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United States Court of Appeals,
Fifth Circuit.
No. 95-30010
Summary Calendar.
Charles SCHNEIDER, Petitioner-Appellant,
v.
Edgar C. DAY, Warden; Richard P. Ieyoub, Attorney General, State
of Louisiana, Respondents-Appellees.
Jan. 31, 1996.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before GARWOOD, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:
I. FACTS AND PROCEDURAL HISTORY
Charles Schneider was convicted of armed robbery in Louisiana
state court in 1986 and sentenced to 30 years of imprisonment at
hard labor without the benefit of parole, probation, or suspension
of sentence. After unsuccessfully pursuing a direct appeal and
state habeas remedies, Schneider filed a state habeas petition
arguing that pursuant to Cage v. Louisiana, 498 U.S. 39, 111 S.Ct.
328, 112 L.Ed.2d 339 (1990), the trial court's jury charge
concerning reasonable doubt was unconstitutional. The Louisiana
court of appeal and the Supreme Court of Louisiana rejected
Schneider's claims. See Schneider v. Louisiana, 592 So.2d 513
(La.Ct.App. 1st Cir.1992), writs denied, 637 So.2d 492 (La.1994).
Schneider then petitioned for federal habeas relief. After
the magistrate judge recommended that Schneider's petition be
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denied, the district court denied the petition and granted
Schneider a certificate of probable cause to appeal. On appeal,
Schneider contends that the trial court's reasonable doubt
instruction was unconstitutional and that his trial counsel was
ineffective.
II. ANALYSIS
Schneider argues that the district court erred in rejecting
his challenge to the jury charge concerning reasonable doubt. The
challenged jury instruction reads as follows:
A person accused of a crime is presumed by law to be innocent
until each element of the crime, necessary to constitute his
guilt, is proven beyond a reasonable doubt. It is the duty of
the jury in considering the evidence, and in applying to that
evidence the law as given by the Court to give the defendant
the benefit of every reasonable doubt arising out of the
evidence or out of the lack of evidence in the case. If you
are not convinced of his guilt beyond a reasonable doubt, it
is your duty to find him not guilty. A reasonable doubt is
not a mere possible doubt. It should be an actual and
substantial doubt. It is such a doubt as a reasonable man
would seriously entertain. It is a serious sensible doubt as
such you could give a good reason for. It is not sufficient
you should believe guilt only probable. In fact, no degree of
probability will authorize a conviction, but the evidence must
be of such a character and tendency as to produce a moral
certainty of the defendant's guilt to that exclusion of a
reasonable doubt. Otherwise you should acquit.
The district court found that Schneider's complaint was without
merit because Skelton v. Whitley, 950 F.2d 1037, 1041-46 (5th
Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 102, 121 L.Ed.2d 61
(1992), held that Cage stated a new rule that could not be applied
retroactively to habeas petitions. The district court also found
that, considering the Supreme Court's recent decision in Victor v.
Nebraska, --- U.S. ----, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994),
the challenged instruction was not unconstitutional.
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"[A] new rule should be applied retroactively if it requires
the observance of those procedures that are implicit in the concept
of ordered liberty." Teague v. Lane, 489 U.S. 288, 314, 109 S.Ct.
1060, 1076, 103 L.Ed.2d 334 (1989) (internal quotations and
citations omitted). In Skelton, this court held that Cage did not
fit within this exception of Teague and therefore was not
retroactive. However, the Supreme Court then held that Cage-type
error is structural. Sullivan v. Louisiana, --- U.S. ----, 113
S.Ct. 2078, 124 L.Ed.2d 182 (1993). Sullivan thus implies that
Cage meets the Teague exception and should be applied
retroactively.
However, Victor modified the Cage standard of reviewing
allegedly erroneous jury instructions. Therefore, as this court
has noted, if Sullivan and Teague, command retroactivity, it is now
Victor, not Cage, which should be applied retroactively. Weston v.
Ieyoub, 69 F.3d 73 (5th Cir.1995); Gaston v. Whitley, 67 F.3d 121
(5th Cir.1995).
Accordingly, we apply Victor and hold that there is no
reasonable likelihood that the jury in this case applied the
instruction in a way that violated the Constitution. Victor, ---
U.S. at ----, 114 S.Ct. at 1243. We note, however, that the
Supreme Court cautioned against the continued use of phrases such
as "moral certainty" and "substantial doubt." Victor, --- U.S. at
----, ---- - ----, 114 S.Ct. at 1248, 1251-52. Therefore, as we
did in Weston and Gaston, we disapprove of the wording in
Schneider's charge but hold that it did not render the instruction
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unconstitutional in this case.
Similarly, Schneider's ineffective assistance of counsel
claim is without merit. In Gaston, we held that failure to object
to the questionable instruction in light of the state of the law at
the time did not constitute deficient performance. Gaston, 67 F.3d
at 123 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984)). While Gaston's trial was in 1981 and
Schneider's trial was in 1986, it was not until 1990 that the
Supreme Court decided Cage, the basis for Schneider's claim today.
Therefore, as in Gaston, Schneider's trial counsel's failure to
object to the allegedly erroneous jury instruction did not deprive
Schneider of a fair and impartial trial.
Accordingly, the district court's denial of Schneider's
petition is hereby AFFIRMED.

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