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United States Court of Appeals,

Fifth Circuit.

No. 95-30010

Summary Calendar.

Charles SCHNEIDER, Petitioner-Appellant,

v.

Edgar C. DAY, Warden; Richard P. Ieyoub, Attorney General, State

of Louisiana, Respondents-Appellees.

Jan. 31, 1996.

Appeal from the United States District Court for the Eastern

District of Louisiana.

Before GARWOOD, DUHÉ and PARKER, Circuit Judges.

PER CURIAM:

I. FACTS AND PROCEDURAL HISTORY

Charles Schneider was convicted of armed robbery in Louisiana

state court in 1986 and sentenced to 30 years of imprisonment at

hard labor without the benefit of parole, probation, or suspension

of sentence. After unsuccessfully pursuing a direct appeal and

state habeas remedies, Schneider filed a state habeas petition

arguing that pursuant to Cage v. Louisiana, 498 U.S. 39, 111 S.Ct.

328, 112 L.Ed.2d 339 (1990), the trial court's jury charge

concerning reasonable doubt was unconstitutional. The Louisiana

court of appeal and the Supreme Court of Louisiana rejected

Schneider's claims. See Schneider v. Louisiana, 592 So.2d 513

(La.Ct.App. 1st Cir.1992), writs denied, 637 So.2d 492 (La.1994).

Schneider then petitioned for federal habeas relief. After

the magistrate judge recommended that Schneider's petition be
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denied, the district court denied the petition and granted

Schneider a certificate of probable cause to appeal. On appeal,

Schneider contends that the trial court's reasonable doubt

instruction was unconstitutional and that his trial counsel was

ineffective.

II. ANALYSIS

 Schneider argues that the district court erred in rejecting

his challenge to the jury charge concerning reasonable doubt. The

challenged jury instruction reads as follows:

A person accused of a crime is presumed by law to be innocent

until each element of the crime, necessary to constitute his

guilt, is proven beyond a reasonable doubt. It is the duty of

the jury in considering the evidence, and in applying to that

evidence the law as given by the Court to give the defendant

the benefit of every reasonable doubt arising out of the

evidence or out of the lack of evidence in the case. If you

are not convinced of his guilt beyond a reasonable doubt, it

is your duty to find him not guilty. 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 sensible doubt as

such you could give a good reason for. It is not sufficient

you should believe guilt only probable. In fact, no degree of

probability will authorize a conviction, but the evidence must

be of such a character and tendency as to produce a moral

certainty of the defendant's guilt to that exclusion of a

reasonable doubt. Otherwise you should acquit.

The district court found that Schneider's complaint was without

merit because Skelton v. Whitley, 950 F.2d 1037, 1041-46 (5th

Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 102, 121 L.Ed.2d 61

(1992), held that Cage stated a new rule that could not be applied

retroactively to habeas petitions. The district court also found

that, considering the Supreme Court's recent decision in Victor v.

Nebraska, --- U.S. ----, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994),

the challenged instruction was not unconstitutional.
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"[A] new rule should be applied retroactively if it requires

the observance of those procedures that are implicit in the concept

of ordered liberty." Teague v. Lane, 489 U.S. 288, 314, 109 S.Ct.

1060, 1076, 103 L.Ed.2d 334 (1989) (internal quotations and

citations omitted). In Skelton, this court held that Cage did not

fit within this exception of Teague and therefore was not

retroactive. However, the Supreme Court then held that Cage-type

error is structural. Sullivan v. Louisiana, --- U.S. ----, 113

S.Ct. 2078, 124 L.Ed.2d 182 (1993). Sullivan thus implies that

Cage meets the Teague exception and should be applied

retroactively.

However, Victor modified the Cage standard of reviewing

allegedly erroneous jury instructions. Therefore, as this court

has noted, if Sullivan and Teague, command retroactivity, it is now

Victor, not Cage, which should be applied retroactively. Weston v.

Ieyoub, 69 F.3d 73 (5th Cir.1995); Gaston v. Whitley, 67 F.3d 121

(5th Cir.1995).

Accordingly, we apply Victor and hold that there is no

reasonable likelihood that the jury in this case applied the

instruction in a way that violated the Constitution. Victor, ---

U.S. at ----, 114 S.Ct. at 1243. We note, however, that the

Supreme Court cautioned against the continued use of phrases such

as "moral certainty" and "substantial doubt." Victor, --- U.S. at

----, ---- - ----, 114 S.Ct. at 1248, 1251-52. Therefore, as we

did in Weston and Gaston, we disapprove of the wording in

Schneider's charge but hold that it did not render the instruction
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unconstitutional in this case.

Similarly, Schneider's ineffective assistance of counsel

claim is without merit. In Gaston, we held that failure to object

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

the time did not constitute deficient performance. Gaston, 67 F.3d

at 123 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984)). While Gaston's trial was in 1981 and

Schneider's trial was in 1986, it was not until 1990 that the

Supreme Court decided Cage, the basis for Schneider's claim today.

Therefore, as in Gaston, Schneider's trial counsel's failure to

object to the allegedly erroneous jury instruction did not deprive

Schneider of a fair and impartial trial.

Accordingly, the district court's denial of Schneider's

petition is hereby AFFIRMED.