Dickinson v. Cain

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 98-31072
_______________
MILTON ERIC DICKINSON,
Petitioner-Appellant,
VERSUS
BURL CAIN,
WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Louisiana
_________________________
March 10, 2000
Before DAVIS, HALL,* and SMITH,
Circuit Judges.
PER CURIAM:**
Milton Dickinson appeals the denial of his
petition for writ of habeas corpus under
28 U.S.C. § 2254. Finding no error, we
affirm.
I.
Dickinson was convicted of two counts of
attempted aggravated rape and two counts of
aggravated kidnapping. He was sentenced to
two consecutive life sentences on the
kidnapping counts and two forty-year
sentences on the rape counts, the latter to run
concurrently with each other and with the first
life sentence. His convictions and sentence
were affirmed on direct appeal.
In November 1995, after filing several
applications for postconviction relief in state
and federal court, Dickinson filed the instant
petition for federal habeas relief. The district
court denied relief and denied a certificate of
appealability (“COA”). Because Dickinson’s
petition was filed before the effective date of
the Antiterrorism and Effective Death Penalty
Act (“AEDPA”),1 this court granted a
certificate of probable cause to appeal instead
of a COA. See Green v. Johnson, 116 F.3d
1115, 1119-20 (5th Cir. 1997).
Dickinson contends that the trial court’s
reasonable doubt jury instruction was
constitutionally infirm; that the prosecution
suppressed favorable evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963); that
the court improperly instructed the jury as to
* Cynthia Holcomb Hall, Circuit Judge of the
Ninth Circuit, sitting by designation.
** 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determined that this opinion should not be
published and is not precedent except under the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 Pub. L. No. 104-132, 110 Stat. 1214 (1996).
We apply pre-AEDPA habeas law to Dickinson’s
claims. See Green, 116 F.3d at 1120.

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2
the elements of aggravated kidnapping; and
that the evidence was insufficient to support
aggravated kidnapping.
II.
“In a habeas corpus appeal, we review the
district court’s findings of fact for clear error
and review its conclusions of law de novo,
applying the same standard of review to the
state court’s decision as the district court.”
Thompson v. Cain, 161 F.3d 802, 805 (5th
Cir. 1998). Mixed questions of fact and law
generally receive independent review. See
Blackmon v. Johnson, 145 F.3d 205, 208 (5th
Cir. 1998), cert. denied, 526 U.S. 1021
(1999). The legal standard in a due process
challenge to a reasonable doubt instruction is
“whether there is a reasonable likelihood that
the jury understood the instructions to allow
conviction based on proof insufficient to meet
the Winship standard.” Victor v. Nebraska,
511 U.S. 1, 6 (1994). See also Morris v.
Cain, 186 F.3d 581, 585 (5th Cir. 1999).
Cage v. Louisiana, 498 U.S. 39 (1990), is
the only case in which the Court has held that
a reasonable doubt instruction violated the
Due Process Clause. The Court refined the
Cage analysis in Victor v. Nebraska, 511 U.S.
1 (1994). In Humphrey v. Cain, 138 F.3d
552, 553 (5th Cir.) (en banc), cert. denied,
525 U.S. 943, and cert. denied, 525 U.S. 935
(1998), we held that “Cage-Victor error fits
within the second Teague exception, making it
available in federal habeas to a state prisoner
whose criminal conviction was final when
those cases were decided.” Therefore, we
apply the Cage-Victor analysis to the
instruction given at Dickinson’s trial.
A portion of that instruction is as follows:
This doubt must be a reasonable one;
that is, one founded upon a real,
tangible, substantial basis and not upon
a mere caprice, fancy or conjecture. It
must be such a doubt as would give rise
to a grave uncertainty 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 as to the
defendant's guilt. To put it differently,
you must be satisfied of both
defendants’ guilt by that degree of
assurance which induces a man of sound
mind to act without a doubt upon the
conclusions to which it leads.

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3
Although the references to “grave uncertainty”
and “moral certainty” are not optimal, we
affirm the district cour’s conclusion that the
instruction did not violate the Due Process
Clause.
