IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30622

ALAN MUHLEISEN,

Petitioner-Appellant,

versus

RICHARD P. IEYOUB, Attorney General, State of Louisiana;

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondents-Appellees.

Appeals from United States District Court

for the Eastern District of Louisiana

March 2, 1999

Before POLITZ, EMILIO M. GARZA, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge.

The opinion reported at Muhleisen v. Ieyoub

, 163 F3d 319 (5 th Cir. 1999) is withdrawn, and

the opinion below is substituted in all respects for the withdrawn opinion.

Alan Muhleisen appeals the district court’s decision to dismiss with prejudice his petition for

a writ o f habeas corpus. Muhleisen was convicted in Louisiana state court of one count of first

degree murder on March 11, 1976. On appeal, Muhleisen contends that the jury instruction defining

reasonable doubt given in his trial violated his constitutional rights under the Due Process Clause of

the Fourteenth Amendment. We disagree, and AFFIRM the petitioner’s conviction and sentence.2 F ACTUAL & P ROCEDURAL B ACKGROUND

On January 29, 1997, Muhleisen filed a petition for writ of habeas corpus in the district court.

Muhleisen had been convicted in Louisiana state court of murdering a seven-year-old girl after raping

her. Testimony presented at Muhleisen’s trial showed that he lived next door to the vict im, Ingrid

Kelly, who -- on the day of her murder -- had been playing with friends in front of her house. One

of Ingrid’s playmates had seen her ride her bike up the driveway between the Kelly and Muhleisen

houses. When Ingrid’s mother was unable t o find her, she went to Muhleisen’s house to inquire

whether he had seen her. Muhleisen took a long time to respond to Mrs. Kelly’s knock. When Kelly

inquired whether Muhleisen had seen Ingrid, he replied, “Which one is she?” although Kelly had heard

him call Ingrid b y name t wo days before. Muhleisen said he had not seen Ingrid because he was

taking a shower. Muhleisen was dressed in pants and a t-shirt with a bathrobe over his clothes and

a dry shower cap on his head. A search for Ingrid ensued. During the search, one of the neighbors

asked Muhleisen if he had seen Ingrid. This time, Muhleisen said that he had talked to Ingrid around

6:00 p.m. and that she had walked away when he told her that he was watching the news.

Several days later, Ingrid’s body was found in a wooded area in Metairie. Her body had been

stuffed in a green plastic garbage bag, her hands were tied behind her back with a piece of rope, and

a black cloth was stuffed in her mouth. Another piece of black cloth was found underneath the body,

along with a yellow paper towel. Kelly identified Ingrid’s clothing, earrings, and hair barrette.

Experts testified that a piece of rope obta ined fro m Muhleisen’s place of employment was

identical to the rope that bound Ingrid’s hands. The black cloth was identical to that found in a rag

bin at Muhleisen’s job site. The yellow paper towel matched a ro ll o f paper towels found in

Muhleisen’s house, and a package of green plastic trash bags similar to the one in which Ingrid’s body3

was found was located in his kitchen. The black tape on the end of the rope that had bound Ingrid’s

hands matched a roll of black tape obtained from Muhleisen’s employer.

An autopsy of Ingrid’s body revealed that Ingrid had been raped and strangled. Muhleisen

was questioned by police and confessed to raping and murdering Ingrid. He described how he had

gagged her and tied her hands with a piece of rope he had obtained from work. He stated that he had

then choked her to death and had put her bo dy in a green plastic garbage bag and then into a

cardboard box in the “cat room .” Muhleisen signed the confession in which he explained the crime.

Muhleisen pleaded not guilty and not guilty by reason of insanity. He did not object to the

jury charge. The jury returned a verdict of guilty to t he first degree murder charge. S tate v.

Muhleisen , 340 So. 2d 572, 573 (La. 1976) Muhleisen was sentenced to death. Id.

