Revised September 8, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-31220

ARCHIE HARRIS,

Plaintiff-Appellant,

versus

WARDEN, LOUISIANA STATE PENITENTIARY,

Defendant-Appellee.

Appeal from the United States District Court for the

Western District of Louisiana

August 24, 1998

Before GARWOOD, DUHÉ and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Archie Harris (Harris) appeals the

district court’s denial of habeas corpus relief as to his Louisiana

attempted second degree murder conviction. Harris raises two

issues: (1) an erroneous jury instruct ion deprived him of due

process and (2) trial counsel’s failure to object to the erroneous

instruction and failure to correctly present the issue to the jury

constituted ineffective assistance of counsel. We affirm the

district court’s denial of relief.2 Facts and Proceedings Below

Harris is currently serving a 45-year sentence at hard labor

in the Louisiana State Penitentiary at Angola for the attempted

second degree murder of Jackie Jackson (Jackson).

On October 3, 1984, Jackson accepted a ride from Harris, with

whom she was ac quainted. Together with Joseph Hunter, Jr.

(Hunter), who was also a passenger in Harris’s car, they went to a

baseball park in Logansport, Louisiana, whe re they drank alcohol

and smoked marihuana. Later, Jackson and Harris drove away alone,

leaving Hunter at the ball park.

Jackson testified at trial that after they left the ball park,

Harris demand ed that she give him a ring that she was wearing.

Upon her refusal, he hit her several times and demanded that she

have sex with him, which she also refus ed. He then hit her some

more, but eventually agreed to take her to her home in Longstreet,

Louisiana. When they arrived at her home, Jackson attempted to

leave the car, but Harris grabbed her and began stabbing her with

a knife in the chest, face, neck, and abdomen. Jackson broke free

and ran, but Harris grabbed her and placed her in the back seat of

his car.

Harris drove off, but eventua lly ran out of gas. At that

poin t, he ordered Jackson into the trunk of the car. Jackson

initially refused, to which Harris responded, “well, I am going to

have to finish you off right here.” Fearing for her life, she got3

into the trunk and Harris walked off in search of gas.

Harris went to the home of David Mason (Mason) asking for gas.

Mason agreed to help and returned to Harris’s car with him. While

attempting to start the car, Mason leaned into the car and heard a

woman asking for help. He asked whether there was anyone in the

car, and heard a woman’s voice respond “Yes,” and “He is trying to

kill me.” Mason posed the same question to Harris; Harris

responded that he had a calf that he was planning on butchering in

the car. Mason was unconvinced and called the police when he

returned home.

Deputy Arbuckle (Arbuckle) of the DeSoto Paris h Sheriff’s

Office recognized Harris from Mason’s description of the car.

Arbuckle stopped Harris and explained that there was a report that

Harris might have someone in the trunk. Harris denied there was

anyone in his trunk and added that he did no t have a key to the

trunk, but he offered to drive with Deputy Arbuckle to his sister’s

house, where he could secure a key. Deputy Arbuckle agreed. Not

far down the road, Arbuckle observed Harris throw an object from

his car; it was later discovered that that object was a knife. At

this point, Arbuckle placed Harris in custody.

At around this time, Mason and his brother arrived at the

scene and assisted with the arrest of Harris and rescue of Jackson.

After Jackson was rescued she was transported to the hospital with

several life-threatening wounds. The emergency room physician

testified that her blood pressure was 40/0; she had no breathing1 In 1990 the definition of first degree murder was enlarged by

adding “second degree kidnaping” as one of the predicate offenses

listed in section 14:30A(1). Acts 1990, No. 526, § 1.

4 s ounds; she had sucking chest wounds; she had several life

threatening stab wounds to her neck, chest, and abdomen. After

Jackson’s condition was stabilized, three physicians operated on

her neck, heart, and abdomen. Jackson survived the stabs and the

surgery, and she testified against Harris at trial. Harris did not

testify.

Harris was tried for the attempted first degree murder of

Jackie Jackson on the theory that he had the “specific intent to

kill or to inflict grea t bodily harm and [was] engaged in the

perpetration or attempted perpetration of aggravated kidnaping

. .

. .” La. Rev. Stat. § 14:30A(1)(defining first degree murder). 1

In addition to attempted first degree murder, the jury was also

instructed on attempted second degree murder, attempted

manslaughter, and aggravated battery.

The jury found Harris guilty of attempted first degree murder,

and the trial court imposed a sentence of 45 years at hard labor.

On direct appeal, however, the Louisiana Court of Appeals, Second

Circuit, reversed that conviction on the grounds that Harris was

not engaged in an aggravated kidnaping since he never made a ransom

demand, which is an essential element of aggravated kidnaping in

Louisiana. See State v. Harris , 480 So.2d 943 (La. App. 2d. Cir.

1985). The Louisiana Court of Appeals found that attempted second5

degree murder was a lesser included offense of attempted first

degree murder. The court also found that the jury’s verdict of

guilty of attempted first degree murder carried with it an implicit

finding that the defendant acted with the specific intent to kill.

I d. at 944. Because Harris possessed the requisite intent and

engaged in an act in furtherance of that intent, the court adjudged

Harris guilty of second degree murder and remanded the case for

resentencing.

