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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 99-30340

THOMAS J. WILLIAMS,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.

Appeal from the United States District Court for the
Eastern District of Louisiana, New Orleans

October 17, 2000
Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.
GARWOOD, Circuit Judge:
In 1981, petitioner-appellant Thomas J. Williams (Williams),
a Louisiana state prisoner, was convicted by a jury of first degree
murder and sentenced to death. He was later resentenced to life
imprisonment. Williams filed a state habeas corpus application,
alleging, inter alia, that the reasonable doubt instruction given
to the jury at his trial was constitutionally defective. On
October 23, 1991, the state trial court denied Williams's
application for habeas relief, and on July 17, 1994, the Louisiana
Supreme Court denied Williams's request for supervisory and/or
remedial writs. On April 22, 1997, Williams filed the instant

federal petition for habeas relief under 28 U.S.C. § 2254; in his
petition, he brought claims similar to those in his state habeas
application. On March 9, 1999, the district court denied his
petition and dismissed his claims with prejudice. The district
court then denied Williams's request for a certificate of
appealability (COA). Williams sought a COA from this Court, which
granted his request in part, limited to the question of the
constitutionality of the reasonable doubt instruction. We now
affirm.
Facts and Proceedings Below
On January 16, 1981, Williams entered a neighborhood bar near
his home in New Orleans. He shot and killed one person, injured
another with a gunshot to the arm, and fired errant shots at other
bar patrons. In June, 1981, Williams was convicted of first degree
murder and later sentenced to death. He made a direct appeal to
the Louisiana Supreme Court, which affirmed his conviction but
remanded for an evidentiary hearing regarding whether he had
received ineffective assistance of counsel during the sentencing
phase of his trial. See State v. Williams, 480 So.2d 721 (La.
1985). At the hearing, the trial court determined that while
Williams had received effective assistance of counsel during the
sentencing phase, he and his counsel had been misinformed by the
District Attorney's Office regarding the nature of his criminal
record. The District Attorney's records incorrectly overstated the
2

seriousness of Williams's prior convictions, a factor which had led
Williams not to testify during the sentencing phase (Williams did
not testify or present any evidence at the guilt/innocence stage).
The trial court ordered a new sentencing hearing and Williams was
resentenced to life imprisonment. He is currently serving that
sentence at the Louisiana State Penitentiary in Angola, Louisiana.
Williams later filed an application for state habeas relief.
In the application, he argued that the reasonable doubt instruction
given to the jury at his 1981 trial was constitutionally defective
under Cage v. Louisiana, 111 S.Ct. 328 (1990) (per curiam),
overruled on other grounds by Estelle v. McGuire, 112 S.Ct. 475,
482 n.4 (1991). Williams also argued that the specific intent
instruction violated due process, and that he received ineffective
assistance by his counsel's failing to object to the jury
instructions and not allowing him to testify. Concluding that any
error in the instruction was harmless, the state trial court denied
the application on October 23, 1991. The Louisiana Supreme Court
denied, without opinion or statement of reasons, Williams's request
for supervisory or remedial writs on June 17, 1994.
On April 22, 1997, Williams filed the instant petition for
post-conviction relief pursuant to 28 U.S.C. § 2254. In his
petition, Williams again contended that the trial court's
reasonable doubt instruction was constitutionally defective; he
also argued that the specific intent instruction violated due
3

process and that his counsel provided ineffective assistance by not
allowing him to testify on his own behalf at the guilt phase
regarding his level of intoxication at the time he committed the
offense. On March 8, 1999, the district court denied the petition.
Regarding the reasonable doubt instruction, the district court
found that because Williams filed his petition after the passage of
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
he could not "overcome the formidable barriers set up by AEDPA" and
therefore the district court could not consider the merits of his
claim. The district court did not specify which barriers precluded
Williams from prevailing, and dismissed his claims with prejudice.
Williams filed a notice of appeal and moved for a COA, which the
district court denied. Williams then sought a COA from this Court.
This Court granted his request in part, limited to the question of
whether the reasonable doubt instruction was constitutionally
defective, but declined to issue a COA on any other issue.
Discussion
At the close of the guilt phase of Williams's 1981 trial, the
trial court gave the following instruction to the jury:
"The defendant is presumed to be innocent until he is
proved guilty beyond a reasonable doubt. The consequence
of this rule of law is, he is not required to prove his
innocence, but may rest upon the presumption in his favor
until it is overcome by positive affirmative proof. The
onus, therefore, is on the State to establish to your
satisfaction, and beyond a reasonable doubt, the guilt of
the accused, as to the crime charged or any lesser one
included in it.
4

