IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 97-30480 _____________________
OSCAR TUESNO,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary; RICHARD P. IEYOUB, Attorney General, State of Louisiana,
Respondents-Appellees. _________________________________________________________________
Appeals from the United States District Court for the Eastern District of Louisiana (96-CV-3171-G) _________________________________________________________________
October 7, 1999
Before JOLLY and SMITH, Circuit Judges, and TOM STAGG,* District Judge.
PER CURIAM:**
The petitioner, Oscar Tuesno, was convicted of two counts of
attempted murder of two police officers. After his convictions
were affirmed, the petitioner sought habeas relief in the Louisiana
courts, which was denied. He then sought federal relief, which the
district court denied. Following our granting of the petitioner’s
motion for a certificate of appealability (“COA”), he asserts on
* District Judge of the Western District of Louisiana, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. appeal that the reasonable doubt jury instruction given at trial
was violative of the Due Process Clause as defined by the Supreme
Court in Cage v. Louisiana, 498 U.S. 39 (1990), and that his trial
counsel’s failure to object to such a jury instruction rendered his
assistance ineffective. We hold that the petitioner’s Cage claim
is procedurally barred, and that his ineffective assistance of
counsel claim is without merit. We therefore affirm the district
court’s denial of habeas relief.
I
At approximately 2:00 a.m. on August 26, 1989, seven New
Orleans police officers went to 529½ Washington Avenue to serve a
search warrant, which authorized them to enter the dwelling and
search for drugs. After knocking and clearly announcing their
presence, shots were fired from inside the house as the officers
attempted to enter through the door. The bullets struck two police
officers. After entering the dwelling, the officers subdued its
occupants, Oscar Tuesno and Ms. Pegg. They found a .25 caliber
handgun hidden under a mattress. Ballistics established that the
bullets that struck the two officers were fired from the .25
caliber handgun.
On October 19, 1989, the state filed a bill of information
charging Tuesno with two counts of attempted first degree murder
and one count of possessing a firearm as a convicted felon. On
November 8, 1990, following a two-day trial, Tuesno was found
guilty on both counts of attempted murder. He was sentenced to two
2 consecutive fifty-year terms. On direct appeal, Tuesno raised an
“ineffective assistance of counsel” and an “insufficiency of
evidence” claim. These claims were reviewed by both the Louisiana
Fourth Circuit Court of Appeals and the Louisiana Supreme Court.
The convictions were affirmed. See State v. Tuesno, 595 So.2d 1277
(La. App. 4 Cir. 1992), State v. Tuesno, 605 So.2d 1096 (La. 1992).
On November 10, 1992, Tuesno filed his first federal petition
for habeas relief, claiming “ineffective assistance of counsel.”
He later filed a motion to dismiss this petition to pursue
additional unexhausted post-conviction claims in Louisiana state
court. This motion to dismiss was granted, and the petition was
dismissed without prejudice. Following a string of post-conviction
appeals in state court, during which Tuesno raised for the first
time a claim that the jury instructions given at trial denied him
due process1, he filed a second habeas petition in federal court.
On April 25, 1997, the district court dismissed the petition with
prejudice. On June 19, 1997, we granted Tuesno’s COA on three
issues: (1)whether the jury instruction given in this case violates
Cage v. Louisiana, 498 U.S. 39 (1990), (2) whether counsel was
ineffective for failing to object to the instruction, and (3)
1 Tuesno raised the issue of a denial of due process as a result of the jury instructions for the first time during his post- conviction appeals. His trial counsel did not contemporaneously object to the jury instructions when they were given, and the issue was not raised on direct appeal to the Louisiana Fourth Circuit Court of Appeal or the Louisiana Supreme Court.
3 whether the issue (counsel’s ineffective assistance) is cognizable
in a habeas proceeding.
II
A
The State of Louisiana contends that Tuesno is procedurally
barred from habeas relief on the basis of the erroneous jury
instruction because Tuesno’s trial counsel failed
contemporaneously to object it. We have previously addressed this
procedural bar in Muhleisen v. Ieyoub, 168 F.3d 840 (5th Cir.
