             IN THE UNITED STATES COURT OF APPEALS

                               FOR THE FIFTH CIRCUIT
                                           _______________

                                             m 01-30523
                                           _______________




                                      STEPHEN QUATREVINGT,

                                                              Petitioner-Appellee,

                                                VERSUS

                                              BURL CAIN,
                             WARDEN, LOUISIANA STATE PENITENTIARY,

                                                              Respondent-Appellant.



                                    _________________________

                             Appeal from the United States District Court
                                for the Eastern District of Louisiana
                                  _________________________
                                        November 15, 2001


Before SMITH and EMILIO M. GARZA, Circuit                The State of Louisiana, through its warden,
  Judges, and CUMMINGS, District Judge.*              appeals a grant of habeas corpus relief to Ste-
                                                      phen Quatrevingt regarding his murder
JERRY E. SMITH, Circuit Judge:**                      conviction. Finding no cognizable constitu-
                                                      tional error, we reverse.
   *
    District Judge of the Northern District of                              I.
Texas, sitting by designation.
   **
      Pursuant to 5TH CIR. R. 47.5, the court has
                                                         **
determined that this opinion should not be                 (...continued)
published and is not precedent except under the       limited circumstances set forth in 5TH CIR. R.
                                    (continued...)    47.5.4.
   Quatrevingt was convicted in 1990 of first               The state’s first three objections are
degree murder while in the perpetration or at-           procedural. The MJ recommended that all of
tempted perpetration of an aggravated rape.              these claims are meritless and should be
He pursued direct appeals unsuccessfully. In             resolved in favor of Quatrevingt; the district
1999, he filed a habeas corpus petition in fed-          court adopted these recommendations without
eral court alleging numerous constitutional er-          objection. The state’s failure timely to object
rors. The state raised four objections to the            to the findings and recommendations affects
petition: (1) The petition was time barred un-           our standard of review.
der the one-year statute of limitations found in
28 U.S.C. § 2244(d); (2) the petition should be              The recommendations and conclusions of a
denied for failure to exhaust state remedies;            MJ are reviewed for plain error if not objected
(3) the petition should be rejected for failure to       to within ten days of their issuance. See
satisfy the Louisiana contemporaneous ob-                Douglass v. United Servs. Auto. Ass’n, 79
jection rule under the procedural bar doctrine;          F.3d 1415, 1429 (5th Cir. 1996) (en banc).
and (4) the petition should be rejected on the           The report and recommendation of the MJ was
merits.                                                  issued on October 27, and the state did not
                                                         offer its objections until December 4, well after
   Pursuant to 28 U.S.C. § 636(b)(1)(B), the             the ten-day limit. Where the district court
matter was referred to a magistrate judge                conducts de novo review of the unobjected-to
(“MJ”), who recommended rejecting all the                MJ’s report, however, we ordinarily will not
state’s procedural objections to the petition            enforce the forfeiture rule against the party
and granting habeas relief on the ground that            failing to object. See Meister v. Tex. Adjutant
the charge to the jury was unconstitutional.             General’s Dep’t, 233 F.3d 332, 336 (5th Cir.),
The state failed to object to the MJ’s                   cert. denied, 121 S. Ct. 2194 (2001).2 We
recommendations within the ten-day period                thus review the district court’s findings of fact
provided by the order. See 28 U.S.C. §                   under our usual clear error standard. See Per-
636(c).1                                                 illo v. Johnson, 205 F.3d 775, 781 (5th Cir.
                                                         2000).
    The district court adopted the
recommendations of the MJ after conducting                                    III.
de novo review of the portions objected to.                 The state contends that Quatrevingt’s peti-
The only modification the court noted was a              tion was untimely. In relevant part, the Anti-
slightly different approach to finding the               terrorism and Effective Death Penalty Act of
charge to the jury unconstitutional. The MJ              1996 (“AEDPA”) imposes a one-year statute
had recommended that the initial charge be               of limitations on habeas petitions, running
found unconstitutional; the district court found
the initial charge valid, but the state trial
court’s response to a jury question for                     2
                                                               There is a limited exception to this rule not
clarification of the charge unconstitutional.            applicable here. If the district court rules in the
                                                         alternative that, not only did a party fail to object
                          II.                            to a certain point, but, even if he did, the objection
                                                         is without merit, we may affirm on the basis of
                                                         lack of a proper objection. See Douglass, 79 F.3d
   1
       The state ultimately filed objections.            at 1429.

