IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
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m 98-31072
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MILTON ERIC DICKINSON,
Petitioner-Appellant,
VERSUS
BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY, Respondent-Appellee.
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Appeal from the United States District Court for the Middle District of Louisiana
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March 10, 2000
Before DAVIS, HALL,* and SMITH, life sentence. His convictions and sentence Circuit Judges. were affirmed on direct appeal.
PER CURIAM:** In November 1995, after filing several applications for postconviction relief in state Milton Dickinson appeals the denial of his and federal court, Dickinson filed the instant petition for writ of habeas corpus under petition for federal habeas relief. The district 28 U.S.C. § 2254. Finding no error, we court denied relief and denied a certificate of affirm. appealability (“COA”). Because Dickinson’s petition was filed before the effective date of I. the Antiterrorism and Effective Death Penalty Dickinson was convicted of two counts of Act (“AEDPA”),1 this court granted a attempted aggravated rape and two counts of certificate of probable cause to appeal instead aggravated kidnapping. He was sentenced to of a COA. See Green v. Johnson, 116 F.3d two consecutive life sentences on the 1115, 1119-20 (5th Cir. 1997). kidnapping counts and two forty-year sentences on the rape counts, the latter to run Dickinson contends that the trial court’s concurrently with each other and with the first reasonable doubt jury instruction was constitutionally infirm; that the prosecution suppressed favorable evidence in violation of
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Cynthia Holcomb Hall, Circuit Judge of the Brady v. Maryland, 373 U.S. 83 (1963); that Ninth Circuit, sitting by designation. the court improperly instructed the jury as to
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Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
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published and is not precedent except under the Pub. L. No. 104-132, 110 Stat. 1214 (1996). limited circumstances set forth in 5TH CIR. We apply pre-AEDPA habeas law to Dickinson’s R. 47.5.4. claims. See Green, 116 F.3d at 1120.
the elements of aggravated kidnapping; and defendant's guilt. To put it differently, that the evidence was insufficient to support you must be satisfied of both aggravated kidnapping. defendants’ guilt by that degree of assurance which induces a man of sound II. mind to act without a doubt upon the “In a habeas corpus appeal, we review the conclusions to which it leads. district court’s findings of fact for clear error and review its conclusions of law de novo, applying the same standard of review to the state court’s decision as the district court.” Thompson v. Cain, 161 F.3d 802, 805 (5th Cir. 1998). Mixed questions of fact and law generally receive independent review. See Blackmon v. Johnson, 145 F.3d 205, 208 (5th Cir. 1998), cert. denied, 526 U.S. 1021 (1999). The legal standard in a due process challenge to a reasonable doubt instruction is “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.” Victor v. Nebraska, 511 U.S. 1, 6 (1994). See also Morris v. Cain, 186 F.3d 581, 585 (5th Cir. 1999).
Cage v. Louisiana, 498 U.S. 39 (1990), is the only case in which the Court has held that a reasonable doubt instruction violated the Due Process Clause. The Court refined the Cage analysis in Victor v. Nebraska, 511 U.S. 1 (1994). In Humphrey v. Cain, 138 F.3d 552, 553 (5th Cir.) (en banc), cert. denied, 525 U.S. 943, and cert. denied, 525 U.S. 935 (1998), we held that “Cage-Victor error fits within the second Teague exception, making it available in federal habeas to a state prisoner whose criminal conviction was final when those cases were decided.” Therefore, we apply the Cage-Victor analysis to the instruction given at Dickinson’s trial.
A portion of that instruction is as follows:
This doubt must be a reasonable one; that is, one founded upon a real, tangible, substantial basis and not upon a mere caprice, fancy or conjecture. It must be such a doubt as would give rise to a grave uncertainty in your minds by reason of the unsatisfactory character of the evidence, one that would make you feel that you had not an abiding conviction to a moral certainty as to the
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Although the references to “grave uncertainty” charge.’ An instruction cast in terms of and “moral certainty” are not optimal, we an abiding conviction as to guilt, affirm the district cour’s conclusion that the without reference to moral certainty, instruction did not violate the Due Process correctly states the government’ burden Clause. of proof. . . . As used in this instruction, therefore, we are satisfied that the In Cage, the Court held that the reasonable reference to m oral certainty, in doubt instruction in that case, which included conjunction with the abiding conviction the terms “grave uncertainty,” “actual language, impressed upon the factfinder substantial doubt,” and “moral certainty,” the need to reach a subjective state of violated due process: near certitude of the guilt of the accused.