1999). In Muhleisen, the court stated: “If a state court decision
rejecting a federal habeas petitioner’s constitutional claim rests
on an adequate and independent state procedural bar, this court may
not review the merits of the federal claim absent a showing of
cause and prejudice for the procedural default, or a showing that
failure to review the claim would result in a complete miscarriage
of justice.” Id. at 843, citing Boyd v. Scott, 45 F.3d 876, 879-80
(5th Cir. 1994). The court went on to analyze the constitutional
sufficiency of the Louisiana contemporary objection rule as applied
to Cage claims and held it “constitutionally adequate.”2 Id.
2 ”An adequate rule is one that state courts strictly or regularly follow, and one that is applied evenhandly to the vast majority of similar claims.” Muhleisen, 168 F.3d 843, citing Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997)(citations omitted). Since 1996, the Louisiana Supreme Court has followed the consistent rule that failure to lodge a contemporaneous objection to a reasonable doubt jury instruction procedurally barred its review under Cage. See State v. Taylor, 669 So.2d 364 (La. 1996), State v. Hart, 691 So.2d 651 (La. 1997), Muhleisen, 168 F.3d at 843 (stating “Louisiana’s Supreme Court’s consistent[ly] apply[] the contemporary objection rule”).
4 Thus, absent a showing of “cause and prejudice” or “a complete
miscarriage of justice,” Tuesno is procedurally barred from raising
this claim in a federal habeas petition by an adequate and
independent state procedural rule.
In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986), the Supreme Court outlined the “cause and prejudice”
requirements. The court defined “cause” as a showing that “some
objective factor external to the defense impeded counsel’s efforts
to comply with the State procedural rule.” Id. at 488. “Attorney
error short of ineffective assistance of counsel does not
constitute cause for a procedural default. . . .” Id. at 492. The
Court defined “prejudice” as more than a showing that “errors”
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 97-30480 _____________________
OSCAR TUESNO,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary; RICHARD P. IEYOUB, Attorney General, State of Louisiana,
Respondents-Appellees. _________________________________________________________________
Appeals from the United States District Court for the Eastern District of Louisiana (96-CV-3171-G) _________________________________________________________________
October 7, 1999
Before JOLLY and SMITH, Circuit Judges, and TOM STAGG,* District Judge.
PER CURIAM:**
The petitioner, Oscar Tuesno, was convicted of two counts of
attempted murder of two police officers. After his convictions
were affirmed, the petitioner sought habeas relief in the Louisiana
courts, which was denied. He then sought federal relief, which the
district court denied. Following our granting of the petitioner’s
motion for a certificate of appealability (“COA”), he asserts on
* District Judge of the Western District of Louisiana, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. appeal that the reasonable doubt jury instruction given at trial
was violative of the Due Process Clause as defined by the Supreme
Court in Cage v. Louisiana, 498 U.S. 39 (1990), and that his trial
counsel’s failure to object to such a jury instruction rendered his
assistance ineffective. We hold that the petitioner’s Cage claim
is procedurally barred, and that his ineffective assistance of
counsel claim is without merit. We therefore affirm the district
court’s denial of habeas relief.
I
At approximately 2:00 a.m. on August 26, 1989, seven New
Orleans police officers went to 529½ Washington Avenue to serve a
search warrant, which authorized them to enter the dwelling and
search for drugs. After knocking and clearly announcing their
presence, shots were fired from inside the house as the officers
attempted to enter through the door. The bullets struck two police
officers. After entering the dwelling, the officers subdued its
occupants, Oscar Tuesno and Ms. Pegg. They found a .25 caliber
handgun hidden under a mattress. Ballistics established that the
bullets that struck the two officers were fired from the .25
caliber handgun.
On October 19, 1989, the state filed a bill of information
charging Tuesno with two counts of attempted first degree murder
and one count of possessing a firearm as a convicted felon. On
November 8, 1990, following a two-day trial, Tuesno was found
guilty on both counts of attempted murder. He was sentenced to two
2 consecutive fifty-year terms. On direct appeal, Tuesno raised an
“ineffective assistance of counsel” and an “insufficiency of
evidence” claim. These claims were reviewed by both the Louisiana
Fourth Circuit Court of Appeals and the Louisiana Supreme Court.
The convictions were affirmed. See State v. Tuesno, 595 So.2d 1277
(La. App. 4 Cir. 1992), State v. Tuesno, 605 So.2d 1096 (La. 1992).
On November 10, 1992, Tuesno filed his first federal petition
for habeas relief, claiming “ineffective assistance of counsel.”
