Rodriguez v. Cain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 99-31192
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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,
Circuit Judges.
PER CURIAM:*
Jorge Rodriguez appeals the denial of his
petition for writ of habeas corpus under 28
U.S.C. § 2254, arguing that the jury
instructions violated Cage v. Lousiana, 498
U.S. 39 (1990). We affirm, but on a ground
different from that used by the district court.
I.
Rodriguez was convicted of second degree
murder.1 The sentence was affirmed by the
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.
1 The Louisiana Court of Appeal thoroughly
discussed the facts surrounding Rodriguez’s con-
viction in Louisiana v. Rodriguez, 635 So. 2d 391
(La. App. 4th Cir. 1994), writ denied, 678 So. 2d

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2
Louisiana Court of Appeal in November 1983.
After denying several applications for post-
conviction relief, the Louisiana Court of Ap-
peal ordered the trial court to allow an out-of-
time appeal pursuant to Lofton v. Whitley, 905
F.2d 885 (5th Cir. 1990).2
In that appeal, Rodriguez asserted several
grounds, including that the trial court
improperly had instructed the jury regarding
reasonable doubt.3 The Court of Appeal held,
inter alia, that Rodriguez’s Cage claim was
procedurally barred by Loui siana’s
contemporaneous objection rule. See
Rodriguez, 635 So. 2d at 396. After the
Louisiana Supreme Court denied review,
Rodriguez in October 1998 filed his federal
habeas petition, seeking review of eleven
asserted errors, including his Cage claim.
The district court denied the petition but
issued a certificate of appealability (“COA”)
on the Cage claim. Rodriguez appealed, once
again asserting his Cage claim and seeking a
COA for several other claims, which we de-
nied. Thus, only the Cage claim is at issue in
this appeal.
II.
The district court concluded that Rodriguez
was procedurally barred from asserting his
Cage claim because he had failed either to
show that he had contemporaneously objected
to the improper instruction or to demonstrate
both cause for the failure and prejudice
resulting from a refusal to review the issue in
the habeas posture. We conclude that we are
barred by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) from
considering the Cage claim and that we
therefore cannot reach the issue of whether the
claim is procedurally barred.
“In general, a ‘new rule’ [of constitutional
law] will not apply retroactively to the habeas
petition of a prisoner whose conviction
became final before the Supreme Court
announced the rule.” Williams v. Cain, 229
F.3d 468, 472 (5th Cir. 2000) (citing Teague
v. Lane, 489 U.S. 288, 305-06 (1989)). Cage
announced just such a new rule;4 nonetheless,
we have held that a prisoner may retroactively
raise a Cage claim in a habeas petition under
one of Teague’s two exceptions. See Humph-
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
application of Cage, however, with respect to
habeas petitions filed after the effective date of
AEDPA: “Applying [AEDPA’s] statutory
amendments to 28 U.S.C. § 2254(d)(1), 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
33 (La. 1996).
2 In Lofton, 905 F.2d at 890, we required the
Louisiana Court of Appeal to grant an out-of-time
appeal where Lofton’s original appellate counsel
had failed either to assert any nonfrivolous grounds
for appeal or to follow the proper procedures for
withdrawal under Anders v. California, 386 U.S.
738 (1967).
3 The jury instructions are not part of the rec-
ord. Rodriguez contendsSSand we assume for pur-
poses of this appealSSthat the reasonable doubt
instruction violated Cage.
4 See In re Smith, 142 F.3d 832, 835 (5th Cir.
1998).

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3
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.

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