                                                     2
from the time the conviction becomes final. 28             evidence of the time of filing. This argument
U.S.C. § 2244(d)(1)(A). This limit is tolled               is raised for the first time on appeal; we do not
while any “properly-filed state post-conviction            consider theories presented for the first time
or other collateral relief” is pending. 28                 on appeal.5 Leverette v. Louisville Ladder
U.S.C. § 2244(d)(2). Quatrevingt’s direct                  Co., 183 F.3d 339, 342 (5th Cir. 1999). The
review process unquestionably ended with the               district court did not commit clear error by
denial of certiorari on October 15, 1996.3 His             finding Quatrevingt’s federal habeas petition
federal habeas petition was filed on July 9,               timely filed.
1999, well after the one-year limit. He claims,
however, to have filed a state collateral action                                 IV.
on April 27, 1997.                                            The state challenges Quatrevingt’s habeas
                                                           petition for failure to exhaust his claims in
    The state does not argue that Quatrevingt’s            state court. AEDPA requires a state prisoner
limitations period should not be tolled because            seeking federal habeas relief to exhaust state-
his application for post-conviction relief was             court remedies absent circumstances that “ren-
either improperly filed or is no longer pending.           der such processes ineffective.” 28 U.S.C.
Cf. Williams v. Cain, 217 F.3d 303 (5th Cir.               § 2254(b)(1). This finding is also reviewed for
2000) (discussing requirement of proper                    clear error, because the MJ’s unobjected-to
filing). 4 The state argues, instead, that his             recommendation was reviewed de novo by the
state application was not filed at all. The MJ             district court.
found the state had filed a “Motion to Dismiss
Petitioner’s Post-Conviction Application” on                  A federal habeas petitioner has not
April 28, 1997, as evidence Quatrevingt had                exhausted his federal claims “if he has the right
filed his state petition within the one-year pe-           under the law of the State to raise, by any
riod. The state courts apparently have not                 available procedure, the question presented.”
ruled on this petition, and it thus remains                28 U.S.C. § 2254(c). A petitioner has
pending. This in turn tolls limitations, making            exhausted his state law remedies if he has
Quatrevingt’s federal habeas petition timely               presented the argument for relief to the state’s
under § 2244(d)(1)(A).                                     highest court at least once. See United States
                                                           v. Sones, 61 F.3d 410, 415 (5th Cir. 1995).6
   On appeal, the state argues that its motion
to dismiss Quatrevingt’s petition is not proper
                                                              5
                                                                The state did object to the MJ’s report, but
                                                           only is a “vague manner.” This vague objection in
   3
    See State v. Hoffman, 768 So. 2d 592 (La.              not sufficient to permit a new argument on appeal.
2000) (recognizing denial of certiorari as one
                                                              6
ground for finality of direct review).                           See also O’Sullivan v. Boerckel, 526 U.S.
                                                           838, 845 (1999) (“Because the exhaustion doctrine
   4
      Our review of this determination does not            is designed to give the state courts a full and fair
implicate the question whether Quatrevingt’s peti-         opportunity to resolve federal constitutional claims
tion was “properly filed” (a legal question we re-         before those claims are presented to the federal
view de novo. Johnson v. Cain, 215 F.3d 489,               courts, we conclude that state prisoners must give
494 (5th Cir. 2000)). Our inquiry here is limited to       the state courts one full opportunity to resolve any
the factual question whether the petition was filed        constitutional issues by invoking one complete
at all.                                                                                           (continued...)

