IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-31101
ELMO HUMPHREY, III, Petitioner-Appellant,
v.
BURL CAIN, Acting Warden, Louisiana State Penitentiary, Respondent-Appellee.
Appeal from the United States District Court For the Eastern District of Louisiana
August 14, 1997
Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This is a federal habeas petition seeking relief from a state
court conviction for aggravated rape. Elmo Humphrey, III, had no
criminal record but found himself accused of rape by a troubled
sixteen-year-old girl. The rapes allegedly took place more than
five years earlier. The victim had retracted an earlier accusation
against Humphrey and had no witnesses or medical testimony to
support her story. Nevertheless, a Louisiana jury convicted
Humphrey by a vote of 11 to 1.
We conclude that the reasonable doubt instruction did not give
the defendant the benefit of reasonable doubt as elucidated by the
Supreme Court in In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), Cage v. Louisiana, 498 U.S. 39, 111 S. Ct.
328, 112 L. Ed. 2d 339 (1990) (per curiam), and Victor v. Nebraska,
511 U.S. 1, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1994). Circuit
precedent, however, requires us to hold that Humphrey’s claim rests
on a new rule and thus is unavailable in a habeas proceeding.
I.
Petitioner Elmo Humphrey was a friend of Kathy Calhoun when
she lived in Metairie, Louisiana. Starting in early 1980, Calhoun
engaged Humphrey to baby-sit her nine-year-old daughter J. and J.’s
brother. Humphrey looked after the children regularly while the
Calhouns lived in Metairie and on one occasion after the family
moved. The trial evidence regarding the date of this move is
equivocal, but the jury could have concluded that the family moved
from Metairie in March of 1982. In 1987, J., then sixteen, told
her mother about sexual encounters with Humphrey. Calhoun informed
the police. On January 21, 1988, a Louisiana grand jury indicted
Humphrey for aggravated rapes occurring between January 1, 1980,
and December 31, 1984.
The trial judge gave the following instruction to the jury:
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. Even where the 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 a real, tangible, substantial basis, and not upon mere caprice, fancy or conjecture. It must be such a doubt as would give rise to a grave uncertainty, raised 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 certain[ty] of the
2 defendant’s guilt. If, after giving a fair and impartial consideration to all of the facts in the case, you find the evidence unsatisfactory upon any single point indispensably necessary to constitute the defendant’s guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty. The prosecution must establish guilt by legal and sufficient evidence beyond a reasonable doubt, but the rule does not go further and require a preponderance of testimony. It is incumbent upon the State to prove the offense charged, or legally included in the Information, to your satisfaction and beyond a reasonable doubt. A reasonable doubt 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, for which you could give good reason.
The jury convicted Humphrey of the rape charges by an 11-1
vote. The trial judge sentenced him to life in prison at hard
labor without parole. In his appeal, he argued that the reasonable
doubt instruction given to his jury was deficient. State v.
Humphrey, 544 So. 2d 1188 (La. Ct. App.), writ denied, 550 So. 2d
627 (La. 1989). Humphrey sought post-conviction relief in the
Louisiana courts. He raised the reasonable doubt issue again and
added a claim that he was prosecuted illegally because the statute
of limitations had expired. The Louisiana courts denied relief.
Humphrey then filed this federal habeas petition, which raises the
same issues. The district court rejected both contentions, but it
granted a certificate of probable cause, and we appointed counsel.
II.
The district court issued its certificate of probable cause on
November 27, 1995. While this appeal was pending, the Anti-
terrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110
Stat. 1214 (1996), became effective. This statute amended 28
3 U.S.C. § 2253 to require a certificate of appealability, rather
than a certificate of probable cause, before a final order in a
habeas proceeding may be appealed. It also modified the
circumstances in which federal courts may grant writs to state
prisoners. See 28 U.S.C. § 2254(d) (West Supp. 1997).
