Revised February 11, 2000
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________
No. 99-30146 __________________
BUFORD ANTHONY DUPUY,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee. ________________________________________________________________
Appeal from the United States District Court for the Western District of Louisiana _________________________________________________________________ January 24, 2000
Before JONES, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For this pro se, successive habeas petition, considered
pursuant to the applicable standards prior to those imposed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
primarily at issue is whether the district court abused its
discretion in determining that the challenged reasonable doubt jury
instruction was not prejudicial for abuse of writ purposes. The
other claims were also treated similarly. We AFFIRM. I.
- 2 - Buford Anthony Dupuy’s 1974 conviction for second-degree
murder and life-sentence were affirmed in December 1975. State v.
Dupuy, 319 So.2d 299 (La. 1975).
Dupuy’s first federal habeas petition, filed in 1977,
contended: (1) that the evidence seized during claimed
unconstitutional searches of his residence should have been
excluded; (2) that he was not allowed to examine certain
prosecution evidence; and (3) that he had received an unfair trial,
based on claimed prejudicial remarks by the prosecutor. The
petition was dismissed, on the merits, in 1979. Our court denied
a certificate of probable cause (CPC) in August 1982.
Dupuy’s second, successive petition was filed on 12 April
1996, approximately two weeks before AEDPA became effective. He
raised seven new claims for relief: (1) that the use of his
confession violated the Fifth, Sixth, and Fourteenth Amendments;
(2) that the evidence was insufficient to convict him; (3) that he
received ineffective assistance of counsel; (4) that the reasonable
doubt and specific intent instructions violated the Fourteenth
Amendment; (5) that women were unconstitutionally excluded from the
grand and petit juries; (6) that the State suppressed evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963); and (7) that
his sentence was illegal.
Pre-AEDPA, raising a new claim in a subsequent habeas petition
constitutes an abuse of the writ, unless the petitioner can
- 3 - demonstrate both cause for not raising the claim in the first
petition and actual prejudice if the claim is not considered; if he
fails to do so, the court may still reach the merits in order to
prevent a “fundamental miscarriage of justice”. McCleskey v. Zant,
499 U.S. 467, 494 (1991).
Pretermitting whether Dupuy had shown cause, the magistrate
judge determined that Dupuy would neither be prejudiced, nor suffer
a fundamental miscarriage of justice, and, therefore, recommended
that the writ be dismissed, pursuant to Rule 9(b) of the Rules
Governing Section 2254 Proceedings in the United States District
Courts.
The district court adopted the magistrate judge’s report and
recommendation, except for the claim concerning Dupuy’s sentence.
For it, the court concluded that the sentence was illegally lenient
and that, therefore, Dupuy had not been prejudiced. The petition
was dismissed with prejudice, as an abuse of the writ.
II.
As in district court, Dupuy proceeds pro se. Because his
second habeas petition was filed prior to AEDPA, pre-AEDPA habeas
law applies. Lindh v. Murphy, 521 U.S. 320 (1997). Nevertheless,
the district court granted an AEDPA certificate of appealability
(COA) for four of the seven claims. A COA is the substantive
equivalent of a pre-AEDPA CPC, Blankenship v. Johnson, 118 F.3d
312, 315 & n.2 (5th Cir. 1997); but, when a pre-AEDPA CPC is
- 4 - granted, we consider all of the claims raised in the petition.
Sherman v. Scott, 62 F.3d 136, 138-39 (5th Cir. 1995), cert.
denied, 516 U.S. 1093 (1996). (Accordingly, our court permitted
Dupuy to file a supplemental brief covering the issues for which
the district court had not granted a COA.)
As noted, a federal habeas petitioner is required to raise all
issues in the first petition; a subsequent, pre-AEDPA petition
raising new issues is subject to dismissal for abuse of writ,
pursuant to Rule 9(b). Rodriguez v. Johnson, 104 F.3d 694, 696
(5th Cir.), cert. denied, 520 U.S. 1267 (1997). Once the State has
met its burden of pleading such abuse, the petitioner must show
either cause and prejudice concerning the failure to plead the
issue in the first petition, or a fundamental miscarriage of
justice. Id. at 697.