On remand, the district court resentenced Harris to 45 years

at hard labor. Later, Harris filed an application for postconviction relief (PCR) in the state district court. The district

court denied the application, and the Louisiana Court of Appeals,

Second Circuit, affirmed this denial. S ee State v. Harris

, 643

So.2d 779 (La. App. 2d. Cir. 1994). The Louisiana Supreme Court

denied review of Harris’s case. S ee State v. Harris

, 650 So.2d 251

(La. 1995).

After exhausting his state remedies, Harris turned to the

federal courts for relief. On August 29, 1995, Harris filed a

petition for a writ of habeas corpus under 28 U.S.C. § 2254, in the

United States District Court for the Western District of Louisiana.

On June 21, 1996, the magistrate judge filed a Report and

Recommend ation suggesting that the writ be denied. Despite,

Harris’s objections to the Report and Recommendation, the district

court adopted the magistrate’ s report and dismissed the petition2 The jury instructions defined “attempt” as follows:

“Any person ha ving a specific intent to commit a

crime, who do es or omits an act for the purpose of and

tending toward accomplishing his object is guilty of an

attempt to commit the offense intended; and it shall be

immaterial whether, under the circumstances, he would

have actually accomplished his purpose.

A n attempt is a separate but lesser grade of the

i ntended crime; and any person may be convicted of an

a ttempt to commit a crime, although it appears on the

trial that the crime intended or attempted was actually

perpetrated by such person in pursuance of such attempt.”

The jury instructions defined first and second degree murder

as follows:

“Se cond degree murder is the killing of a human

being when the offender has a specific intent to kill or

t o inflict great bodily harm; or when the offen der is

engaged in the perpetration or attempted perpetration of

aggravated kidnaping, armed robbery, or simple robbery,

even though he has no intent to kill or to inflict great

bodily harm.

Thus, in order to convict the defendant of attempted

second degree murder, you must find:

1. That the defendant had a specific intent

t o commit the crime of second degree murde r ;

and

6 with prejudice.

On appeal, Harris has raised two issues: (1) the erroneous

jury instruction deprived him of due pr ocess and (2) trial

counsel’s failure to object to the erroneous instruction and

failure to correctly present the issue to the jury constituted

ineffective assistance of counsel.

Discussion

The basis of this appeal is an erroneous jury instruction 22. That the defendant did or omitted an act

for the purpose of and tending directly toward

the commission of the crime of second degree

murder.

First degree murder is the killing of a human being

when the offender has a specific intent to kill or to

inflict great bodily harm and is engaged in the

perpetration or attempted perpetration of aggravated

kidnaping, armed robbery, or simple robbery.

Thus, in order to convict the defendant of attempted

first degree murder, you must find:

1. That the defendant had a specific intent

to commit the crime of first degree murder;

and

2. That the defendant did or omitted an act

for the purpose of and tending directly toward

the commission of th e crime of first degree

murder.”

3 First degree murder under sect ion 14:30A(1) requires b oth a

“specific intent to kill or inflict great bodily harm” and that the

offender be engaged in one or more of certain listed felonies (here

allegedly only aggravated kidnaping); second degree murder, under

La. Rev. Stat. § 14:30.1A(1) & (2), requires either “a specific

intent to kill or to inflict great bodily harm” o r that the

offender be engaged in one or more of certain listed felonies (here

allegedly only aggravated kidnaping).

7 that purportedly allowed the jury to convict Harris on a lesser

state of mind than is required under Louisiana law. In order to be

guilty of attempted murder, a defendant must have the specific

intent to kill; the mere intent to inflict great bodily harm, while

sufficient to support either a first or sec ond degree murder

conviction, 3 is insu fficient to convict a defendant of a ttempted

murder (first or second degree). Both Harris and the State agree

that the instruction was erroneous; they disagree, however, as to

the effect of this error. Assuming, a rguendo

, that the given8

instruction is constitutionally deficient for failing to

s pecifically instruct that Harris needed to have the “specific

intent to kill,” we must determine whether this error, either of

itself or in connection with Harris’ claim counsel was ineffective

in regard thereto, was such as to require setting aside Harris’s

conviction on federal habeas.

I. Standard of Review

A. Structural Error

At one time lower courts generally held that federal

constitutional errors could never be harmless, and required

reversal no matter how trivi al the defect. S ee 5 Am. Jur. 2d.

Appellate Review § 723. Then, in 1967, the Supreme Court held that

s ome constitutional errors could be so insignificant that they

could be deemed harmless

. See id. (citing Chapman v. California

,

87 S.Ct. 824 (1967)). Today, most constitutional errors are

susceptible to harmless error analysis, and harmless error is the

norm rather than the exception. S ee i d. In fact, there is a

stron g presumption that constitutional errors are subject to

harmless error analysis. S ee Rose v. Clark

, 106 S.Ct 3101, 3106

(1986).

Despite this widespread application of harmless error

analysis, there are still so m e constitutional violations that

require reversal regardless of their harm. These errors have been

labeled “structural” because they involve structural defects in the4 In United States v. Wiles , 102 F.3d 1043, 1056-57 (10th Cir.

1996), vacated sub nom. United States v. Schleibaum ,118 S.Ct.

361(1997), the Tenth Circuit gave a comprehensive list of cases in

which courts have found structural error:

“Examples of structural errors are exclusion of

individuals from a grand jury based on race, V asquez v.

Hillery

, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598

(1986); denial of the right to self-representation,

McKaskle v. Wiggins

, 465 U.S. 168, 177-78 n. 8, 104 S.Ct.