                                                       3
   The MJ found that Quatrevingt had argued                  The requirement that a state court “clearly
the constitutionality of the jury charge to the          and expressly” demonstrate reliance on a state
Louisiana Supreme Court. This determination              ground is not automatic. This duty is
did not involve asking whether a legal theory            triggered only where the state court decision
had been presented to that court, but only               gives the federal habeas court “good reason”
whether Quatrevingt actually had presented               to suspect the decision is based on federal law
this very argument.                                      by “fairly appearing” to do so or by
                                                         interweaving the claims. Id. at 739. “The key
   Specifically, the state alleges Quatrevingt           is not the clarity of the state court’s language,
did not “take this issue” to the Louisiana               or even whether the state court addressed the
Supreme Court. This is a factual matter.                 merits of the federal claim, but whether the
Factual questions raised by habeas petitions             state court may have based its decision on its
are reviewed for clear error, as are any other           understanding of federal law.” Young v. Her-
civil factual questions. See Donahue v. Cain,            ring, 938 F.2d 543, 553-54 (5th Cir. 1991) (en
231 F.3d 1000, 1003 (5th Cir. 2000). There is            banc). Where the state court has addressed
no clear error in the finding that the jury              the merits of the federal claim, we may infer
charge argument was presented to the                     waiver, absent a clear and express statement of
Louisiana Supreme Court.                                 reliance on the state procedural ground. See
                                                         id. at 553 n.12.
                      V.
   The state’s final procedural argument is                 The Louisiana Supreme Court’s entire dis-
based on the doctrine of procedural bar. Be-             cussion of the jury charge consisted of the fol-
cause the MJ’s report on this issue was                  lowing:
reviewed de novo, we apply our normal
standard of review and review de novo. Boyd                 Despite the absence of a
v. Scott, 45 F.3d 876, 879 (1994).                          contemporaneous objection at trial,
                                                            defendant contends that the trial court’s
   If a state court rejects a challenge to a crim-          jury instruction on reasonable doubt
inal conviction on the basis of a state                     requires reversal under Cage and
procedural rule, federal habeas relief may be               Sullivan . . . . The reading of this
foreclosed. This bar operates only where the                charge, with its use of the terms ‘grave
decision of the last state court to which the               uncertainty,’ ‘moral certainty,’ and
petitioner presented the federal claims “fairly             ‘actual and substantial doubt,’ no longer
appeared to rest primarily on resolution of                 mandates relief. See State v. Smith.
those claims, or be interwoven with those                   According to the United States Supreme
claims, and did not clearly and expressly rely              Court’s reexamination of its reasonable
on an independent and adequate state ground.”               doubt jurisprudence undertaken in
Coleman v. Thompson, 501 U.S. 722, 735                      Victor v. Nebraska and this Court’s
(1991).                                                     implementation of Victor in Smith, the
                                                            instruction in the instant case did not
                                                            allow the jury to convict without
   6
    (...continued)                                          satisfying the reasonable doubt
round of the State’s established appellate review           requirements of In re Winship. The
process.”).

                                                     4
   foregoing terms do not suggest a higher             which the burden is on the habeas petitioner to
   degree of doubt than is required for                demonstrate that the state court decision “was
   acquittal under the reasonable doubt                contrary to, or involved an unreasonable
   standard. Nor do the foregoing terms                application of, clearly established Federal law,
   suggest that ‘reasonable doubt’ is mere             as determined by the Supreme Court of the
   speculation.                                        United States.” 28 U.S.C. § 2254(d)(1).