Muhleisen’s conviction was affirmed by the Louisiana Supreme Court on direct appeal, but

his death sentence was vacated and remanded f o r imposition of the sentence of life imprisonment

without eligibilit

y for paro le, probation, or suspension of sentence for a period of forty years. I d.

His conviction became final on January 13, 1977. Muhleisen has filed two post-conviction petitions

with the Louisiana Supreme Court. One, which was granted, was a motion to force the trial court

to rule on his pending habeas petition. The second petition raised six arguments including those

raised in Muhleisen’s federal petition. The state court denied Muhleisen’s habeas petition without

opinion. M uhleisen v. Whitley

, 664 So. 2d 418 (La. 1995). Muhleisen’s motion for reconsideration

was also summarily denied.

The instant case was referred to a magistrate judge who issued a report and recommendation

that the petition be denied. The magistrate judge noted that the claims were likely barred by the

statute of limitations but acknowledged that the law in this area was unsettled and, in “an abundance4

of caution,” the magistrate judge addressed the merits of Muhleis en’s claims. The district court

adopted the report over Muhleisen’s objections, and the court entered a final judgment. Muhleisen

filed a timely notice of appeal.

D ISCUSSION

I

We li mit ed appeal in this case to the following issues: (1) whether Muhleisen’s claim was

barred by the statute of limitations; (2) whether a claim brought under Cage v. Louisiana , 489 U.S.

39 (1990) may be raised retroactively i n a habeas petition; (3) whether Muhleisen is procedurally

barred from raising Cage claim beca use he failed to make a contemporaneous objection; and (4)

whether the jury instructions given in Muhleisen’s case violate Cage

.

A

Louisiana argues that under the terms of the Antiterrorism and Effective Death Penalty Act

of 1996, petitioner is time barred from raising his habeas corpus claim. After the government filed

its brief in this case, we decided United States v. Flores , 135 F.3d 1000 (5th Cir. 1998). In Flores

,

we addressed the application of the one-year limitations period for motions brought under 28 U.S.C.

§ 2255, a provision analogous to § 2254 under which this state habeas corpus claim is brought. S ee

Flores

, 135 F.3d at 1002-06. We held that prisoners whose convictions had become final before the

April 24, 1996, effective date of the A EDPA “must be accorded a reasonable time after the . . .

effective date within which to file petitions for collateral relief.” I d. at 1004-05 (f ootnote omitted).

We determined that “one year, commencing on April 24, 1996, presumptively constitutes a reasonable5

time for those prisoners whose convictions had become final prior to the enactment of the AEDPA

to file for relief.” Id. at 1006 (footnote om itted).

We apply this rule to Muhleisen’s habeas petition brought under § 2254. S ee id. at 1002 n.7.

Muhleisen’s conviction became final before the April 24, 1996, effective date of the AEDPA. Under

Flores

, Muhleisen had until late April 1997 to file for relief. His petition was filed January 29, 1997,

and is thus not barred.

B

Louisiana also submits that if we were to give relief to the petitioner, we wou ld be

retroactively applying a constitutional rule not in effect at the time of petitioner’s trial. In H umphrey

,

138 F.3d at 553, we hel d that a C age claim could be brought retroactively in a habeas petition.

Muhleisen’s Cage claim is therefore properly before us.

C

Louisiana next contends that Muhleisen is procedurally barred from receiving relief because

he failed to object to th e jury inst ruct ions during his trial in state court. If a state court decision

rejecting a federal habeas petitioner's constitutional claim rests on an adequate and independent state

procedural bar, this court may not review the merits of the federal claim absent a showing of cause

and prejudice for the procedural default, or a showing that failure to review the claim would result

in a complete miscarriage of justice. See Boy d v. Scott , 45 F.3d 876, 879-80 (5th Cir. 1994).