944, 950 n. 8, 79 L.Ed.2d 122 (1984); denial of the right

to a public trial, Waller v. Georgia

, 467 U.S. 39, 49 n.

9, 104 S.Ct. 2210, 2217 n. 9, 81 L.Ed.2d 31 (1984); a

petit jury's improper selection, and exposure to pretrial

publicity, Sheppard v. Maxwell

, 384 U. S. 333, 86 S.Ct.

1507, 16 L .Ed.2d 600 (1966); denial of the right to

counsel, Gideon v. Wainwright , 372 U.S. 335, 83 S.Ct.

792, 9 L.Ed.2d 799 (1963) and Holloway v. Arkansas , 435

U.S. 475, 98 S.Ct. 1173, 55 L.Ed .2d 426 (1978); . . .

potentially biased judges, T umey v. Ohio

, 273 U.S. 510,

4 7 S.Ct. 437, 71 L.Ed. 749 (1927)[; a nd a

constitutionally-deficient reasonable doubt instruction,

Sullivan v. Louisiana

, 508 U.S. 275, 113 S.Ct. 2078, 124

L.Ed.2d 182 (1993).]” Id.

5 In Arizona v. Fulminante

, 111 S. Ct. 1246, 1263 (1991), the

Court gave a list of cases in which obvious constitutional errors

were held not to be structural, b ut rather to be subject to

harmless error analysis:

“Since thi s Court's landmark decision in C hapman v.

California

, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967),

in which we adopted the general rule that a constitutional

error does not automatically require reversal of a conviction,

the Court has applied harmless-error analysis to a wide range

9 criminal trial mechanism that infect the entire trial process. 4

Structural errors stand in contrast to “trial errors”

—— errors

that occur during the presentation of the case to the jury that are

susceptible to har mless error analysis because the error may be

quantitatively assessed in the context of the oth er evidence

presented at trial. 5of errors and has recognized that most constitutional errors

can be harmless. See, e.g., C lemons v. Mississippi

, 494 U.S.

738, 752-754, 110 S.Ct. 1441, 1450-1451, 108 L.Ed.2d 725

(1990) (unconstitutionally overbroad jury instructions at the

sentencing stage of a capital case); S atterwhite v. Texas

, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988)

(admission of evidence at the sentencing stage of a capital

case in violation of the Sixth Amendment Counsel Clause);

Carella v. California

, 491 U.S. 263, 266, 109 S.Ct. 2419,

2421, 105 L.Ed.2d 218 (1989) (jury instruction containing an

erroneous conclusive presumption); P ope v. Illinois

, 481 U.S.

497, 501-504, 107 S.Ct. 1918, 1921-1923, 95 L.Ed.2d 439 (1987)

(jury instruction misstating an element of the offense); R ose

v. Clark

, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)

(jury instruction containing an erroneous rebuttable

presumption); Crane v. Kentucky

, 476 U.S. 683, 691, 106 S.Ct.

2 142, 2147, 90 L.Ed.2d 636 (1986) (erroneous exclusion o f

defendant's testimony regarding the circumstances of his

confession); D elaware v. Van Arsdall

, 475 U.S. 673, 106 S.Ct.

1431, 89 L.Ed.2d 674 (1986) (restriction on a d efendant's

right to cross-examine a witness for bias in violation of the

Sixth Amendment Confrontation Clause); Rushen v. Spain , 464

U.S. 114, 117-118, and n. 2, 104 S.Ct. 453, 454-455, and n. 2,

78 L.Ed.2d 267 (1983) (denial of a defendant's right to be

present at trial); U nited States v. Hasting

, 461 U.S. 499,

103 S.Ct. 1974, 76 L.Ed.2d 96 (1983) (improper comment on

defendant's silence at trial, in violation of the Fifth

Amendment Self-Incrimination Clause); Hopper v. Evans , 456

U.S. 6 05, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982) (statute

improperly forbidding trial court's giving a jury instruction

on a lesser included offense in a capital case in violation of

the Due Process Clause); Kentucky v. Whorton , 441 U.S. 786,

99 S.Ct. 2088, 60 L.Ed.2d 640 (1979) (failure to instruct the

jury on the presumption of innocence); Moore v. Illinois

, 434

U.S. 220, 232, 98 S.Ct. 458, 466, 54 L.Ed.2d 424 (1977)

(admission of identification evidence in violation of the

Sixth Amendment Counsel Clause); B rown v. United States

, 411

U.S. 223, 231-232, 93 S.Ct. 1565, 1570-1571, 36 L.Ed.2d 208

(1973) (admission of the out-of-court sta tement of a

nontestifying codefendant in violation of the Sixth Amendment

Counsel Clause); M ilton v. Wainwright

, 407 U.S. 371, 92 S.Ct.

2174, 33 L.Ed.2d 1 (1972) (confession obtained in violation of

Massiah v. United States

, 377 U.S. 201, 84 S.Ct. 1199, 12

L.Ed.2d 246 (1964)); C hambers v. Maroney

, 399 U.S. 42, 52-53,

90 S.Ct. 1975, 1981-1982, 26 L.Ed.2d 419 (1970) (admission of

evidence obtained in violatio n of the Fourth Amendment);

10Coleman v. Alabama

, 399 U.S. 1, 10-11, 90 S.Ct. 1999,

2003-2004, 26 L.Ed.2d 387 (1970) (d enial of counsel at a

preliminary hearing in violation of the Sixth Amendment

Confrontation Clause).”

