Humphrey v. Cain ( 1997 )

                          FOR THE FIFTH CIRCUIT
                                No. 95-31101
    BURL CAIN, Acting Warden,
    Louisiana State Penitentiary,
              Appeal from the United States District Court
                  For the Eastern District of Louisiana
                               August 14, 1997
    Before HIGGINBOTHAM, SMITH, and BARKSDALE, Circuit Judges.
         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.
         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
            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.
    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.
         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
    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
         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
    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
    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
           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. 1
    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
          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
    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.
            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).
    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.
         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
             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
    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
    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
    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
    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
    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
          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
         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
          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
    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,”
    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.
    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,”
    “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
    475 U.S. 1138
    106 S. Ct. 1787
    90 L. Ed. 2d 334
    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
         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.
         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
    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.
         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
    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