Dupuy v. Cain ( 2000 )


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  •                            Revised February 11, 2000
    
                          UNITED STATES COURT OF APPEALS
                               FOR THE FIFTH CIRCUIT
                                ___________________
    
                                        No. 99-30146
                                     __________________
    
                                 BUFORD ANTHONY DUPUY,
    
                                                                Petitioner-Appellant,
    
                                           versus
    
               BURL CAIN, Warden, Louisiana State Penitentiary,
    
                                                 Respondent-Appellee.
    ________________________________________________________________
    
               Appeal from the United States District Court
                   for the Western District of Louisiana
    _________________________________________________________________
                              January 24, 2000
    
    Before JONES, BARKSDALE, and DENNIS, Circuit Judges.
    
    RHESA HAWKINS BARKSDALE, Circuit Judge:
    
         For    this    pro    se,    successive      habeas    petition,   considered
    
    pursuant to the applicable standards prior to those imposed by the
    
    Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
    
    primarily    at    issue    is    whether   the    district    court    abused   its
    
    discretion in determining that the challenged reasonable doubt jury
    
    instruction was not prejudicial for abuse of writ purposes.                      The
    
    other claims were also treated similarly.                  We AFFIRM.
     I.
    
    
    
    
    - 2 -
         Buford    Anthony        Dupuy’s      1974    conviction       for   second-degree
    
    murder and life-sentence were affirmed in December 1975.                         State v.
    
    Dupuy, 
    319 So. 2d 299
     (La. 1975).
    
         Dupuy’s        first    federal       habeas     petition,       filed     in    1977,
    
    contended:          (1)     that     the    evidence     seized       during     claimed
    
    unconstitutional          searches    of    his     residence       should    have     been
    
    excluded;     (2)     that    he     was    not     allowed    to     examine        certain
    
    prosecution evidence; and (3) that he had received an unfair trial,
    
    based on claimed prejudicial remarks by the prosecutor.                                 The
    
    petition was dismissed, on the merits, in 1979.                       Our court denied
    
    a certificate of probable cause (CPC) in August 1982.
    
         Dupuy’s second, successive petition was filed on 12 April
    
    1996, approximately two weeks before AEDPA became effective. He
    
    raised seven new claims for relief: (1) that the use of his
    
    confession violated the Fifth, Sixth, and Fourteenth Amendments;
    
    (2) that the evidence was insufficient to convict him; (3) that he
    
    received ineffective assistance of counsel; (4) that the reasonable
    
    doubt and specific intent instructions violated the Fourteenth
    
    Amendment; (5) that women were unconstitutionally excluded from the
    
    grand and petit juries; (6) that the State suppressed evidence in
    
    violation of Brady v. Maryland, 
    373 U.S. 83
     (1963); and (7) that
    
    his sentence was illegal.
    
         Pre-AEDPA, raising a new claim in a subsequent habeas petition
    
    constitutes    an     abuse    of    the    writ,     unless    the    petitioner       can
    
    
                                               - 3 -
    demonstrate both cause for not raising the claim in the first
    
    petition and actual prejudice if the claim is not considered; if he
    
    fails to do so, the court may still reach the merits in order to
    
    prevent a “fundamental miscarriage of justice”. McCleskey v. Zant,
    
    
    499 U.S. 467
    , 494 (1991).
    
         Pretermitting whether Dupuy had shown cause, the magistrate
    
    judge determined that Dupuy would neither be prejudiced, nor suffer
    
    a fundamental miscarriage of justice, and, therefore, recommended
    
    that the writ be dismissed, pursuant to Rule 9(b) of the Rules
    
    Governing Section 2254 Proceedings in the United States District
    
    Courts.
    
         The district court adopted the magistrate judge’s report and
    
    recommendation, except for the claim concerning Dupuy’s sentence.
    
    For it, the court concluded that the sentence was illegally lenient
    
    and that, therefore, Dupuy had not been prejudiced.     The petition
    
    was dismissed with prejudice, as an abuse of the writ.
    
                                    II.
    
