Vincent v. Cain ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30961
Summary Calendar
KENNETH VINCENT,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 99-CV-764-B
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September 14, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Kenneth Vincent, Louisiana prisoner # 95434, appeals from
the denial of his application for habeas corpus relief filed
pursuant to 28 U.S.C. § 2254. He has filed a motion for panel
review of the one-judge order granting his certificate of
appealability (“COA”) in part and denying his COA in part.
Because he failed to file his motion within 14 days after entry
of the challenged order, his motion is DENIED as untimely. See
FED. R. APP. P. 27(c); 5TH CIR. R. 27.2.
*
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that this opinion should not be published and is not precedent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.
No. 99-30961
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Vincent argues that the prosecution’s failure to disclose
favorable evidence to him violated his constitutional rights as
set forth in Brady v. Maryland, 373 U.S. 83, 86-87 (1963). This
issue was adjudicated on the merits in state court. Accordingly,
habeas corpus relief is only available regarding this issue if
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). After consideration of Vincent’s Brady
claim, we have determined that he has failed to meet this
standard. The district court’s denial of the instant claim was
therefore not error.
Vincent also contends that he was denied due process because
the jury was given a reasonable-doubt instruction that was
constitutionally impermissible under Cage v. Louisiana, 498 U.S.
39, 41 (1990). The instant Cage issue was not adjudicated on the
merits in state court, and is therefore reviewed de novo. See
Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997). Vincent
procedurally defaulted the instant issue by failing to object
contemporaneously to the challenged instruction. See Muhleisen
v. Ieyoub, 168 F.3d 840, 843 (5th Cir. 1999)(Louisiana’s
application of the contemporaneous-objection rule to Cage claims
is adequate constitutionally to establish procedural default).
We may nonetheless review the merits of Vincent’s Cage claim
because he has overcome the procedural bar by showing cause and
No. 99-30961
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prejudice for failing to object contemporaneously. See Fairman
v. Anderson, 188 F.3d 635, 641 (5th Cir. 1999)(applicant may
overcome procedural bar by showing cause and prejudice for the
procedural default).
The reasonable-doubt instruction given to the jury at
Vincent’s criminal trial was essentially identical to the
reasonable-doubt instruction held unconstitutional in Humphrey v.
Cain, 138 F.3d 552, 553 (5th Cir.)(en banc), cert. denied, 523
U.S. 935, 943 (1998). The challenged instruction was therefore
constitutionally impermissible under Cage. See 498 U.S. at 40-
41.
Accordingly, the district court’s denial of the instant
§ 2254 application as to the Cage claim is REVERSED and the case
is REMANDED to district court with instructions to grant the writ
of habeas corpus unless the State of Louisiana retries Vincent
within a reasonable time.
MOTION DENIED; REVERSED AND REMANDED.