REVISED - August 12, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30637

DONALD MORRIS,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 97-CV-742-H

August 3, 1999

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Donald Morris, Louisiana prisoner # 120944, appea ls t he district court’s denial of his 28

U.S.C. § 2254 federal habeas corpus petition on the grounds that the reasonable doubt jury

instruction at his trial was constituti o nally infirm. Morris argues that the instruction used invalid

language which confused or at least prejudiced the jury under Cage v. Louisiana

, 498 U.S. 39 (1990)

(per curiam), and Victor v. Nebraska

, 511 U.S. 1 (1994). Because we believe that the jury

instruction, taken as a whole, likely caused the jury to consider factors beyond those that the Supreme

Court has deemed permissible, we reverse the judgment of the district court and remand for further

proceedings.

F ACTUAL B ACKGROUND AND P ROCEDURAL H ISTORY

Around 6:00 a.m. on August 17, 1987, Virginia Roberts was walking to a bus stop in New

Orleans with her two children. A man approached her, pointed a gun at the children, and demanded1 Morris’s face was bleeding from his altercation with Sylvester.

2 The court denied Morris’s petition for a writ of habeas corpus, holding that the jury instruction

claim he raised was subject to harmless-error analysis. In view o f t he o verwhelming evidence of

Morris’s guilt, the court reasoned, the erroneous jury instruction was harmless beyond a reasonable

doubt. The state habeas court concluded that “[g]iven the evidence against [Morris], there can be

no doubt that the erroneous instruction did not contribute to the verdict.”

2 her purse, which she readily surrendered. He then told his vict ims t o run. Roberts immediately

reported the robbery to the police; officers arrived within minutes, interviewed her, and obtained a

description of the assailant.

Shortly thereafter, a few blocks from the assault on Roberts, Paul Sylvester, a truck driver

napping in his truck, was awakened by Morris, who was pointing a gun in his face. Morris slapped

Sylvester and took his wallet. A struggle ensued in which two shots were fired; Sylvester subdued

Morris and awa it ed the arrival of the police. The same officers who were interviewing Roberts

responded to the call; they brought Roberts with them to make an identification in the event that the

same perpetrator had committed both crimes. Although Roberts could not identify Morris as the man

who had robbed her, 1 property taken from Roberts—a check, a pillbox, cigarettes, a lighter, gum, and

several dollars—was recovered from Morris’s person and identified by Roberts as her possessions.

At trial, Morris testified that he had a drug problem and that, on the morning in question, he

had been drinking, smoking marijuana, and taking valium. Morris claimed to have no memory of the

armed ro bberies and last remembered drinking in a club the previous evening. Morris was

nonetheless convicted by a jury of two counts of aggravated robbery and sentenced to two

consecutive 99-year sentences of imprisonment. Morris’s convictions were affirmed on direct appeal.

See State v. Morris

, No. 90-KA-0085 (La. Ct. App. 1990). Morris did not file a writ application with

the Louisiana Supreme Court.

Subsequently, Morris filed an application for state post-conviction relief which was denied

by the criminal district court. 2 Both the state appeals court, s ee State ex rel. Morris v. State

, No. 91-3 After the state appellate court denied Morris’ the writ , the United States Suprem e Court i n

Sullivan v. Louisiana

, 508 U.S. 275 (1993), held that a constitutionally deficient reasonable doubt jury

instruction cannot be harmless error. S ee 508 U.S. at 281. A year after Sullivan was handed down,

the Louisiana Supreme Court denied Morris’s writ application for review of the state habeas decision,

thereby contradicting Sullivan by preserving the lower court’s erroneous holding. S ee 642 So.2d at

866.

4 The state urged below that Morris’s petition is time-barred under AED PA. Alt hough it

abandons this argument on appeal, we note that we first considered and rejected a similar contention

in United States v. Flores

, 135 F.3d 1000 (5 th Cir. 1998). In F lores

, we held that an application filed

pursuant to 28 U.S.C. § 2255 was not time -barred where the conviction became final prior to the

effective date of AEDPA and the petition was filed within one year of AEDPA’s becoming effective.

See id. at 1005. We subsequently extended the F lores court’s reasoning to § 22 54 petitions. S ee Flanagan v. Johnson

, 154 F.3d 19 6, 199-200 (5 t h Cir.1998). Thus, Morris’s claim, filed less than

eleven months after the effective date of AEDPA, is not time-barred.

