1 United States Court of Appeals,

Fifth Circuit.

No. 94-41105.

Robert Lee GASTON, Petitioner-Appellant,

v.

John P. WHITLEY, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

Oct. 24, 1995.

App eal from the United States District Court for the Western

District of Louisiana.

Before GARWOOD, DUHÉ and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge.

I. INTRODUCTION

Appellant Robert Lee Gaston ("Gaston") was convicted on April

28, 1981, of aggravated rape. He was sentenced to life

imprisonment without benefit of parole, probation, or suspension of

sentence. The conviction and sentence were affirmed on direct

appeal by the Louisiana Supreme Court.

Gaston sought a writ of habeas corpus in the United States

District Court which was denied. He then filed an application for

post-conviction relief in the Fourth Judicial District Court, which

was also d enied. An application for writs on post-conviction

relief with the Louisiana Supreme Court was also denied.

On January 27, 1994, Gaston filed a petition for habeas corpus

with the Western District of Louisiana, complaining o f allegedly

erroneous jury instructions and ineffective assistance of counsel.

On September 30, 1994, the district court, concurring with the2

magistrate's recommendation, denied the petition. Miller filed his

notice of appeal on October 13, 1994. We affirm.

II. ANALYSIS

A. Jury Instructions:

The jury charge in Gaston's t rial in 1981 as it relates to

reasonable doubt stated the following:

If you entertain any reasonable doubt as to any fact or

element necessary to constitute the defendant's guilt it is

y our sworn duty to give him the benefit of that doubt and

return a verdict of acqui ttal, and even where the evidence

demonstrates a probability of guilt, yet if it does not

establish it beyond a reasonable doubt, you must acquit him.

This doubt must be a reasonable one. That is one found upon

a real, tangible, substantia l basis and not upon a mere

caprice, fancy o r conjecture. It must be such a doubt as

would give rise in your minds to a grave uncertainty by reason

of the unsatisfactory character of the evidence, one that

would make you feel that you had not an abiding conviction to

a mortal—moral certainty as to the a ccused's guilt for that

degree of assurance which induces a man of sound mind to act

without doubt upon the conclusion to which his mind leads him.

If after giving a fair and impartial consideration to all the

facts in the case you find the evidence unsatisfactory upon

any single point indispensabl y necessary to constitute the

accused's guilt, this would give rise to such a reasonable

doubt as would justify you in returning a verdict of not

guilty.

In Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d

339 (1990), the Supreme Court ruled that a charge very similar to

this one was unconstitutional because it allowed a finding of guilt

based on a degree of proof below that required by the due process

clause of the Fourteenth Amendment. Gaston argues that S ullivan v.

Louisiana, --- U.S. ----, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993),

mandates that Cage be applied retroactively in accordance with

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 , 103 L.Ed.2d 334

(1989).3

In Teague, the Supreme Court stated that "new constitutional

rules of criminal procedure will not be applicable to those cases

which have become final before the new rules are announced," unless

they fall within an exception to the general rule. I d. at 310, 109

S.Ct. at 1075. The second exception identified by the T eague Court

was that "a new rule should be applied retroactively if it requires

the observance of those procedures that are implicit in the concept

of ordered liberty." I d. at 314, 109 S.Ct. at 1076 (internal

quotations and citations omitted).

In Skelton v. Whitley, 950 F.2d 1037 (5th Cir.), cert. denied,

- -- U.S. ----, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992), this court

held that Cage did not fit within this second exception of Teague

and therefore was not retroactive. Then in S ullivan, however, the

Supreme Court held that the Cage -type error is structural. "[T]o

hypothesize a gui lty verdict that was never in fact rendered—no

matter how inescapabl e the finding to support that verdict might

be—would violate the jury-trial guarantee." S ullivan,

--- U.S. at

----, 113 S.Ct. at 2082. "The right to trial by jury reflects ...

a profound judgment about the way in which law should be enforced

and justice administered. The deprivation of that right, with

consequences that are necessarily unquantifiable and indeterminate,

unquestionably qualifies as structural error. " I d. at ----, 113

S.Ct. at 2083 (internal quotations and citations omitted); see

also, Harmon v. Marshall, 57 F.3d 763, 764-65 (9th Cir.1995).