11 Although courts have attempted to define “structural error,”

the exact meaning is vague. Courts have stated that structural

errors affect the framework of the trial, rather than just the

trial process

. As such, the error renders the trial an unreliable

mechanism for the determination of guilt beyond a reasonable doubt,

and the consequences of the error are necessarily unquantifiable

and indeterminable. S ee United States v. Wiles

, 102 F.3d 1043,

1056 (10th Cir. 1996).

For instance, a court cannot determine whether Gideon’s lack

of counsel actually harmed him

—— he may have put on a better defense

and brought forth more evidence than a public defender might

have

—— and thus the case must be reversed. On the opposite extreme,

a trial error, such as a minor violation of the confrontation

clause, is quantifiable and can be weighe d against the other

evidence that was presented in order to determine whether the error

was harmless.

The cases in between are not as obvious. Particularly

puzzling are the jury instruction cases. Most of the juryinstruction case s have been analyzed under a harmless error

standard, but in Sullivan v. Louisiana

, 113 S.Ct. 2078 (1993), the12

S upreme Court held that a constitutionally deficient “reasonabl e

doubt” instruction was structural. The Court stated that "where

the instructional error consists of a misdescription of the burden

of proof, which vitiates all the jury's findings," no jury verdict

of beyond a reasonable doubt exists upon which to base a harmless

error analysis. Id . at 2082.

In Kentucky v. Whorton

, 99 S.Ct. 2088 (1979) the Court held

that failure to instruct the jury on the “presumption of innocence”

was a tr ial error, but in J ackson v. Virginia

, 99 S.Ct. 2781

(1979), the Court held that failure to instruct on “reasonable

doubt” was a structural error. The difference is that it is

possible to assess the effect on the jury of the omission of the

“presumption of innocence” instruction, while it is impossible to

determine the effect of the omission of the “reasonable doubt”

instruction. See Arizona v. Fulminante

, 111 S.Ct. 1246, 1255

(1991) (White, J., dissenting).

As the dissent i n F ulminante stated, “these cases can be

reconciled only by considering the nature of the right at issue and

the effect of an error upon the tr ial.” Id

. The majority

essentially agreed with this characterization and held that the

error should be evaluated based on its “effect upon the composition

of the record.” Id. at 1265 (the Fulminante Court ultimately held

that the admission of a coerced confession was not a structural

error; it was a trial error, but it was not harmless).6 Pope resolved the issue of whether failing to clearly instruct

a jury is structural and automatically reversible. See United

States v. Kerley

, 838 F.2d 932, 938-39 (7th Cir. 1988) (holding

that any intimations that “merely fail[ing] to instruct clearly on

an ele ment of the crime. . . . is always reversible. . . . were

stilled by Pope v. Illino is . . . .” )

. By holding that the

constitution does not re quire that such errors be deemed

automatically reversible, Pope put to rest an issue that had been

simmering since the Supreme Court’s decisions in Sandstrom v.

Montana , 99 S.Ct. 2450 (1979). The Sandstrom court had held that

it is unconstitutional to instruct a jury that a defendant “intends

the ordinary consequences of his ordinary act,” but left open the

question whether such an error could be subject to harmless error

analysis. Id. at 2453

7 Because we are here faced with an attack on a state

conviction, we may grant relief only when that is required by the

constitution. We observe that that limitation is generally not

applicable when we review a federal conviction on direct appeal,

and accordingly in such cases we may treat certain properly

preserved errors as mandating reversal without assessment of

prejudice notwithstanding that such treatme nt of the same claim

would not be proper in a habeas challenge to a state conviction.

13 Harris’s case is analogous to the jury instruction cases that

found the erroneous instructions to be trial errors and susceptible

to harmless error anal ysis. In P ope v. Illinois

, 107 S.Ct. 1918

(1987), the Court held that a jury instruction that misdefined an

element of the offense was harmless. 6 More recently, in C alifornia

v. Roy

, 117 S.Ct. 337 (1996), the Court held that a jury

instruction that did not include a statement informing the jury

that they must find intent could be reviewed for harmless error.

Based on Pope and Roy

, we hold that the Louisiana court’s

erroneous instruction does not amount to a structural error and in

this habeas case is subject to harmless error review. 7

B. Harmless Error8 Since this case was filed before the April 1996 effective date

of the AEDPA, we will review it under pre-AEDPA standards. See

Lindh v. Murphy

, 117 S.Ct. 2059 (1997) (holding that the AEDPA does

not apply to cases that were filed before the April 1996 effective

date of the AEDPA).

14 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

, 113 S.Ct. 1710 (1993), and adopted by this Court in

Woods v. Johnson

, 75 F.3d 1017 (5th Cir. 1996). 8 An error requires

habeas relief only if it “‘had [a] substantial and injurious effect

or influence in determining the jury’s verdict.’” B recht

, 113

S.Ct. at 1722 (quoting Kotteakos v. United States , 66 S.Ct. 1239

(1946)).

Prior to Brecht , lower courts had generally applied the more

onerous Chapman standard in habeas cases as well as in direct

appeals. Under Chapman , relief was required unless the error was

harmless “beyond a reasonable doubt.” See Chapman v. California

,

87 S.Ct. 824 (1967). In B recht, the Supreme Court consciously

lowered the harmless error standard for section 2254 habeas cases.