3 K-1910 (La. Ct. App. 1992), and the Louisiana Supreme Court, see State ex rel. Morris v. Whitley

,

642 So. 2d 866 (La. 1994), denied Morris’s writ applications. 3

Following the exhaustion of his state court remedies pursuant to Rose v. Lundy

, 455 U.S. 509

(1982), Morris filed the instant 28 U.S.C. § 2254 federal habeas petition, arguing that: (1) his counsel

was ineffective; (2) his sentence was excessive; and (3) the trial court’s jury instruction on reasonable

doubt was unconstitutional. 4 On May 6, 1998, the district court issued an order with reasons denying

M o rris’s § 2254 petition; final judgment was entered on May 11. Morris then submitted a p ro se

notice of appeal of the district court’s judgment which included a “Motion for Probable Cause” on

June 12, 1998. Even though Mo rris’s notice of appeal was received two business days late, the

district court presumed that the notice of appeal was placed into the prison mailing system within the

30-day appeal period. S ee United States v. Young

, 966 F.2d 164, 165 (5 th Cir. 1992); United States

v. Leach

, 918 F.2d 464, 466 n.3 (5 th Cir. 1990); see also Houston v. Lack

, 487 U.S. 266, 276 (1988).

The district court construed Morris’s “Motion for Probable Cause” as a motion for a certificate of

appealability and granted it with respect to Morris’s claim concerning the validity of the reasonable

doubt jury instruction. Our review of the district court’s decision is thus confined solely to that issue.

D ISCUSSION

I4

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) created a new standard of

review of state court decisions rendered on the merits.

An application for a writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim –

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Section 2254(e)(1) further states that a determination of a factual issue made

by a state court shall be presumed to be correct, an d t he applicant has the burden of rebutting the

presumption of correctness by clear and convincing evidence. See § 2254(e)(1).

A full and fair adjudication of a pe t itioner’s claims in state court is a prerequisite for

application of AEDPA’s review provisions. S ee Nobles v. Johnson

, 127 F.3d 4 09, 416 (5 t h Cir.

1997). Subsection (d)(2) applies to a state court’s factual determinations, and subsection (d)(1)

governs this court’s review of questions of law and mixed questions of law and fact. S ee Lockhart

v. Johnson , 104 F.3d 54, 56-57 (5 th Cir.), cert. denied , 117 S. Ct. 2518 (1997). “An application of

law to facts is unreasonable only when it can be said that reasonable jurists considering the question

would be of one view that the state court ruling was incorrect.” D rinkard v. Johnson

, 97 F.3d 751,

768-69 (5 th Cir. 1996), overruled in part on other grounds by Lindh v. Murphy , 521 U.S. 320, 326

(1997). Mo rris filed his federal habeas application on March 13, 1997, and therefore t he

AEDPA amendments apply to his petition. S ee Lindh

, 521 U.S. at 32 6 (“[T]he amendments to

chapter 153 [apply] only to such cases as were filed after the statute’s enactment.”); Shute v. State

,

117 F.3d 233, 236 n.1 (5 th Cir. 1997). Habeas relief is thus appropriate only when a state court

decision is “so clearly incorrect that it would not be debatable among reasonable jurists.” D rinkard

,5 The Supreme Court modi fied it s holding in C age in its next term by holding that the proper

inquiry is not whether the instruction “could have” been applied unconstitutionally, but whether there

is a reasonable likelihood that the jury did so apply it. S ee Estelle v. McGuire

, 502 U.S. 62, 72 & n.4

(1991).

5 97 F.3d at 769. In this appeal, Morris argues that the state court’s unreasonable instruction led to

his conviction under a standard contrary to settled federal law.

II

A

Morris contends that the reasonable doubt jury instruction given at his trial was

unconstitutional under Cage and Victor

. Morris argues that the jury instruction suggested that a juror

have a higher degree of doubt to acquit than is actually required under the reasonable doubt standard.

Morris supports his argument by contending that there is a reasonable likelihood that the jury applied

the instruction in the instant case in an unconstitutional manner. Because of the confusion

engendered by the instruction, Morris asserts, his conviction and sentence must be reversed since the

improper jury instruction effectively lowered the prosecution’s burden of proof.