Neither of these changes affects Humphrey’s petition. We held
in Brown v. Cain, 104 F.3d 744, 749 (5th Cir.), cert. denied, ___
U.S. ___, 117 S. Ct. 1489, 137 L. Ed. 2d 699 (1997), that the
AEDPA’s certificate-of-appealability requirements do not apply to
a petitioner who obtained a certificate of probable cause before
the new statute went into effect. And the Supreme Court recently
held that, except in certain capital cases, the new version of
section 2254(d) does not apply retroactively to petitions filed
before the new statute’s effective date. Lindh v. Murphy, ___ U.S.
___, 117 S. Ct. 2059, ___ L. Ed. 2d ___ (1997); Shute v. Texas, 117
F.3d 233, 235 (5th Cir. 1997) (on rehearing). Thus, we must
analyze Humphrey’s claims under the old version of the habeas
statute.
III.
A.
Because it is a threshold question, see Caspari v. Bohlen, 510
U.S. 383, 389, 114 S. Ct. 948, 953, 127 L. Ed. 2d 236 (1994), we
turn first to the question of whether Humphrey can rely on Cage and
Victor, decided by the Supreme Court after his conviction became
final. In Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103
L. Ed. 2d 334 (1989), the Supreme Court narrowed the relief
4 available to a habeas petitioner under 28 U.S.C. § 2254 by
confining a petitioner to rules of constitutional law in place when
certiorari is denied on direct appeal of his conviction. But
Teague did not withdraw two categories of newly announced rules.
Subscribing to Justice Harlan’s view of the central purposes of the
writ of habeas corpus, Teague accepted two limitations on the
general prohibition against looking to new law.
First, a new rule should be applied retroactively if it places “certain primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Mackey[v. United States], 401 U.S. [667,] 692 [(1971)]. Second, 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 693 (quoting Palko v. Connecticut, 302 U.S. 319, 325 (1937) (Cardozo, J.)).
489 U.S. at 307, 109 S. Ct. at 1073. Teague added to the limits of
Justice Harlan’s suggested withdrawal of federal habeas review of
state convictions the requirement that the error must also
implicate the accuracy of the fact determination; that it must
“seriously diminish the likelihood of obtaining an accurate
conviction.” Id. at 1078. See also Sawyer v. Smith, 497 U.S. 227,
242, 110 S. Ct. 2822, 2831, 111 L. Ed. 2d 193 (1990) (explaining
that a new rule within Teague’s second exception must both
implicate accuracy and alter “our understanding of the ‘bedrock
procedural elements’ essential to the [fundamental] fairness of a
proceeding”).
In our view, the Supreme Court has made it plain that Cage-
Victor errors fit with the second Teague exception. The Court in
Sullivan v. Louisiana, 508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d
5 182 (1993), explained that denying the right to a jury verdict
beyond a reasonable doubt is a structural defect. Such an error
takes away a “‘basic protectio[n]’ whose precise effects are
unmeasurable, but without which a criminal trial cannot reliably
serve its function.” Id. at 281, 113 S. Ct. at 2083. In other
words, a jury that purports to convict based on a constitutionally
defective reasonable-doubt instruction has in fact not rendered any
conviction at all.
Other circuits have reached the same conclusion. According to
the Eleventh Circuit, Sullivan and Cage, when taken together,
indicate that “an improper reasonable doubt instruction undermines
the fundamental fairness of every trial in which it is used.”
Nutter v. White, 39 F.3d 1154, 1158 (11th Cir. 1994) (emphasis in
original). The Fourth Circuit reached a different result in Adams
v. Aiken, 965 F.2d 1306 (4th Cir. 1992), cert. denied, 508 U.S.
974, 113 S. Ct. 2966, 125 L. Ed. 2d 666 (1993), but after deciding
Sullivan, the Supreme Court granted certiorari on rehearing and
remanded for reconsideration. 511 U.S. 1001, 114 S. Ct. 1365, 128
L. Ed. 2d 42 (1994). With the benefit of Sullivan’s concept of
structural error, the court of appeals decided that Cage-Victor
errors fall within Teague’s second exception. Adams v. Aiken, 41
F.3d 175, 179 (4th Cir. 1994), cert. denied, 515 U.S. 1124, 115
S. Ct. 2281, 132 L. Ed. 2d 284 (1995).
We need not fear that finding no Teague bar to claims such as
Humphrey’s will spawn scores of new habeas petitions. Prisoners
who file petitions after April 24, 1996, must surmount the
6 formidable barriers erected by the Anti-terrorism and Effective
Death Penalty Act. Of course, we do not have occasion to measure
how high those barriers might be. We note only that the one-year
statute of limitations, see 28 U.S.C. § 2244(d) & 2255, the
restrictions on successive petitions, see 28 U.S.C. § 2244(b) &
2255, and the heightened standard of review for state prisoners,
see 28 U.S.C. § 2254(d)(1), could shut out future petitioners in
Humphrey’s situation.