         As in district court, Dupuy proceeds pro se.       Because his
    
    second habeas petition was filed prior to AEDPA, pre-AEDPA habeas
    
    law applies.   Lindh v. Murphy, 
    521 U.S. 320
     (1997).   Nevertheless,
    
    the district court granted an AEDPA certificate of appealability
    
    (COA) for four of the seven claims.      A COA is the substantive
    
    equivalent of a pre-AEDPA CPC, Blankenship v. Johnson, 
    118 F.3d 312
    , 315 & n.2 (5th Cir. 1997); but, when a pre-AEDPA CPC is
    
    
                                   - 4 -
    granted, we consider all of the claims raised in the petition.
    
    Sherman v. Scott, 
    62 F.3d 136
    , 138-39 (5th Cir. 1995), cert.
    
    denied, 
    516 U.S. 1093
     (1996).         (Accordingly, our court permitted
    
    Dupuy to file a supplemental brief covering the issues for which
    
    the district court had not granted a COA.)
    
         As noted, a federal habeas petitioner is required to raise all
    
    issues in the first petition; a subsequent, pre-AEDPA petition
    
    raising new issues is subject to dismissal for abuse of writ,
    
    pursuant to Rule 9(b).        Rodriguez v. Johnson, 
    104 F.3d 694
    , 696
    
    (5th Cir.), cert. denied, 
    520 U.S. 1267
     (1997).          Once the State has
    
    met its burden of pleading such abuse, the petitioner must show
    
    either cause and prejudice concerning the failure to plead the
    
    issue in the first petition, or a fundamental miscarriage of
    
    justice.      Id. at 697.
    
         We review an abuse of writ dismissal for abuse of discretion.
    
    Id. at 696.     As did the district court, instead of looking to cause
    
    vel non, we examine Dupuy’s claims to determine either actual
    
    prejudice or a fundamental miscarriage of justice vel non.
    
         To show prejudice, Dupuy must demonstrate, “not merely that
    
    the error at his trial created a possibility of prejudice, but that
    
    they worked to his actual and substantial disadvantage, infecting
    
    his entire trial with error of constitutional dimensions”.          United
    
    States   v.    Frady,   
    456 U.S. 152
    ,    170   (1982).   Similarly,   a
    
    
    
                                         - 5 -
    miscarriage     of    justice    occurs       only    in   those     “extraordinary
    
    instances when a constitutional violation probably has caused the
    
    conviction of one innocent of the crime”.                  McCleskey, 499 U.S. at
    
    494.
    
           For   starters,    in    reviewing       for    actual      prejudice   or   a
    
    fundamental miscarriage of justice, we reject Dupuy’s objections
    
    concerning the procedure employed by the district court for this
    
    Rule 9(b) question: (1) that by analyzing Dupuy’s substantive
    
    issues in the Rule 9(b) context, he has been held to a higher
    
    standard of review; (2) that there are unresolved factual issues
    
    regarding the state court suppression hearing which should not have
    
    been resolved without an evidentiary hearing; (3) that the district
    
    court erroneously relied on an uncertified state court record; (4)
    
    that the State’s answer was served on him without copies of the
    
    attached exhibits, and the district court failed to rule on his
    
    motion to have the State provide him those exhibits; (5) that an
    
    unresolved factual dispute remains; and (6) that the district
    
    court’s order, that no further motions would be entertained while
    
    the Rule 9(b) issue was pending, prohibited him from conducting
    
    discovery    and     prosecuting   his    habeas      petition.       In   sum,   the
    
    procedure employed by the district court for this Rule 9(b) matter
    
    was proper.
    
                                             A.
    
    
    
    
                                         - 6 -
         For Dupuy’s claim that the reasonable doubt and specific
    
    intent instructions were unconstitutional, we review a challenged
    
    instruction to determine whether it so infected the entire trial
    
    that the resulting conviction violated due process, not merely
    
    whether   it    is   undesirable,    erroneous,   or   even   universally
    
    condemned.     Rodriguez, 104 F.3d at 699 n.8.
    
                                         1.
    
