Summary Calendar LLOYD JDUPUIS v. BURL CAIN, Warden, Louisiana State Penitentiary

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30576
Summary Calendar
LLOYD J DUPUIS
Petitioner - Appellant
v.
BURL CAIN, Warden, Louisiana State Penitentiary
Respondent - Appellee
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 98-CV-302
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June 26, 2000
Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Lloyd J. Dupuis, Louisiana state
prisoner # 128999, appeals the denial of his petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Dupuis argues five
points of error on appeal. First, Dupuis argues that the
district court erred in failing to conduct an evidentiary hearing
on his ineffective-assistance-of-counsel claim. Next, Dupuis
contends that his reasonable-doubt jury instruction was
unconstitutional pursuant to Humphrey v. Cain, 138 F.3d 552, 553

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No. 99-30576
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(5th Cir.) (en banc), cert. denied, 525 U.S. 935, 943 (1998) and
Cage v. Louisiana, 498 U.S. 39 (1990). Dupuis’ third issue
anticipates a contemporaneous-objection argument from the state
on the Cage claim. His fourth argument states why his Cage claim
is not procedurally barred. In his fifth issue, Dupuis again
argues ineffective-assistance-of-counsel in the event this court
determines that the absence of a contemporaneous objection acts
as a procedural bar to the Cage claim.
Dupuis obtained a certificate of appealability (COA) on only
the Cage issue from the district court. Dupuis noticed his
intent to appeal the district court’s determination of this
single issue. Therefore, the only issue before this court is
whether the district court erred in dismissing Dupuis’
reasonable-doubt jury instruction claim.
The respondent’s procedural-bar issue, anticipated by
Dupuis, is not properly before this court. Respondent did not
raise the issue below in his answer and memorandum in opposition
to habeas relief. The district court did not raise procedural
bar, and procedural bar is not part of the issue certified for
appeal. This court cannot address the procedural-bar defense.
Lackey v. Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997).
We have reviewed the briefs and conducted a de novo review
of the record and hold that the state trial court’s reasonable-
doubt instruction was not unconstitutional. See Victor v.
Nebraska, 511 U.S. 1 (1994); Cage, 498 U.S. at 39. We have
approved a jury instruction essentially identical to the one

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No. 99-30576
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given at Dupuis’ trial. See Schneider v. Day, 73 F.3d 610, 611-
12 (5th Cir. 1996).
The district court’s denial of Dupuis’ habeas petition is
AFFIRMED.

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