Quatrevingt v. Cain

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 19, 2001
• Docket: 01-30523
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-30523 _______________

STEPHEN QUATREVINGT,

Petitioner-Appellee,

VERSUS

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Respondent-Appellant.

_________________________

Appeal from the United States District Court for the Eastern District of Louisiana _________________________ November 15, 2001

Before SMITH and EMILIO M. GARZA, Circuit The State of Louisiana, through its warden, Judges, and CUMMINGS, District Judge.* appeals a grant of habeas corpus relief to Ste- phen Quatrevingt regarding his murder JERRY E. SMITH, Circuit Judge:** conviction. Finding no cognizable constitu- tional error, we reverse. * District Judge of the Northern District of I. Texas, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has ** determined that this opinion should not be (...continued) published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. (continued...) 47.5.4. Quatrevingt was convicted in 1990 of first The state’s first three objections are degree murder while in the perpetration or at- procedural. The MJ recommended that all of tempted perpetration of an aggravated rape. these claims are meritless and should be He pursued direct appeals unsuccessfully. In resolved in favor of Quatrevingt; the district 1999, he filed a habeas corpus petition in fed- court adopted these recommendations without eral court alleging numerous constitutional er- objection. The state’s failure timely to object rors. The state raised four objections to the to the findings and recommendations affects petition: (1) The petition was time barred un- our standard of review. der the one-year statute of limitations found in 28 U.S.C. § 2244(d); (2) the petition should be The recommendations and conclusions of a denied for failure to exhaust state remedies; MJ are reviewed for plain error if not objected (3) the petition should be rejected for failure to to within ten days of their issuance. See satisfy the Louisiana contemporaneous ob- Douglass v. United Servs. Auto. Ass’n, 79 jection rule under the procedural bar doctrine; F.3d 1415, 1429 (5th Cir. 1996) (en banc). and (4) the petition should be rejected on the The report and recommendation of the MJ was merits. issued on October 27, and the state did not offer its objections until December 4, well after Pursuant to 28 U.S.C. § 636(b)(1)(B), the the ten-day limit. Where the district court matter was referred to a magistrate judge conducts de novo review of the unobjected-to (“MJ”), who recommended rejecting all the MJ’s report, however, we ordinarily will not state’s procedural objections to the petition enforce the forfeiture rule against the party and granting habeas relief on the ground that failing to object. See Meister v. Tex. Adjutant the charge to the jury was unconstitutional. General’s Dep’t, 233 F.3d 332, 336 (5th Cir.), The state failed to object to the MJ’s cert. denied, 121 S. Ct. 2194 (2001).2 We recommendations within the ten-day period thus review the district court’s findings of fact provided by the order. See 28 U.S.C. § under our usual clear error standard. See Per- 636(c).1 illo v. Johnson, 205 F.3d 775, 781 (5th Cir. 2000). The district court adopted the recommendations of the MJ after conducting III. de novo review of the portions objected to. The state contends that Quatrevingt’s peti- The only modification the court noted was a tion was untimely. In relevant part, the Anti- slightly different approach to finding the terrorism and Effective Death Penalty Act of charge to the jury unconstitutional. The MJ 1996 (“AEDPA”) imposes a one-year statute had recommended that the initial charge be of limitations on habeas petitions, running found unconstitutional; the district court found the initial charge valid, but the state trial court’s response to a jury question for 2 There is a limited exception to this rule not clarification of the charge unconstitutional. applicable here. If the district court rules in the alternative that, not only did a party fail to object II. to a certain point, but, even if he did, the objection is without merit, we may affirm on the basis of lack of a proper objection. See Douglass, 79 F.3d 1 The state ultimately filed objections. at 1429.