It is plain to us that the words “substantial” and “grave,” as they are Id. at 14-15 (internal citation and quotation commonly understood, suggest a higher marks omitted). The Court went on to stress degree of doubt than is required for other elements of the instruction explicitly acquittal under the reasonable-doubt requiring that the jurors’ conclusions be based standard. When those statements are solely on the evidence in the case. See id. then considered with the reference to at 16.2 “moral certainty,” rather than evidentiary certainty, it becomes clear The instruction given in Dickinson’s trial that a reasonable juror could have contained the language “an abiding conviction interpreted the instruction to allow a to a moral certainty as to the defendant’s finding of guilt based on a degree of guilt.” This is identical in all crucial respects proof below that required by the Due to the “moral certainty” language accepted in Process Clause. Victor. Dickinson’s instruction also contained requirements that the jurors’ conclusions be Cage, 498 U.S. at 41. The instruction given in based solely on the evidence, similar to the Dickinson’s trial includes identical “grave requirements in Victor.3 uncertainty” language but does not contain the “substantial doubt” language. It does contain “moral certainty,” but that phrase was used in 2 a context different from that in Cage; the “The jury was told ‘to determine the facts of the case from the evidence received in the trial and Court articulated the significance of the not from any other source.’ The court continued difference in Victor. that ‘you must not be influenced by pity for a defendant or by prejudice against him. . . . You In Victor, the Court held that two must not be swayed by mere sentiment, conjecture, instructions defining reasonable doubt did not sympathy, passion, prejudice, public opinion or violate the Due Process Clause. While neither public feeling.” Victor, 511 U.S. at 16 (internal instruction contained the “grave uncertainty” citation omitted). In Victor and in this case, “the language, both contained “moral certainty,” evidence” is mentioned in the same sentence and one contained “actual and substantial containing “moral certainty.” doubt.” See Victor, 511 U.S. at 7, 18. 3 Discussing the “moral certainty” component, The language is as follows: “You are the Court stated that prohibited by law and by your oath from going beyond the evidence to seek for doubts upon which to acquit the accused, but must confine yourselves [a]lthough . . . moral certainty is strictly to a dispassionate consideration of the ambiguous in the abstract, the rest of the testimony upon the trial. You must not resort to instruction . . . lends content to the extraneous or outside facts or factors or phrase. The jurors were told that they circumstances in reaching your verdict, and you are must have ‘an abiding conviction, to a not at liberty to adopt unreasonable theories or moral certainty, of the truth of the (continued...)
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In discussing the “moral certainty” language ternative definition of reasonable doubt”
in the second charge, the Victor Court stated: concerning “a man of sound mind,” we held that the language as a whole satisfied due Instructing the jurors that they must process. See id. at 123. The same is true have an abiding conviction of the here. defendant’s guilt does much to alleviate any concerns that the phrase “moral This holding is consistent with Morris, certainty” might be misunderstood in the because there the unconstitutional instruction abstract. The instruction also equated a contained not only “grave uncertainty” and doubt sufficient to preclude moral “moral certainty” but also “actual or certainty with a doubt that would cause substantial doubt,” and did not contain a reasonable person to hesitate to act. “abiding conviction” and other relevant qualifying language. See id. at 586-87.
Id. at 21 (internal citation omitted). Although the language is slightly different, Dickinson’s III. instruction similarly analogizes the “moral Dickinson claims that the prosecution certainty” language: “To put it differently, you suppressed favorable evidence in violation of must be satisfied of both defendants’ guilt by Brady. The Due Process Clause of the that degree of assurance which induces a man Fourteenth Amendment requires that the of sound mind to act without a doubt upon the government turn over evidence in its conclusions to which it leads.” possession that is both favorable to the accused and material to either guilt or In Gaston v. Whitley, 67 F.3d 121 (5th Cir. punishment. See Brady, 373 U.S. at 87;
1995), we upheld a reasonable doubt United States v. Stephens, 964 F.2d 424, 435 instruction that included the phrases “grave (5th Cir. 1992). “Favorable” evidence uncertainty” and “moral certainty,” the same includes both exculpatory substantive evidence disfavored phrases included at Dickinson’s and impeachment evidence. See United States trial: v. Bagley, 473 U.S. 667, 676 (1985).
“[E]vidence is material only if there is a It must be such a doubt as would give reasonable probability that, had the evidence rise in your minds to a grave uncertainty been disclosed to the defense, the result of the by reason of the unsatisfactory character proceeding would have been different.” Id. at of the evidence, one that would make 682, 685. “A ‘reasonable probability’ is a you feel that you had not an abiding probability sufficient to undermine confidence conviction to a mortal–moral certainty in the outcome.” Id. at 682.5 as to the accused’s guilt for that degree of assurance which induces a man of sound mind to act without doubt upon (...continued) the conclusion to which his mind leads that Cage was not retroactive. See Gaston, him. 67 F.3d at 122. The foregoing discussion of Cage and Victor establishes that applying Cage-Victor, Id. at 121.4 Based on the inclusion of the “al rather than just Victor, does not affect the Gaston holding.