In Cage

, the Supreme Court reversed a conviction because a reasonable j uror coul d have

interpreted the reasonable doubt instruction given at Cage’s trial to allow a finding of guilt based on

a degree of proof below that required by the Due Process Clause. 5 S ee Cage

, 498 U.S. at 41; cf. In

re Winship

, 397 U.S. 358, 364 (1970) (holding that the Due Process Clause “protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged”). Specifically, the Supreme Court found that the trial judge used

three phrases when defining reasonable doubt—“grave uncertainty,” “actual substantial doubt,” and

“moral certainty”—th at undermined the instruction in such a way as to render it unconstitutional.

See Cage , 498 U.S. at 41.6 Of course, our circuit precedent makes abundantly clear that errors in state postconvi cti on proceedings will not, in and of themselves, entitle a petitioner to federal ha b eas relief. S ee, e.g.

, Hallmark v. Johnson

, 118 F.3d 1073, 1080 (5 th Cir. 1997) (“[I]nfirmities in state habeas proceedings

do not constitute grounds for relief in federal court.”); Nichols v. Scott

, 69 F.3d 1255, 1275 (5 th Cir.

1995) (“An attack on a state habeas proceeding doe s not entitle the petitioner to habeas relief in

6 In Victor

, a fractured Court refined its reasonable doubt jurisprudence further. In that case,

the Court found that it was not reasonably likely that a jury understood a reasonable doubt instruction

substantially different from the one challenged in Cage

, but incorporating two of Ca ge ’s three

proscribed terms, as suggesting an unconstitutional standard of proof. S ee Victor

, 511 U.S. at 12-17.

Construing two challenged instructions, the Court held that use of the terms “moral evidence,” “moral

certainty,” “not a mere possible doubt,” and “actual and substantial doubt” does not automatically

invalidate an instruction. S ee id. at 22-23. Instead, the Court concluded, where “[t]here is no

reasonable likelihood that the jurors who determined petitioners’ guilt applied the instructions in a

way that violated the Constitution,” the convictions should be affirmed. Id.

In Humphrey v. Cain

, 138 F.3d 552 (5 th Cir . 1998) (en banc), this court held that a

reasonable-doubt jury instruction substantially similar to the instruction at Morris’s trial “lowered the

State’s burden of proof below the constitutional minimum.” Id. at 553. The Humphrey court also

concluded that C age and Victor qualified for retroactive application on collateral revie w in

accordance with Teague v. Lane

, 489 U.S. 288 (1989), and Sullivan

, 508 U.S. at 281-82, thereby

resolving conflicting panel decisions on this issue. See id.

B

Before addressing Morris’ claim, we pause to note that the state habeas court’s legal

determination

– that any Cage error in the jury instruction s given at Morris’s trial was harmless –

does not bind this Court’s federal habeas corpus review. That decision was contrary to clearly

established federal law as determined by the United States Supreme Court in Sullivan v. Louisiana

,

508 U.S. 275 (1993). S ullivan plainly held that Cage error is not subject to harmless error analysis.

Consequently, we will grant the writ of habeas corpus to Morris if our Cage analysis leads us to the

conclusion that the jury instruction in this case was unconstitutional. 6respect to his co nvict io n, as it is an attack on a proceeding collateral to the detention and not the

detention itself.”) (internal quotati ons omitted). Rather, we must find constitutional error at the trial

or direct review level in order to issue the writ. We therefore reject Morris’s contention that we

should grant habeas relief because the state habeas court erred.

7 It is worth noting that the instructions in Cage used the phrase “actual substantial doubt,” while

the ins t ruct ions at Morris’s trial inserted the conjunction “or” into the mix, calling for “actual o r

substantial doubt” (emphasis added). Although it is arguable that the distinction is significant, we

believe that the intent behind both instructions was the same, particularly given that the instructions

here were standardized for use in Orleans and Jefferson Parishes for decades. Additionally, this court

s itting e n banc affirmed a grant of habeas on the basis of an instruction which read “actual or

substantial doubt.” See Humphrey v. Cain , 138 F.3d 522 (5 th Cir. 1998) (en banc), aff’g 120 F.3d

7 C

At Morr is’s t rial, the judge gave the following instruction to the jury regarding

reasonable doubt:

Ladies and gentlemen, th e defendant is presumed to be innocent until he is

proven guilty be yo nd a reaso nable doubt. This means that the defendant is not

required to prove his innocence, but may rest upon the presumption in his favor until

it is overcome by affirmative proof. The burden, therefore, is on the State to establish

the guilt of the accused to your satisfaction beyond a reasonable doubt. It is y our duty, as jurors, to consider all the evide n ce and then apply the law as given by the

Court.