In Cage, the Court held that the reasonable
doubt instruction in that case, which included
the terms “grave uncertainty,” “actual
substantial doubt,” and “moral certainty,”
violated due process:
It is plain to us that the words
“substantial” and “grave,” as they are
commonly understood, suggest a higher
degree of doubt than is required for
acquittal under the reasonable-doubt
standard. When those statements are
then considered with the reference to
“moral certainty,” rather than
evidentiary certainty, it becomes clear
that a reasonable juror could have
interpreted the instruction to allow a
finding of guilt based on a degree of
proof below that required by the Due
Process Clause.
Cage, 498 U.S. at 41. The instruction given in
Dickinson’s trial includes identical “grave
uncertainty” language but does not contain the
“substantial doubt” language. It does contain
“moral certainty,” but that phrase was used in
a context different from that in Cage; the
Court articulated the significance of the
difference in Victor.
In Victor, the Court held that two
instructions defining reasonable doubt did not
violate the Due Process Clause. While neither
instruction contained the “grave uncertainty”
language, both contained “moral certainty,”
and one contained “actual and substantial
doubt.” See Victor, 511 U.S. at 7, 18.
Discussing the “moral certainty” component,
the Court stated that
[a]lthough . . . moral certainty is
ambiguous in the abstract, the rest of the
instruction . . . lends content to the
phrase. The jurors were told that they
must have ‘an abiding conviction, to a
moral certainty, of the truth of the
charge.’ An instruction cast in terms of
an abiding conviction as to guilt,
without reference to moral certainty,
correctly states the government’ burden
of proof. . . . As used in this instruction,
therefore, we are satisfied that the
reference to m oral certainty, in
conjunction with the abiding conviction
language, impressed upon the factfinder
the need to reach a subjective state of
near certitude of the guilt of the
accused.
Id. at 14-15 (internal citation and quotation
marks omitted). The Court went on to stress
other elements of the instruction explicitly
requiring that the jurors’ conclusions be based
solely on the evidence in the case. See id.
at 16.2
The instruction given in Dickinson’s trial
contained the language “an abiding conviction
to a moral certainty as to the defendant’s
guilt.” This is identical in all crucial respects
to the “moral certainty” language accepted in
Victor. Dickinson’s instruction also contained
requirements that the jurors’ conclusions be
based solely on the evidence, similar to the
requirements in Victor.3
2 “The jury was told ‘to determine the facts of
the case from the evidence received in the trial and
not from any other source.’ The court continued
that ‘you must not be influenced by pity for a
defendant or by prejudice against him. . . . You
must not be swayed by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion or
public feeling.” Victor, 511 U.S. at 16 (internal
citation omitted). In Victor and in this case, “the
evidence” is mentioned in the same sentence
containing “moral certainty.”
3 The language is as follows: “You are
prohibited by law and by your oath from going
beyond the evidence to seek for doubts upon which
to acquit the accused, but must confine yourselves
strictly to a dispassionate consideration of the
testimony upon the trial. You must not resort to
extraneous or outside facts or factors or
circumstances in reaching your verdict, and you are
not at liberty to adopt unreasonable theories or
(continued...)

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4
In discussing the “moral certainty” language
in the second charge, the Victor Court stated:
Instructing the jurors that they must
have an abiding conviction of the
defendant’s guilt does much to alleviate
any concerns that the phrase “moral
certainty” might be misunderstood in the
abstract. The instruction also equated a
doubt sufficient to preclude moral
certainty with a doubt that would cause
a reasonable person to hesitate to act.
Id. at 21 (internal citation omitted). Although
the language is slightly different, Dickinson’s
instruction similarly analogizes the “moral
certainty” language: “To put it differently, you
must be satisfied of both defendants’ guilt by
that degree of assurance which induces a man
of sound mind to act without a doubt upon the
conclusions to which it leads.”
In Gaston v. Whitley, 67 F.3d 121 (5th Cir.