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Dickinson’s conviction was in 1977 and thus (...continued) predated United States v. Bagley, 473 U.S. 667 suppositions in considering the evidence in order to (1985). Therefore, the trial court applied Brady justify a verdict of conviction. You are to be and United States v. Agurs, 427 U.S. 97 (1976). governed exclusively by the evidence and by the Nothing in Bagley would alter the court’s analysis, law as heard by you in this courtroom.” because, as discussed below, the court found that the information was not material, meaning it would 4 When Gaston was decided, we had precedent not have affected the outcome of the trial. Agurs (continued...) (continued...)
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During trial, Dickinson filed a motion to that Dickinson’s claim fails on the merits.
compel the prosecution to give access to all First, he alleges only minor discrepancies tape-recorded statements of the victims. The between the taped statements and trial court did not grant the motion but instead testimony that, even if proven, would not listened to the tapes in camera following the create a reasonable probability that the result trial testimony of both victims, to determine would have been different.8 More importantly, whether they contained favorable material. he has no evidence regarding the content of the tapes other than the findings of the court, The court found that the tapes contained no which do not support his claims of tape exculpatory evidence, that the content was content. virtually identical to the victims’ in-court testimony, and that the tapes actually IV. contained testimony more incriminating to the Dickinson claims that the court improperly defendant than did the victims’ trial testimony. instructed the jury as to the elements of The court therefore denied defense access to aggravated kidnapping. the tapes, finding “no material of such a nature that a jury on these tapes alone could find a The burden of demonstrating that an divergence or a disagreement with the erroneous instruction was so prejudicial testimony given by these witnesses in court as that it will support a collateral attack on to elevate itself to constitute a reasonable the constitutional validity of a state doubt in the minds of the jury.” The tapes court’s judgment is even greater than were not introduced at trial and are no longer the showing required to establish plain available. error on direct appeal. The question in such a collateral proceeding is whether “Ordinarily when the trial court has the ailing instruction by itself so infected conducted an in camera examination we will the entire trial that the resulting not go beyond its finding to determine whether exculpatory materials were withheld.” Jones v. Butler, 864 F.2d 348, 356 (5th Cir. 1988).6 Therefore, we need not consider the merits of (...continued) Dickinson’s Brady claim. Because, however, claimed exculpatory evidence alone must create a we have some concern with what standard the reasonable doubt, but that the entire record trial court may have applied,7 we also conclude including that evidence creates such a doubt:
The proper standard of materiality must reflect our overriding concern with the (...continued) justice of the finding of guilt. . . . This and Bagley recognize this general requirement. See means that the omission must be evaluated Bagley, 473 U.S. at 674-75 (quoting Agurs). in the context of the entire record. If there is no reasonable doubt about guilt whether or 6 See also United States v. Ross, 511 F.2d 757, not the additional evidence is considered, 765 (5th Cir. 1975); United States v. Register, 496 there is no justification for a new trial. On F.2d 1072, 1081 (5th Cir. 1974) (“We will not go the other hand, if the verdict is already of beyond the trial court’s finding to encourage questionable validity, additional evidence of shipping prosecutor’s files to the appellate court relatively minor importance might be whenever the defense cries Brady.”). sufficient to create a reasonable doubt.
7 The court found that there was no material on Agurs, 427 U.S. at 112-13.
the tapes “of such a nature that a jury on these
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tapes alone could find a divergence or a These alleged discrepancies consist of minor disagreement with the testimony . . . as to elevate variations in the victims’ descriptions of the itself to constitute a reasonable doubt” (emphasis attackers, their vehicle, and their apartment, none added). The correct standard is not that the of which goes to the heart of the abundant (continued...) identification evidence.
