Johnson v. Cain ( 2002 )

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                  UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-30853
Summary Calendar
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WILLIAM S. JOHNSON,
Petitioner-Appellant,
versus
BURL CAIN, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(No. 97-CV-1338)
August 1, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
William S. Johnson, Louisiana prisoner # 99104, appeals the
denial of 28 U.S.C. § 2254 habeas relief concerning his 1979
conviction of first-degree murder.     On 24 January 2002, our court
granted Johnson a certificate of appealability on the issue for
which our court, in a prior appeal, had ordered a remand to the
district court:   whether, for his claim that the jury charge on
reasonable doubt violated due process under Cage v. Louisiana,

498 U.S. 39

(1990), Johnson demonstrated cause and prejudice to excuse
his procedural default premised on the state court’s conclusion
*
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that this opinion should not be published and is not precedent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.
that Johnson’s state postconviction application was barred by the
three-year limitations provision, LA. REV. STAT. ANN. art. 930.8.
See Johnson v. Cain,

215 F.3d 489

, 497 (5th Cir. 2000).
“The procedural-default doctrine ... precludes federal habeas
review when the last reasoned state court opinion addressing a
claim explicitly rejects it on a state procedural ground.”               Hughes
v. Johnson,

191 F.3d 607

, 614 (1999) (citing Ylst v. Nunnemaker,

501 U.S. 797

, 801, 803 (1991)), cert. denied,

528 U.S. 1145

(2000).
“When the state court has relied on an independent and adequate
state procedural rule, federal habeas review is barred unless the
petitioner demonstrates either cause and prejudice or that a
failure   to   address   the   claim       will   result   in   a   fundamental
miscarriage of justice.”

Id. (citing Coleman

v. Thompson,

501 U.S. 722

, 750 (1991)).   “Cause is defined as ‘something external to the
petitioner, something that cannot fairly be attributed to him’ that
impedes his efforts to comply with the [state] procedural rule.”
Moore v. Roberts,

83 F.3d 699

, 704 (5th Cir. 1996) (citing

Coleman, 501 U.S. at 753

), cert. denied,

519 U.S. 1093

(1997).
Johnson contends that, on remand, he submitted evidence in the
form of personal affidavits showing he had “cause” to excuse the
procedural default, in that: he submitted his state postconviction
application prior to the 1 October 1991 effective date of art.
930.8; but state officials did not file the application.                In the
prior appeal, however, our court, determined that this allegation
was “not supported by the record”.

Johnson, 215 F.3d at 494

, 495.
Because Johnson is barred by the “law of the case” doctrine from
challenging this determination, see United States v. Lawrence, 179

2 F.3d 343

, 351 (5th Cir. 1999), cert. denied,

528 U.S. 1096

(2000),
and has offered no other evidence to show cause, the district court
did not err in concluding Johnson had not shown cause to excuse his
procedural default.
In any event, Johnson has not established that he would be
prejudiced by failure to consider the merits of his Cage claim; he
cannot show that trial errors “worked to his actual and substantial
disadvantage”.   See James v. Cain,

56 F.3d 662

, 666 (5th Cir. 1995)
(citing Murray v. Carrier,

477 U.S. 478

, 494 (1986)). Although the
jury charge contained the three terms found objectionable by the
Supreme Court in Cage (“grave uncertainty”, “actual or substantial
doubt”, and “moral certainty”), the charge contained additional
language that negated the defectiveness of the “moral certainty”
phrase.   See Williams v. Cain,

229 F.3d 468