See Brecht , 113 S.Ct. at 1721-22 (“The imbalance of the costs and

ben efits of applying the C hapman harmless-error standard on

collateral review counsels in favor of applying a less onerous

standard on habeas review of constitutional error.”). In adopting

the Kotteakos “substantial and injurious effect” standard, the

Court noted that there must still be actual prejudice a nd that a15

mere “rea sonable possibility” that the trial error affected the

verdict would not suffice to warrant habeas relief. S ee Brecht

,

113 S.Ct. at 1721 (“granting habeas relief merely because there is

a ‘reasonable possibility’ that t rial error contributed to the

verdict, see Chapman v. California [citation omitted], is at odds

with the historic meaning of habeas corpus

—— to aff ord relief to

those whom society has ‘grievously wronged.’”).

Thus, as we have previously stated in Woods v. Johnson

, the

error must be “substantial,” and there must be something more than

a “mere reasonable possibility” that the error contributed to the

verdict, but the Brecht standar d does not require a “reasonable

probability” that absent the error the verdict would have been

different; and “if our mind s are ‘in virtual equipoise as to the

harmlessness’” under the stated standard, then relief must be

granted. S ee Woods v. Johnson , 75 F.3d 1017, 1026-27 (5th Cir.

1996).

II. Due Process

A. Error

This Court and Louisiana courts have held that an instruction,

such as the one given in this case, that allows a jury to convict

a defendant of the Louisiana offense of attempted murder if he

merely in tended to inflict bodily harm but did not specifically

intend to kill the victim is constitutionally deficient. In Gray

v. Lynn , 6 F.3d 265, 269 (5th Cir. 1993); Scott v. Louisiana , 93416

F.2d 631, 634 (5th Cir. 1991); State v. Butler

, 322 So.2d 189, 192

(La. 1975), and State v. Serigny

, 610 So.2d 857, 859 (La. App. 1st

Cir. 1992), for example, it was held that a jury instruction is

erroneous where it expressly instructs that the jury can convict a

defendant of attempted murder if he merely had the intent to

inflict great bodily harm

. Such instructions are unconstitutional

because they allow the jury to convict a defendant on lesser

grounds than are statutorily required. S ee State v. Butler

, 322

So.2d 189, 193-94 (La. 1975).

In Harris’s case, however, the instruction was less egregious.

The court provided the jury with the statutory de finition of

murder, which states that the defendant must either intend to kill

or inflict great bo dily harm, and then stated that in order to

convict the defendant of attempted murder they must find that the

defendant had the “specific intent to commit [murder]”. Thus, the

court’s instruction for attempted murder merely inferentially

incorporated by reference the intent required for murder, but the

court did not expressly state that the intent to inflict great

bodily harm was suffici ent to convict the defendant of attempted

murder.

Several Louisiana courts have held that these type of

instructions are erroneous. See State v. Porter

, 626 So.2d 476,

478 (La. App. 3d Cir. 1993); State v. Hall

, 606 So.2d 972, 980 (La.

App. 3d Cir. 1992); State v. Guin

, 444 So.2d 625, 635 (La. App. 3d17

Cir. 1983) (all holding that jury charges that first define murder

as requiring specific intent to kill or inflict great bodily harm,

and then define attempted murder with reference to the definition

of murder, are improper). In light of these cases and the fact that

the state does not dispute that the instruction was substantively

erroneous, we con clude that the references in the instruction to

the intent to inflict great bodily harm were improper and rendered

the instruction legally erroneous and constitutionally deficient.

B. Harmless Error

As noted above, this erro neous jury instruction is not a

structural error and as such is subject to harmless error analysis;

additionally, since this is a habeas case, we analyze the error for

harm under the more lenient Brecht standard and will find relief

warranted if, but only if, the error had a subst antial effect or

influence in determining the verdict so that there is more than a

“reasonable possibility” that the result would have been different

had the jury been properly instructed. Because we conclude, as did

the magistrate judge and the district court, that the error here

did not have a substantial effect or influence in determining the

verdict and that there is not more than a reasonable possibility

that a jury would have reached a different result but for the

erroneous instruction, we affirm the denial of habeas relief.

Although this Court and the courts of Louisiana have routinely

held that the inclusion of the phrase “intent to inflict great18

bodily harm” in a jury instru ction for attempted murder under

Louisiana law is erroneous, courts have also held that such error

does not necessarily require reversal. S ee, e.g., State v.

Serigny

, 610 So.2d 857(La. App. 1st Cir. 1992); State v. Hall

, 606

So.2d 9 72, 980 (La. App. 3d Cir. 1992); S tate v. Latiolais

, 453

So.2d 1266 (La. App. 3rd Cir. 1984) (all affirming the attempted

murder convictions despite the erroneous i nstruction); b ut see,

e.g., Gray v. Lynn , 6 F.3d 265 (5th Cir. 1993); S tate v. Porter

,

626 So.2d 476 (La. App. 3d Cir. 1993); State v. Ball

, 554 So.2d 114

(La. App. 2d Cir. 1989) (all reversing the attempted murder

convictions because of the erroneous instruction).

In State v. Serigny , 610 So.2d 857, 860 (La. App. 1st Cir.