1995), we upheld a reasonable doubt
instruction that included the phrases “grave
uncertainty” and “moral certainty,” the same
disfavored phrases included at Dickinson’s
trial:
It must be such a doubt as would give
rise in your minds to a grave uncertainty
by reason of the unsatisfactory character
of the evidence, one that would make
you feel that you had not an abiding
conviction to a mortal–moral certainty
as to the accused’s guilt for that degree
of assurance which induces a man of
sound mind to act without doubt upon
the conclusion to which his mind leads
him.
Id. at 121.4 Based on the inclusion of the “al
ternative definition of reasonable doubt”
concerning “a man of sound mind,” we held
that the language as a whole satisfied due
process. See id. at 123. The same is true
here.
This holding is consistent with Morris,
because there the unconstitutional instruction
contained not only “grave uncertainty” and
“moral certainty” but also “actual or
substantial doubt,” and did not contain
“abiding conviction” and other relevant
qualifying language. See id. at 586-87.
III.
Dickinson claims that the prosecution
suppressed favorable evidence in violation of
Brady. The Due Process Clause of the
Fourteenth Amendment requires that the
government turn over evidence in its
possession that is both favorable to the
accused and material to either guilt or
punishment. See Brady, 373 U.S. at 87;
United States v. Stephens, 964 F.2d 424, 435
(5th Cir. 1992). “Favorable” evidence
includes both exculpatory substantive evidence
and impeachment evidence. See United States
v. Bagley, 473 U.S. 667, 676 (1985).
“[E]vidence is material only if there is a
reasonable probability that, had the evidence
been disclosed to the defense, the result of the
proceeding would have been different.” Id. at
682, 685. “A ‘reasonable probability’ is a
probability sufficient to undermine confidence
in the outcome.” Id. at 682.5
(...continued)
suppositions in considering the evidence in order to
justify a verdict of conviction. You are to be
governed exclusively by the evidence and by the
law as heard by you in this courtroom.”
4 When Gaston was decided, we had precedent
(continued...)
(...continued)
that Cage was not retroactive. See Gaston,
67 F.3d at 122. The foregoing discussion of Cage
and Victor establishes that applying Cage-Victor,
rather than just Victor, does not affect the Gaston
holding.
5 Dickinson’s conviction was in 1977 and thus
predated United States v. Bagley, 473 U.S. 667
(1985). Therefore, the trial court applied Brady
and United States v. Agurs, 427 U.S. 97 (1976).
Nothing in Bagley would alter the court’s analysis,
because, as discussed below, the court found that
the information was not material, meaning it would
not have affected the outcome of the trial. Agurs
(continued...)

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5
During trial, Dickinson filed a motion to
compel the prosecution to give access to all
tape-recorded statements of the victims. The
court did not grant the motion but instead
listened to the tapes in camera following the
trial testimony of both victims, to determine
whether they contained favorable material.
The court found that the tapes contained no
exculpatory evidence, that the content was
virtually identical to the victims’ in-court
testimony, and that the tapes actually
contained testimony more incriminating to the
defendant than did the victims’ trial testimony.
The court therefore denied defense access to
the tapes, finding “no material of such a nature
that a jury on these tapes alone could find a
divergence or a disagreement with the
testimony given by these witnesses in court as
to elevate itself to constitute a reasonable
doubt in the minds of the jury.” The tapes
were not introduced at trial and are no longer
available.
“Ordinarily when the trial court has
conducted an in camera examination we will
not go beyond its finding to determine whether
exculpatory materials were withheld.” Jones
v. Butler, 864 F.2d 348, 356 (5th Cir. 1988).6
Therefore, we need not consider the merits of
Dickinson’s Brady claim. Because, however,
we have some concern with what standard the
trial court may have applied,7 we also conclude
that Dickinson’s claim fails on the merits.
First, he alleges only minor discrepancies
between the taped statements and trial
testimony that, even if proven, would not
create a reasonable probability that the result
would have been different.8 More importantly,
he has no evidence regarding the content of
the tapes other than the findings of the court,
which do not support his claims of tape
content.
IV.