Our circuit precedent, however, requires us to hold that Cage
and Victor do not fall within an exception to Teague. The state
directs our attention to Johanson v. Whitley, No. 94-30098 (5th
Cir. 1994) (unpublished), cert. denied, 513 U.S. 1175, 115 S. Ct.
1155, 130 L. Ed. 2d 1112 (1995). Two other panels of this court
recently cited an even earlier unpublished opinion holding that
Cage-Victor analysis is not available on habeas review. United
States v. Shunk, 113 F.3d 31, 37 (5th Cir. 1997); Brown v. Cain,
104 F.3d 744, 753 (5th Cir.), cert. denied, ___ U.S. ___, 117
S. Ct. 1489, 137 L. Ed. 2d 699 (1997) (both citing Smith v.
Stalder, No. 93-3683 (5th Cir. 1994) (per curiam) (unpublished)).1
These unpublished opinions were binding when filed, and absent
relief from the court sitting en banc this panel must abide them.
1 Panels of this court have declined to rest on Smith v. Stalder when a habeas petitioner would be unable to prevail on the merits in any case. See Schneider v. Day, 73 F.3d 610 (5th Cir. 1996) (per curiam); Weston v. Ieyoub, 69 F.3d 73 (5th Cir. 1995); Gaston v. Whitley, 67 F.3d 121 (5th Cir. 1995), cert. denied, ___ U.S. ___, 116 S. Ct. 2561, 135 L. Ed. 2d 1078 (1996) (all reaching the merits and denying relief based on Victor without explicitly holding that Cage-Victor errors are available retroactively).
7 5TH CIR. LOCAL R. 47.5.3 (“Unpublished opinions issued before January
1, 1996 are precedent.”); Brown, 104 F.3d at 753 (“A panel is not
at liberty to disagree with the decision of a prior panel.”). In
spite of our view that Sullivan makes Cage available retroactively,
this panel may not grant Humphrey the relief he requests.
B.
Of course, en banc consideration of the availability of
collateral attack on the reasonable-doubt instruction would be
futile if Humphrey is destined to defeat on the merits. We believe
that Humphrey’s claim has merit. In other words, we believe that
his trial involved a reversible Cage-type error. Because Humphrey
must seek relief from the en banc court in any event, we examine
the merits simply to show that his contention has force and that —
in the absence of a Teague bar — the full court’s attention will
not be in vain.
Humphrey argues that the instructions given to the jury at his
trial, when considered as a whole, were defective under Cage and
Victor.2 We must therefore look to see if the combination of
phrases defining reasonable doubt — “grave uncertainty,” “moral
2 Humphrey has represented himself throughout the habeas process. He filed an appellate brief on January 11, 1996. Because this court opted to hear oral argument, we appointed counsel six months later and gave leave to file a supplemental brief on Humphrey’s behalf. We are obliged to construe Humphrey’s pro se brief liberally. See Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988). The later filing of a brief by appointed counsel does not alter this obligation. See Blankenship v. Estelle, 545 F.2d 510, 514 (5th Cir. 1977) (refusing to find waiver where appointed counsel filed a brief in federal district court that omitted grounds for habeas because the petitioner raised those grounds in state habeas proceedings and in his pro se application for habeas relief).
8 certainty,” “actual or substantial doubt,” and “a serious doubt,
for which you could give good reason” — denied him a constitutional
jury trial.
We examine the reasonable doubt instruction given here to
determine “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, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583 (1994).