State v. Quatrevingt, 670 So. 2d 197, 211 (La.            AEDPA affords two avenues of relief. The
1996).                                                 petitioner must show the state court
                                                       construction was either “contrary to” federal
    This analysis leaves little doubt the              law or an “unreasonable application” of it. To
Louisiana Supreme Court did not rely on the            be “contrary to” federal law, the state court
state procedural ground or even hold in the            must apply a rule t hat contradicts a rule laid
alternative. The attention the court paid to the       down by the Supreme Court. See Williams v.
federal constitutional ground permits us to            Taylor, 529 U.S. 363, 405 (2000).
infer reliance on it without a “clear and
express” statement to the contrary. See                   A second avenue of relief is available where
Young, 938 F.2d at 553 n.12.                           the state court unreasonably applies federal
                                                       law. This inquiry involves asking “whether the
   At best, the state court’s treatment of the         state court’s interpretation of clearly
issue interwove the state and federal grounds.         established federal law was objectively
Where this is the case, there is good reason for       unreasonable.” Id.
us to reject an explanation for the decision
grounded solely on a state procedural                     Some of our recent cases have fleshed out
foundation. The state may have based its               the meaning of “objectively unreasonable.” In
decision on federal grounds; this permits us to        Martin v. Cain, 246 F.3d 471, 476 (5th Cir.
find no independent and adequate state ground          2001), cert. denied, 122 S. Ct. 194 (2001), we
precluding our review.                                 stressed that to be unreasonable, the state
                                                       court application of federal law must be more
                      VI.                              than merely erroneous. Our role under this in-
   The substance of Quatrevingt’s habeas peti-         quiry is not to determine whether the state
tion challenges the jury charge and subsequent         court construction of federal law was merely
explanation to the jury of the meaning of              wrong, but whether it was wrong to the point
reasonable doubt. Because the district court           of being unreasonable. Stated another way,
reviewed de novo the MJ’s conclusion on the            “mere disagreement with the state court is not
merits of the habeas claim, we employ our              enough.” Orman v. Cain, 228 F.3d 616, 619
usual standard of review. Meister, 233 F.3d at         (5th Cir. 2000). The question here is whether
336. Our review of a district court’s legal            the Louisiana state court misapplied a federal
conclusions in habeas proceedings is de novo.          standard or whether the state court’s decision
Clark v. Scott, 70 F.3d 386, 388 (5th Cir.             that the instructions to the jury did not violate
1995). The substance of a habeas claim,                the Constitution is objectively unreasonable.
however, is reviewed under the highly-
deferential framework of AEDPA, under                     The jury charge contained the phrases


                                                   5
“grave uncertainty,” “substantial doubt,”
“moral uncertainty,” and “a serious doubt for
                                                          7
which you can give good reasons” to describe               (...continued)
more fully the meaning of reasonable doubt.7              sufficient evidence beyond a reasonable
                                                          doubt, but the rule does not go further and
                                                          require a preponderance of the testimony. It
  7
      The charge in its entirety read:                    is incumbent upon the State to prove the
                                                          offense charged, or legally included in the
         Ladies and gentlemen, the defendant is           indictment, to your satisfaction and beyond
  presumed to be innocent until proven guilty             a reasonable doubt.
  beyond a reasonable doubt. The con-
  sequence of this rule of law, he is not                       A reasonable doubt is not a mere pos-
  required to prove his innocence but may rest            sible doubt. It should be an actual and sub-
  upon the presumption in his favor and to                stantial doubt. It is such a doubt as a
  overturn by positive affirmative proof. The             reasonable man would seriously entertain.
  onus, therefore is on the State to establish,           It is a serious doubt for which you can give
  to your satisfaction, and beyond a rea-                 a reason. In other words, ladies and
  sonable doubt, the guilt of the accused as to           gentlemen, when you go back and you’re
  the crime charged or any lesser one included            going to decide this case, and somebody an-
  therein. If you entertain any reasonable                nounces, I have a doubt. The duty of the
  doubt as to any of the facts or elements                other eleven is to ask the question, Why do
  necessary to constitute the defendant’s guilt,          you have the doubt? Why do you have the
  it is your sworn duty to give him the benefit           doubt? You’ve got to be able to articulate
  of that doubt and return a verdict of Not               why they have the doubt, because a
  Guilty. Even where the evidence demon-                  reasonable doubt is a doubt that you can
  strates a probability of guilt, yet if it does          assign a reason why you have that doubt
  not establish it beyond a reasonable doubt,             and it’s the obligation of the prosecutor to
  you must acquit the doubt. This doubt must              prove it beyond that standard. The mere
  be a reasonable doubt, that is one founded              feeling that you got, the jury would say, I
  upon real, tangible, and substantial basis,             just feel, I feel, my feelings are not good
  and not upon a mere caprice or fancy or a               enough, then look at the evidence in the
  conjecture. It must be such a doubt as                  case. Let’s all decide it on the evidence of
  would give rise to grave uncertainty raised             the case or the lack of evidence. You’ve got
  in your mind by the reason or the                       to be able to articulate. You’ve got tp be
  unsatisfactory character of the evidence, one           able to say, This is the reason I why I have
  that would make you feel that you had not,              the doubt, and it’s the obligation of the State
  an abiding conviction to a moral certainty of           to prove it beyond a reasonable doubt. You
  the defendant’s guilt. If, after giving a fair          are prohibited by law, in your oath, in going
  and impartial consideration of all the facts            beyond the evidence to convict the
  in the case, you find the evidence                      defendant. You must confine yourselves
  unsatisfactory upon any single point                    strictly to dispassionate consideration of the
  indisputably necessary to constitute the                testimony given upon the trial. You must
  defendant’s guilt, this would give rise to              not resort to any extraneous facts and
  such a reasonable doubt as would justify                circumstances in reaching your verdict.
  you returning a verdict of Not Guilty. The              That is, you must restrict yourself to the
  prosecution must establish guilt by legal and           evidence you’ve heard on the trial of this
                                     (continued...)                                           (continued...)

