Bailey v. Cain ( 2000 )

No. 99-30681
-1-
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-30681
Conference Calendar
GERALD BAILEY,
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. 98-CV-2775-J
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April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges
PER CURIAM:*
Gerald Bailey, Louisiana state prisoner # 99688, appeals the
denial of his petition under 28 U.S.C. § 2254 for habeas corpus
relief. The district court granted Bailey a certificate of
appealability (“COA”) as to the issue whether the instructions
given at his jury trial regarding reasonable doubt
unconstitutionally raised the degree of doubt required for
acquittal.
Bailey has failed to demonstrate that the jury instructions
given at his trial regarding reasonable doubt were
*
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this opinion should not be published and is not precedent except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. 99-30681
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constitutionally infirm. Although Bailey attempts to rely on
Cage v. Louisiana, 498 U.S. 39 (1990) and Humphrey v. Cain, 138
F.3d 552 (5th Cir.)(en banc), cert. denied, 525 U.S. 935 (1998),
the language contained in his jury instructions was not the same
as the language held to be unconstitutional in the above cases.
Bailey argues that his attorney rendered ineffective
assistance at trial. The district court’s COA did not include
this issue, and Bailey has not requested an additional COA. This
court will not consider the ineffectiveness argument. Lackey v.
Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
The decision of the district court denying Bailey’s petition
for habeas relief is AFFIRMED.