2 from the time the conviction becomes final. 28 evidence of the time of filing. This argument U.S.C. § 2244(d)(1)(A). This limit is tolled is raised for the first time on appeal; we do not while any “properly-filed state post-conviction consider theories presented for the first time or other collateral relief” is pending. 28 on appeal.5 Leverette v. Louisville Ladder U.S.C. § 2244(d)(2). Quatrevingt’s direct Co., 183 F.3d 339, 342 (5th Cir. 1999). The review process unquestionably ended with the district court did not commit clear error by denial of certiorari on October 15, 1996.3 His finding Quatrevingt’s federal habeas petition federal habeas petition was filed on July 9, timely filed. 1999, well after the one-year limit. He claims, however, to have filed a state collateral action IV. on April 27, 1997. The state challenges Quatrevingt’s habeas petition for failure to exhaust his claims in The state does not argue that Quatrevingt’s state court. AEDPA requires a state prisoner limitations period should not be tolled because seeking federal habeas relief to exhaust state- his application for post-conviction relief was court remedies absent circumstances that “ren- either improperly filed or is no longer pending. der such processes ineffective.” 28 U.S.C. Cf. Williams v. Cain, 217 F.3d 303 (5th Cir. § 2254(b)(1). This finding is also reviewed for 2000) (discussing requirement of proper clear error, because the MJ’s unobjected-to filing). 4 The state argues, instead, that his recommendation was reviewed de novo by the state application was not filed at all. The MJ district court. found the state had filed a “Motion to Dismiss Petitioner’s Post-Conviction Application” on A federal habeas petitioner has not April 28, 1997, as evidence Quatrevingt had exhausted his federal claims “if he has the right filed his state petition within the one-year pe- under the law of the State to raise, by any riod. The state courts apparently have not available procedure, the question presented.” ruled on this petition, and it thus remains 28 U.S.C. § 2254(c). A petitioner has pending. This in turn tolls limitations, making exhausted his state law remedies if he has Quatrevingt’s federal habeas petition timely presented the argument for relief to the state’s under § 2244(d)(1)(A). highest court at least once. See United States v. Sones, 61 F.3d 410, 415 (5th Cir. 1995).6 On appeal, the state argues that its motion to dismiss Quatrevingt’s petition is not proper 5 The state did object to the MJ’s report, but only is a “vague manner.” This vague objection in 3 See State v. Hoffman, 768 So. 2d 592 (La. not sufficient to permit a new argument on appeal. 2000) (recognizing denial of certiorari as one 6 ground for finality of direct review). See also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“Because the exhaustion doctrine 4 Our review of this determination does not is designed to give the state courts a full and fair implicate the question whether Quatrevingt’s peti- opportunity to resolve federal constitutional claims tion was “properly filed” (a legal question we re- before those claims are presented to the federal view de novo. Johnson v. Cain, 215 F.3d 489, courts, we conclude that state prisoners must give 494 (5th Cir. 2000)). Our inquiry here is limited to the state courts one full opportunity to resolve any the factual question whether the petition was filed constitutional issues by invoking one complete at all. (continued...)

3 The MJ found that Quatrevingt had argued The requirement that a state court “clearly the constitutionality of the jury charge to the and expressly” demonstrate reliance on a state Louisiana Supreme Court. This determination ground is not automatic. This duty is did not involve asking whether a legal theory triggered only where the state court decision had been presented to that court, but only gives the federal habeas court “good reason” whether Quatrevingt actually had presented to suspect the decision is based on federal law this very argument. by “fairly appearing” to do so or by interweaving the claims. Id. at 739. “The key Specifically, the state alleges Quatrevingt is not the clarity of the state court’s language, did not “take this issue” to the Louisiana or even whether the state court addressed the Supreme Court. This is a factual matter. merits of the federal claim, but whether the Factual questions raised by habeas petitions state court may have based its decision on its are reviewed for clear error, as are any other understanding of federal law.” Young v. Her- civil factual questions. See Donahue v. Cain, ring, 938 F.2d 543, 553-54 (5th Cir. 1991) (en 231 F.3d 1000, 1003 (5th Cir. 2000). There is banc). Where the state court has addressed no clear error in the finding that the jury the merits of the federal claim, we may infer charge argument was presented to the waiver, absent a clear and express statement of Louisiana Supreme Court. reliance on the state procedural ground. See id. at 553 n.12. V. The state’s final procedural argument is The Louisiana Supreme Court’s entire dis- based on the doctrine of procedural bar. Be- cussion of the jury charge consisted of the fol- cause the MJ’s report on this issue was lowing: reviewed de novo, we apply our normal standard of review and review de novo. Boyd Despite the absence of a v. Scott, 45 F.3d 876, 879 (1994). contemporaneous objection at trial, defendant contends that the trial court’s If a state court rejects a challenge to a crim- jury instruction on reasonable doubt inal conviction on the basis of a state requires reversal under Cage and procedural rule, federal habeas relief may be Sullivan . . . . The reading of this foreclosed. This bar operates only where the charge, with its use of the terms ‘grave decision of the last state court to which the uncertainty,’ ‘moral certainty,’ and petitioner presented the federal claims “fairly ‘actual and substantial doubt,’ no longer appeared to rest primarily on resolution of mandates relief. See State v. Smith. those claims, or be interwoven with those According to the United States Supreme claims, and did not clearly and expressly rely Court’s reexamination of its reasonable on an independent and adequate state ground.” doubt jurisprudence undertaken in Coleman v. Thompson, 501 U.S. 722, 735 Victor v. Nebraska and this Court’s (1991). implementation of Victor in Smith, the instruction in the instant case did not allow the jury to convict without 6 (...continued) satisfying the reasonable doubt round of the State’s established appellate review requirements of In re Winship. The process.”).