If you entertain any reasonable doubt as to any fact or
element necessary to constitute the defendant's guilt, it
is your own 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 found upon a real, tangible, substantial
basis, and not upon mere caprice, fancy or conjecture.
It must be such a doubt that 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 certainty 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.
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 person would seriously entertain.
It is a serious doubt for which you could give a good
reason." (emphasis added).
No objection was made to this instruction, nor was
it complained of on direct appeal.
Williams contends that the trial court's use of the phrases
"grave uncertainty," "moral certainty," and "actual or substantial
doubt," as well as its requirement that the jury have a "serious
doubt for which you could give a good reason," rendered the
instruction constitutionally defective under Cage v. Louisiana and
Victor v. Nebraska, 114 S.Ct. 1239 (1994). Williams's appeal
returns this Court to increasingly familiar yet persistently thorny
terrain: post-AEDPA habeas challenges to alleged Cage-Victor errors
in convictions that became final before Cage and Victor appeared.
5

Despite somewhat conflicting suggestions in our precedent, we
conclude that our opinion in Mulheisen v. Ieyoub, 168 F.3d 840 (5th
Cir.), cert. denied, 120 S.Ct. 81 (1999), controls this case and
compels our conclusion that under AEDPA Williams cannot avail
himself on habeas of Cage and its progeny. Accordingly, we affirm.
I. Background: Cage-Victor Error and Retroactivity
The Due Process Clause of the Fourteenth Amendment "protects
the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime
with which he is charged." In re Winship, 90 S.Ct. 1068, 1073
(1970); see also Jackson v. Virginia, 99 S.Ct. 2781, 2786 (1979).
In Cage, a direct appeal, the Supreme Court held that a reasonable
doubt instruction ran afoul of Winship and violated the Due Process
Clause because, when read "as a whole," it "equated a reasonable
doubt with a <grave uncertainty' and an <actual substantial doubt,'
and stated that what was required was a <moral certainty' that the
defendant was guilty." See Cage, 111 S.Ct. at 329.1 The Court
1 The instruction in Cage read in relevant part:
"If you entertain a reasonable doubt as to any fact or element
necessary to constitute the defendant's guilt, it is your duty to give
him the benefit of that doubt and return a verdict of not guilty . . .
. It must be such doubt as would give rise to a grave uncertainty,
raised in your mind by reasons of the unsatisfactory character of the
evidence or lack thereof. A reasonable doubt is not a mere possible
doubt. It is an actual substantial doubt. It is a doubt that a
reasonable man can seriously entertain. What is required is not an
absolute or mathematical certainty, but a moral certainty." Cage, 111
S.Ct. at 329 (emphasis in original).
6

found that the combination of these terms, given their common
meaning, resulted in an instruction pursuant to which a reasonable
juror could find guilt based on a lesser degree of proof than
required by the Due Process Clause. See id. at 330.2
The Supreme Court subsequently refined Cage but left its
holding essentially intact. In Estelle v. McGuire, the Court
clarified that the standard for reviewing jury instructions in
challenges to state criminal convictions was not whether an
instruction could have been applied in an unconstitutional manner,
as the Cage Court stated, but whether there is a "reasonable
likelihood" that a jury in fact applied the challenged instruction
unconstitutionally. See McGuire, 112 S.Ct. at 482 & n.4 (citations
omitted). In Victor v. Nebraska, 114 S.Ct. 1239 (1994), the Court
upheld, in one case on direct appeal and in another on appeal from
denial of state habeas relief, two other reasonable doubt
instructions that contained some (but not all) of the three suspect
phrases in Cage. Victor, 114 S.Ct. at 1242. The Court reasoned
that the phrases "moral certainty" and "substantial doubt" did not
impermissibly lower the government's burden of proof because the
context of the instructions clarified the meaning of the terms as
being congruent with reasonable doubt. See id. at 1248, 1249-1251.
2On remand from the United States Supreme Court, the Louisiana
Supreme Court found that the instructional error was harmless, and
affirmed Cage's conviction and sentence. State v. Cage, 583 So.2d 1125
(La.), cert. denied, 112 S.Ct. 211 (October 7, 1991).
7