If you entertain a reasonable doubt as to any fact or element necessary to

constitute the defendant’s guilt, it is your duty to give him the benefit of that doubt

and return a verdict of not guilty. Even where the evidence demonstrates a

probability of guilt, yet, if it does not establish such guilt beyond a reasonable doubt,

you must acquit the accused.

However, this doubt must be a reasonable one, that is, one t hat is founded

upon a real, tangible, and substantial basis a nd not upon mere caprice, fancy or conjecture. It must be such a doubt as would give rise to a grave uncertainty raised

in your mind by re aso n of the unsatisfactory character of the evidence or the lack

thereof. A reaso nable doubt is not a mere possible doubt. It is an actual or

substantial doubt. It is a doubt that a reasonable man would seriously entertain.

What is required is not an absolute or mathematical certainty but a moral certainty.

If, after giving fair and impartial consideration to all the facts in the case, you

find the evidence unsatisfactory or lacking upon any single point indispen s ably

necessary to constitute the defendant’s guilt, this would give rise to such a reasonable

doubt as would justify you in rendering a verdict of not guilty.

The instructions at Morris’s trial used the terms “grave uncertainty,” “actual or substantial

doubt,” and “moral certainty. ” Under C age

, use of these exact three terms 7 was, of course,526, 528 (5 th Cir. 1997).

8 Indeed, our review of the record in this case leads us to believe that the judge in Morris’s trial

used an instruction functionally equivalent to the ones used in Cage and Humphrey

. S ee Cage v.

State

, 554 So. 2d 39, 41 (La. 1989); Humphrey v. Cain

, 120 F.3d 526, 528 (5 th Cir. 1997). In fact,

many of the sentences are repeated verbatim in the three charges.

8 disapproved. S ee 498 U.S. at 41. In the instant case, however, the district court, in considering the

erroneous instructions in the context of the jury instructions as a whole, believed that the additional

instructions given to Morris’s jury “articulate[d] the reasonable doubt stan dard and provide[d]

context for the challenged porti on of the instruction.” Essentially, the district court held that, under

Victor

, a jury instruction containing impermissible Cage language would be saved if it also contained

“additional instructions” beyond the proscribed ones that, when read together, create “no reasonable

likelihood that the jury understood the instructions to permit conviction upon a lesser burden than

reasonable doubt as required by Cage-Victor .”

We disagree. V ictor admittedly muddies the water surroundin g the constitutionality of

reasonable doubt instructions; it is difficult to parse the case in light of Cage

, particularly given that

finding instructions “reasonably lik ely” t o confuse presents a court with the slipperiest of slopes.

Nonetheless, we believe it is possible to fashion relatively clear rules in this arena without recourse

to a broad ruling—such as the district court’s in this case—that will en sure that every C age claim

would fail under Victor

. We believe that V ictor operates to separate the wheat from the chaff in the

reasonable doubt jury instruction arena; Victor makes clear that certain instructions may be so

egregious as to be reasonably likely to lead to unconstitutional considerations by the jury. The district

court’s decision in this case erroneously subverts that po ssibilit y, a fact amply demonstrated by a

comparison

between the instructions in the instant case and those in C age and Humphrey

, which

mixed unconstitutional language with approved constructions as well. 8

Although we could rest our ultimate conclusion on the similarit y between the instructions in

the three cases, we procee d in o rder to clarify why the instructions in Morris’s case were

constitutionally improper. Just as in C age

, the trial judge in the instant case clouded the issue of what9 Although the en banc court found that Victor is retroactive for purposes of the second Teague

exception, see Humphrey

, 138 F.3d at 553, we note that there is an open question as to whether

Victor (handed down in 1994) is retroactively applicable to Morris’s case (whose conviction became

final in 1990) under AEDPA. S ee Sharad Sushil Khandelwal, The Path to Habeas Corpus Narrows:

Interpreting 28 U.S.C. § 2254(d)(1)

, 96 M ICH

. L. R EV

. 43 4, 440 n.45 (1997) (discussing the

applicability of the Teague exceptions to AEDPA). To our knowl edge, no court has reached thi s

issue. C f. In re Smith

, 142 F.3d 832, 836 (5 th Cir. 1998) ( holding that H umphrey ’s ruling on retroactivity does not control for purposes of second successive habeas filings under AEDPA). We

find it unnecessary to do so either since we ho ld that Morris’s conviction must be reversed

notwithstanding Victor

.

9 constitutes reasonable doubt by failing to provide alternative definitions of reasonable doubt that pass

constitutional muster. The instruction included the same three phrases that the Supreme Court

specifically found to be unconstitutional when used in Cage

, including “grave uncertainty,” “actual

substantial doubt,” and “moral certainty.” Of course, C age did not hold that the use of these terms

in and of themselves mandated a finding of unconstitutionality, see Brown v. Cain

, 104 F.3d 744, 755

(5 th Cir. 1997), but neither did it, or subsequent decisions, hold that the presence of unobjectionable

language automatically saves an instruction. This understanding is crucial, particularly where we are

asked t o review essentially t he same instruction that was presented to the Supreme Court from a

Louisiana trial judge in Cage

.

By extension, we do not find apposite Victor ’s admonition that an unconstitutional instruction

may be allowed where there is no reasonable likelihood that jurors applied the instr uctions in an

unconsti tutional m anner. 9 S ee 511 U.S. at 22-23. We simply cannot reach that conclusion in the

i nstant case; there is a reasonable likelihood that the jurors at Morris’s trial were led down an

unconstitutional path by the judge’s instructions. A simple examination of the various instructions

clarifies any perceived disjuncture between Cage and Victor . Taken as a whole, the instructions in

Victor were clear enough fo r t he jury to understand the proper standard to apply. For instance,

although the challenged instruction used the phrase “moral certainty,” it did so while cautioning the

jurors that they must possess an abiding conviction of the defendant’s guilt; indeed, the trial court,

in the same sentence, equated “moral certainty” with certainty which would preclude hesitation to

convict. See id. at 21.10

We do not find a similar relationship between objectionable and approved terms in the instant

case. The particularly egregious terms “grave uncertainty” and “moral certainty” are isolated from

the clarifying language of the instructions which the Court in Victor found saving. Given the length

and the complexity of any reasonable doubt instruction, we believe that it is dispositive, or at the very

least significant, that the placement of any unconstitutional terms be such as to ameliorate their effect

virtually instantaneously. Such was no t t he case here; the terms were never qualified for the jury.

We thus cannot find a reasonable likelihood that the jurors applied the proper constitutional measure

with regard to Morris’s case.

Because the right to trial by jury in a c riminal t rial is the most basic protection offered a

criminal defendant, see, e.g.

, Sullivan , 508 U.S. at 281-82 (holding that denial of the right to a jury

verdict of guilt beyond a reasonable doubt is a structural error “with consequences that are necessarily

unquantifiable and indeterminate” but which in all cases eliminates the Constitution’s mo st basic

protecti on for the criminal defendant), we are loath to conclude that an instruction such as this one,

peppered throughout with unqualified , unconsti tutional language, nonetheless afforded that defendant

a fair trial. Notwithstanding the severity of the State’s evidentiary burden, we find the numerous

inappropriate references in the instructions to render it constitutionally infirm under Cage

, see 498

U.S. at 41, and we conclude with reasonable likelihood that the jury applied the instructions in a way

that violated the Constitution under Victor

. See 511 U.S. at 22-23.

III

Although the Constitution “neither prohibits trial courts from defining reasonable doubt nor

requires them to do so,” Earhart v. Johnson

, 132 F.3d 1062, 1069 (5 th Cir. 1998), when a court elects

to make such an instruction, it must meet constitutional criteria. For the foregoing reasons, we hold

that the instruction in this case did not, and we RE VERSE the judgment of the district court and

REMAND for further proceedings consistent with this opinion.

REVERSED AND REMANDED.