4 foregoing terms do not suggest a higher which the burden is on the habeas petitioner to degree of doubt than is required for demonstrate that the state court decision “was acquittal under the reasonable doubt contrary to, or involved an unreasonable standard. Nor do the foregoing terms application of, clearly established Federal law, suggest that ‘reasonable doubt’ is mere as determined by the Supreme Court of the speculation. United States.” 28 U.S.C. § 2254(d)(1).

State v. Quatrevingt, 670 So. 2d 197, 211 (La. AEDPA affords two avenues of relief. The 1996). petitioner must show the state court construction was either “contrary to” federal This analysis leaves little doubt the law or an “unreasonable application” of it. To Louisiana Supreme Court did not rely on the be “contrary to” federal law, the state court state procedural ground or even hold in the must apply a rule t hat contradicts a rule laid alternative. The attention the court paid to the down by the Supreme Court. See Williams v. federal constitutional ground permits us to Taylor, 529 U.S. 363, 405 (2000). infer reliance on it without a “clear and express” statement to the contrary. See A second avenue of relief is available where Young, 938 F.2d at 553 n.12. the state court unreasonably applies federal law. This inquiry involves asking “whether the At best, the state court’s treatment of the state court’s interpretation of clearly issue interwove the state and federal grounds. established federal law was objectively Where this is the case, there is good reason for unreasonable.” Id. us to reject an explanation for the decision grounded solely on a state procedural Some of our recent cases have fleshed out foundation. The state may have based its the meaning of “objectively unreasonable.” In decision on federal grounds; this permits us to Martin v. Cain, 246 F.3d 471, 476 (5th Cir. find no independent and adequate state ground 2001), cert. denied, 122 S. Ct. 194 (2001), we precluding our review. stressed that to be unreasonable, the state court application of federal law must be more VI. than merely erroneous. Our role under this in- The substance of Quatrevingt’s habeas peti- quiry is not to determine whether the state tion challenges the jury charge and subsequent court construction of federal law was merely explanation to the jury of the meaning of wrong, but whether it was wrong to the point reasonable doubt. Because the district court of being unreasonable. Stated another way, reviewed de novo the MJ’s conclusion on the “mere disagreement with the state court is not merits of the habeas claim, we employ our enough.” Orman v. Cain, 228 F.3d 616, 619 usual standard of review. Meister, 233 F.3d at (5th Cir. 2000). The question here is whether 336. Our review of a district court’s legal the Louisiana state court misapplied a federal conclusions in habeas proceedings is de novo. standard or whether the state court’s decision Clark v. Scott, 70 F.3d 386, 388 (5th Cir. that the instructions to the jury did not violate 1995). The substance of a habeas claim, the Constitution is objectively unreasonable. however, is reviewed under the highly- deferential framework of AEDPA, under The jury charge contained the phrases

