           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 9, 2009
                                     No. 07-30977
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

DAVID GRILLETTE,

                                                   Petitioner-Appellant

v.

WARDEN WINN CORRECTIONAL CENTER,

                                                   Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:02-CV-722


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       David Grillette, Louisiana prisoner # 114695, is currently imprisoned after
being convicted by a jury of aggravated burglary and armed robbery. Grillette
challenged the constitutionality of his convictions in a 28 U.S.C. § 2254 petition,
which the district court denied on the merits. Grillette was issued a certificate
of appealability on the issues whether his attorney provided ineffective
assistance by failing to object to the jury instruction regarding (1) reasonable
doubt and (2) the criminal intent required for aggravated burglary.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-30977

      Pursuant to § 2254(d), federal courts defer to a state court’s adjudication
of a petitioner’s claims on the merits unless the state court’s decision was:
(1) “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.”
§ 2254(d)(1), (2); see also Tassin v. Cain, 517 F.3d 770, 776 n.18 (5th Cir. 2008).
      To establish ineffective assistance, Grillette must show (1) that his
counsel’s performance was deficient, and (2) that the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under the deficiency prong, the defendant is required to show that his “counsel’s
representation fell below an objective standard of reasonableness.” Id. at 688.
“This requires showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. at 687. Under the prejudice prong, the defendant must “show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.”        Id. at 694.   “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Id.
      Grillette first argues that the reasonable doubt jury instruction used in his
case violated the principles announced in Cage v. Louisiana, 498 U.S. 39 (1990),
because it contained the terms actual, substantial, and serious, as well as the
phrase “such as one could give a good reason for.” Grillette contends that his
counsel performed deficiently when he failed to object to the instruction and that
his counsel’s performance prejudiced him because there is a reasonable
probability that the outcome of the trial would have been different if the jury had
been properly instructed.      Grillette also contends that the state courts
unreasonably refused to extend the principles set forth in Cage and Victor v.
Nebraska, 511 U.S. 1 (1994), to the facts of his case.

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      The record reflects that the reasonable doubt jury instruction was issued
in July 1990. Cage was not decided until November 13, 1990. 498 U.S. at 39.
Grillette’s counsel was not deficient for failing to object to the instruction on the
basis of Cage before Cage was decided. Gaston v. Whitley, 67 F.3d 121, 123 (5th
Cir. 1995); see United States v. Fields, 565 F.3d 290, 296-97 (5th Cir. 2009),
petition for cert. filed, (June 8, 2009) (No. 09-5648).
      Even if we assume that the failure to object to the reasonable doubt
instruction constituted deficient performance, Grillette must show that the error
caused him prejudice. See Strickland, 466 U.S. at 694. That is, Grillette must
show that but for trial counsel’s failure to object to the instruction, the jury
would not have convicted him. See id. The pertinent inquiry is whether there
was a reasonable likelihood that the jury reached its verdict based on an
unconstitutional interpretation of the reasonable doubt instruction. See Victor,
511 U.S. at 22-23.
      In Schneider v. Day, 73 F.3d 610, 611-12 (5th Cir. 1996), we concluded that
under Victor the instruction, which is substantially similar to the instruction
given in the instant case, was constitutionally acceptable. We also held that
counsel had not rendered ineffective assistance.          Id. at 612.   Schneider’s
instruction included, in addition to the instructions on reasonable doubt
challenged by Grillette, that “the evidence must be of such a character and
tendency as to produce a moral certainty of the defendant’s guilt to [the]
exclusion of a reasonable doubt.” Id. at 611. The use of the phrase moral
certainty was condemned in Cage. See Victor, 511 U.S. at 5-6. Other than the
instructions deemed acceptable in Schneider, Grillette’s instruction included the
following explanation that reasonable doubt must be “an honest, substantial
misgiving, or doubt, arising from the proof or want of proof in the case.” This
additional explanation of reasonable doubt does not alter the State’s burden
required by the Due Process Clause and in fact, referred the jury back to the
evidence presented in the case. On these facts and in light of the deference owed