                                                      6
After a period of deliberation, the jury                    of deliberation, the jury returned a guilty
submitted a question asking “Could you just                 verdict.
reinstruct on the one part as to what
constitutes considerable doubt?” The court                     The MJ and the district court found
referred the jury to a part of the instruction              constitutional problems with this series of
already given by repeating a substantial portion
of that instruction.8 After an additional period              8
                                                               (...continued)
                                                              sonable one, and when I say reasonable one,
                                                              using the term reason as being the common
   7
    (...continued)                                            denominator, the thing to look toSSa reason,
   case. However, the lack of testimony                       a reasonable doubt, not a whim or fancy or
   adduced at the trial may be relied upon as                 conjecture. Its got to be a reasonable doubt.
   the basis for the establishment of a                       It must be such doubt as would give rise to
   reasonable doubt.                                          grave uncertainty raised in your mind by the
                                                              reason of the unsatisfactory character of the
   8
       In full, this second instruction was:                  evidence, one that would make you feel that
                                                              you had not embodied a conviction to a
         I am going to tell you that the                      moral certainty of the defendant’s guilt.
   defendant is presumed to be innocent until
   proven guilty beyond a reasonable doubt.                         If, after having given a fair and
   The consequence of this law is that he is not              impartial consideration of all of the facts in
   required to prove his innocence. There is a                the case, you find the evidence
   Fifth Amendment of the United States Con-                  unsatisfactory, upon any single point
   stitution that says that the State must prove              indispensably necessary to constitute the
   its case that it presents beyond a reasonable              defendant’s guilt, this would give rise to
   doubt. But even though the State had the                   such a reasonable doubt as justifying
   obligation to prove its case beyond a                      returning a verdict of Not Guilty. The
   reasonable doubt, it does not have the                     prosecution must establish guilt by legal and
   obligation to prove it beyond all doubt.                   sufficient evidence beyond a reasonable
   Now beyondSSbeyond a reasonable doubt                      doubt. But the rule does not go further and
   as I talked to you before, is if you have                  require a preponderance of testimony. What
   doubt and you can assign a reason to it,                   it means in that statement is that it means
   that’s a reasonable doubt. A reasonable                    that the prosecutor doesn’t have to prove the
   doubt can be established by evidence or the                case beyond ALL doubt, the feeling in your
   lack of evidence in a case; one of the two                 stomach, or whatever you may want to call
   ways or any other way that you want to look                it, but he’s got to prove it to you beyond a
   at it. If you entertain any reasonable doubt               reasonable doubt, a doubt you can say this
   as to any of the facts and elements necessary              is the reason I have doubt. A reasonable
   to constitute the defendant’s guilt, it is your            doubt is not a mere possible doubt. We’re
   sworn duty to give him the benefit of the                  not talking about probabilities. We’re
   doubt and return a verdict of Not Guilty.                  talking about a reasonable doubt. It should
   Even where the evidence demonstrates a                     be an actual and substantial doubt. It
   probability of guilt, yet it does not establish            should be a doubt as a reasonable man
   it beyond a reasonable doubt, you must ac-                 would seriously entertain. It has to be a
   quit the accused. This doubt must be a rea-                serious doubt to which you can assign
                                       (continued...)         reason.

