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.
Appeal 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 denied. 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 of allegedly
erroneous jury instructions and ineffective assistance of counsel.
On September 30, 1994, the district court, concurring with the
1 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 trial 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 your sworn duty to give him the benefit of that doubt and return a verdict of acquittal, 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, substantial basis and not upon a mere caprice, fancy or 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 accused'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 indispensably 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 Sullivan 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).
2 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. Id. at 310, 109
S.Ct. at 1075. The second exception identified by the Teague 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." Id. 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 Sullivan, however, the
Supreme Court held that the Cage-type error is structural. "[T]o
hypothesize a guilty verdict that was never in fact rendered—no
matter how inescapable the finding to support that verdict might
be—would violate the jury-trial guarantee." Sullivan, --- 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." Id. 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
concept of ordered liberty" and therefore should be applied
3 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 jury 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 Victor, 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. Victor, --- U.S. at ----, 114 S.Ct. at
1243. Thus, if Sullivan and Teague command retroactivity here, it
is now Victor, not Cage, which should be applied retroactively.1
In Victor, the Court disapproved of charges similar to that
which Gaston received. See Victor, --- U.S. at ---- and ----, 114
S.Ct. at 1248 and 1251. In a concurring opinion, Justice Kennedy
even warned state courts that "[t]he inclusion of words so
malleable, because so obscure, might in other circumstances have
put the whole instruction at risk." Id. 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 reasonable
1 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.
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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.
Appeal 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 denied. 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 of allegedly
erroneous jury instructions and ineffective assistance of counsel.
On September 30, 1994, the district court, concurring with the
1 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 trial 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 your sworn duty to give him the benefit of that doubt and return a verdict of acquittal, 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, substantial basis and not upon a mere caprice, fancy or 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 accused'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 indispensably 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 Sullivan 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).
2 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. Id. at 310, 109
S.Ct. at 1075. The second exception identified by the Teague 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." Id. 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 Sullivan, however, the
Supreme Court held that the Cage-type error is structural. "[T]o
hypothesize a guilty verdict that was never in fact rendered—no
matter how inescapable the finding to support that verdict might
be—would violate the jury-trial guarantee." Sullivan, --- 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." Id. 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
concept of ordered liberty" and therefore should be applied
3 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 jury 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 Victor, 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. Victor, --- U.S. at ----, 114 S.Ct. at
1243. Thus, if Sullivan and Teague command retroactivity here, it
is now Victor, not Cage, which should be applied retroactively.1
In Victor, the Court disapproved of charges similar to that
which Gaston received. See Victor, --- U.S. at ---- and ----, 114
S.Ct. at 1248 and 1251. In a concurring opinion, Justice Kennedy
even warned state courts that "[t]he inclusion of words so
malleable, because so obscure, might in other circumstances have
put the whole instruction at risk." Id. 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 reasonable
1 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 doubt means." Id. 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 "moral
certainty," the phrases which the Supreme Court warns should be
avoided. However, Gaston's instruction, unlike the Cage
instruction, also included the phrase "that degree 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 way that violates the
Constitution. Therefore, following Victor, 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 allegedly 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. See Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
5 Accordingly, the district court's denial of Gaston's petition
is hereby AFFIRMED.