         The reasonable doubt instruction provided:
    
              A reasonable doubt is a fair doubt based upon
              reason and common sense and arising from a
              state of the evidence. It is a doubt that you
              can give a reason for. It is rarely possible
              to prove anything to an absolute certainty.
              Proof beyond a reasonable doubt is such as you
              would be willing to rely and act upon in the
              most important of your own affairs.          A
              defendant is never to be convicted on mere
              suspicions or conjectures. A reasonable doubt
              may arise not only from the evidence produced
              but also from a lack of evidence. Since the
              burden is always on the prosecution to prove
              the accused guilty beyond a reasonable doubt
              of every essential element of the crime
              charged, a defendant has the right to rely
              upon the failure of the prosecution to
              establish such proof.    A defendant may also
              rely upon evidence brought out on cross
              examination of a witness for the prosecution.
              The law never imposes upon a defendant in a
              criminal case, the burden or duty of producing
              any evidence.   A reasonable doubt exists in
              any case when after careful and impartial
              consideration of all the evidence in the case,
              the jurors do not feel convinced to make [sic]
              a moral certainty that the defendant is guilty
              of the charge against him.
    
    (Emphasis added.)
    
    
    
                                        - 7 -
         Dupuy contends that the “moral certainty” language suggests a
    
    higher level of doubt than that — reasonable doubt — required for
    
    acquittal, citing Cage v. Louisiana, 
    498 U.S. 39
     (1990).            There,
    
    the Court held that the charge
    
              equated a reasonable doubt with a “grave
              uncertainty” and an “actual and substantial
              doubt,” and stated that what was required was
              a “moral certainty” that the defendant was
              guilty.   It is plain to us that the words
              “substantial” and “grave,” as they are
              commonly understood, suggest a higher degree
              of doubt than is required for acquittal under
              the reasonable-doubt standard.
    
    Id. at 41.
    
         Victor v. Nebraska, 
    511 U.S. 1
     (1994), modified Cage.              The
    
    three phrases were still disapproved; accordingly,
    
              trial courts must avoid defining reasonable
              doubt so as to lead the jury to convict on a
              lesser showing than due process requires.
              [But, for the] cases [under review], we
              conclude   that   taken  as   a   whole,   the
              instructions correctly conveyed the concept of
              reasonable doubt to the jury.
    
    Id. at 22.
    
         Thereafter, in Schneider v. Day, 
    73 F.3d 610
    , 611 (5th Cir.
    
    1996), for example, our court held that the reasonable doubt
    
    instruction   at   issue   there,     which   employed   “an   actual   and
    
    substantial doubt”, “a serious sensible doubt as such you could
    
    give a good reason for”, and “a moral certainty”, was acceptable.
    
    In so doing, our court applied Victor, and held “that there is no
    
    
    
    
                                        - 8 -
    reasonable likelihood that the jury ... applied the instruction in
    
    a way that violated the Constitution”.           Id. at 611.
    
         Humphrey v. Cain, 
    138 F.3d 552
     (5th Cir.)(en banc), cert.
    
    denied, ___U.S.___, 
    119 S. Ct. 348
    , and cert denied, ___U.S.___,
    
    
    119 S. Ct. 365
     (1998), adopted the panel opinion, 
    120 F.3d 526
    
    (1997),    concerning,    inter   alia,     whether   the    defendant     was
    
    prejudiced by the reasonable doubt instruction.             The instruction
    
    provided, at the end, that the jury “could acquit only if it had a
    
    serious doubt, for which you could give good reason”; it earlier
    
    employed the terms “substantial doubt”, “grave uncertainty”, and
    
    “moral certainty”.       The requirement that a juror had to have a
    
    “serious doubt, for which [he] could give a good reason”, in
    
    conjunction with the disapproved phrases, was held to violate due
    
    process.    See Humphrey, 120 F.3d at 530 (panel opinion).                 But,
    
    Humphrey expressly did not consider whether the “give good reason”
    
    requirement, alone, was violative of due process.              Id. at 531.
    
         Dupuy’s reasonable doubt instruction contains favored and
    
    disfavored phrases.       Of course, it is not the use of a single
    
    phrase     that   determines      whether    a     jury     instruction      is
    
    unconstitutional; instead, the instruction is examined as a whole.
    
    Victor, 511 U.S. at 22.
    