We believe Louisiana’s use of the contemporary objection rule, as applied specifically to Cage

claims, is constitutionally adequate. “An adequate rule is one that state courts strictly or regularly6

follow, and one that is applied evenhandly to the vast majority of similar claims.” See Glover v. Cain

,

128 F.3d 900, 902 (5 th Cir. 1997) (citing Amos v. Scott

, 61 F.3d 333, 339 (5 th Cir. 1995)). In S tate

v. Taylor

, 669 So.2d 364 (La. 1996), the Louisiana Supreme Court abandoned the previous rule of

reviewing all errors, whether objected to or not, in capital cases, and replaced it with a rule limit ing

review to trial errors to which a contemporaneous objection was offered. Then, in S tate v. Hart

, 691

So.2d 651, 660 (La. 1997), the Louisiana Supreme Court followed Taylor and held that a failure to

lodge a contemporaneous objection to a reasonable doubt jury instruction barred its review of the

defendant’s Cage claim. We believe this establishes t he Louisiana’s Supreme Court’s consistent

application of the contemporary objection rule.

However, we cannot help but notice that in State v. Quatrevingt

, 670 So.2d 197, 210 (La.

1996), the Louisiana Suprem e Court simply noted the defendant’s failure to object and then

pro ceeded directly to the merits of a C age claim. Q uatrevingt was handed down the sa me day –

indeed, written by the same justice

– as was Taylor

. Given Q uatrevingt ’s proximity to the Louisiana

Supreme Court’s decision in Taylor

, we doubt Quatrevingt can be cited for the proposition that the

Louisiana Supreme Court inconsistently follows its contemporaneous objection rule. For the sake of

caution, however, we proceed in the alternative to the substance of Muhleisen’s claim.

II

Muhleisen claims that the instruction given to the jury in his trial concerning the reasonable

doubt standard was worded so as to lead a juror into believing a higher degree of doubt was required

for acquittal than was actually necessary. The charge regarding reasonable doubt given to the jury

in Muhleisen’s case was as follows:7 Now, if you entertain any reasonable doubt as to any fact or element necessary

to constitute the defendant’s guilt, it is your sworn duty under your solemn oath as

a juror to give him the benefit of that doubt. Now, even where t he evidence

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

doubt, you must acquit the accused.

This doubt must be a reasonable one . That is, one founded upon real

, tangible, substantial basis and not upon caprice, fancy or conjecture. It must be such

a doubt as would give rise to a grave uncertainty raised in your mind by reason of the

unsatisfactory character of the evidence. If after giving a fair and impartial

considerati o n to all of the facts in the case, you find the evidence unsatisfactory on

any single point indispensably necessary to constitute his guilty, it is your duty to give

him the benefit of that doubt and return a verdict of acquittal.

A reasonable doubt, member o f the jury, is not a mere possible doubt. It

should be an actual or substantial doubt. It is such a doubt as a reasonable man would

seriously entertain. It is a serious doubt, o ne for which you could give good reason

. Now, you are prohibited by your oath of going beyond the evidence to seek

for doubt for which to acquit . But yo u must confine yourselves strictly to a

dispassionate consideration of the testimony as you heard it on the trial. You must

not resort to extraneous facts and circumstances in reaching your verd ict. That i s,

you must not go beyond the evidence to find facts or circumstances creating doubts

but must restrict yourselves to the evidence that you heard on the trial of the case.

There are three phrases in this instruction, each emphasized above, which are problematic from a Due

Process perspective. The most important is what in prior decisions we have described as an

“articulation requirement,” i.e. the description that a reasonable doubt is one for which you could give

good reason. S ee Humphrey v. Cain

, 120 F.3d 526, 5 31 (5th Cir. 1997), r easoning adopted in

Humphrey v. Cain

, 138 F.3d 552 (5th Cir. 1998)( en banc ), cert. denied

, No. 98-55, 1998 WL 396303

(Oct. 13, 1998). The o t hers troublesome phrases are the descriptions “grave uncertainty” and

“actual or substantial doubt.” See Cage v. Louisiana , 498 U.S. 39, 40 (1990).