We review an abuse of writ dismissal for abuse of discretion.
Id. at 696. As did the district court, instead of looking to cause
vel non, we examine Dupuy’s claims to determine either actual
prejudice or a fundamental miscarriage of justice vel non.
To show prejudice, Dupuy must demonstrate, “not merely that
the error at his trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions”. United
States v. Frady, 456 U.S. 152, 170 (1982). Similarly, a
- 5 - miscarriage of justice occurs only in those “extraordinary
instances when a constitutional violation probably has caused the
conviction of one innocent of the crime”. McCleskey, 499 U.S. at
494.
For starters, in reviewing for actual prejudice or a
fundamental miscarriage of justice, we reject Dupuy’s objections
concerning the procedure employed by the district court for this
Rule 9(b) question: (1) that by analyzing Dupuy’s substantive
issues in the Rule 9(b) context, he has been held to a higher
standard of review; (2) that there are unresolved factual issues
regarding the state court suppression hearing which should not have
been resolved without an evidentiary hearing; (3) that the district
court erroneously relied on an uncertified state court record; (4)
that the State’s answer was served on him without copies of the
attached exhibits, and the district court failed to rule on his
motion to have the State provide him those exhibits; (5) that an
unresolved factual dispute remains; and (6) that the district
court’s order, that no further motions would be entertained while
the Rule 9(b) issue was pending, prohibited him from conducting
discovery and prosecuting his habeas petition. In sum, the
procedure employed by the district court for this Rule 9(b) matter
was proper.
A.
- 6 - For Dupuy’s claim that the reasonable doubt and specific
intent instructions were unconstitutional, we review a challenged
instruction to determine whether it so infected the entire trial
that the resulting conviction violated due process, not merely
whether it is undesirable, erroneous, or even universally
condemned. Rodriguez, 104 F.3d at 699 n.8.
1.
The reasonable doubt instruction provided:
A reasonable doubt is a fair doubt based upon reason and common sense and arising from a state of the evidence. It is a doubt that you can give a reason for. It is rarely possible to prove anything to an absolute certainty. Proof beyond a reasonable doubt is such as you would be willing to rely and act upon in the most important of your own affairs. A defendant is never to be convicted on mere suspicions or conjectures. A reasonable doubt may arise not only from the evidence produced but also from a lack of evidence. Since the burden is always on the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, a defendant has the right to rely upon the failure of the prosecution to establish such proof. A defendant may also rely upon evidence brought out on cross examination of a witness for the prosecution. The law never imposes upon a defendant in a criminal case, the burden or duty of producing any evidence. A reasonable doubt exists in any case when after careful and impartial consideration of all the evidence in the case, the jurors do not feel convinced to make [sic] a moral certainty that the defendant is guilty of the charge against him.
(Emphasis added.)
- 7 - Dupuy contends that the “moral certainty” language suggests a
higher level of doubt than that — reasonable doubt — required for
acquittal, citing Cage v. Louisiana, 498 U.S. 39 (1990). There,
the Court held that the charge
equated a reasonable doubt with a “grave uncertainty” and an “actual and substantial doubt,” and stated that what was required was a “moral certainty” that the defendant was guilty. It is plain to us that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable-doubt standard.
Id. at 41.
Victor v. Nebraska, 511 U.S. 1 (1994), modified Cage. The
three phrases were still disapproved; accordingly,
trial courts must avoid defining reasonable doubt so as to lead the jury to convict on a lesser showing than due process requires. [But, for the] cases [under review], we conclude that taken as a whole, the instructions correctly conveyed the concept of reasonable doubt to the jury.
Id. at 22.