         Dupuy’s instruction required jurors to be able to articulate
    
    a “good reason” and had one of the disfavored Cage phrases (“moral
    
    certainty”).      But,   otherwise,   the    instruction       has   far   less
    
                                       - 9 -
    disfavored     language      than    in    Humphrey;    and,       additionally,       the
    
    instruction      has    further          clarifying    language         to    assist    in
    
    determining reasonable doubt vel non.                 Humphrey, 120 F.3d at 533
    
    (discussing why Schneider and other cases, faced with “good reason”
    
    phrase held instruction not unconstitutional, because not faced
    
    with    all    the   other     disfavored        phrases      as   in    the    Humphrey
    
    instruction).        Moreover, the “good reason” requirement is placed
    
    much earlier in the instruction and given far less emphasis.
    
    Finally, Humphrey was not a successive petition/abuse of writ
    
    situation, as is the case at hand.
    
           We   conclude    that       the    district    court    did      not    abuse   its
    
    discretion in holding that Dupuy has not shown the requisite
    
    prejudice resulting from the instruction.                      For example, unlike
    
    Humphrey, as discussed infra, this is not a “close case” as to
    
    guilt or innocence.          Id.
    
                                                2.
    
           The specific intent jury instruction provided:
    
                  As a general rule it is reasonable to infer
                  that a person ordinarily intends all the
                  natural and probable consequences of acts
                  knowingly done or knowingly omitted by him.
                  So, unless the evidence in this case leads the
                  jury to a different or contrary conclusion,
                  the jury may draw the inference implied and
                  find that the accused intended all the natural
                  and probable consequences which one standing
                  in like circumstances and possessing like
                  knowledge should reasonably have expected to
                  result from any act knowingly done or
                  knowingly omitted by the accused.
    
                                              - 10 -
         Dupuy contends that this instruction created a presumption of
    
    intent, prohibited by Sandstrom v. Montana, 
    442 U.S. 510
    , 515
    
    (1979).    It held that the phrase “the law presumes that a person
    
    intends the ordinary consequences of his voluntary acts” created
    
    such a prohibited presumption.      Id.
    
         Here, the instruction provided for an allowable inference; it
    
    did not create the prohibited presumption.         Accordingly, the court
    
    did not abuse its discretion in determining that Dupuy has not
    
    demonstrated prejudice.
    
                                        B.
    
         Dupuy asserts that his due process rights were violated
    
    because his confession was elicited in violation of the Fifth and
    
    Sixth Amendments.
    
         Dupuy must demonstrate that his confession was not voluntarily
    
    given and that, for this abuse of writ inquiry, the district court
    
    abused its discretion in determining that he was not prejudiced.
    
    “[T]he    ultimate   question   whether,   under   the   totality   of   the
    
    circumstances, [a] challenged confession was obtained in a manner
    
    compatible with the requirements of the Constitution is a matter
    
    for independent federal determination.” Muniz v. Johnson, 
    132 F.3d 214
    , 219 (5th Cir.), cert. denied, ___ U.S.___, 
    118 S. Ct. 1793
    
    (1998) (citation omitted). “Subsidiary factual questions, however,
    
    are entitled to a presumption of correctness”.           Id. at 219.
    
    
                                      - 11 -
                                    1.
    
         After Dupuy’s arrest, he was interrogated at the sheriff’s
    
    office, beginning with the Sheriff asking Dupuy whether he knew his
    
    rights.   Dupuy responded that he did, and then admitted killing
    
    Normand in a “tussle”.   (At trial, Dupuy’s defense was based upon
    
    Normand being accidentally shot during a “tussle”.      Dupuy, 319
    
    So.2d at 301.)
    
         Dupuy’s motion to suppress the confession, because he had not
    
    been advised of his rights, was denied.    At the hearing on that
    
    motion, a Deputy Sheriff testified that he could not remember if
    
    Dupuy had been read his rights pre-interrogation.   Another Deputy
    
    testified that, when he arrested Dupuy, he read him his rights;
    
    that initially, Dupuy stated that he did not understand; that he
    
    then reread those rights to Dupuy; and that, Dupuy stated that he
    
    understood.
    
         Moreover, at the sheriff’s office, prior to the interrogation,
    
    Dupuy signed a memorandum waiving his rights.    Additionally, the
    
    Sheriff testified that he
    
              told [Dupuy], of course, that we were there to
              talk to him and that we were going to read him
              his rights or tell him his rights and that’s
              when he told us we didn’t have to. That they
              had already been read to him. And, he already
              knew his rights and that we didn’t have to
              tell him his rights.
    