Muhleisen filed his petition for a writ of habeas coprus after Congress passed the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). That statute alters the standards

and scope of our review in habeas corpus petitions filed after AEDPA’s effective date. S ee Nobles1 Muhleisen also rel ies upon State v. Harri son , 609 So.2d 789 (La. 1992), in which the

Louisiana Supreme Court held that a jury inst ruct io n containing the phrase “grave uncertainty”

violated Cage

. See id. at 790; see also State v. Harrison

, 588 So.2d 771, 777 (La. Ct. App. 1991)

(quoting instruction), rev’d

, 609 So.2d 789 (La. 1992). We are bound by AEDPA to consider only

U.S. Supreme Court rulings, however. See Humphrey , 138 F.3d at 553.

2 It is possible that we should consider Cage as retroactively applicable to Muhleisen’s petition.

We have recently held that Cage is retroactively applicable under the second exception of the Teague

doctrine. S ee Humphrey

, 138 F.3d at 553. If AEDPA codifies the T eague doctrine, see, e.g., Fern

v. Gramley , 99 F.3d 255, 260 (7 t h Cir. 1996)(noting that AEDPA “extends” the principle of Teague ),

that stat ut e could also be read to codify the two exceptions to T eague as well. In the event the

Supreme Court decides AEDPA incorporates the Teague exceptions, we also consider Muhleisen’s

petition in the light of Cage

. We hold in the alternative that the jury instruction given at Muhleisen’s trial is not contrary

to the Court’s decision in Cage

. The C age Court struck down a Louisiana jury instruction on

reasonable doubt because it “equated a reasonable doubt with a ‘grave uncertainty’ and an ‘actual

substantial doubt’ and stated that what was required was a ‘moral certainty’ that the defendant was

8 v. Johnson , 127 F.3d 409, 415 (5 t h Cir. 1997) (applying AEDPA standards to a habeas petition filed

after AEDPA’s effective date of April 24, 1996). Applying these statutory amendments to 28 U.S.C.

§ 2254(d)(1)

, we can grant a writ of habeas corpus only if the state court’s determination of law, on

a de novo review, violated Supreme Court precedent in existence at the time of the petitioner’s

conviction. S ee Drinkard v. Johnson, 97 F.3d 751, 768 (5 th Cir. 1996), o verruled on other grounds,

Lindh v. Murphy , 521 U.S. 320 (1997).

We cannot say that this has occurred. The Supreme Court handed down C age v. Louisiana

,

498 U.S. 39 (1990), upon which petitioner relies, a little over thirteen years after petitioner’s

conviction became final. 1 That was the first, and so far the only, time the Supreme Court has held

a definition of reasonable doubt to have violated the Due Process Clause. S ee Victor v. Nebraska

,

511 U.S. 1, 5 (1994). We are therefore bound by AEDPA to deny Muhleisen’s petition for a writ

of habeas corpus. 2guilty.” Id. at 41. Here, we only have “grave uncertainty” and “actual or substantial doubt”; the

Muhleisen jury instruction does not also comment on the need for a “moral certainty” as did the Cage

instruction. I d. at 40 . We t hink this distinction is important as the Court wrote that the first two

phrases only “suggest” a higher degree of doubt is being called for than is actually necessary. I d. at

41. The Court emphasized that “[w]hen those statements are then considered with the reference to

‘moral certainty,’ rather than evidentiary certainty, it becomes clear ” that a constitutional violation

has occurred. I d. (emphasis added). The lack of “moral certainty” in the Muhleisen instruction bars

us from ruling, under the strict standards of AEDPA, in his favor.

In making this decision, we cannot consider the “articulation requirement” in the Muhleisen

instruction to be problematic as the Supreme Court has never expressed disfavor with such language.

AEDPA only allows us to apply Supreme Court rulings, not our own rulings which take issue with

this phrase. See Humphrey , 138 F.3d at 553.

9 C ONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decision an d deny Muhleisen’s

petition for a writ of habeas corpus.