Humphrey’s jury was instructed that it could acquit only if it had
“a serious doubt, for which you could give good reason.” As we
will explain, this instruction, in tandem with the language of
“moral certainty,” “grave uncertainty,” and “substantial doubt,”
denied the jury in Humphrey’s case the guidance demanded by due
process and required by In re Winship.
Courts have long struggled with the task of instructing juries
regarding “reasonable doubt.” Efforts often collapse into
tautological restatements — such as that reasonable doubt is a
doubt based on reason. This resistance to capture reflects the
reality that reasonable doubt is the quintessential black box
decision — a decision which demands the answer “yes or no,” but in
which we should not insist on an exhaustive explanation. “I just
wasn’t convinced” is a permissible response but may be difficult to
support with articulable reasons.
To insist, as the trial judge did here, that the jury must
find a “serious doubt for which you could give good reason”
lightens the state’s burden and removes a substantial protection
9 assured defendants. Faced with the uncertainties of conflicting
testimony, and conscious of their awesome responsibility to guard
justice, juries routinely scrutinize their instructions for help in
sorting out the complexities presented by opposing counsel. A
reasonable doubt instruction is not a technical nicety; for a jury,
it is a basic proposition of its constitution. Undecided jurors
may analyze their own doubts time after time in light of the
instruction before settling on a decision. By the same token,
jurors who have already made up their minds may recite the
instruction time after time in order to bring undecided jury
members over to their side. Insisting that a juror be able to
articulate a reason is a troublesome step upon residual doubt. But
our focus today is upon an instruction that went further. A juror
favoring guilt would have a powerful tool if he could demand that
undecided jurors articulate good reasons for considering an
acquittal. Such a juror could use Humphrey’s reasonable-doubt
instruction to argue that it’s not enough to have a reason to
acquit — that one must have an especially strong, compelling, or
persuasive reason for doubting the defendant’s guilt. He could
plausibly assert that a paucity of government evidence should not
count as a “good” reason. Under this sort of pressure,
inarticulate and undecided jurors are less likely to give
defendants the benefit of their doubts. Requiring articulation of
good reasons, then, skews the deliberation process in favor of the
state by suggesting that those with doubts must perform certain
10 actions in the jury room — actions that many individuals find
difficult or intimidating — before they may vote to acquit.
This cardinal vice in the charge might alone deprive a
defendant of an essential element of his right to trial by jury in
a criminal case — an issue we do not consider — for it surely does
so in tandem with the use of “substantial doubt,” “grave
uncertainty,” and “moral certainty,” criticized by this court and
the Supreme Court. See Victor, 511 U.S. at 19-22, 114 S. Ct. at
1250-51 (disapproving of the use of “moral certainty” and
“substantial doubt”); Schneider v. Day, 73 F.3d 610, 612 (5th Cir.
1996) (same); Weston v. Ieyoub, 69 F.3d 73, 75 (5th Cir. 1995)
(same); Gaston v. Whitley, 67 F.3d 121, 123 (5th Cir. 1995) (same),
cert. denied, ___ U.S. ___, 116 S. Ct. 2561, 135 L. Ed. 2d 1078
(1996). In Victor, the Supreme Court returned to its earlier Cage
decision and explained that not every use of these phrases in a
reasonable doubt instruction is constitutional error. At the same
time, the Court reaffirmed the principle of Cage and Winship that
the charge must not allow the jury to convict unless it is
convinced that the evidence demonstrates guilt beyond a reasonable
doubt. It left no uncertainty that the inquiry continues to be
“not whether the instruction ‘could have’ been applied in [an]
unconstitutional manner, but whether there is a reasonable
likelihood that the jury did so apply it.” 511 U.S. at 6, 114
S. Ct. at 1243 (emphasis in original) (citing Estelle v. McGuire,
502 U.S. 62, 72-73 & n.4, 112 S. Ct. 475, 482 & n.4, 116 L. Ed. 2d
385 (1991)). Here we have an effort to define reasonable doubt
11 with all the phrases that (although panned by the Court) survived
constitutional attack in Victor, but they are coupled with an
additional potent qualifier. Arguably, jurors were not allowed to
entertain doubt without being able to express a good reason. The
abiding conviction of guilt to a moral certainty could abide only
if the juror could offer a good explanation.