Sullivan thus implies that the Cage -type error is "implicit in the

concep t of ordered liberty" and therefore should be applied1 A footnote in the unpublished opinion of Smith v. Stalder,

26 F.3d 1118 (5th Cir.1994) (per curiam) stated that Skelton

survives Sullivan and Cage should not be applied retroactively.

Smith, at 2 n. 1. This holding may be questionable, but we need

not address it because Victor controls this case.

4 retroactively under Teague. See Adams v. Aiken, 41 F.3d 175 (4th

Cir.1994), cert. denied,

--- U.S. ----, 115 S.Ct. 2281, 132 L.Ed.2d

284 (1995); and Nutter v. White, 39 F.3d 1154 (11th Cir.1994).

However, in Victor v. Nebraska,

--- U.S. ----, 114 S.Ct. 1239,

127 L.Ed.2d 583 (1994), the Supreme Court modified the Cage

standard of reviewing allegedly erroneous jur y instructions. In

Cage, the Court considered how a reasonable juror could have

interpreted the instructions. Cage, 498 U.S. at 39-41, 111 S.Ct.

at 329. In V ictor, the Court disapproved that test and adopted the

following standard: whether there is a reasonable likelihood that

the jury has applied the challenged instruction in a way that

violates the Constitution. V ictor,

--- U.S. at ----, 114 S.Ct. at

1243. Thus, if S ullivan and Teague command retroactivity here, it

is now Victor, not Cage, which should be applied retroactively. 1

In Victor, the Court disapp roved of charges similar to that

which Gaston received. S ee Victor,

--- U.S. at

---- and ----, 114

S.Ct. at 1248 and 1251. In a concurring opinion, Justice Kennedy

even warned s tate courts that "[t]he inclusion of words so

m alleable, because so obscure, might in other circumstances have

put the whole instruction at risk." I d. at ----, 114 S.Ct. at 1251

(Kennedy, J., concurring). Justice Ginsburg reiterated that point

in her concurrence by stating that "the term "moral certainty'...

should be avoided as an unhelpful way of explaining what reasonable5

doubt means." I d. at ----, 114 S .Ct. at 1252 (Ginsburg, J.,

concurring). However, the Court held that the wording in question

did not render the instructions taken as a whole unconstitutional.

Id. at ---- and ----, 114 S.Ct. at 1248 and 1251.

Applying Victor, we note that Gaston's instruction, like the

Cage instruction, used the words "grave uncertainty" and "mora l

certainty," the phrases which the Su preme Court warns should be

avoided. However, Gaston's instruction, unlike the C age

instruction, also included the phrase "that deg ree of assurance

which induces a man of sound mind to act without doubt upon the

conclusion to which his mind leads him." Because of this

"alternative definition of reasonable doubt," Victor, --- U.S. at

----, 114 S.Ct. at 1250, it is not reasonably likely that the jury

applied the challenged instruction in a wa y that violates the

Constitution. Therefore, following V ictor, we similarly disapprove

of the wording in Gaston's charge but hold that it did not render

the instruction unconstitutional in this case.

B. Ineffective Assistance of Counsel:

Gaston's other claim is that he was deprived a fair and

impartial trial as a result of his attorney's failure to object to

the allege d ly erroneous jury instruction on reasonable doubt.

Gaston's trial was nine years before the Supreme Court declared the

instruction in question unconstitutional in Cage. Failure to

object to the instruction in light of the state of the law at the

time does not constitute deficient performance. S ee Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).6

Accordingly, the district court's denial of Gaston's petition

is hereby AFFIRMED.