He later filed a motion to dismiss this petition to pursue
additional unexhausted post-conviction claims in Louisiana state
court. This motion to dismiss was granted, and the petition was
dismissed without prejudice. Following a string of post-conviction
appeals in state court, during which Tuesno raised for the first
time a claim that the jury instructions given at trial denied him
due process1, he filed a second habeas petition in federal court.
On April 25, 1997, the district court dismissed the petition with
prejudice. On June 19, 1997, we granted Tuesno’s COA on three
issues: (1)whether the jury instruction given in this case violates
Cage v. Louisiana, 498 U.S. 39 (1990), (2) whether counsel was
ineffective for failing to object to the instruction, and (3)
1 Tuesno raised the issue of a denial of due process as a result of the jury instructions for the first time during his post- conviction appeals. His trial counsel did not contemporaneously object to the jury instructions when they were given, and the issue was not raised on direct appeal to the Louisiana Fourth Circuit Court of Appeal or the Louisiana Supreme Court.
3 whether the issue (counsel’s ineffective assistance) is cognizable
in a habeas proceeding.
II
A
The State of Louisiana contends that Tuesno is procedurally
barred from habeas relief on the basis of the erroneous jury
instruction because Tuesno’s trial counsel failed
contemporaneously to object it. We have previously addressed this
procedural bar in Muhleisen v. Ieyoub, 168 F.3d 840 (5th Cir.
1999). In Muhleisen, the court stated: “If a state court decision
rejecting a federal habeas petitioner’s constitutional claim rests
on an adequate and independent state procedural bar, this court may
not review the merits of the federal claim absent a showing of
cause and prejudice for the procedural default, or a showing that
failure to review the claim would result in a complete miscarriage
of justice.” Id. at 843, citing Boyd v. Scott, 45 F.3d 876, 879-80
(5th Cir. 1994). The court went on to analyze the constitutional
sufficiency of the Louisiana contemporary objection rule as applied
to Cage claims and held it “constitutionally adequate.”2 Id.
2 ”An adequate rule is one that state courts strictly or regularly follow, and one that is applied evenhandly to the vast majority of similar claims.” Muhleisen, 168 F.3d 843, citing Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997)(citations omitted). Since 1996, the Louisiana Supreme Court has followed the consistent rule that failure to lodge a contemporaneous objection to a reasonable doubt jury instruction procedurally barred its review under Cage. See State v. Taylor, 669 So.2d 364 (La. 1996), State v. Hart, 691 So.2d 651 (La. 1997), Muhleisen, 168 F.3d at 843 (stating “Louisiana’s Supreme Court’s consistent[ly] apply[] the contemporary objection rule”).
4 Thus, absent a showing of “cause and prejudice” or “a complete
miscarriage of justice,” Tuesno is procedurally barred from raising
this claim in a federal habeas petition by an adequate and
independent state procedural rule.
In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d
397 (1986), the Supreme Court outlined the “cause and prejudice”
requirements. The court defined “cause” as a showing that “some
objective factor external to the defense impeded counsel’s efforts
to comply with the State procedural rule.” Id. at 488. “Attorney
error short of ineffective assistance of counsel does not
constitute cause for a procedural default. . . .” Id. at 492. The
Court defined “prejudice” as more than a showing that “errors”
created a possibility of prejudice, but that “they worked to his
actual and substantive disadvantage, infecting his entire trial
with errors of constitutional dimensions.” Id. at 494. “Such a
showing of pervasive actual prejudice can hardly be thought to
constitute anything other than a showing that the prisoner was
denied fundamental fairness at trial.” Id. Tuesno’s only claim of
prejudice is that the jury instruction was so far off the mark that
it tainted the jury’s verdict. We conclude that when the
reasonable doubt jury instruction is viewed in the light of the
entire jury charge, it did not rise to the level of prejudice
required under Murray.
First, the jury did not receive a copy of the written
instruction to review while it decided the case. As such, it was
5 unable to debate the meaning of each individual word or phrase
contained in the jury instruction. Second, the trial court
repeatedly instructed the jury that if it entertained any
reasonable doubt as to any fact or element necessary to constitute
guilt, that it was duty bound to deliver a verdict in favor of the
defendant. In fact, the very jury instruction under inquiry
includes the phrase beyond a reasonable doubt two separate times.