Even before Cage was announced, a reasonable doubt instruction
that required articulation of a good reason was of dubious
constitutionality, standing alone and apart from its dissipating
effect upon the context essential to the survival of the
instruction in Victor. In Dunn v. Perrin, 570 F.2d 21, 23 (1st
Cir.), cert. denied, 437 U.S. 910, 98 S. Ct. 3102, 57 L. Ed. 2d
1141 (1978), the First Circuit criticized an instruction that cast
reasonable doubt as “doubt as for the existence of which a
reasonable person can give or suggest a good and sufficient
reason.” While acknowledging that this error by itself might not
merit reversal, the court stated that such an instruction
“suggest[s] that a doubt based on reason was not enough to acquit,
implicitly putting petitioners to the task of proving that the
reason was ‘good and sufficient.’” Id. (footnote omitted). In
conjunction with the phrase “strong and abiding conviction,” id. at
24, and authorization to convict even without verifiable
information, id., this instruction rose to a violation of due
process.3
3 In Robinson v. Callahan, 694 F.2d 6, 7 (1st Cir. 1982), the First Circuit, without providing any reasoning, held that an instruction describing reasonable doubt as doubt “for which you
12 It is true that the Second Circuit and other courts have
refused to reverse convictions with articulation-demanding
reasonable-doubt instructions. But none of these cases has faced
the array of reasonable-doubt qualifiers contained in the charge to
Humphrey’s jury. In Vargas v. Keene, 86 F.3d 1273, 1277-79 (2d
Cir.), cert. denied, ___ U.S. ___, 117 S. Ct. 240, 136 L. Ed. 2d
169 (1996), the Second Circuit held that an instruction survived
due-process scrutiny in spite of its characterization of reasonable
doubt as “doubt for which you can give a reason if called upon to
do so by a fellow juror in the jury room.” But the instruction
apparently did not contain the other problematic phrases that
appeared in Humphrey’s jury charge. Significantly, it did not
require jurors to be able to articulate a “good” reason. The court
concluded that the entirety of the instruction did not eliminate
the jurors’ authorization to acquit based on residual doubt.
“Viewed in context, the challenged language simply does not suggest
that a doubt formulated within one’s own mind — reasonable, but not
articulable — is insufficient for acquittal.” Id. at 1278.
could give a reason” (emphasis supplied) was not constitutional error. Robinson relied on an earlier opinion, Tsoumas v. State, 611 F.2d 412 (1st Cir. 1980). But Tsoumas examined language quite different: “It is not a frivolous or fanciful doubt, nor is it one that can easily be explained away.” Id. at 412. In fact, Tsoumas explicitly upheld the reasoning of Dunn, which, as noted, cut the other way. It is unclear what, if anything, Robinson stands for today. See also Gilday v. Callahan, 59 F.3d 257, 261 (1st Cir. 1995) (approving an instruction that “a reasonable doubt is an uncertainty ‘based upon a reason’” without mentioning Dunn, Tsoumas, or Robinson), cert. denied, ___ U.S. ___, 116 S. Ct. 1269, 134 L. Ed. 2d 216 (1996).
13 The Vargas court relied in part on another post-Cage Second
Circuit case that approved a similar instruction. The court in
Chalmers v. Mitchell, 73 F.3d 1262, 1268-69 (2d Cir.), cert.
denied, ___ U.S. ___, 117 S. Ct. 106, 136 L. Ed. 2d 60 (1996),
approved an instruction that defined a reasonable doubt as “a doubt
for which some good reason can be given.” In the process, however,
it warned that defining reasonable doubt by reference to a “good
reason” is “an incorrect statement of law which should never be
made.” Id. at 1266. It described Dunn with approval and
distinguished Dunn based on the absence of other troubling phrases
and the presence of corrective language.
The trial court’s next sentence after mentioning the contested “good reason” explained that “[t]he doubt, to be reasonable, must therefore arise because of the nature and quality of the evidence in the case, or from the lack or insufficiency of the evidence in the case.” Thus the trial court’s use of the word “good” was intended, and likely understood, to mean that the proper foundation of a reasonable doubt was in fact rather than fantasy.