         The magistrate judge noted that Dupuy had not offered any
    
    evidence to demonstrate that he had not waived his rights, and,
    
    
                                  - 12 -
    accordingly,     determined     that      Dupuy    failed   to    overcome     the
    
    presumption     of    correctness    that   attaches   to    state-court      fact
    
    finding.    See Mann v. Scott, 
    41 F.3d 968
    , 976 (5th Cir. 1994),
    
    cert. denied, 
    514 U.S. 1117
     (1995).                 In sum, Dupuy has not
    
    demonstrated     prejudice.         Therefore,     there    was   no   abuse    of
    
    discretion by the district court.
    
                                           2.
    
          Citing Edwards v. Arizona, 
    451 U.S. 477
    , 487 (1981), Dupuy
    
    maintains that he requested counsel immediately after his arrest,
    
    and   should    not   have   been   interrogated     without      counsel    being
    
    present.       Dupuy’s conviction, however, became final prior to
    
    Edwards.    To the extent that Edwards created a new per se rule, it
    
    does not apply retroactively to cases on collateral review.                    See
    
    Solem v. Stumes, 
    465 U.S. 638
    , 650 (1984).
    
          The   pre-Edwards      rule   was     that   States    could     not secure
    
    “criminal convictions through the use of involuntary confessions
    
    resulting from coercive police conduct”. Self v. Collins, 
    973 F.2d 1198
    , 1205 (5th Cir. 1992), cert. denied, 
    507 U.S. 996
     (1993).
    
    Dupuy has not demonstrated an abuse of discretion by the district
    
    court’s concluding that the admission of the confession did not
    
    work to his “actual and substantial disadvantage, infecting his
    
    entire trial with error of constitutional dimensions”.                 Murray v.
    
    Carrier, 
    477 U.S. 478
    , 493 (1986).
    
    
    
                                         - 13 -
                                       C.
    
         Dupuy next raises a sufficiency challenge regarding his intent
    
    to kill Normand.    For such a claim, we consider whether, viewing
    
    the evidence “in the light most favorable to the prosecution, any
    
    rational trier of fact could have found the essential elements of
    
    the crime beyond a reasonable doubt”.          Jackson v. Virginia, 
    443 U.S. 307
    , 319 (1979).       This standard is applied with “explicit
    
    reference to the substantive elements of the criminal offense as
    
    defined by state law”.      Id. at 324 n.16.   Under Louisiana law, the
    
    elements of second degree murder are (1) the killing of a human
    
    being; and (2) that defendant had the specific intent to kill or
    
    inflict great bodily harm. LA. REV. STAT. ANN. 14:30.1.
    
         Specific criminal intent is “that state of mind which exists
    
    when the circumstances indicate that the offender actively desired
    
    the prescribed criminal consequences to follow his act or failure
    
    to act”.     State v. Williams, 
    714 So. 2d 258
    , 263 (La. App. 5 Cir.
    
    1998) (citation omitted).      Specific intent is a question of fact
    
    which may be inferred from the circumstances and actions of the
    
    defendant.    Id. at 263.
    
         Dupuy admitted killing Normand.      He had Jesse Bordelon throw
    
    Normand’s body into a bayou.      Dupuy drove to another location and
    
    threw the gun into the bayou.     Normand had been hogtied and shot in
    
    the back of the head.    Normand left a note saying “If I get killed,
    
    it’s Anthony Dupuy, that did it.”
    
    
                                     - 14 -
         Obviously, the evidence is sufficient for a reasonable juror
    
    to find, beyond a reasonable doubt, that Dupuy intended to kill
    
    Normand.   The district court did not abuse its discretion.
    
                                      D.
    
         Relying on Taylor v. Louisiana, 
    419 U.S. 522
     (1975), Dupuy
    
    contends that he was prejudiced because women were systematically
    
    excluded from grand and petit juries. In Daniel v. Louisiana, 
    420 U.S. 31
     (1975), the court held that Taylor would not be applied
    
    retroactively to “convictions obtained by juries empaneled prior to
    
    the date of that decision”.   Id. at 32.    Dupuy’s grand and petit
    
    juries were empaneled prior to Taylor.
    
                                      E.
    