                                                        7
instructions. Although the precise reason for              Court held that an instruction containing the
the MJ’s recommendation that the instructions              phrases “grave uncertainty,” “substantial
were unconstitutional is not obvious, the MJ               doubt,” and “moral certainty” violated due
and the court reasoned that the original charge            process.11 The Court has handed down two
and the response to the jury question, taken               important cases since Cage but before Quatre-
together, were constitutionally inadequate to              vingt’s conviction became final.12
protect Quatrevingt’s Fourteenth Amendment
rights. The court, though, explicitly based its               In Estelle v. McGuire, 502 U.S. 62 (1991),
decision to grant habeas relief on the                     the Court replaced the previous wording of the
subsequent instruction. The court found that               constitutional test as found in Cage, 498 U.S.
providing only another version of the in-                  at 41: “how reasonable jurors could have un-
structions that confused the jury the first time           derstood the charge as a whole.” McGuire,
did not satisfy the requirements of due                    502 U.S. at 72 & n.4, resolved the possible
process.                                                   confusion over this standard and settled on the
                                                           formulation used in Victor, asking whether
   The due process standard for jury charges
does not require the use of any specific
                                                              11
formulation; all that is required is that the jury                 The instruction in Cage read:
be instructed to find the defendant’s guilt
beyond a reasonable doubt. See Victor v.                           If you entertain a reasonable doubt as
Neb., 511 U.S. 1, 5 (1994). The relevant                      to any act or element necessary to constitute
question is “whether there is a reasonable                    the defendant’s guilt, it is your duty to give
likelihood that the jury understood the                       him the benefit of the doubt and return a
                                                              verdict of not guilty. Even where the evi-
instructions to allow conviction based on proof
                                                              dence demonstrates a probability of guilt, if
insufficient to meet the Winship standard.”9
                                                              it does not establish the guilt beyond a rea-
Quatrevingt’s challenge focuses on four                       sonable doubt, you must acquit the accused.
phrases found in his initial charge: “ a serious              This doubt, however, must be a reasonable
doubt for which you can give a good                           one; that is one that is founded upon a real
reason,”10 “grave uncertainty,” “substantial                  tangible substantial basis and not upon mere
doubt” and “moral uncertainty.”                               caprice and conjecture. It must be such
   In Cage v. La., 498 U.S. 39, 40 (1990), the                doubt as would give rise to uncertainty,
                                                              raised in your mind by reasons of the
                                                              unsatisfactory character of the evidence or
   9
     See In re Winship, 397 U.S. 358 (1970)                   lack thereof. A reasonable doubt is not a
(requiring each element of a charged offense to be            mere possible doubt. It is an actual
proved beyond a reasonable doubt).                            substantial doubt. It is a doubt a reasonable
                                                              man can seriously entertain. What is
   10
      The so-called “articulation requirement” (a             required is not an absolute or mathematical
serious doubt for which you can give a good                   certainty, but a moral certainty.
reason) need not detain us. The Supreme Court
has never expressed concern with this phrase.              Cage, 498 U.S. at 40.
Although this court has expressed some doubt, our
                                                              12
thoughts on the matter are irrelevant under                     This is the relevant period under Teague v.
AEDPA. See Williams v. Cain, 229 F.3d 468, 476             Lane, 489 U.S. 288, 310 (1989) (plurality opinion
(5th Cir. 2000), cert. denied, 122 S. Ct. 72 (2001).       of O’Connor, J.)