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conviction violates due process, not merely whether the instruction is The trial court instructed the jury by first undesirable, erroneous, or even reciting the precise text of LA. R.S. 14:44(1), universally condemned. with the exception of the following two inconsequential modifications: “[A] release”
Henderson v. Kibbe, 431 U.S. 145, 154 was replaced by “the release,” and “seizing and (1977) (internal quotation marks and citation carrying away of” was used in place of omitted); see also Kinnamon v. Scott, 33 F.3d “seizing and carrying of.” The court then 462, 465 (5th Cir. 1994). Any error or emphasized the necessary “state of mind that omission must be evaluated in the context not [it] just set out above, the intent to force the only of the overall charge, but also of the victim to give up something of apparent value entire record, including testimony and the to secure their release.” argument of counsel. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); Henderson, 431 The court then went on to define and U.S. at 152. We must determine whether distinguish the lesser included offense of there is a reasonable likelihood that the jury simple kidnapping and stated the following: applied the aggravated kidnapping instruction in a constitutionally impermissible way. See Bear in mind the difference. The first Kinnamon, 33 F.3d at 465. one, aggravated[,] has that additional element that it must be done with the At the time of Dickinson’s offenses and intent thereby to force the victim to give currently, LA. R.S. 14:44 provides as follows: up something of apparent present or prospective value. Simple kidnapping Aggravated kidnapping is the doing of does not have that in it. any of the following acts with the intent thereby to force the victim, or some Dickinson claims this was error, because the other person, to give up anything of court failed similarly to emphasize that another apparent present or prospective value, difference between simple and aggravated or to grant any advantage or immunity, kidnapping is that aggravated kidnapping in order to secure a release of the person requires the conditioning of release on the under the offender’s actual or apparent victims’ relinquishment of that value. control:
The decision to “emphasize” only one of (1) The forcible seizing and carrying the distinguishing elements of aggravated of any person from one place to another; kidnapping did not violate due process: There or is no reasonable likelihood that the jury applied the instruction in a constituti onally (2) The enticing or persuading of impermissible way. By first giving the any person to go from one place to complete statutory definition of both offenses, another; or and then attempting to highlight the key distinction between the offenses, the court (3) The imprisoning or forcible gave the jury adequate direction.9 Although it secreting of any person. may not have been optimal to term the one distinction “the difference” (emphasis added), Subsection (1) is at issue here. the instruction did not violate due process.
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“The essential difference” between the offenses is the distinction emphasized by the trial court. See State v. Arnold, 548 So. 2d 920, 923 (La. 1989) (quoting State v. Polk, 376 So. 2d 151, 152 n.1 (La. 1979)).
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V. gratification.
Dickinson claims insufficient evidence to support his aggravated kidnapping Arnold, 548 So. 2d at 924. convictions. “In evaluating a challenge to the sufficiency of the evidence, we view the Citing Bouie v. City of Columbia, 378 U.S. evidence in the light most favorable to the 347 (1964), Dickinson argues that the Arnold verdict and uphold the verdict if, but only if, a holding cannot be applied to his 1977 rational juror could have found each element conviction. In Bouie, the Court held that an of the offense beyond a reasonable doubt.” unforeseeable state-court construction of a United States v. Brown, 186 F.3d 661, 664 criminal statute cannot be applied (5th Cir. 1999); see also Foy v. Donnelly, 959 retroactively. See id. Dickinson’s claim is F.2d 1307, 1313 (5th Cir. 1992). We apply without merit, because the Arnold court this standard with explicit reference to the specifically addressed the precedent and substantive elements of the criminal offense as opined that defined by state law, and give great weight to the state court’s determination that the [a] review of the history of the statute evidence is sufficient. See Foy, 959 F.2d at and our jurisprudence reveals that [the 1314. requirement Dickinson advocates] has never been part of the law of aggravated In State v. Arnold, 548 So. 2d 920, 923 kidnapping. Rather, all the law has (La. 1989), the court identified the elements of required is evidence of defendant’s aggravated kidnapping as follows: (1) the intent to extort something of value by forcible seizing, and (2) the carrying of any playing upon the victim’s hope of person from one place to another, (3) with the release. intent to force the victim to give up anything of value, (4) in order to secure the release of Arnold, 548 So. 2d at 923.10 that person. Dickinson argues that there was no evidence of the fourth element; in other The evidence is sufficient to support words, he contends there was no evidence that Dickinson’s conviction. He abducted both he intended to condition the victims’ release victims at knifepoint, forced them into a car, on their submitting to sexual intercourse. As and drove them to an apartment where they we will explain, Arnold makes plain that the were raped by him and his cohort. Both evidence is sufficient to prove all four elements victims gave substantial test imony of the offense: corroborating their claims. The opinion in Arnold, 548 So. 2d at 921, 924, makes plain [T]he relevant factor in applying the that when a victim is forcibly abducted at fourth element of aggravated kidnapping knifepoint, driven to a remote location, and is not whether the kidnapper explicitly forced to have sexual intercourse, the communicated to the victim that requirements of aggravated kidnapping are performance of sexual acts would result established. in his or her release, but whether the kidnapper intended to extort sexual AFFIRMED. gratification from the victim by playing upon the victim’s hope for release. This intent is manifested not merely by the kidnapper’s words or actions, but by analyzing whether a reasonable person 10 In fact, even the dissent in Arnold specifically in the victim’s place, given the totality of cites the case sub judice as one in which sufficient the circumstances, would believe that he evidence to satisfy all elements of the offense did or she would not be safely released exist. See Arnold, 548 So. 2d at 929 n.5 unless he or she complied with the (Calogero, J., dissenting in part) (discussing State kidnapper’s demands for sexual v. Dickinson, 370 So. 2d 557 (La. 1979)).