         Dupuy asserts that police reports were withheld from him in
    
    violation of Brady. To establish such a violation, Dupuy must prove
    
    that the State withheld evidence; that it was favorable; and that
    
    it was material to the defense.    E.g., Little v. Johnson, 
    162 F.3d 855
    , 861 (5th Cir. 1998), cert. denied, ___U.S.___, 
    119 S. Ct. 1768
    
    (1999).
    
         Dupuy maintains that the police report would have shown (1)
    
    that Normand’s fingerprints were found in Dupuy’s home; (2) that
    
    Normand was not kidnaped; (3) that a table in Dupuy’s home was
    
    damaged and that blood samples matching Normand’s blood type were
    
    found in Dupuy’s home; and (4) that there was evidence that would
    
    have supported Dupuy’s testimony that Normand had been accidentally
    
                                  - 15 -
    killed. During post conviction proceedings in 1992, 17 years after
    
    his conviction, a police report was furnished to Dupuy in response
    
    to a discovery request. Dupuy contends that there are other police
    
    reports   that   were   not   provided   to   him;   however,   he   has   not
    
    demonstrated that they are in existence.         The State responded that
    
    all such records were delivered to Dupuy.
    
         Dupuy did not demonstrate that the reports were withheld from
    
    him. Accordingly, the district court did not abuse its discretion.
    
                                        F.
    
         Dupuy claims that he was illegally sentenced by the trial
    
    court, because his sentence failed to specify that he would not be
    
    eligible for parole, probation, or suspension of sentence for 20
    
    years.    In a state collateral proceeding, the court ruled that the
    
    sentence was not illegal.        Louisiana v. Dupuy, No. 31,391 (12th
    
    J.D.C. 27 Aug. 1993) (motion for resentencing).
    
         The district court determined that his sentence was illegally
    
    lenient and that, therefore, Dupuy had not been prejudiced.            Dupuy
    
    has not demonstrated that the wording of the court’s minute entry
    
    will affect his eligibility for release. Accordingly, the requisite
    
    abuse of discretion has not been shown.
    
                                        G.
    
         For his ineffective assistance of counsel claim, Dupuy must
    
    show that his attorneys’ performance was deficient and that this
    
    prejudiced his defense.       Strickland v. Washington, 
    466 U.S. 668
    ,
    
    
                                      - 16 -
    687 (1984).   Dupuy must overcome the strong presumption that their
    
    conduct fell within the wide range of reasonable professional
    
    assistance.   Id. at 689.
    
                                          1.
    
         Dupuy contends that his attorneys failed to object when the
    
    prosecution moved to amend the indictment after the voir dire
    
    commenced.    The indictment was amended on 31 October 1974.           But,
    
    the first juror was not called until 4 November 1974.
    
                                          2.
    
         Claiming that false and perjurious testimony was presented to
    
    the grand jury that he had committed an aggravated kidnaping, Dupuy
    
    contends that his attorney should have moved to quash the original
    
    indictment for first degree murder.           Likewise, claiming that, at
    
    the preliminary hearing, no evidence was presented to show that
    
    there was a kidnaping, he asserts that counsel should have moved to
    
    suppress the indictment. But, he was neither tried, nor convicted,
    
    for first degree murder.
    
                                          3.
    
         Dupuy    contends   that   his        attorney   rendered   ineffective
    
    assistance in prosecuting the motion to suppress the confession.
    
    As discussed, supra, Dupuy has not demonstrated prejudice.
    
                                          4.
    
         In conjunction with Dupuy’s contention that the evidence was
    
    insufficient to prove that he had the specific intent to kill
    
    
                                     - 17 -
    Normand, Dupuy contends that counsel failed to present motions at
    
    the conclusion of trial to protect his rights.                But, he concedes
    
    that    counsel   moved     to   arrest      the   judgment    on   grounds   of
    
    insufficient evidence.
    
                                            5.
    
           Dupuy asserts that counsel should have objected to the court’s
    
    reasonable    doubt   and    specific     intent    instructions.       Dupuy’s
    
    conviction was final in 1975. Cage was decided in 1990.                       The
    
    failure to so object, in the light of the state of the law existing
    
    at the time, is not deficient performance.             Schneider, 73 F.3d at
    
    612.
    
                                            6.
    
