Rodriguez v. Cain

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 99-31192 _______________

JORGE RODRIGUEZ,

Plaintiff-Appellant,

VERSUS

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Eastern District of Louisiana (98-CV-2687) _________________________ March 7, 2001

Before REAVLEY, SMITH, and DeMOSS, U.S.C. § 2254, arguing that the jury Circuit Judges. instructions violated Cage v. Lousiana, 498 U.S. 39 (1990). We affirm, but on a ground PER CURIAM:* different from that used by the district court.

Jorge Rodriguez appeals the denial of his I. petition for writ of habeas corpus under 28 Rodriguez was convicted of second degree murder.1 The sentence was affirmed by the

* Pursuant to 5TH CIR. R. 47.5, the court has 1 determined that this opinion should not be The Louisiana Court of Appeal thoroughly published and is not precedent except under the discussed the facts surrounding Rodriguez’s con- limited circumstances set forth in 5TH CIR. R. viction in Louisiana v. Rodriguez, 635 So. 2d 391 47.5.4. (La. App. 4th Cir. 1994), writ denied, 678 So. 2d

Louisiana Court of Appeal in November 1983. II. After denying several applications for post- The district court concluded that Rodriguez conviction relief, the Louisiana Court of Ap- was procedurally barred from asserting his peal ordered the trial court to allow an out-of- Cage claim because he had failed either to time appeal pursuant to Lofton v. Whitley, 905 show that he had contemporaneously objected F.2d 885 (5th Cir. 1990).2 to the improper instruction or to demonstrate both cause for the failure and prejudice In that appeal, Rodriguez asserted several resulting from a refusal to review the issue in grounds, including that the trial court the habeas posture. We conclude that we are improperly had instructed the jury regarding barred by the Antiterrorism and Effective reasonable doubt.3 The Court of Appeal held, Death Penalty Act of 1996 (“AEDPA”) from inter alia, that Rodriguez’s Cage claim was considering the Cage claim and that we procedurally barred by Loui siana’s therefore cannot reach the issue of whether the contemporaneous objection rule. See claim is procedurally barred. Rodriguez, 635 So. 2d at 396. After the Louisiana Supreme Court denied review, “In general, a ‘new rule’ [of constitutional Rodriguez in October 1998 filed his federal law] will not apply retroactively to the habeas habeas petition, seeking review of eleven petition of a prisoner whose conviction asserted errors, including his Cage claim. became final before the Supreme Court announced the rule.” Williams v. Cain, 229 The district court denied the petition but F.3d 468, 472 (5th Cir. 2000) (citing Teague issued a certificate of appealability (“COA”) v. Lane, 489 U.S. 288, 305-06 (1989)). Cage on the Cage claim. Rodriguez appealed, once announced just such a new rule;4 nonetheless, again asserting his Cage claim and seeking a we have held that a prisoner may retroactively COA for several other claims, which we de- raise a Cage claim in a habeas petition under nied. Thus, only the Cage claim is at issue in one of Teague’s two exceptions. See Humph- this appeal. rey v. Cain, 138 F.3d 552, 553 (5th Cir. 1998) (en banc) (adopting the reasoning of Humph- rey v. Cain, 120 F.3d 526 (5th Cir. 1997)).

AEDPA abrogated Humphrey’s retroactive 33 (La. 1996). application of Cage, however, with respect to habeas petitions filed after the effective date of 2 In Lofton, 905 F.2d at 890, we required the AEDPA: “Applying [AEDPA’s] statutory Louisiana Court of Appeal to grant an out-of-time amendments to 28 U.S.C. § 2254(d)(1), we appeal where Lofton’s original appellate counsel can grant a writ of habeas corpus only if the had failed either to assert any nonfrivolous grounds state court’s determination of law, on a de for appeal or to follow the proper procedures for novo review, violated Supreme Court withdrawal under Anders v. California, 386 U.S. precedent in existence at the time of the 738 (1967). 3 The jury instructions are not part of the rec- ord. Rodriguez contendsSSand we assume for pur- 4 See In re Smith, 142 F.3d 832, 835 (5th Cir. poses of this appealSSthat the reasonable doubt 1998). instruction violated Cage.

petitioner’s conviction.” Muhleisen v. Ieyoub, 168 F.3d 840, 844 (5th Cir.), cert. denied, 528 U.S. 828 (1999). Thus, “a lower federal court’s holding that Cage . . . appl[ies] retroactively is insufficient to make [it] retroactive under AEDPA. . . . [T]he Supreme Court itself must have held that the rule is retroactive. It has not done so with respect to Cage errors.” Williams v. Cain, 229 F.3d at 474 (noting also that “[n]othing the in Supreme Court’s recent decision in Williams v. Taylor, 529 U.S. 362 (2000), is contrary to this rule of Muhleisen” (citation omitted)). Consequently, if a prisoner seeks habeas review of a conviction that became final before Cage was decided, we cannot review the conviction for Cage error unless the habeas petition was filed before the effective date of AEDPA. See id.

Rodriguez’s conviction became final in 1983, long before Cage was decided, so any application of Cage necessarily would be ret- roactive. Rodriguez did not file his habeas petition until October 1998, over two years after the effective date of AEDPA. We therefore are barred from considering his Cage claim.

AFFIRMED.