As noted above, Williams was convicted in 1981 and the
Louisiana Supreme Court affirmed his conviction in 1985, five years
before Cage was issued. The state contends that in light of AEDPA,
Williams cannot benefit from the "new rule" of constitutional law
announced by Cage and later cases. The threshold question,
therefore, is whether Williams may now avail himself of Cage and
Victor, which were both announced well after his conviction became
final. See Caspari v. Bohlen, 114 S.Ct. 948, 953 (1994) (noting
that if the state argues that a habeas petitioner seeks the benefit
of a new rule, the habeas court must resolve the issue of
retroactivity before considering the merits of the claim) (citation
omitted).
"It is undisputed that Cage announced a new rule of
constitutional law." In re Smith, 142 F.3d 832, 835 (5th Cir.
1998). In general, a "new rule" will not apply retroactively to
the habeas petition of a prisoner whose conviction became final
before the Supreme Court announced the rule. See Teague v. Lane,
109 S.Ct. 1061, 1073 (1989). There are two exceptions to Teague's
general non-retroactivity principle, however: the first is
irrelevant here, but the second provides that a new rule may be
applied retroactively if the rule "requires the observance of those
procedures that . . . are implicit in the concept of ordered
liberty." See id. (citation and internal quotation marks omitted).

This Court has held that Cage-Victor error falls within the
8

second Teague exception and therefore applies retroactively on
collateral review. See Humphrey v. Cain, 138 F.3d 552, 553 (5th
Cir. 1998) (en banc) [hereinafter Humphrey II], adopting reasoning
of Humphrey v. Cain, 120 F.3d 526, 529 (5th Cir. 1997) [hereinafter
Humphrey I]. The Humphrey I panel based this conclusion on the Supreme
Court's opinion in Sullivan v. Louisiana, 113 S.Ct. 2078, 2082-83
(1993), which held on direct appeal that Cage-Victor error was a
"structural defect" and therefore not subject to harmless error
analysis. See Humphrey I, 120 F.3d at 529. Because Sullivan found that
conviction based on a constitutionally defective reasonable doubt
instruction takes away a basic protection "without which a criminal
trial cannot reliably serve its function," Humphrey I held that the
second Teague exception applied to Cage-Victor error. See id.
(citations omitted). However, both Humphrey opinions were careful
to point out that they did not consider what effect, if any, AEDPA
might have on the continued retroactivity of the Cage-Victor rule.
See Humphrey II, 138 F.3d at 553 n.1; Humphrey I, 120 F.3d at 529.3
The Humphrey I panel noted that a finding that Cage and Victor
apply retroactively on collateral review might not have a very
significant impact in a post-AEDPA regime because AEDPA's "new
3 The Second, Fourth, and Eleventh Circuits have also held,
in pre-AEDPA cases, that Cage and Victor apply retroactively on
habeas review. See Gaines v. Kelly, 202 F.3d 598, 605 (2d Cir.
2000) (citing Humphrey II with approval); Adams v. Aiken, 41 F.3d
175, 179 (4th Cir. 1994), cert. denied, 115 S.Ct. 2281 (1995);
Nutter v. White, 39 F.3d 1154, 1157-58 (11th Cir. 1994).
9