1992), the court upheld a conviction despite an erroneous jury

instruction similar to the one given in this case. Serigny admitted

that he wanted to kill the victim and expressed surprise over the

victim’s survival. The court concluded that based on this evidence,

“no reasonable jury could have reasonably concluded that defendant

merely intended to inflict great bodil y harm on the defendant.”

Id.

In State v. Latiolais

, 453 So.2d 1266, 1269 (La. App. 3rd Cir.

1984), the court found compelling evidence of a specific intent to

kill where a defendant repeatedly stabbed the victim in the temple,

face, and neck, and then left him for dead on the side of the road.

The court concluded that the victim’s belief that he was left for19

dead was the only reasonable construction of the events. The

Latiolais court found that the erroneous jur y instruction, which

allowed the jury to convict the defendant of attempted murder if he

possessed either a specific intent or an intent to inflict great

bodily harm, was harmless in light of the compelling evidence of

specific intent to kill.

In Gray v. Lynn

, 6 F.3d 265 (5th Cir. 1993) on the other hand,

this Court reached the opposite conclusion and reversed a criminal

conviction because the instruction allowed the jury to convict the

defendant of attempted murder if he merely intended to inflict

great bodily harm. Gray confronted the victim, who was sleeping

with a woman who had previously lived with Gray, and threatened to

“blow [the victim’s] brains out,” but rather than carry out his

threat, Gray hit the victim several times with the gun, and

ultimately fired at him when he ran away, but did not hit him. The

C ourt, reviewing the case for ineffective assistance of counsel,

concluded that there was a “reasonable probability” that the jury

could have had a reasonable doubt concerning Gray’s intent to kill.

The Court emphasized that Gray did not take advantage of several

“ golden opportunities” to kill the victim, which raised doubt s

about his actual intentions.

State v. Butler

, 322 So.2d 189 (La. 1975) presen ted similar

doubts concerning the defendant’s intent. Butler “taxed [his

former girlfriend] with going with another man,” and cut her on the9 Of course, the decisions of the Louisiana courts are not

binding on us in this respect, but they do provide a useful insight

into the views of jurists experienced in the evaluation of the

prejudicial effect of such an instruction in Louisiana cases.

20 face, eyes, arms, and back, and stated that “if she did not want

him, he was going to see who wanted her.” Id. at 191. The court

reversed the conviction without much discussion of whether the

error was in fact harmful. Based on Butler’s statement, it was

reasonable to conclude that he merely intended to mutilate and not

kill his victim. Butler’s intent was clearly questionable, and

there was more than a reasonable possibility that the Butler jury,

like the Gray jury, could have had a reasonable doubt concerning

Butler’s intent to kill. Because of this more than reasonable

possibility, the instruction was harmful. 9

We hold, based on the evidence presented at trial and the

arguments made by Harris, that the error in the instructions did

not have a substantial effect or influenc e in determining the

verdict and that there was not more than a reasonable possibility

that the jury would otherwise have had a reasonable doubt

concerning Harris’s intent to kill. Thus, the inclusion of the

erroneous “intent to inflict great bodily harm” element in the

murder definitions was harmless under Brecht

.

Harris did not present any evidence and did not argue to the

jury that he lacked the spec ific intent to kill. At trial,

Harris’s theory was that he was not engaged in an aggravated10 Also, Harris’s fa ilure to object to the jury instruction,

while not dispositive, is marginally indicative of the fact that he

did not consider his intent to be at issue. C f. Lowenfie ld v.

Phel ps , 108 S.Ct. 546, 552 (1988) (“We note . . . that defense

counsel did not object to either the polls or the supplemental

instruction. We do not suggest that petitioner thereby waived this

issue,

. . . but we think such an omission indicates that the

potential for coercion argued now was not apparent to one on the

spot.”).

21 kidnaping at the time of the attack. But he never contested or in

any way called into doubt the obvious fact that he intended to kill

Jackie Jackson. The defense did not put on any evidence to counter

the obvious and compelling inference that Harris intended to kill

Jackson, and the cross-examinations do not suggest that Harris’s

intent was in dispute. 10

This case is distinguishable from Butler

, where the defendant

obviously had some intent other than an intent to kill. There is

no evidence that Harris merely intended to mutilate, hurt, or do

anything less than kill, Jackie Jackson. In this respect, this

case is analogous to L atiolais where the defendant bruta lly

inflicted life-threatening stab wounds on the victim and left him

for dead by the side of the road. Harris, like Latiolais,

inflicted lif e-threatening stab wounds on Jackson and basically

left her for dead in th e trunk of his car. Not only is Harris’s

leaving Jackson for dead probative of an intent to kill, but

Harris’s deliberate use of a deadly weapon in a manner likely to

cause death further supports the inference that he intended to kill

Jackson. See Rogers v. State , 506 N.E.2d 481, 483 (Ind. 1987).22

Were it not for the fortuitous int ervention of external

forces, Jackson would almost certainly ha ve died. The emergency

room physician testified that Jackson was near death when she was

admitted to the hospital, and it was only thanks to the

intervention of Mason and Deputy Arbuckle that Jackson was rescued

from the trunk and brought to the hospital where she was saved from

the brink of death by emergency surgery. The fact that it took an

external force to stop the attack on Jackson and rescue her from

death makes this case distinguishable fr om G ray, where the

defend ant had several opportunities to kill his victim, but

ultimately failed to take advantage of these “golden opportunities”

and did not pursue the victim when he ran off.