Dickinson claims that the court improperly
instructed the jury as to the elements of
aggravated kidnapping.
The burden of demonstrating that an
erroneous instruction was so prejudicial
that it will support a collateral attack on
the constitutional validity of a state
court’s judgment is even greater than
the showing required to establish plain
error on direct appeal. The question in
such a collateral proceeding is whether
the ailing instruction by itself so infected
the entire trial that the resulting
(...continued)
and Bagley recognize this general requirement. See
Bagley, 473 U.S. at 674-75 (quoting Agurs).
6 See also United States v. Ross, 511 F.2d 757,
765 (5th Cir. 1975); United States v. Register, 496
F.2d 1072, 1081 (5th Cir. 1974) (“We will not go
beyond the trial court’s finding to encourage
shipping prosecutor’s files to the appellate court
whenever the defense cries Brady.”).
7 The court found that there was no material on
the tapes “of such a nature that a jury on these
tapes alone could find a divergence or a
disagreement with the testimony . . . as to elevate
itself to constitute a reasonable doubt” (emphasis
added). The correct standard is not that the
(continued...)
(...continued)
claimed exculpatory evidence alone must create a
reasonable doubt, but that the entire record
including that evidence creates such a doubt:
The proper standard of materiality must
reflect our overriding concern with the
justice of the finding of guilt. . . . This
means that the omission must be evaluated
in the context of the entire record. If there is
no reasonable doubt about guilt whether or
not the additional evidence is considered,
there is no justification for a new trial. On
the other hand, if the verdict is already of
questionable validity, additional evidence of
relatively minor importance might be
sufficient to create a reasonable doubt.
Agurs, 427 U.S. at 112-13.
8 These alleged discrepancies consist of minor
variations in the victims’ descriptions of the
attackers, their vehicle, and their apartment, none
of which goes to the heart of the abundant
identification evidence.

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conviction violates due process, not
merely whether the instruction is
undesirable, erroneous, or even
universally condemned.
Henderson v. Kibbe, 431 U.S. 145, 154
(1977) (internal quotation marks and citation
omitted); see also Kinnamon v. Scott, 33 F.3d
462, 465 (5th Cir. 1994). Any error or
omission must be evaluated in the context not
only of the overall charge, but also of the
entire record, including testimony and the
argument of counsel. See Cupp v. Naughten,
414 U.S. 141, 146-47 (1973); Henderson, 431
U.S. at 152. We must determine whether
there is a reasonable likelihood that the jury
applied the aggravated kidnapping instruction
in a constitutionally impermissible way. See
Kinnamon, 33 F.3d at 465.
At the time of Dickinson’s offenses and
currently, LA. R.S. 14:44 provides as follows:
Aggravated kidnapping is the doing of
any of the following acts with the intent
thereby to force the victim, or some
other person, to give up anything of
apparent present or prospective value,
or to grant any advantage or immunity,
in order to secure a release of the person
under the offender’s actual or apparent
control:
(1) The forcible seizing and carrying
of any person from one place to another;
or
(2) The enticing or persuading of
any person to go from one place to
another; or
(3) The imprisoning or forcible
secreting of any person.
Subsection (1) is at issue here.
The trial court instructed the jury by first
reciting the precise text of LA. R.S. 14:44(1),
with the exception of the following two
inconsequential modifications: “[A] release”
was replaced by “the release,” and “seizing and
carrying away of” was used in place of
“seizing and carrying of.” The court then
emphasized the necessary “state of mind that
[it] just set out above, the intent to force the
victim to give up something of apparent value
to secure their release.”
The court then went on to define and
distinguish the lesser included offense of
simple kidnapping and stated the following:
Bear in mind the difference. The first
one, aggravated[,] has that additional
element that it must be done with the
intent thereby to force the victim to give
up something of apparent present or
prospective value. Simple kidnapping
does not have that in it.
Dickinson claims this was error, because the
court failed similarly to emphasize that another
difference between simple and aggravated
kidnapping is that aggravated kidnapping
requires the conditioning of release on the
victims’ relinquishment of that value.