barriers," such as the one-year statute of limitations,
restrictions on successive petitions, and heightened standard of
review under section 2254(d)(1), might "shut out future petitioners
in Humphrey's situation." See Humphrey I, 120 F.3d at 529. It
added that "[o[f course, we do not have occasion to measure how
high those barriers might be." Id.
As noted above, in denying Williams's petition, the district
court relied upon the fact that Williams was subject to AEDPA to
support its conclusion that he could not benefit from Humphrey
because he could not overcome unspecified "barriers" of AEDPA.4 We
conclude that based on Muhleisen, the district court's ultimate
conclusionthat AEDPA precludes Williams from availing himself on
habeas of the rule announced by Cage and later casesis correct.
II. The Effect of AEDPA on Williams's Petition
Williams's petition, filed on April 22, 1997, is governed by
AEDPA, which significantly restricts the availability of habeas
relief to state prisoners. AEDPA amended section 2254(d) to
provide in relevant part:
4 We observe that two of the major hurdles created by AEDPA
are not relevant to Williams. Williams filed his § 2254 petition
within one year of April 24, 1996, and therefore his petition is
timely. See Flanagan v. Johnson, 154 F.3d 196, 200 & n.2 (5th Cir.
1998). The present petition is his first, so he does not face the
significant impediments to filing a second or successive petition.
See 28 U.S.C. § 2244(b). Our finding that AEDPA blocks Williams's
petition is therefore based on the third major hurdle of the
statute, the heightened standard of review in § 2254(d)(1). The
district court implicitly made the same finding.
10

"An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding." 28 U.S.C. § 2254(d).
Subsection (d)(2), as amended, applies to the state court's factual
determinations, while (d)(1) applies to questions of law and mixed
questions of law and fact. See Lockhart v. Johnson, 104 F.3d 54,
56-57 (5th Cir. 1997). The district court based its ruling on the
availability of Cage-Victor error to Williams's petition, which is
purely a question of law; accordingly, subsection (d)(1) guides our
analysis. The operative effect of subsection (d)(1) is that a
district court may only grant habeas relief if the constitutional
"new rule" relied upon by the petitioner was either clearly
established by the Supreme Court at the time his state conviction
became final, or if the Supreme Court has held that this "new rule"
is retroactive on habeas. Muhleisen at 844. Because Williams
cannot satisfy either of these criteria, we must affirm the
district court's denial of his petition.
This Court's holding in Muhleisen affirmed the denial of a
post-AEDPA habeas petition invoking the Cage-Victor rule to
11

challenge a conviction that became final before Cage and Victor had
been announced. Applying section 2254(d)(1), the Muhleisen Court
stated that "we can grant a writ of habeas corpus only if the state
court's determination of law, on a de novo review, violated Supreme
Court precedent in existence at the time of the petitioner's
conviction." Muhleisen, 168 F.3d at 844 (citation omitted).
Because the Supreme Court handed down Cage thirteen years after the
petitioner's conviction became final on direct appeal, the Court
was "bound by AEDPA to deny Muhleisen's petition." In Muhleisen,
as here, the petitioner raised his Cage claim in a post-conviction
petition before the Louisiana Supreme Court, which in 1995, after
both Cage and Sullivan, denied writs without opinion. Muhleisen at
842. See Muhleisen v. Whitley, 664 So.2d 418 (La. 1995). Id.
Similarly, Williams's conviction became final long before Cage,
although the Louisiana Supreme Court did not deny post-conviction
writs until after both Cage and Sullivan, and under Muhleisen we
must deny his petition as well.
In Muhleisen, we acknowledged Humphrey II's holding that in
pre-AEDPA cases Cage and Victor applied retroactively on habeas,
but concluded that we were "bound by AEDPA" to dismiss the
petition. The clear import of Muhleisen is that a lower federal
court's holding that Cage and Victor apply retroactively is
insufficient to make them retroactive under AEDPA. It therefore
seems plain to us that under Muhleisen in order for a "new rule" to
12

