                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT
                                       _______________

                                           m 99-31192
                                         _______________



                                        JORGE RODRIGUEZ,

                                                             Plaintiff-Appellant,

                                              VERSUS

                                            BURL CAIN,
                            WARDEN, LOUISIANA STATE PENITENTIARY,

                                                             Defendant-Appellee.


                                   _________________________

                            Appeal from the United States District Court
                               for the Eastern District of Louisiana
                                          (98-CV-2687)
                                 _________________________
                                          March 7, 2001


Before REAVLEY, SMITH, and DeMOSS,                   U.S.C. § 2254, arguing that the jury
  Circuit Judges.                                    instructions violated Cage v. Lousiana, 498
                                                     U.S. 39 (1990). We affirm, but on a ground
PER CURIAM:*                                         different from that used by the district court.

   Jorge Rodriguez appeals the denial of his                            I.
petition for writ of habeas corpus under 28            Rodriguez was convicted of second degree
                                                     murder.1 The sentence was affirmed by the

   *
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                        1
determined that this opinion should not be                 The Louisiana Court of Appeal thoroughly
published and is not precedent except under the      discussed the facts surrounding Rodriguez’s con-
limited circumstances set forth in 5TH CIR. R.       viction in Louisiana v. Rodriguez, 635 So. 2d 391
47.5.4.                                              (La. App. 4th Cir. 1994), writ denied, 678 So. 2d
Louisiana Court of Appeal in November 1983.                                        II.
After denying several applications for post-                   The district court concluded that Rodriguez
conviction relief, the Louisiana Court of Ap-              was procedurally barred from asserting his
peal ordered the trial court to allow an out-of-           Cage claim because he had failed either to
time appeal pursuant to Lofton v. Whitley, 905             show that he had contemporaneously objected
F.2d 885 (5th Cir. 1990).2                                 to the improper instruction or to demonstrate
                                                           both cause for the failure and prejudice
   In that appeal, Rodriguez asserted several              resulting from a refusal to review the issue in
grounds, including that the trial court                    the habeas posture. We conclude that we are
improperly had instructed the jury regarding               barred by the Antiterrorism and Effective
reasonable doubt.3 The Court of Appeal held,               Death Penalty Act of 1996 (“AEDPA”) from
inter alia, that Rodriguez’s Cage claim was                considering the Cage claim and that we
procedurally barred by Loui siana’s                        therefore cannot reach the issue of whether the
contemporaneous objection rule.            See             claim is procedurally barred.
Rodriguez, 635 So. 2d at 396. After the
Louisiana Supreme Court denied review,                         “In general, a ‘new rule’ [of constitutional
Rodriguez in October 1998 filed his federal                law] will not apply retroactively to the habeas
habeas petition, seeking review of eleven                  petition of a prisoner whose conviction
asserted errors, including his Cage claim.                 became final before the Supreme Court
                                                           announced the rule.” Williams v. Cain, 229
   The district court denied the petition but              F.3d 468, 472 (5th Cir. 2000) (citing Teague
issued a certificate of appealability (“COA”)              v. Lane, 489 U.S. 288, 305-06 (1989)). Cage
on the Cage claim. Rodriguez appealed, once                announced just such a new rule;4 nonetheless,
again asserting his Cage claim and seeking a               we have held that a prisoner may retroactively
COA for several other claims, which we de-                 raise a Cage claim in a habeas petition under
nied. Thus, only the Cage claim is at issue in             one of Teague’s two exceptions. See Humph-
this appeal.                                               rey v. Cain, 138 F.3d 552, 553 (5th Cir. 1998)
                                                           (en banc) (adopting the reasoning of Humph-
                                                           rey v. Cain, 120 F.3d 526 (5th Cir. 1997)).

                                                              AEDPA abrogated Humphrey’s retroactive
33 (La. 1996).                                             application of Cage, however, with respect to
                                                           habeas petitions filed after the effective date of
   2
     In Lofton, 905 F.2d at 890, we required the           AEDPA: “Applying [AEDPA’s] statutory
Louisiana Court of Appeal to grant an out-of-time          amendments to 28 U.S.C. § 2254(d)(1), we
appeal where Lofton’s original appellate counsel           can grant a writ of habeas corpus only if the
had failed either to assert any nonfrivolous grounds       state court’s determination of law, on a de
for appeal or to follow the proper procedures for
                                                           novo review, violated Supreme Court
withdrawal under Anders v. California, 386 U.S.
                                                           precedent in existence at the time of the
738 (1967).
   3
     The jury instructions are not part of the rec-
ord. Rodriguez contendsSSand we assume for pur-               4
                                                               See In re Smith, 142 F.3d 832, 835 (5th Cir.
poses of this appealSSthat the reasonable doubt            1998).
instruction violated Cage.

                                                       2
petitioner’s conviction.” Muhleisen v. Ieyoub,
168 F.3d 840, 844 (5th Cir.), cert. denied, 528
U.S. 828 (1999). Thus, “a lower federal
court’s holding that Cage . . . appl[ies]
retroactively is insufficient to make [it]
retroactive under AEDPA. . . . [T]he Supreme
Court itself must have held that the rule is
retroactive. It has not done so with respect to
Cage errors.” Williams v. Cain, 229 F.3d at
474 (noting also that “[n]othing the in
Supreme Court’s recent decision in Williams
v. Taylor, 529 U.S. 362 (2000), is contrary to
this rule of Muhleisen” (citation omitted)).
Consequently, if a prisoner seeks habeas
review of a conviction that became final before
Cage was decided, we cannot review the
conviction for Cage error unless the habeas
petition was filed before the effective date of
AEDPA. See id.

   Rodriguez’s conviction became final in
1983, long before Cage was decided, so any
application of Cage necessarily would be ret-
roactive. Rodriguez did not file his habeas
petition until October 1998, over two years
after the effective date of AEDPA. We
therefore are barred from considering his Cage
claim.

   AFFIRMED.




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