5 “grave uncertainty,” “substantial doubt,” “moral uncertainty,” and “a serious doubt for 7 which you can give good reasons” to describe (...continued) more fully the meaning of reasonable doubt.7 sufficient evidence beyond a reasonable doubt, but the rule does not go further and require a preponderance of the testimony. It 7 The charge in its entirety read: is incumbent upon the State to prove the offense charged, or legally included in the Ladies and gentlemen, the defendant is indictment, to your satisfaction and beyond presumed to be innocent until proven guilty a reasonable doubt. beyond a reasonable doubt. The con- sequence of this rule of law, he is not A reasonable doubt is not a mere pos- required to prove his innocence but may rest sible doubt. It should be an actual and sub- upon the presumption in his favor and to stantial doubt. It is such a doubt as a overturn by positive affirmative proof. The reasonable man would seriously entertain. onus, therefore is on the State to establish, It is a serious doubt for which you can give to your satisfaction, and beyond a rea- a reason. In other words, ladies and sonable doubt, the guilt of the accused as to gentlemen, when you go back and you’re the crime charged or any lesser one included going to decide this case, and somebody an- therein. If you entertain any reasonable nounces, I have a doubt. The duty of the doubt as to any of the facts or elements other eleven is to ask the question, Why do necessary to constitute the defendant’s guilt, you have the doubt? Why do you have the it is your sworn duty to give him the benefit doubt? You’ve got to be able to articulate of that doubt and return a verdict of Not why they have the doubt, because a Guilty. Even where the evidence demon- reasonable doubt is a doubt that you can strates a probability of guilt, yet if it does assign a reason why you have that doubt not establish it beyond a reasonable doubt, and it’s the obligation of the prosecutor to you must acquit the doubt. This doubt must prove it beyond that standard. The mere be a reasonable doubt, that is one founded feeling that you got, the jury would say, I upon real, tangible, and substantial basis, just feel, I feel, my feelings are not good and not upon a mere caprice or fancy or a enough, then look at the evidence in the conjecture. It must be such a doubt as case. Let’s all decide it on the evidence of would give rise to grave uncertainty raised the case or the lack of evidence. You’ve got in your mind by the reason or the to be able to articulate. You’ve got tp be unsatisfactory character of the evidence, one able to say, This is the reason I why I have that would make you feel that you had not, the doubt, and it’s the obligation of the State an abiding conviction to a moral certainty of to prove it beyond a reasonable doubt. You the defendant’s guilt. If, after giving a fair are prohibited by law, in your oath, in going and impartial consideration of all the facts beyond the evidence to convict the in the case, you find the evidence defendant. You must confine yourselves unsatisfactory upon any single point strictly to dispassionate consideration of the indisputably necessary to constitute the testimony given upon the trial. You must defendant’s guilt, this would give rise to not resort to any extraneous facts and such a reasonable doubt as would justify circumstances in reaching your verdict. you returning a verdict of Not Guilty. The That is, you must restrict yourself to the prosecution must establish guilt by legal and evidence you’ve heard on the trial of this (continued...) (continued...)

6 After a period of deliberation, the jury of deliberation, the jury returned a guilty submitted a question asking “Could you just verdict. reinstruct on the one part as to what constitutes considerable doubt?” The court The MJ and the district court found referred the jury to a part of the instruction constitutional problems with this series of already given by repeating a substantial portion of that instruction.8 After an additional period 8 (...continued) sonable one, and when I say reasonable one, using the term reason as being the common 7 (...continued) denominator, the thing to look toSSa reason, case. However, the lack of testimony a reasonable doubt, not a whim or fancy or adduced at the trial may be relied upon as conjecture. Its got to be a reasonable doubt. the basis for the establishment of a It must be such doubt as would give rise to reasonable doubt. grave uncertainty raised in your mind by the reason of the unsatisfactory character of the 8 In full, this second instruction was: evidence, one that would make you feel that you had not embodied a conviction to a I am going to tell you that the moral certainty of the defendant’s guilt. defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. If, after having given a fair and The consequence of this law is that he is not impartial consideration of all of the facts in required to prove his innocence. There is a the case, you find the evidence Fifth Amendment of the United States Con- unsatisfactory, upon any single point stitution that says that the State must prove indispensably necessary to constitute the its case that it presents beyond a reasonable defendant’s guilt, this would give rise to doubt. But even though the State had the such a reasonable doubt as justifying obligation to prove its case beyond a returning a verdict of Not Guilty. The reasonable doubt, it does not have the prosecution must establish guilt by legal and obligation to prove it beyond all doubt. sufficient evidence beyond a reasonable Now beyondSSbeyond a reasonable doubt doubt. But the rule does not go further and as I talked to you before, is if you have require a preponderance of testimony. What doubt and you can assign a reason to it, it means in that statement is that it means that’s a reasonable doubt. A reasonable that the prosecutor doesn’t have to prove the doubt can be established by evidence or the case beyond ALL doubt, the feeling in your lack of evidence in a case; one of the two stomach, or whatever you may want to call ways or any other way that you want to look it, but he’s got to prove it to you beyond a at it. If you entertain any reasonable doubt reasonable doubt, a doubt you can say this as to any of the facts and elements necessary is the reason I have doubt. A reasonable to constitute the defendant’s guilt, it is your doubt is not a mere possible doubt. We’re sworn duty to give him the benefit of the not talking about probabilities. We’re doubt and return a verdict of Not Guilty. talking about a reasonable doubt. It should Even where the evidence demonstrates a be an actual and substantial doubt. It probability of guilt, yet it does not establish should be a doubt as a reasonable man it beyond a reasonable doubt, you must ac- would seriously entertain. It has to be a quit the accused. This doubt must be a rea- serious doubt to which you can assign (continued...) reason.