be available under AEDPA to section 2254 petitioners, the Supreme
Court itself must have held that the rule is retroactive. It has
not done so with respect to Cage errors. Muhleisen; Smith, 142
F.3d at 835-36.5
Nothing in the Supreme Court's recent decision in Williams v.
Taylor, 120 S.Ct. 1495 (2000), is contrary to this rule of
Muhleisen. In Williams, Justice Stevens delivered the opinion of
the Court with respect to parts I, III and IV; Justice O'Connor
delivered the opinion of the Court with respect to part II (except
for a here immaterial footnote in which Justice Scalia did not
join) and part V. Williams was not concerned with whether or when
under AEDPA § 2254(d) what would be "new" rules under Teague would
be deemed to come within one of the Teague exceptions so as to be
applicable retroactively. The presently relevant portion of
Williams is its part II. Justice O'Connor's opinion for the Court,
and Justice Stevens' separate part II opinion (in which Justices
Souter, Ginsburg and Breyer joined), each plainly reflect the
common sense proposition that AEDPA's section 2254(d) does not work
5In a footnote at the end of the Muhleisen opinion, we stated "we
hold in the alternative that the jury instruction given at Muhleisen's
trial is not contrary to the Court's decision in Cage." Muhleisen at
845 n.2. This alternative footnote holding does not deprive Muhleisen's
basic holdingthat AEDPA barred relief because the conviction had become
final on direct appeal before Cage was handed down and there was then
no Supreme Court holding that the instruction was constitutionally
erroneousof its binding precendential force. See, e.g., Pruitt v. Levi
Strauss & Co., 932 F.2d 458, 465 (5th Cir. 1991) ("This circuit follows
the rule that alternative holdings are binding precedent . . . .").
13

any expansion of the availability to state prisoners of federal
habeas relief. Both Justices recognized that it worked a
curtailment of habeas availability, though in Justice O'Connor's
view a greater curtailment than in Justice Stevens's view. Justice
Stevens states that "AEDPA codifies Teague to the extent that
Teague requires federal habeas courts to deny relief that is
contingent upon a rule of law not clearly established at the time
the state conviction became final." Id. at 1506 (emphasis added).
Justice Stevens goes on to acknowledge that "AEDPA has added . . .
a clause limiting the area of relevant law to that `determined by
the Supreme Court of the United States'. 28 U.S.C. § 2254(d)(1) .
. . If this Court has not broken sufficient legal ground to
establish an asked-for constitutional principle, the lower federal
courts cannot themselves establish such a principle with clarity
sufficient to satisfy the AEDPA bar." Id. at 1506-07. Justice
O'Connor likewise concludes that "§ 2254(d)(1) places a new
constraint on the power of a federal habeas court to grant a state
prisoner's application for a writ of habeas corpus . . ." Id. at
1523 (emphasis added). She observes that "the phrase `clearly
established Federal law, as determined by the Supreme Court of the
United States' . . . refers to the holdings, as opposed to the
dicta, of this Court's decisions as of the time of the relevant
14

state-court decision". Id.6 Of most relevance to present case,
Justice O'Connor goes on to state "the `clearly established Federal
law' phrase [in section 2254(d)(1)] bears only a slight connection
to our Teague jurisprudence" in that "§ 2254(d)(1) restricts the
source of clearly established law to this Court's jurisprudence."
Id. The phrase "Teague jurisprudence" would facially seem to
include the question of whether a new rule comes within a Teague
exception so as to be retroactively applicable.
Certainly nothing in Williams casts doubt on Muhleisen.
Indeed, if anything the emphasis in Justice O'Connor's opinion for
the Williams Court that habeas relief can only be based on Supreme
Court jurisprudence as reflected in Supreme Court holdings, not
dicta, only serves to strengthen Muhleisen.
Regardless of the precise contours of post-AEDPA habeas
retroactivity, Muhleisen controls and mandates the dismissal of
Williams's petition. As of the present time, the Supreme Court has
not held (or even stated in dicta) that the Cage-Victor rule
applies retroactively on collateral review, and thus Williams
cannot benefit from that rule under the second Teague exception, as
6The phrase "the time of the relevant state-court decision" as used
here obviously refers to the time of the state conviction being attacked
(or when it became final on direct appeal) and not to the time of the
state court decision denying collateral relief from that conviction,
else AEDPA § 2254(d) would almost completely eviscerate the previous law
of non-retroactivity and would vastly expand, rather add a new
constraint on, the power of the federal courts to grant habeas relief
to state prisoners.
15