Finally, we are persuaded that the sheer brutality of the

attack can give rise to no inference other than that Harris

affirmatively and actively intended to kill Jackson. S ee State v.

Cushman , 481 So.2d 1376, 1380 (La. App. 5th Cir. 1986) (upholding

a second degree murder conviction after finding that the horrible

injuries inflicted upon the victim along with the savageness of the

attack supported a finding that the defendant had the requisite

intent to kill).

The evidence that was presented at trial supports o nly one

rational inference concerning Harris’s intent

—— he intended to kill

Jackson. Based on the trial evidence, it is inconceivable that

Harris m erely intended to inflict great bodily harm on Jackson.11 Prejudice under Strickland requires that “[t]he defendant must

show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome” and “[a]n a ssessment of the

likelihood of a result more favorable to the defendant must exclude

the possibility of arbitrariness, whimsy, caprice, ‘nullification,’

and the like.” Id . at 2068. However, “a defendant need not show

that counsel’s deficient conduct more likely than not altered the

outcome in the case.” Id . If an error is harmless under Brecht

, it would appear not to be prejudicial under Strickland

. S ee Kyles

v. Whitley , 115 S.Ct. 1555, 1566-67 (1995).

23 Nor was his intent in this respect a theory of defense at trial.

We conclude that the erroneous instruction was harmless under

Brecht

.

III. Ineffective Assistance of Counsel

Harris also argues that his conviction ought to be set aside

based on ineffective assistance of counse l, because his counsel

failed to object to the erroneous jury instruction and this error

was prejudicial. Under the S trickland test, a defendant must show

that (1) trial counsel’s performance was deficient , and (2) the

deficien t performance prejudiced the defense. S ee Strickland v.

Washington , 104 S.Ct. 2052, 2064 (1984).

Based on the numerous cases that have held jury instructions

similar to the one given in this case to be erroneous, we hold that

trial counsel’s performance was deficient and thus the first prong

of the Strickland test is satisfied. However, for the same reasons

stated above, we hold that Harris was not prejudiced by his

counsel’s deficient performance. 1124 Conclusion

For the fo regoing reasons, we affirm the district court’s

denial of habeas relief.

AFFIRMED

ENDRECORD25

DeMoss, Circuit Judge, dissenting:

Everyone agrees that the instructions given at Harris’ trial

were infected with error of constitutional magnitude. Based upon

our precedent in Gray v. Lynn , 6 F.3d 265 (5th Cir. 1993), and my

independent review of this record, I believe there is a reasonable

possibility that the jury’s verdict was not based upon the required

showing that Harris had a specific intent to kill. I likewise

believe that the erroneous jury instructions, coupled wit h the

erroneous argument presented by b oth defense counsel and the

prosecuting attorney, create a reasonable probability that, but for

trial counsel’s unprofessional errors, the outcome might have been

different. For those reasons, I must register my dissent.

The jury instructions used at Harris’ trial allowed the jury

t o convict upon a showing of less than all of the essential

elements of the offense. Specifically, the instructions permitted

Harris’ conviction for attempted murder upon a showing of an intent

to commit great bodily harm. The panel majority has nonetheless

concluded that that error was harmless because (1) Harris did not

argue at trial that he did not have a specific intent to kill, and

(2) because Harris’ trial counsel did not object to the erroneous

instructions.

While it is true that Harris did not present any evidence26

tending to negate the specific intent to kill at trial, it is also

true that the state presented absolutely no evidence designed to

show that Harris had such an intent. That is simply because intent

was not an issue at trial. The entire case was tried upon the

erroneous assumption that a specific intent to commit great bodily

harm, coupled with Harris’ perpetration or attempted perpetration

of aggravated kidnaping was sufficient to support his conviction

for attempted murder. Similarly, while it is true that Harris’

defense counsel did not object to the erroneous instructions, that

fact made clear that defense counsel simply did not understand what

was required to convict his client; and that is the very deficiency

that serves as the foundation for Harris’ ineffective assistance of

counsel argument.

I.

There is no dispute that Louisiana law does not permit an

attempted murder conviction to be based upon a mere showing of

intent to commit great bodily harm. That principal has been wellestablished since at least 1975. State v. Butler , 322 So.2d 189,

192 (La. 1975).

Nonetheless, the jury was first informed by defense counsel,

then informed by the prosecuting attorney, and then instructed by

the trial court that the statute permit ted conviction upon a

finding that Har ris either (1) had a specific intent to kill, or27

(2) had an intent to commit great bodily harm and was engaged in

the perpetration of one of the listed felonies, in this case

aggravated kidnaping. Defense counsel told the jury:

First degree murder is the killing of a human

being. Okay, you have got First Degree Murder, and

then you have got another Article says A ttempted.

What is an attempt? He read both of those to you.

They intend to prove in this case that the

Defendant had firs t of all a specific intent to

kill, that’ s going to be up to you, that’s the

e lement of the crime, or to inflict great bo dily

h arm and is engaged in the perpetration or

attempted perpetration of aggravated kidnaping.

The prosecuting attorney told the jury:

[A]nd so at this point the State would tell you

that we have presented our case and it is up to you

if in fact you find beyond any reasonable doubt

that this Defendant attempted to take the life of

th is person, or at least inflicted enough serious

injury upon her that he should have known that her

life was threatened and moreover that he forced her

into the car u nder threats and carried her away

against her will then in fact it would be your duty

to vote to find the Defendant guilty as charged.