7 instructions. Although the precise reason for Court held that an instruction containing the the MJ’s recommendation that the instructions phrases “grave uncertainty,” “substantial were unconstitutional is not obvious, the MJ doubt,” and “moral certainty” violated due and the court reasoned that the original charge process.11 The Court has handed down two and the response to the jury question, taken important cases since Cage but before Quatre- together, were constitutionally inadequate to vingt’s conviction became final.12 protect Quatrevingt’s Fourteenth Amendment rights. The court, though, explicitly based its In Estelle v. McGuire, 502 U.S. 62 (1991), decision to grant habeas relief on the the Court replaced the previous wording of the subsequent instruction. The court found that constitutional test as found in Cage, 498 U.S. providing only another version of the in- at 41: “how reasonable jurors could have un- structions that confused the jury the first time derstood the charge as a whole.” McGuire, did not satisfy the requirements of due 502 U.S. at 72 & n.4, resolved the possible process. confusion over this standard and settled on the formulation used in Victor, asking whether The due process standard for jury charges does not require the use of any specific 11 formulation; all that is required is that the jury The instruction in Cage read: be instructed to find the defendant’s guilt beyond a reasonable doubt. See Victor v. If you entertain a reasonable doubt as Neb., 511 U.S. 1, 5 (1994). The relevant to any act or element necessary to constitute question is “whether there is a reasonable the defendant’s guilt, it is your duty to give likelihood that the jury understood the him the benefit of the doubt and return a verdict of not guilty. Even where the evi- instructions to allow conviction based on proof dence demonstrates a probability of guilt, if insufficient to meet the Winship standard.”9 it does not establish the guilt beyond a rea- Quatrevingt’s challenge focuses on four sonable doubt, you must acquit the accused. phrases found in his initial charge: “ a serious This doubt, however, must be a reasonable doubt for which you can give a good one; that is one that is founded upon a real reason,”10 “grave uncertainty,” “substantial tangible substantial basis and not upon mere doubt” and “moral uncertainty.” caprice and conjecture. It must be such In Cage v. La., 498 U.S. 39, 40 (1990), the doubt as would give rise to uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or 9 See In re Winship, 397 U.S. 358 (1970) lack thereof. A reasonable doubt is not a (requiring each element of a charged offense to be mere possible doubt. It is an actual proved beyond a reasonable doubt). substantial doubt. It is a doubt a reasonable man can seriously entertain. What is 10 The so-called “articulation requirement” (a required is not an absolute or mathematical serious doubt for which you can give a good certainty, but a moral certainty. reason) need not detain us. The Supreme Court has never expressed concern with this phrase. Cage, 498 U.S. at 40. Although this court has expressed some doubt, our 12 thoughts on the matter are irrelevant under This is the relevant period under Teague v. AEDPA. See Williams v. Cain, 229 F.3d 468, 476 Lane, 489 U.S. 288, 310 (1989) (plurality opinion (5th Cir. 2000), cert. denied, 122 S. Ct. 72 (2001). of O’Connor, J.)