Thereafter, in Schneider v. Day, 73 F.3d 610, 611 (5th Cir.
1996), for example, our court held that the reasonable doubt
instruction at issue there, which employed “an actual and
substantial doubt”, “a serious sensible doubt as such you could
give a good reason for”, and “a moral certainty”, was acceptable.
In so doing, our court applied Victor, and held “that there is no
- 8 - reasonable likelihood that the jury ... applied the instruction in
a way that violated the Constitution”. Id. at 611.
Humphrey v. Cain, 138 F.3d 552 (5th Cir.)(en banc), cert.
denied, ___U.S.___, 119 S. Ct. 348, and cert denied, ___U.S.___,
119 S. Ct. 365 (1998), adopted the panel opinion, 120 F.3d 526
(1997), concerning, inter alia, whether the defendant was
prejudiced by the reasonable doubt instruction. The instruction
provided, at the end, that the jury “could acquit only if it had a
serious doubt, for which you could give good reason”; it earlier
employed the terms “substantial doubt”, “grave uncertainty”, and
“moral certainty”. The requirement that a juror had to have a
“serious doubt, for which [he] could give a good reason”, in
conjunction with the disapproved phrases, was held to violate due
process. See Humphrey, 120 F.3d at 530 (panel opinion). But,
Humphrey expressly did not consider whether the “give good reason”
requirement, alone, was violative of due process. Id. at 531.
Dupuy’s reasonable doubt instruction contains favored and
disfavored phrases. Of course, it is not the use of a single
phrase that determines whether a jury instruction is
unconstitutional; instead, the instruction is examined as a whole.
Victor, 511 U.S. at 22.
Dupuy’s instruction required jurors to be able to articulate
a “good reason” and had one of the disfavored Cage phrases (“moral
certainty”). But, otherwise, the instruction has far less
- 9 - disfavored language than in Humphrey; and, additionally, the
instruction has further clarifying language to assist in
determining reasonable doubt vel non. Humphrey, 120 F.3d at 533
(discussing why Schneider and other cases, faced with “good reason”
phrase held instruction not unconstitutional, because not faced
with all the other disfavored phrases as in the Humphrey
instruction). Moreover, the “good reason” requirement is placed
much earlier in the instruction and given far less emphasis.
Finally, Humphrey was not a successive petition/abuse of writ
situation, as is the case at hand.
We conclude that the district court did not abuse its
discretion in holding that Dupuy has not shown the requisite
prejudice resulting from the instruction. For example, unlike
Humphrey, as discussed infra, this is not a “close case” as to
guilt or innocence. Id.
2.
The specific intent jury instruction provided:
As a general rule it is reasonable to infer that a person ordinarily intends all the natural and probable consequences of acts knowingly done or knowingly omitted by him. So, unless the evidence in this case leads the jury to a different or contrary conclusion, the jury may draw the inference implied and find that the accused intended all the natural and probable consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused.
- 10 - Dupuy contends that this instruction created a presumption of
intent, prohibited by Sandstrom v. Montana, 442 U.S. 510, 515
(1979). It held that the phrase “the law presumes that a person
intends the ordinary consequences of his voluntary acts” created
such a prohibited presumption. Id.
Here, the instruction provided for an allowable inference; it
did not create the prohibited presumption. Accordingly, the court
did not abuse its discretion in determining that Dupuy has not
demonstrated prejudice.
B.
Dupuy asserts that his due process rights were violated
because his confession was elicited in violation of the Fifth and
Sixth Amendments.
Dupuy must demonstrate that his confession was not voluntarily
given and that, for this abuse of writ inquiry, the district court
abused its discretion in determining that he was not prejudiced.
“[T]he ultimate question whether, under the totality of the
circumstances, [a] challenged confession was obtained in a manner
compatible with the requirements of the Constitution is a matter
for independent federal determination.” Muniz v. Johnson, 132 F.3d
214, 219 (5th Cir.), cert. denied, ___ U.S.___, 118 S.Ct. 1793
(1998) (citation omitted). “Subsidiary factual questions, however,
are entitled to a presumption of correctness”. Id. at 219.
