 358 (1970)

(requiring each element of a charged offense to be

proved beyond a reasonable doubt).

10 The so-called “articulation requirem ent” (a

serious doubt fo r which you can give a good

reason) nee d not detain us. The Supreme Court

has never expressed concern with this p hrase

. Although this court has expressed some doubt, our

thoughts on the matte

r are irrelevant under

AEDPA. S ee Williams v. Cain

, 229 F.3d 468, 476

(5th Cir. 2000), cert. denied

, 122 S. Ct. 72 (2001). 11 The instruction in Cage read:

If you entertain a reasonable doubt as

to any act or element necessary to constitute

the defendant’s guilt, it is your duty to give

him the benefit of the doubt and return a

verdict of not guilty. Even where the evidence demonstrates a probability of guilt, if

it does not establish the guilt beyond a reasonable doubt, you must acquit the accused.

This doubt, however, must be a reasonable

one; that is one tha t is founded upon a real

tangible substantial basis and not upon mere

caprice and conjecture. It must be such

doubt as would give rise to uncertainty,

raised in your mind by reasons o f the

unsatisfactory character of t he evidence or

lack thereof. A reasonable doubt is not a

mere possibl e doubt. It is an actual

substantial doubt. It is a doubt a reasonable

man can seriously entertain. What is

required is not an absolute or mathematical

certainty, but a moral certainty.

Cage , 498 U.S. at 40.

12 This is the relevant period under Teague v.

Lane

, 489 U.S. 288, 310 (1989) (plurality opinion

of O’Connor, J.)9

there was “a reasonable likelihood that the jury

has applied the challenged instruction” so as to

violate the Constitution. Arguably, this has

raised the threshold of what a defendant must

show to prove a constitutional violation. This

in turn casts the holding in Cage in a new light;

it is possible the challenged instructions would

pass the test laid down in McGuire.

The other, and more significant, intervening

case is Victor , in which the Court parsed two

differ ent jury charges to test the possible

unconstitutionality of several phrases. The

phrase s relevant to Quatrevingt’s habeas petition are “moral uncertainty” and “substantial

doubt.”

“Mora l uncertainty” might have been

thought problematic because it m a y give the

jurors the be lief they could convict if

convinced to a

moral certainty of the

defendant’s guilt, but not to a certainty based

on the evidence. This argument was rejected

in Victor

, 511 U.S. at 1 6, in which the Court

n oted the presence of other language in th e

instruction that made plain the jury’s

obligation to convict on the basis of evidence

. In Quatrevingt’s cha rge, the sentence

immediately preceding that containing the

of fending phrase reads “Even where the

evidence demonstrates a probabil it y of guilt,

yet it does not establish it beyond a reasonable

doubt, you must acquit the doubt.” The Court

also approved a phrase almost identical to that

in Quatreving t ’s charge, noting that “an

abiding conviction, to a moral certainty” is not

constitutionally problematic. Id . at 21.

The Victor Court also dealt with the phrase

“substantial doubt.” Those words appear

twice in Quatrevingt’s ch arge, once i n the

clause “tangible and sub st antial basis”

(comparing reasonable doubt to fanciful doubt), and the s eco nd in the sentence “It

should be an actual and substantial doubt.” In

approving the use of this phrase in context, the

Court relied on two argum ents, both

applicable here. First, the Court found that the

comparison of

substantial doubt to fanciful

doubt makes the reference the existence of

doubt, not its magnitude. I d

. at 20. The same

is true w i th respect to Quatrevingt’s charge,

which uses “substant ial” and “fanciful” in the

same sentence.

The C o urt also found the existence of an

alternative definition of reasonable doubt supported the constitutionality of the charge as a

whole. Quatrevingt’s charge offers several alternative formulat i ons of reasonable doubt:

“evidence unsatisfactory on any single point

indispensably

necessary to constitute the defendant’s guilt”; “such doub t as a reasonable

man would entertain”; “lack of testimony. . .

may be relied upon

. . . for the establishment of

a reasonable doubt.”

The “grave uncertainty” language can be

subjected to the same analysis as can the

“substantial doubt” phrase. In C age

, 498 U.S.

at 41, however, the combination of the phrases

“grave doubt” and “substantial doubt” gave

the Cour t pause in considering the

constitutionality of the charge. It was only the

combin at io n of those phrases with “moral

certainty” that made the constitutio nal

violation “clear.” I

d

. That conclusion,

t ho ugh, must be filtered though the new

constitutional standard and the contextual

analysis added by Victor

.

The district court granted Quatre v ingt habe as relief, not on the basis of the

unconstitutionality of the original jury charge,

but on the failure of the reinstruction properly

to answer the confusion evident in the jury’s10

request to hear again t h e definition of

“considerable doubt.” That phrase appears

nowhere in the original charge or in the court’s

response.

Where the jury asks for a clarification of an

instruction, it is constitutionally adequ ate f or

the cou rt to refer to the secti on of an

otherwise constitutional charge. S ee Weeks v.

Angelone

, 528 U.S. 225, 234 (2 000). 1 3 In

Weeks , the court merely referred the jury to a

paragraph of the o riginal charge without

restating it. I

d

. at 229. Here, the court

repeated a substantial porti on of the original

charge. Nowhere does this restatement

ment io n “considerable doubt.” The

restate m ent also contains all the mitigating

factors discussed in c o nnection with V ictor

. Because “[a] jury is presumed to fo llow its

instructions,” R ichardson v. Marsh

, 481 U.S.

200, 211 (1987), the court’s restatement of the

standard could not itself be the source of

constitutional error.

Our task under AEDPA is not to explicate

the current st ate of Suprem e Court

jurisprudence, but to test whether a st a te

co urt’s reading of that jurisprudence is

unreasonable. For Quatrevingt to merit habeas

relief, we would need to find objectively

unreasonable the Louisiana Supreme Court’s

decision that th ere was not a “reasonable

l ikelihood” the jury applied the instruction in

an unconstitutional manner. That conclusio n

must be either contrary to “clearly established”

federal law or involve an unreasonable

application of that law. In light of the

challenged instruction’s mitigating phrases not found in Cage

, the subsequent alteration of the

standard in McGuire , and the further analysis

required by Victor

, we cannot call the

Loui siana Supreme Court’s decision

unreasonable.

REVERSED. 14

13 T e ague does not prevent the application of

new rules of constitutional law that advantage the

state. S ee Gilmore v. Taylor

, 50 8 U.S. 333

(1993). 14 We note that the district court’s order to retry

Quatrevin gt, although now moot, is beyond the

power of a federal co urt. A successful habeas

petition cannot result in ordering the state to retry

a defendant. S ee In re Medley

, 134 U.S. 160, 173

(1890).