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to the AEDPA, we cannot hold that the decision reached by the state courts and
the district court is objectively unreasonable. See Mahler v. Kaylo, 537 F.3d 494,
499 (5th Cir. 2008).
        Grillette next argues that the specific intent instruction used in his case
for purposes of the aggravated burglary charge violated the principles
announced in Sandstrom v. Montana, 442 U.S. 510 (1979) because it contained
the phrase “[a] person is presumed to intend the natural and probable
consequences of his acts.” Grillette contends his counsel performed deficiently
when he failed to object to the instruction and that his counsel’s performance
caused him prejudice because no evidence was introduced regarding his specific
intent to commit an unauthorized entry into the victim’s residence. Grillette
contends that the state courts’ contrary decision regarding prejudice constitutes
an unreasonable application of clearly established federal law, especially in light
of the state courts’ failure to conduct a harmless error analysis.
        The court’s jury charge included a specific intent instruction which
contained the following statement: “A person is presumed to intend the natural
and probable consequences of his acts.” The inclusion of this instruction was
error, and counsel’s failure to object to the instruction constituted deficient
performance.     Sandstrom, 442 U.S. at 524-27; see, e.g., Harris v. Warden,
Louisiana State Penitentiary, 152 F.3d 430, 440 (5th Cir. 1998).
        A Sandstrom error is a trial error to which the harmless error rule applies.
See Robertson v. Cain, 324 F.3d 297, 304 n.3 (5th Cir. 2003). A Sandstrom error
requires habeas relief only if it had a “substantial and injurious effect or
influence in determining the jury's verdict.” Robertson, 324 F.3d at 307. If an
error is harmless, it is not prejudicial under Strickland. Harris, 152 F.3d at 440
n.11.
        To establish that Grillette committed aggravated burglary, the State was
required to prove beyond a reasonable doubt that Grillette entered Hill’s
residence without authorization while Hill was present and that Grillette

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entered with the specific intent to commit a theft or a felony therein (in this case,
armed robbery); in addition, the State had to prove that Grillette was armed or
became armed with a dangerous weapon or committed a battery while in, upon
entering, or upon leaving Hill’s residence. See State v. Lockhart, 438 So. 2d
1089, 1090 (La. 1983). Specific intent is the state of mind that exists when the
circumstances indicate that the offender actively desired the prescribed criminal
consequences to follow his act. L A. R EV. S TAT. A NN. § 14:10(1). Specific intent
may be inferred from the circumstances surrounding the offense and the conduct
of the defendant. Dupuy v. Cain, 201 F.3d 582, 589 (5th Cir. 2000).
      The trial testimony established that Grillette and Robert Smith, went to
the residence of 84-year-old Ed W. Hill, who lived alone. Knocking to awaken
Hill, whom he had known for eighteen years, Grillette identified himself by
name and stated that his father needed help. When Hill opened the door,
Grillette asked for money; Hill refused. As Hill turned to go back into his mobile
home, Grillette struck Hill in the back of the head with a large iron bar, and
immediately entered Hill’s residence. Grillette then proceeded through the
home, rummaging for items of property. At one point, Hill moved, and Grillette
struck him with the butt of a shotgun. Hill feigned death until Grillette and
Smith departed, taking firearms, a television, and Hill’s truck.          The next
morning, Hill was discovered by his neighbor, who called the police.            Hill
identified Grillette as his assailant.
      Grillette never argued the issue of intent, asserting instead that Hill
misidentified him and that Susan Smith was the real perpetrator. The jury
accepted the testimony of Hill and Robert Smith regarding the identity of the
perpetrator and rejected Grillette’s denial of involvement. The State produced
evidence sufficient for the jury to find that Grillette went to Hill’s mobile home
to get money to pay a debt, entered the mobile home after Hill refused to give
Grillette money, and struck Hill with a dangerous weapon.            Once the jury
rejected Grillette’s non-involvement defense, no rational jury could have found

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that Grillette acted without the requisite legal intent.         See Johnson v.
Blackburn, 778 F.2d 1044, 1049-50 (5th Cir. 1985) (holding that petitioner was
not denied effective assistance of counsel by counsel’s failure to make objection
to intent-shifting instruction). Thus, the improper specific intent instruction in
Grillette’s case did not have a “substantial and injurious effect or influence in
determining the jury's verdict.” Robertson, 324 F.3d at 307. Because counsel’s
failure to object to the erroneous instruction was harmless, the error was not
prejudicial. See Harris, 152 F.3d at 439, 440 n.11; Johnson, 778 F.2d at 1049-50.
Accordingly, Grillette has not established ineffective assistance of counsel. See
Strickland, 466 U.S. at 687.
      Grillette has not shown that state court’s ruling was contrary to or an
unreasonable application of federal law. See § 2254(d). The judgment of the
district court is AFFIRMED.




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