- 11 - 1.
After Dupuy’s arrest, he was interrogated at the sheriff’s
office, beginning with the Sheriff asking Dupuy whether he knew his
rights. Dupuy responded that he did, and then admitted killing
Normand in a “tussle”. (At trial, Dupuy’s defense was based upon
Normand being accidentally shot during a “tussle”. Dupuy, 319
So.2d at 301.)
Dupuy’s motion to suppress the confession, because he had not
been advised of his rights, was denied. At the hearing on that
motion, a Deputy Sheriff testified that he could not remember if
Dupuy had been read his rights pre-interrogation. Another Deputy
testified that, when he arrested Dupuy, he read him his rights;
that initially, Dupuy stated that he did not understand; that he
then reread those rights to Dupuy; and that, Dupuy stated that he
understood.
Moreover, at the sheriff’s office, prior to the interrogation,
Dupuy signed a memorandum waiving his rights. Additionally, the
Sheriff testified that he
told [Dupuy], of course, that we were there to talk to him and that we were going to read him his rights or tell him his rights and that’s when he told us we didn’t have to. That they had already been read to him. And, he already knew his rights and that we didn’t have to tell him his rights.
The magistrate judge noted that Dupuy had not offered any
evidence to demonstrate that he had not waived his rights, and,
- 12 - accordingly, determined that Dupuy failed to overcome the
presumption of correctness that attaches to state-court fact
finding. See Mann v. Scott, 41 F.3d 968, 976 (5th Cir. 1994),
cert. denied, 514 U.S. 1117 (1995). In sum, Dupuy has not
demonstrated prejudice. Therefore, there was no abuse of
discretion by the district court.
Citing Edwards v. Arizona, 451 U.S. 477, 487 (1981), Dupuy
maintains that he requested counsel immediately after his arrest,
and should not have been interrogated without counsel being
present. Dupuy’s conviction, however, became final prior to
Edwards. To the extent that Edwards created a new per se rule, it
does not apply retroactively to cases on collateral review. See
Solem v. Stumes, 465 U.S. 638, 650 (1984).
The pre-Edwards rule was that States could not secure
“criminal convictions through the use of involuntary confessions
resulting from coercive police conduct”. Self v. Collins, 973 F.2d
1198, 1205 (5th Cir. 1992), cert. denied, 507 U.S. 996 (1993).
Dupuy has not demonstrated an abuse of discretion by the district
court’s concluding that the admission of the confession did not
work to his “actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions”. Murray v.
Carrier, 477 U.S. 478, 493 (1986).
- 13 - C.
Dupuy next raises a sufficiency challenge regarding his intent
to kill Normand. For such a claim, we consider whether, viewing
the evidence “in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt”. Jackson v. Virginia, 443
U.S. 307, 319 (1979). This standard is applied with “explicit
reference to the substantive elements of the criminal offense as
defined by state law”. Id. at 324 n.16. Under Louisiana law, the
elements of second degree murder are (1) the killing of a human
being; and (2) that defendant had the specific intent to kill or
inflict great bodily harm. LA. REV. STAT. ANN. 14:30.1.
Specific criminal intent is “that state of mind which exists
when the circumstances indicate that the offender actively desired
the prescribed criminal consequences to follow his act or failure
to act”. State v. Williams, 714 So.2d 258, 263 (La. App. 5 Cir.
1998) (citation omitted). Specific intent is a question of fact
which may be inferred from the circumstances and actions of the
defendant. Id. at 263.
Dupuy admitted killing Normand. He had Jesse Bordelon throw
Normand’s body into a bayou. Dupuy drove to another location and
threw the gun into the bayou. Normand had been hogtied and shot in
the back of the head. Normand left a note saying “If I get killed,
it’s Anthony Dupuy, that did it.”