Third, in subsequent jury instructions, the trial judge instructed
the jury that it was the exclusive judge of fact and that in order
to return a conviction based on circumstantial evidence alone, the
circumstantial evidence “must be strong and convincing enough to
exclude every reasonable theory of innocence.” Further, the judge
instructed the jury that if it found “the evidence unsatisfactory
or lacking upon any single point necessary to prove the defendant’s
guilt,” this would give rise to a reasonable doubt and justify a
verdict of not guilty. Finally, the jury was specifically
instructed as to the meaning of “specific intent” and that if it
had a reasonable doubt “as to any or all grades of the offenses
charged, [it] must find the defendant not guilty.” Thus, when
viewed in the light of the entire jury charge, it is clear that any
error in the reasonable doubt jury instruction did not result in a
fundamentally unfair trial or jury verdict.
B
Turning to Tuesno’s ineffective assistance of counsel claim,
the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104
6 S.Ct. 2052, 80 L.Ed.2d 674 (1984), set out the standard for
measuring whether a criminal defendant received ineffective
assistance of counsel. The defendant must show: (1) “that
counsel’s performance was deficient,” and (2) “the deficient
performance prejudiced the defense.” Id. at 687. Failure to
establish either prong is fatal to the claim. Id., Murray v.
Maggio, 736 F.2d 279, 281 (5th Cir. 1984). “Judicial scrutiny of
counsel’s performance must be highly deferential.” Strickland, 466
U.S. at 689. Such deference carries with it a “strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. Conclusory allegations are not
enough; the defendant must “affirmatively prove prejudice.” Id.
at 693. The defendant must show not only that counsel’s assistance
was in some way deficient, but also that the alleged deficiency
“actually had an adverse effect on the defense.” Id. Absent a
showing that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different,” the defendant’s claim will fail. Id. at 694.
Tuesno asserts that his trial counsel was deficient in failing
to object to the reasonable doubt jury instruction. Beyond mere
conclusory allegations, he points only to the Supreme Court’s
decision in Cage to provide the basis for his claim. The Cage
decision, however, was decided after Tuesno’s trial.3 This court
3 The Supreme Court handed down its decision in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339, on November 13, 1990. The jury was instructed and returned a guilty
7 has repeatedly held that a lawyer’s performance cannot be measured
against a standard not in effect at the time of the trial. See
Schneider v. Day, 73 F.3d 610, 611 (5th Cir. 1996), Gaston v.
Whitley, 67 F.3d 73, 123 (5th Cir. 1995). Although counsel’s
objection would have placed him among attorneys with a superior
understanding of constitutional law, his failure to object does not
render his assistance constitutionally ineffective.
Further, even if Tuesno’s trial counsel is held to the
standard handed down in Cage, the overwhelming evidence of Tuesno’s
guilt presented at trial indicates that there is “no reasonable
probability” of a different outcome. See Green v. Lynaugh, 868
F.2d 176, 177 (stating “if the facts adduced at trial point so
overwhelmingly to the defendant’s guilt . . . then the defendant’s
ineffective assistance claim must fail”). The prosecution
introduced the uncontroverted testimony of Ms. Pegg, the only other
occupant of the residence at the time of the shooting, and the
police officers, all of whom testified that the bullets that struck
the two officers were fired by Tuesno. Additionally, ballistics
tests established that the bullets that struck the two officers
were fired from the .25 caliber handgun found under a mattress in
the room where Tuesno was arrested. When this evidence is
considered in its “totality,” it clearly establishes Tuesno’s
guilt. See Strickland, 466 U.S. at 695 (stating “a court hearing
an ineffectiveness claim must consider the totality of the evidence
verdict in Tuesno’s trial on November 8, 1990.
8 before the judge or jury”). Thus, because Tuesno has failed to
meet his burden, his claim for ineffective assistance of counsel
fails.4
III
In conclusion, we hold that Tuesno is procedurally barred from
raising a Cage error in his federal habeas petition. Further,
Tuesno has failed to show that the assistance he received from his
trial counsel was constitutionally ineffective. Tuesno’s petition
for habeas relief is
D E N I E D.
4 The court need not address the merits of Tuesno’s third ground of appeal. Whether or not the issue of the unconstitutionality of a jury instruction is cognizable in a habeas proceeding need not be addressed. Even if such a ground for appeal is cognizable in a federal habeas proceeding, Tuesno has failed to make a sufficient showing that the jury instruction was in any way unconstitutional or that his trial counsel’s failure to object was in any way prejudicial. Thus, the court expresses no opinion in this regard.