Id. at 1268 (emphasis in original). See also Beverly v. Walker,
___ F.3d ___, ___, 1997 WL 358601, at *4 (2d Cir. 1997)
(“[A]lthough the [requirement of a] ‘good sound substantial’
[reason] should not be used, and we applaud the [New York state
court] for condemning it in the exercise of its supervisory
authority, we cannot conclude that the entire charge was
constitutionally deficient.”), petition for cert. filed, ___
U.S.L.W. ___ (U.S. Jul. 17, 1997) (No. 97-5232). Because
Humphrey’s instruction contained the expressions “grave
uncertainty,” “moral certainty,” and “actual or substantial doubt,”
14 as well as the qualifier “good,” this case presents a more serious
due process problem than the Vargas or Chalmers courts faced.
A handful of other cases have affirmed convictions when the
court instructed the jury that it must articulate its doubts, but
only one case had the benefit of Cage. In that case, the D.C.
Circuit approved a pattern instruction that defined reasonable
doubt as “a doubt for which you can give a reason.” United States
v. Dale, 991 F.2d 819, 853 (D.C. Cir.) (per curiam), cert. denied,
510 U.S. 906, 114 S. Ct. 286, 126 L. Ed. 2d 236, and cert. denied,
510 U.S. 1030, 114 S. Ct. 650, 126 L. Ed. 2d 607 (1993). As in
Vargas and Chalmers, the instruction steered clear of further
reasonable-doubt shoals. The court quickly concluded that it was
substantially equivalent to Cage’s definition of reasonable doubt
as doubt “founded upon a real tangible substantial basis and not
upon mere caprice and conjecture.” Id. Like the pre-Cage cases,
Dale did not discuss whether an articulation requirement
compromises due process rights when given in conjunction with other
problematic instructions. See Leecan v. Lopes, 893 F.2d 1434,
1443-44 (2d Cir.) (following precedent and holding that a
petitioner who did not object at trial could not obtain a writ
where the instruction referred to “a doubt for which a reasonable
man can give a valid reason” and failed to state that lack of
evidence can be a basis for reasonable doubt), cert. denied, 496
U.S. 929, 110 S. Ct. 2627, 110 L. Ed. 2d 647 (1990); Murphy v.
Holland, 776 F.2d 470, 476-79 & n.4 (4th Cir. 1985) (allowing an
instruction referring to “a doubt for which a reason can be given,”
15 “actual and substantial” doubt, and “not a mere possible doubt,”
but noting that inarticulable doubt can be reasonable doubt and
emphasizing lengthy curative instructions), vacated on other
grounds, 475 U.S. 1138, 106 S. Ct. 1787, 90 L. Ed. 2d 334 (1986);
United States v. Davis, 328 F.2d 864, 867-68 (2d Cir. 1964)
(Friendly, J.) (criticizing an articulation-demanding reasonable
doubt instruction prior to Winship, but refusing to analyze its
constitutionality because the petitioner failed to object at
trial).
The offending language in Humphrey’s case has been contained
in cases in which this court has rejected other reasonable-doubt
objections. See, e.g., Schneider v. Day, 73 F.3d 610 (5th Cir.
1996) (a similar instruction containing the phrases “substantial
doubt” and “moral certainty” and requiring articulation of a good
reason); Weston v. Ieyoub, 69 F.3d 73 (5th Cir. 1995) (an identical
instruction); Bias v. Ieyoub, 36 F.3d 479, 481 (5th Cir. 1994)
(same). Those panels, however, were not faced with and did not
consider whether the requirement that a juror be able to articulate
a good reason, in addition to the phrases “grave uncertainty,”
“moral certainty,” and “actual or substantial doubt,” made the
proffered instruction unconstitutional. In other words, we have
not decided the issue we face today. As discussed above, where a
jury instruction has been weakened by the phrases disapproved of in
Cage and Victor, the requirement that a juror be able to articulate
a good reason leaves the constitutionality of the instruction
beyond repair.
16 The facts of this case offer a powerful example of the
centrality to criminal trials of the role of reasonable doubt and
the importance of its explanation to the jury. This was a close
and difficult case. There was only one witness against Humphrey.