- 14 - Obviously, the evidence is sufficient for a reasonable juror
to find, beyond a reasonable doubt, that Dupuy intended to kill
Normand. The district court did not abuse its discretion.
D.
Relying on Taylor v. Louisiana, 419 U.S. 522 (1975), Dupuy
contends that he was prejudiced because women were systematically
excluded from grand and petit juries. In Daniel v. Louisiana, 420
U.S. 31 (1975), the court held that Taylor would not be applied
retroactively to “convictions obtained by juries empaneled prior to
the date of that decision”. Id. at 32. Dupuy’s grand and petit
juries were empaneled prior to Taylor.
E.
Dupuy asserts that police reports were withheld from him in
violation of Brady. To establish such a violation, Dupuy must prove
that the State withheld evidence; that it was favorable; and that
it was material to the defense. E.g., Little v. Johnson, 162 F.3d
855, 861 (5th Cir. 1998), cert. denied, ___U.S.___, 119 S.Ct. 1768
(1999).
Dupuy maintains that the police report would have shown (1)
that Normand’s fingerprints were found in Dupuy’s home; (2) that
Normand was not kidnaped; (3) that a table in Dupuy’s home was
damaged and that blood samples matching Normand’s blood type were
found in Dupuy’s home; and (4) that there was evidence that would
have supported Dupuy’s testimony that Normand had been accidentally
- 15 - killed. During post conviction proceedings in 1992, 17 years after
his conviction, a police report was furnished to Dupuy in response
to a discovery request. Dupuy contends that there are other police
reports that were not provided to him; however, he has not
demonstrated that they are in existence. The State responded that
all such records were delivered to Dupuy.
Dupuy did not demonstrate that the reports were withheld from
him. Accordingly, the district court did not abuse its discretion.
F.
Dupuy claims that he was illegally sentenced by the trial
court, because his sentence failed to specify that he would not be
eligible for parole, probation, or suspension of sentence for 20
years. In a state collateral proceeding, the court ruled that the
sentence was not illegal. Louisiana v. Dupuy, No. 31,391 (12th
J.D.C. 27 Aug. 1993) (motion for resentencing).
The district court determined that his sentence was illegally
lenient and that, therefore, Dupuy had not been prejudiced. Dupuy
has not demonstrated that the wording of the court’s minute entry
will affect his eligibility for release. Accordingly, the requisite
abuse of discretion has not been shown.
G.
For his ineffective assistance of counsel claim, Dupuy must
show that his attorneys’ performance was deficient and that this
prejudiced his defense. Strickland v. Washington, 466 U.S. 668,
- 16 - 687 (1984). Dupuy must overcome the strong presumption that their
conduct fell within the wide range of reasonable professional
assistance. Id. at 689.
Dupuy contends that his attorneys failed to object when the
prosecution moved to amend the indictment after the voir dire
commenced. The indictment was amended on 31 October 1974. But,
the first juror was not called until 4 November 1974.
Claiming that false and perjurious testimony was presented to
the grand jury that he had committed an aggravated kidnaping, Dupuy
contends that his attorney should have moved to quash the original
indictment for first degree murder. Likewise, claiming that, at
the preliminary hearing, no evidence was presented to show that
there was a kidnaping, he asserts that counsel should have moved to
suppress the indictment. But, he was neither tried, nor convicted,
for first degree murder.
3.
Dupuy contends that his attorney rendered ineffective
assistance in prosecuting the motion to suppress the confession.
As discussed, supra, Dupuy has not demonstrated prejudice.
4.
In conjunction with Dupuy’s contention that the evidence was
insufficient to prove that he had the specific intent to kill
- 17 - Normand, Dupuy contends that counsel failed to present motions at
the conclusion of trial to protect his rights. But, he concedes
that counsel moved to arrest the judgment on grounds of
insufficient evidence.
5.