he could have done pre-AEDPA under Humphrey II. See Muhleisen, 168
F.3d at 844.7
III. Williams's Cage-Victor Claim
7We take note of our decision in Morris v. Cain, 186 F.3d 581 (5th
Cir. 1999), rendered several months after Muhleisen, in which we granted
habeas relief to Morris, a Louisiana prisoner whose post-AEDPA federal
petition alleged Cage-Victor error. Morris was tried and convicted
before Cage was handed down; he did not object at trial to the jury
charge; his state habeas application was denied by the state trial court
(finding any error harmless) and by the Louisiana Court of appeals
(apparently without opinion), after Cage and before Sullivan, but the
Louisiana supreme Court deneid writs (apparently with opinion) after
Sullivan. The Morris court noted that under Humphrey II, Cage and
Victor apply retroactively on collateral review, and evaluated the
merits of the Cage-Victor claim without citing Muhleisen or discussing
the post-AEDPA retroactivity question. There is, however, at least one
important distinction between Morris, on the one hand, and Muhleisen
(and the instant case) on the other hand, namely that Morris's
conviction did not become final on direct appeal until after Cage was
handed down. Although this fact is not expressly addressed in Morris,
it does appear from the opinion that "Morris's convictions were affirmed
on direct appeal. See State v. Morris, No. 90-KA-0085, 568 So.2d 1172
(La. Ct. App. 1990). Morris did not file a writ application with the
Louisiana Supreme Court." Id., 186 F.3d at 583. A reference to the
citation given reflects that the Louisiana Court of Appeals affirmed
Morris's conviction on October 30, 1990. State v. Morris, 568 So.2d
1172 (La. Ct. App. 1990). Under Louisiana law, Morris had thirty days
to seek review of this decision in the Louisiana Supreme Court. La.
Sup. Ct. R. 10 § 4(b) (1990). Accordingly, for Teague proposes Morris's
conviction was not final before November 29, 1990. See, e.g., Lambrix
v. Singletary, 117 S.Ct. 1517, 1525 (1997) ("Lambrix's [state]
conviction became final on November 24, 1986, when his time for filing
a petition for certiorari expired. Thus, our first and principal task
is to survey the legal landscape as of that date . . ."). Cage was
handed down November 13, 1990. Thus, Cage was decided before Morris's
conviction became final on direct appeal, and application of Cage to
Morris's conviction could not violate the non-retroactivity rule of
Teague.
We finally note that even if Morris and Muhleisen conflict,
Muhleisen, as the earlier decision, is the controlling precedent. See,
e.g., Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir. 1998); Boyd v.
Puckett, 905 F.2d 895, 897 (5th Cir. 1990).
16

We note in passing that even if Cage and Victor apply
retroactively to Williams's petition, it is indeed doubtful that
claim would succeed because the instruction at his trial does not
appear to have exhibited the same constellation of factors that
rendered the instruction in Cage constitutionally defective. The
instruction given to the jury at Williams's trial contained three
traditionally suspect terms, "grave uncertainty," "actual or
substantial doubt," and "moral certainty," as well as the
additional qualifier, known as an "articulation requirement," which
equates a reasonable doubt with "a serious doubt for which you
could give a good reason."
At the outset, we note that we would not consider whether the
articulation requirement might have corrupted the reasonable doubt
instruction because the Supreme Court "has never expressed disfavor
with such language." See Muhleisen, 168 F.3d at 844 n.2. As
explained above, "AEDPA only allows us to apply Supreme Court
rulings, not our own rulings," such as Humphrey I and II, which
perceived Due Process problems with that phrase. Id.
Regarding the other three phrases, the state trial court's use
of "grave uncertainty" and "actual or substantial doubt" is
materially indistinguishable from the instruction in Cage.8 By
8 There is one small difference. At Williams's trial, the court
used the phrase "actual or substantial doubt," while in Cage the phrase
was "actual and substantial doubt." While there is some conceivable
difference between the two phrases, this Court has previously found
that in the absence of any other mitigating words or phrases, the
17