Having heard those erroneous arguments, the jury was then read the

obje ctionable charge, which likewise permitted a conviction for

attempted murder upon a showing of intent to inflict great bodily

harm.

On direct appeal, the Louisiana Court of Appeal rejected

Harris’ challenge to his sentence, but held sua sponte that the

evidence was insufficient to establish that Harris was engaged in

an aggravated kidnaping. Given that aggravated kidnaping was an

essential element of the first degree murder conviction, the Court28

of Appeal held that the conviction could not stand. The Court of

A ppeal further held, however, that Harris’ conviction could be

upheld on the lesser responsive verdict of attempted second degree

murder because “[i]n order for this jury to have determined that

the defendant was guilty of attempted first degree murder, the jury

must have concluded that the defendant has the specific intent to

kill this victim.” That statement would generally hold true. But

because the deficient performance of Harris’ counsel continued on

appeal, Harris did not raise the possibility that his verdict was

impermissibly base d upon an intent to commit great bodily harm.

Given the argument of counsel, the evidence presented, and the jury

instructions, the Louisiana Court of Appeal’s statement that the

jury necessarily found a specific intent to kill was in error.

The majority opinion makes no attempt to evaluate the impact

of the erroneous arguments presented by defe nse counsel and the

prosecuting attorney. That omission is notable given this Court’s

decision in Gray

, 6 F.3d 265 (5th Cir. 1993) . Gray’s jury was

likewise instructed that it could convict of attempted murder on a

showing of specific intent to kill or to inflict great bodily harm.

At Gray’s trial, however, the law was correctly argued to the jury

by both defense counsel and the prosecutor. S ee id

. at 270 & n.13.

T he prosecutor’s opening statement, which is quoted at length in

Gray

, makes plain that the specific intent to kill is required for

conviction of attempted murder. I d

. The G ray panel nonetheless29

found tha t the correct rendition of the law by both counsel was

insufficient to overcome the presumption that the jury could have

followed the instructions given by the trial court and could have

based its finding of guilt on the erroneous intent. Accordingly,

the Court held that counsel’s failure to object to the erroneous

instructio n was itself ineffective assistance of counsel that

required relief. S ee id

. at 265 (reversing denial of habeas relief

and remanding for issuance of writ absent prompt retrial). Here in

Harris , the majority is willing to sweep the same error under the

rug and to ignore compl etely the unsavory effect of incorrect

argument by both defense counsel and the prosecuting attorney.

The majority argues that Gray is distinguishable because Gray

availed himself of an opportunity to terminate his offense,

supporting an inference that he had only a specific intent to

commit great bodily harm, while Harris did not avail himself of

several opportunities to terminate his offense, suggesting that he

had a specific intent to kill Ms. Jackson. But Gray was undeniably

tried on the theory that he intended to kill his victim. See id

.

at 270 & n.13. Harris, on the other hand, was tried on the theory

that he was trying to kidnap his victim, the theory that was

overturned on appeal. Given that kidnaping was the state’s

controlling theory at trial, the majority is in effect deciding

that the jury based its verdict upon a theory that was never argued

or presented at trial.30

I conclude that there is more than a reasonable p ossibility

that the jury convicted Harris upon a fin ding that Harris had an

intent to inflict great bodily harm while engaged in an attempt to

kidnap Ms. Jackson. Such a showing is insufficient to support an

attempted murder conviction in Louisiana. I would, therefore, not

find the error harmless.

II.

I am also troubled by the panel majority’s conclusory

statement in footnote 11 that a finding of harmless error under

Brecht necessarily requires a find ing that a habeas petitioner

cannot make a showing of prejudice under Strickland

. While it may

be true in the abstract that the threshold for establishing

harmless error is semantically more lenient to habeas petitioners

than the threshold for establishing Strickland prejudice, I do not

believe that there is such a congruence of interests and factual

circumstances that we can establish such a precedent without

thought fully considering each habeas claim under its own

appropriate standards. Whether trial counsel’s failure to

understand and to require an appropriate instruction upon the

essential elements of the crime with which his client was charged,

comp ounded by counsel’s own erroneous presentation of those

elements to the jury, prejudiced Harris in this case should be

fully developed in the opinion. We should not avoid our obligation31 g:\opin\96-31220.dis to consider the impact of counsel’s conceded deficiencies by simply

formulating some equation between the standards governing Harris’

due process claim and the standards governing his ineffective

assistance claim. Moreover, I do not read K yles v. Whitley

, 115 S.

Ct. 1555, 1566-67 (1995), cited in footnote 11 by the majority, as

even inferentially supporting such notion.

With regard to the Strickland prejudice inquiry, I would once

again rely heavily upon our preceden t in G ray

. I realize that

harmless error analysis and Strickland prejudice analysis are both

highly dependent upon the factual circumstances of each case. That

doe s not mean, however, that we are free to abandon what we have

said before about the various factors and cir cumstances that are

significant to those inquiries. I am unable to reconcile this

Court’s conclusion that counsel’s failure to object to an obviously

erroneous instruction with respect to an essential element of the

crime was prejudicial in Gray , with the panel majority’s holding

that the same failure, coupled with egregiously incorrect argument

from both sides, was not prejudicial here in Harris

.

I respectfully dissent.