Dupuy asserts that counsel should have objected to the court’s
reasonable doubt and specific intent instructions. Dupuy’s
conviction was final in 1975. Cage was decided in 1990. The
failure to so object, in the light of the state of the law existing
at the time, is not deficient performance. Schneider, 73 F.3d at
612.
6.
Dupuy cites the failure to object to the exclusion of women
from grand and petit juries. He states, however, that he believes
counsel did object to such exclusion. In fact, counsel moved to
quash the indictment (motion denied), because women were not
impaneled on either the grand or petit jury.
In sum, concerning the ineffective assistance of counsel
claims, the requisite Rule 9(b) prejudice is lacking. The district
court did not abuse its discretion in so concluding.
III.
Dupuy has failed to demonstrate that any of his claims result
in either prejudice or a fundamental miscarriage of justice.
Accordingly, he has not demonstrated that the district court abused
- 18 - its discretion in denying his second habeas petition on the basis
of abuse of writ. Therefore, the dismissal of Dupuy’s second
habeas petition is
AFFIRMED.
- 19 - DENNIS, Circuit Judge, concurring:
I concur in the judgment of the court. I write separately
because, in my view, the majority erroneously concludes that had
Dupuy established a Cage error his habeas petition might
nevertheless have been subject to dismissal for abuse of the writ
because a Cage error is not necessarily sufficiently pervasive and
prejudicial as to so infect the entire trial that the resulting
conviction violated due process.1
Preliminarily, I agree that in this case the reasonable doubt
instructions taken as a whole are not infirm because “[t]here is no
reasonable likelihood that the jurors who determined petitioner’s
guilt applied the instructions in a way that violated the
Constitution.” Victor v. Nebraska, 511 U.S. 1, 6 (1994). This is
especially evident when the instant instructions are compared and
contrasted to those in Cage v. Louisiana, 498 U.S. 39 (1990) and
Humphrey v. Cain, 138 F.3d 552 (5th Cir. 1998)(en banc). Thus I
agree with the majority that Dupuy suffered no Cage error.
Sullivan v. Louisiana, 508 U.S. 275 (1993), as I read it,
precludes the possibility that a Cage error may not be sufficiently
1 As both the district court and the majority pretermitted the issue of cause as required in addition to a showing of actual prejudice in a pre-AEDPA subsequent habeas petition raising a new claim, see McCleskey v. Zant, 499 U.S. 467, 494 (1991), I do not contend that a Cage error in and of itself would be enough for Dupuy to avoid dismissal for abuse of the writ -- only that a Cage error is sufficient to satisfy the requisite showing of prejudice.
- 20 - prejudicial to satisfy the showing required to avoid abuse of the
writ dismissal. In Sullivan, Justice Scalia stated in no uncertain
terms that a Cage error is not subject to harmless error review
because it operates as a complete deprivation of the defendant’s
Sixth Amendment right to jury trial and violates the Fifth
Amendment requirement of proof beyond a reasonable doubt. This
result obtains because, unlike many other jury instruction errors,
an instructional error misdescribing the burden of proof vitiates
all the jury’s findings such that reviewing courts “can only engage
in pure speculation -- its view of what a reasonable jury would
have done. And when it does that, ‘the wrong entity judge[s] the
defendant guilty.’” Sullivan, 508 U.S. at 280-81 (citing and
quoting Rose v. Clark, 478 U.S. 570, 578 (1986)).
Accordingly, I do not believe that we are free to conclude, as
the majority opinion suggests, that a Cage error may not be
prejudicial. Surely if Dupuy had been convicted and sentenced
without a jury finding of guilt, it could only have “worked to his
actual and substantial disadvantage, infecting his entire trial
withe error of constitutional dimension.” United States v. Frady,
456 U.S. 152, 170 (1982). Thus, Dupuy was required to prove only
that there was a Cage error, as defined by Sullivan and Victor, in
order to show the requisite prejudice to overcome dismissal for
abuse of the writ.
- 21 -