contrast, the "moral certainty" phrase and its surrounding context
bear a stronger resemblance to the constitutionally permissible
instructions in Victor. In Cage, the "moral certainty" phrase
stated that "[w]hat is required is not an absolute or mathematical
certainty, but a moral certainty." Cage, 111 S.Ct. at 329
(emphasis in original). In this case, the "moral certainty" phrase
provides that a reasonable doubt is "one that would make you feel
that you had not an abiding conviction to a moral certainty of the
defendant's guilt." Victor considered two similar phrases9 and
found that the context of both phraseslanguage which instructed
the jurors that their conclusion had to be based on the
evidencedid not suggest, as the instruction in Cage had done, that
moral certainty, instead of or as distinguished from evidentiary
sufficiency, might be enough to convict. See Victor, 114 S.Ct. at
1248, 1250-51. Similarly, the "moral certainty" phrase here was
two phrases have the same intent behind them. See Morris, 186 F.3d
at 587 n.8.
9 The phrases were as follows:
"[Reasonable doubt] is that state of the case which, after the
entire comparison and consideration of all the evidence, leaves
the minds of the jurors in that condition that they cannot say
they feel an abiding conviction, to a moral certainty, of the
truth of the charge." Victor, 114 S.Ct. at 1244 (emphasis in
original).
"[Reasonable doubt] is such a doubt as will not permit you, after
full, fair, and impartial consideration of all the evidence, to
have an abiding conviction, to a moral certainty, of the guilt of
the accused." Id. at 1249 (emphasis in original).
18

immediately preceded and followed by instructions that a reasonable
doubt would spring from "the unsatisfactory character of the
evidence" or if "you find the evidence unsatisfactory upon any
single point indisputably necessary to constitute the defendant's
guilt." Moreover, only shortly before the jury was told that
"[e]ven where the evidence demonstrates a probability of guilt, yet
if it does not establish it beyond a reasonable doubt, you must
acquit."
Without a defective "moral certainty" phrase, the other two
phrases in and of themselves do not render the instruction
constitutionally defective. See Muhleisen, 168 F.3d at 844 n.2
(noting that under Cage, these first two phrases only "suggest" a
higher degree of guilt and need the third "moral certainty" to
amount to a constitutional violation); see also Dupuy v. Cain, 201
F.3d 582, 586-87 (5th Cir. 2000) (denying successive petition and
upholding instruction with only "good reason" articulation
requirement and "moral certainty" phrase); Thompson v. Cain, 161
F.3d 802, 811-12 (5th Cir. 1998) (under AEDPA upholding instruction
with "grave uncertainty" phrase and surrounding text that properly
explained reasonable doubt standard); Brown v. Cain, 104 F.3d 744,
753-55 (5th Cir. 1997) (same); Schneider v. Day, 73 F.3d 610, 611-
12 (5th Cir. 1996) (per curiam) (pre-AEDPA, upholding instruction
with only "moral certainty" and "actual and substantial doubt"
phrases). Based on our reading of Cage and Victor, as well as the
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fact that this case, in contrast to Humphrey I (see id. at 533) and
II, was not even remotely close regarding Williams's guilt or
innocence, we do not believe that Williams has demonstrated a
reasonable likelihood that the jury applied the instruction
unconstitutionally. Cf. Depuy, 201 F.3d at 587 (finding that where
there is no serious question of guilt or innocence, as there was in
Humphrey, the defendant must demonstrate prejudice from the
instruction in order to avoid dismissal of his successive
petition). In sum, even if we were to find that Cage and Victor
apply retroactively to Williams's petition, it is indeed doubtful
that Williams would prevail.
Conclusion
For the reasons stated above, the district court's denial of
Williams's petition is AFFIRMED.
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