The decision to “emphasize” only one of
the distinguishing elements of aggravated
kidnapping did not violate due process: There
is no reasonable likelihood that the jury applied
the instruction in a constituti onally
impermissible way. By first giving the
complete statutory definition of both offenses,
and then attempting to highlight the key
distinction between the offenses, the court
gave the jury adequate direction.9 Although it
may not have been optimal to term the one
distinction “the difference” (emphasis added),
the instruction did not violate due process.
9 “The essential difference” between the
offenses is the distinction emphasized by the trial
court. See State v. Arnold, 548 So. 2d 920, 923
(La. 1989) (quoting State v. Polk, 376 So. 2d 151,
152 n.1 (La. 1979)).

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V.
Dickinson claims insufficient evidence to
support his aggravated kidnapping
convictions. “In evaluating a challenge to the
sufficiency of the evidence, we view the
evidence in the light most favorable to the
verdict and uphold the verdict if, but only if, a
rational juror could have found each element
of the offense beyond a reasonable doubt.”
United States v. Brown, 186 F.3d 661, 664
(5th Cir. 1999); see also Foy v. Donnelly, 959
F.2d 1307, 1313 (5th Cir. 1992). We apply
this standard with explicit reference to the
substantive elements of the criminal offense as
defined by state law, and give great weight to
the state court’s determination that the
evidence is sufficient. See Foy, 959 F.2d at
1314.
In State v. Arnold, 548 So. 2d 920, 923
(La. 1989), the court identified the elements of
aggravated kidnapping as follows: (1) the
forcible seizing, and (2) the carrying of any
person from one place to another, (3) with the
intent to force the victim to give up anything
of value, (4) in order to secure the release of
that person. Dickinson argues that there was
no evidence of the fourth element; in other
words, he contends there was no evidence that
he intended to condition the victims’ release
on their submitting to sexual intercourse. As
we will explain, Arnold makes plain that the
evidence is sufficient to prove all four elements
of the offense:
[T]he relevant factor in applying the
fourth element of aggravated kidnapping
is not whether the kidnapper explicitly
communicated to the victim that
performance of sexual acts would result
in his or her release, but whether the
kidnapper intended to extort sexual
gratification from the victim by playing
upon the victim’s hope for release. This
intent is manifested not merely by the
kidnapper’s words or actions, but by
analyzing whether a reasonable person
in the victim’s place, given the totality of
the circumstances, would believe that he
or she would not be safely released
unless he or she complied with the
kidnapper’s demands for sexual
gratification.
Arnold, 548 So. 2d at 924.
Citing Bouie v. City of Columbia, 378 U.S.
347 (1964), Dickinson argues that the Arnold
holding cannot be applied to his 1977
conviction. In Bouie, the Court held that an
unforeseeable state-court construction of a
criminal statute cannot be applied
retroactively. See id. Dickinson’s claim is
without merit, because the Arnold court
specifically addressed the precedent and
opined that
[a] review of the history of the statute
and our jurisprudence reveals that [the
requirement Dickinson advocates] has
never been part of the law of aggravated
kidnapping. Rather, all the law has
required is evidence of defendant’s
intent to extort something of value by
playing upon the victim’s hope of
release.
Arnold, 548 So. 2d at 923.10
The evidence is sufficient to support
Dickinson’s conviction. He abducted both
victims at knifepoint, forced them into a car,
and drove them to an apartment where they
were raped by him and his cohort. Both
victims gave substantial test imony
corroborating their claims. The opinion in
Arnold, 548 So. 2d at 921, 924, makes plain
that when a victim is forcibly abducted at
knifepoint, driven to a remote location, and
forced to have sexual intercourse, the
requirements of aggravated kidnapping are
established.
AFFIRMED.
10 In fact, even the dissent in Arnold specifically
cites the case sub judice as one in which sufficient
evidence to satisfy all elements of the offense did
exist. See Arnold, 548 So. 2d at 929 n.5
(Calogero, J., dissenting in part) (discussing State
v. Dickinson, 370 So. 2d 557 (La. 1979)).

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