                                                       8
there was “a reasonable likelihood that the jury        doubt), and the second in the sentence “It
has applied the challenged instruction” so as to        should be an actual and substantial doubt.” In
violate the Constitution. Arguably, this has            approving the use of this phrase in context, the
raised the threshold of what a defendant must           Court relied on two arguments, both
show to prove a constitutional violation. This          applicable here. First, the Court found that the
in turn casts the holding in Cage in a new light;       comparison of substantial doubt to fanciful
it is possible the challenged instructions would        doubt makes the reference the existence of
pass the test laid down in McGuire.                     doubt, not its magnitude. Id. at 20. The same
                                                        is true with respect to Quatrevingt’s charge,
    The other, and more significant, intervening        which uses “substantial” and “fanciful” in the
case is Victor, in which the Court parsed two           same sentence.
different jury charges to test the possible
unconstitutionality of several phrases. The                 The Court also found the existence of an
phrases relevant to Quatrevingt’s habeas pe-            alternative definition of reasonable doubt sup-
tition are “moral uncertainty” and “substantial         ported the constitutionality of the charge as a
doubt.”                                                 whole. Quatrevingt’s charge offers several al-
                                                        ternative formulations of reasonable doubt:
   “Moral uncertainty” might have been                  “evidence unsatisfactory on any single point
thought problematic because it may give the             indispensably necessary to constitute the de-
jurors the belief they could convict if                 fendant’s guilt”; “such doubt as a reasonable
convinced to a moral certainty of the                   man would entertain”; “lack of testimony. . .
defendant’s guilt, but not to a certainty based         may be relied upon . . . for the establishment of
on the evidence. This argument was rejected             a reasonable doubt.”
in Victor, 511 U.S. at 16, in which the Court
noted the presence of other language in the                 The “grave uncertainty” language can be
instruction that made plain the jury’s                  subjected to the same analysis as can the
obligation to convict on the basis of evidence.         “substantial doubt” phrase. In Cage, 498 U.S.
In Quatrevingt’s charge, the sentence                   at 41, however, the combination of the phrases
immediately preceding that containing the               “grave doubt” and “substantial doubt” gave
offending phrase reads “Even where the                  the Court pause in considering the
evidence demonstrates a probability of guilt,           constitutionality of the charge. It was only the
yet it does not establish it beyond a reasonable        combination of those phrases with “moral
doubt, you must acquit the doubt.” The Court            certainty” that made the constitutional
also approved a phrase almost identical to that         violation “clear.” Id. That conclusion,
in Quatrevingt’s charge, noting that “an                though, must be filtered though the new
abiding conviction, to a moral certainty” is not        constitutional standard and the contextual
constitutionally problematic. Id. at 21.                analysis added by Victor.

   The Victor Court also dealt with the phrase             The district court granted Quatrevingt ha-
“substantial doubt.” Those words appear                 beas relief, not on the basis of the
twice in Quatrevingt’s charge, once in the              unconstitutionality of the original jury charge,
clause “tangible and substantial basis”                 but on the failure of the reinstruction properly
(comparing reasonable doubt to fanciful                 to answer the confusion evident in the jury’s


                                                    9
request to hear again the definition of                   found in Cage, the subsequent alteration of the
“considerable doubt.” That phrase appears                 standard in McGuire, and the further analysis
nowhere in the original charge or in the court’s          required by Victor, we cannot call the
response.                                                 Louisiana Supreme Court’s decision
                                                          unreasonable.
   Where the jury asks for a clarification of an
instruction, it is constitutionally adequate for             REVERSED.14
the court to refer to the section of an
otherwise constitutional charge. See Weeks v.
Angelone, 528 U.S. 225, 234 (2000). 13 In
Weeks, the court merely referred the jury to a
paragraph of the original charge without
restating it. Id. at 229. Here, the court
repeated a substantial portion of the original
charge. Nowhere does this restatement
mention “considerable doubt.”               The
restatement also contains all the mitigating
factors discussed in connection with Victor.
Because “[a] jury is presumed to follow its
instructions,” Richardson v. Marsh, 481 U.S.
200, 211 (1987), the court’s restatement of the
standard could not itself be the source of
constitutional error.

    Our task under AEDPA is not to explicate
the current state of Supreme Court
jurisprudence, but to test whether a state
court’s reading of that jurisprudence is
unreasonable. For Quatrevingt to merit habeas
relief, we would need to find objectively
unreasonable the Louisiana Supreme Court’s
decision that there was not a “reasonable
likelihood” the jury applied the instruction in
an unconstitutional manner. That conclusion
must be either contrary to “clearly established”
federal law or involve an unreasonable
application of that law. In light of the
challenged instruction’s mitigating phrases not
                                                             14
                                                                We note that the district court’s order to retry
                                                          Quatrevingt, although now moot, is beyond the
   13
      Teague does not prevent the application of          power of a federal court. A successful habeas
new rules of constitutional law that advantage the        petition cannot result in ordering the state to retry
state. See Gilmore v. Taylor, 508 U.S. 333                a defendant. See In re Medley, 134 U.S. 160, 173
(1993).                                                   (1890).

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