8 there was “a reasonable likelihood that the jury doubt), and the second in the sentence “It has applied the challenged instruction” so as to should be an actual and substantial doubt.” In violate the Constitution. Arguably, this has approving the use of this phrase in context, the raised the threshold of what a defendant must Court relied on two arguments, both show to prove a constitutional violation. This applicable here. First, the Court found that the in turn casts the holding in Cage in a new light; comparison of substantial doubt to fanciful it is possible the challenged instructions would doubt makes the reference the existence of pass the test laid down in McGuire. doubt, not its magnitude. Id. at 20. The same is true with respect to Quatrevingt’s charge, The other, and more significant, intervening which uses “substantial” and “fanciful” in the case is Victor, in which the Court parsed two same sentence. different jury charges to test the possible unconstitutionality of several phrases. The The Court also found the existence of an phrases relevant to Quatrevingt’s habeas pe- alternative definition of reasonable doubt sup- tition are “moral uncertainty” and “substantial ported the constitutionality of the charge as a doubt.” whole. Quatrevingt’s charge offers several al- ternative formulations of reasonable doubt: “Moral uncertainty” might have been “evidence unsatisfactory on any single point thought problematic because it may give the indispensably necessary to constitute the de- jurors the belief they could convict if fendant’s guilt”; “such doubt as a reasonable convinced to a moral certainty of the man would entertain”; “lack of testimony. . . defendant’s guilt, but not to a certainty based may be relied upon . . . for the establishment of on the evidence. This argument was rejected a reasonable doubt.” in Victor, 511 U.S. at 16, in which the Court noted the presence of other language in the The “grave uncertainty” language can be instruction that made plain the jury’s subjected to the same analysis as can the obligation to convict on the basis of evidence. “substantial doubt” phrase. In Cage, 498 U.S. In Quatrevingt’s charge, the sentence at 41, however, the combination of the phrases immediately preceding that containing the “grave doubt” and “substantial doubt” gave offending phrase reads “Even where the the Court pause in considering the evidence demonstrates a probability of guilt, constitutionality of the charge. It was only the yet it does not establish it beyond a reasonable combination of those phrases with “moral doubt, you must acquit the doubt.” The Court certainty” that made the constitutional also approved a phrase almost identical to that violation “clear.” Id. That conclusion, in Quatrevingt’s charge, noting that “an though, must be filtered though the new abiding conviction, to a moral certainty” is not constitutional standard and the contextual constitutionally problematic. Id. at 21. analysis added by Victor.

The Victor Court also dealt with the phrase The district court granted Quatrevingt ha- “substantial doubt.” Those words appear beas relief, not on the basis of the twice in Quatrevingt’s charge, once in the unconstitutionality of the original jury charge, clause “tangible and substantial basis” but on the failure of the reinstruction properly (comparing reasonable doubt to fanciful to answer the confusion evident in the jury’s

9 request to hear again the definition of found in Cage, the subsequent alteration of the “considerable doubt.” That phrase appears standard in McGuire, and the further analysis nowhere in the original charge or in the court’s required by Victor, we cannot call the response. Louisiana Supreme Court’s decision unreasonable. Where the jury asks for a clarification of an instruction, it is constitutionally adequate for REVERSED.14 the court to refer to the section of an otherwise constitutional charge. See Weeks v. Angelone, 528 U.S. 225, 234 (2000). 13 In Weeks, the court merely referred the jury to a paragraph of the original charge without restating it. Id. at 229. Here, the court repeated a substantial portion of the original charge. Nowhere does this restatement mention “considerable doubt.” The restatement also contains all the mitigating factors discussed in connection with Victor. Because “[a] jury is presumed to follow its instructions,” Richardson v. Marsh, 481 U.S. 200, 211 (1987), the court’s restatement of the standard could not itself be the source of constitutional error.

Our task under AEDPA is not to explicate the current state of Supreme Court jurisprudence, but to test whether a state court’s reading of that jurisprudence is unreasonable. For Quatrevingt to merit habeas relief, we would need to find objectively unreasonable the Louisiana Supreme Court’s decision that there was not a “reasonable likelihood” the jury applied the instruction in an unconstitutional manner. That conclusion must be either contrary to “clearly established” federal law or involve an unreasonable application of that law. In light of the challenged instruction’s mitigating phrases not 14 We note that the district court’s order to retry Quatrevingt, although now moot, is beyond the 13 Teague does not prevent the application of power of a federal court. A successful habeas new rules of constitutional law that advantage the petition cannot result in ordering the state to retry state. See Gilmore v. Taylor, 508 U.S. 333 a defendant. See In re Medley, 134 U.S. 160, 173 (1993). (1890).