           Dupuy cites the failure to object to the exclusion of women
    
    from grand and petit juries.        He states, however, that he believes
    
    counsel did object to such exclusion.              In fact, counsel moved to
    
    quash the indictment (motion denied), because women were not
    
    impaneled on either the grand or petit jury.
    
           In sum, concerning the ineffective assistance of counsel
    
    claims, the requisite Rule 9(b) prejudice is lacking. The district
    
    court did not abuse its discretion in so concluding.
    
                                         III.
    
           Dupuy has failed to demonstrate that any of his claims result
    
    in either prejudice or a fundamental miscarriage of justice.
    
    Accordingly, he has not demonstrated that the district court abused
    
    
                                        - 18 -
    its discretion in denying his second habeas petition on the basis
    
    of abuse of writ.    Therefore, the dismissal of Dupuy’s second
    
    habeas petition is
    
                                                            AFFIRMED.
    
    
    
    
                                 - 19 -
    DENNIS, Circuit Judge, concurring:
    
    
    
         I concur in the judgment of the court.             I write separately
    
    because, in my view, the majority erroneously concludes that had
    
    Dupuy   established     a   Cage   error    his   habeas   petition    might
    
    nevertheless have been subject to dismissal for abuse of the writ
    
    because a Cage error is not necessarily sufficiently pervasive and
    
    prejudicial as to so infect the entire trial that the resulting
    
    conviction violated due process.1
    
         Preliminarily, I agree that in this case the reasonable doubt
    
    instructions taken as a whole are not infirm because “[t]here is no
    
    reasonable likelihood that the jurors who determined petitioner’s
    
    guilt   applied   the   instructions   in    a    way   that   violated   the
    
    Constitution.”    Victor v. Nebraska, 
    511 U.S. 1
    , 6 (1994).           This is
    
    especially evident when the instant instructions are compared and
    
    contrasted to those in Cage v. Louisiana, 
    498 U.S. 39
     (1990) and
    
    Humphrey v. Cain, 
    138 F.3d 552
     (5th Cir. 1998)(en banc).              Thus I
    
    agree with the majority that Dupuy suffered no Cage error.
    
         Sullivan v. Louisiana, 
    508 U.S. 275
     (1993), as I read it,
    
    precludes the possibility that a Cage error may not be sufficiently
    
        1
         As both the district court and the majority pretermitted the
    issue of cause as required in addition to a showing of actual
    prejudice in a pre-AEDPA subsequent habeas petition raising a new
    claim, see McCleskey v. Zant, 
    499 U.S. 467
    , 494 (1991), I do not
    contend that a Cage error in and of itself would be enough for
    Dupuy to avoid dismissal for abuse of the writ -- only that a Cage
    error is sufficient to satisfy the requisite showing of prejudice.
    
    
                                       - 20 -
    prejudicial to satisfy the showing required to avoid abuse of the
    
    writ dismissal. In Sullivan, Justice Scalia stated in no uncertain
    
    terms that a Cage error is not subject to harmless error review
    
    because it operates as a complete deprivation of the defendant’s
    
    Sixth   Amendment   right   to    jury   trial   and   violates   the   Fifth
    
    Amendment requirement of proof beyond a reasonable doubt.               This
    
    result obtains because, unlike many other jury instruction errors,
    
    an instructional error misdescribing the burden of proof vitiates
    
    all the jury’s findings such that reviewing courts “can only engage
    
    in pure speculation -- its view of what a reasonable jury would
    
    have done.   And when it does that, ‘the wrong entity judge[s] the
    
    defendant guilty.’”     Sullivan, 508 U.S. at 280-81 (citing and
    
    quoting Rose v. Clark, 
    478 U.S. 570
    , 578 (1986)).
    
         Accordingly, I do not believe that we are free to conclude, as
    
    the majority opinion suggests, that a Cage error may not be
    
    prejudicial.   Surely if Dupuy had been convicted and sentenced
    
    without a jury finding of guilt, it could only have “worked to his
    
    actual and substantial disadvantage, infecting his entire trial
    
    withe error of constitutional dimension.”         United States v. Frady,
    
    
    456 U.S. 152
    , 170 (1982).        Thus, Dupuy was required to prove only
    
    that there was a Cage error, as defined by Sullivan and Victor, in
    
    order to show the requisite prejudice to overcome dismissal for
    
    abuse of the writ.
    
    
    
    
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