J. testified that Humphrey had sex with her “more than twenty
times” and that these incidents happened “[t]he whole time [J.]
lived” at the home in Metairie. She could not state the specific
dates of any of the rapes. She could not state how many rapes
occurred. She could not say when she moved from the home in
Metairie, only that it was “in 1981 or ‘82.” By the age of
fourteen, J. was using drugs and engaging in promiscuous behavior.
When she failed the ninth grade, J. claimed her mother neglected
her. J. admitted that she had problems with depression and alcohol
abuse and that she had previously accused Humphrey of inappropriate
sexual touching but later changed her story. J.’s mother admitted
that at that time J. was unreliable and untruthful.
The state gave the jury little in support of J.’s version of
events. It did not call J.’s brother as a witness, even though he
was present on many or all of the baby-sitting occasions. The
state did not call J.’s grandmother, to whom J. first reported the
sexual abuse and later recanted. The state presented no medical
evidence of J.’s condition. Instead, the state relied on a “child
sexual abuse accommodation syndrome” expert. This “expert” had an
undergraduate degree in sociology, a masters degree in social work,
and had attended workshops sponsored by groups active in rape
issues. She had never examined J. However, over objection, she
17 offered her expert opinion that children subjected to incest may
repress the memory for years, engage in drug abuse or promiscuous
behavior, and report the incident and then retract it. That is,
this syndrome was used to explain J.’s erratic behavior. On the
other hand, the defense offered expert testimony of a 65% false
reporting phenomenon in child abuse cases.
Of course, a case need not be close in order for us to find
reversible error in the reasonable-doubt instruction. But
Humphrey’s is a close case nevertheless and makes clear the
importance of affording defendants the rights established in Cage
and reinforced in Victor. This is not to suggest that Humphrey’s
conviction was not supported by sufficient evidence; only that the
evidence was meager and the conviction unpredictable.
While the Court has noted that the reasonable doubt standard
“defies easy explication,” Victor, 511 U.S. at 5, 114 S. Ct. at
1242, we think that limiting reasonable doubt to doubt for which a
good reason can be articulated, in conjunction with the other
instructional errors in Humphrey’s charge, creates a lower standard
of proof than due process requires. We do not suggest that a jury
ought to be instructed that it needs no reason. Rather, inability
to articulate a good reason for doubt does not make the doubt
unreasonable. In sum, we find it reasonably likely that the jurors
understood the instruction to permit conviction upon a lesser
burden than reasonable doubt as required by Cage-Victor.
IV.
18 Humphrey also argues that there is insufficient evidence of an
offense within the limitations period. At the time of the offense,
the statute of limitations was six years. See LA. CODE CRIM. PROC.
ANN. art. 572(1) (West 1981). The indictment was filed January 21,
1988, so Louisiana could prosecute any rape occurring on or after
January 21, 1982. Effective September 10, 1987, Louisiana enacted
a tolling provision: “The time limitations . . . shall not commence
to run . . . until the relationship or status involved has ceased
to exist where: . . . The offense charged is . . . aggravated rape
. . . and the victim is under the dominion or control of the
offender while under seventeen years of age.” 1987 LA. SESS. LAW
SERV. Act 587 (West). Louisiana follows the rule that amendments
to the statute of limitations are valid retroactively only to
crimes that are not prescribed when the amendment takes effect.
See Louisiana v. Adkisson, 602 So. 2d 718 (La. 1992) (per curiam).
The prescriptive bite of Louisiana law is unclear when a
defendant is convicted under an indictment that covers a period of
time that is partly barred by the statute of limitations and partly
within the statute of limitations. Assuming without deciding that
the trial court here misapplied Louisiana law, the misapplication
of Louisiana law does not rise to the level of a deprivation of
constitutional right.
Even though we find Humphrey’s argument that the reasonable-
doubt instruction given at his trial violates the standards
promulgated by the Supreme Court in Cage and Victor, we are barred
19 from granting relief by previous decisions in this circuit. This
matter would be better considered by an en banc court with the
power to reconsider the entirety of the issue.
The district court’s judgment denying the habeas petition is
AFFIRMED.