                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                            ____________________

                               No. 98-30305
                           ____________________

                             ALFRED MITCHELL,

                                                  Petitioner-Appellant,
                                  versus

           BURL CAIN, Warden, Louisiana State Penitentiary;
        RICHARD IEYOUB, Attorney General, State of Louisiana,

                                           Respondents-Appellees.
_________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
                           (97-CV-1848-J)
_________________________________________________________________

                               July 9, 1999

Before KING, Chief Judge, SMITH and BARKSDALE, Circuit Judges.

PER CURIAM:1

     Alfred Mitchell, Louisiana prisoner #65291, contests, pro se,

the denial of his 28 U.S.C. § 2254 habeas petition, claiming that,

under Cage v. Louisiana, 498 U.S. 39 (1990), the reasonable doubt

jury instruction was unconstitutional. We AFFIRM.

                                    I.

     Mitchell was convicted of second-degree murder in November

1989.       The instruction provided in part:




        1
      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this opinion should not be published and is not precedent except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.
           Now while the State must prove guilt beyond a
           reasonable doubt, it does not have to prove
           guilt beyond all possible doubt. Reasonable
           doubt is doubt based on reason and common
           sense and is present when, after you have
           carefully considered all of the evidence, you
           can not say that you are firmly convinced of
           the truth of that charge.

           Now more on reasonable doubt.    A reasonable
           doubt must be just that, a reasonable one.
           That is one that is founded upon a real,
           tangible, substantial basis and not upon mere
           caprice, fancy, or conjecture.    It must be
           such a doubt as would give rise to an
           uncertainty raised in your minds by reason of
           the unsatisfactory character of the evidence.
           A reasonable doubt is not a mere possible
           doubt. It’s an actual or a substantial doubt.
           It is such a doubt as a reasonable person
           would seriously entertain.    It’s a serious
           doubt, a doubt for which you can give a
           reason.2

     Mitchell’s conviction and life sentence were affirmed on

direct appeal.   State of Louisiana v. Mitchell, 572 So.2d 800 (La.

App. 4th Cir. 1990), writ denied, 576 So.2d 47 (La. 1991).     His

1994 petition for state habeas relief was denied; the Louisiana

Supreme Court denied a supervisory writ in October 1996.

     Mitchell filed the present § 2254 petition in July 1997,

challenging the instruction and claiming ineffective assistance of

counsel.   The district court denied relief. Our court granted a




       2
        In his state and federal habeas applications, Mitchell
erroneously   stated  that   the  instructions included “grave
uncertainty” and “moral certainty”.

                               - 2 -
certificate of appealability on the instruction issue.                      See 28

U.S.C. § 2253(c)(1)(A).

                                        II.

     Of course, we review de novo a district court’s conclusions on

issues of law, such as a due process challenge to a reasonable

doubt definition.        E.g., Graham v. Johnson, 168 F.3d 762, 772 (5th

Cir. 1999).

     Federal habeas relief is barred for state prisoners on “any

claim       that   was   adjudicated    on     the   merits   in    State    court

proceedings”, unless, for issues of law, the adjudication ran afoul

of “clearly established Federal law, as determined by the Supreme

Court of the United States”.            28 U.S.C. § 2254(d).          This rule,

added to § 2254 by the Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. No. 104-132, 110 Stat. 1218 (1996) (AEDPA),

applies      to    petitions,   like    Mitchell’s,     filed      after    AEDPA’s

effective date, 24 April 1996. E.g., Muhleisen v. Ieyoub, 168 F.3d

840, 844 (5th Cir. 1999).3

     On reviewing the record, we conclude that the state court

denied Mitchell’s instruction claim on the merits; the court gave

        3
      While 28 U.S.C. § 2244(d)(1), also added by AEDPA, sets a
one-year period for seeking federal habeas relief after a state
conviction has become final, this limitations period begins on 24
April 1996 (AEDPA’s effective date) for persons convicted before
then, e.g., Fields v. Johnson, 159 F.3d 914, 914 (5th Cir. 1998),
and is tolled while state habeas relief is pursued, id.; 28 U.S.C.
§ 2244(d)(2).    Accordingly, because his state application was
pending until October 1996, Mitchell’s July 1997 federal
application was timely.

                                       - 3 -
no hint of a procedural disposition. See Fisher v. Texas, 169 F.3d

295, 300 (5th Cir. 1999) (substantive, non-procedural dispositions

are “on the merits” under § 2254).      Accordingly, we only consider

the Supreme Court’s statement of the law at the time Mitchell’s

conviction became final — March 1991.     Muhleisen, 168 F.3d at 844.

Then, as now, the only Supreme Court invalidation of a reasonable-

doubt instruction was Cage, decided in November 1990. Id.

       Cage held the following instruction violative of due process:

            If [the evidence] does not establish such
            guilt beyond a reasonable doubt, you must
            acquit the accused. This doubt, however, must
            be a reasonable one; that is one that is
            founded upon a real tangible substantial basis
            and not upon mere caprice and conjecture. It
            must be such doubt as would give rise to a
            grave uncertainty, raised in your mind by
            reasons of the unsatisfactory character of the
            evidence or lack thereof. A reasonable doubt
            is not a mere possible doubt. It is an actual
            substantial doubt.     It is a doubt that a
            reasonable man can seriously entertain. What
            is required is not an absolute or mathematical
            certainty, but a moral certainty.

498 U.S. at 40 (emphasis by Supreme Court). The Court concluded

that

            the words “substantial” and “grave,” as they
            are commonly understood, suggest a higher
            degree of doubt than is required for acquittal
            under the reasonable-doubt standard.      When
            those statements are then considered with the
            reference to “moral certainty,” rather than
            evidentiary certainty, it becomes clear that a
            reasonable juror could have interpreted the
            instruction to allow a finding of guilt based
            on a degree of proof below that required by
            the Due Process Clause.

                                - 4 -
Id. at 41.4     Accordingly, the Court in Cage was troubled by the

cumulative    effect   of   “actual     substantial   doubt”,   “grave

uncertainty”, and “moral certainty” on jurors.

     Our court has recently held, however, that even a charge

replicating all of the elements challenged by Mitchell — “actual or

substantial doubt”, “serious doubt ... for which you could give [a]

reason”, “[doubt] founded upon real, tangible, substantial basis

and not upon caprice, fancy or conjecture”, “such a doubt as a

reasonable man would seriously entertain” — and also adding the

problematic “grave uncertainty”, not present here, and requiring a

juror to “give good reason” (emphasis added), not just “give a

reason”, as here, does not violate Cage.      Muhleisen, 168 F.3d at

843-44 & n.2.

                                III.

     Accordingly, the denial of habeas relief is

                                                         AFFIRMED.




    4
      The “could have interpreted” passage, suggesting a different
standard of review than whether a “reasonable likelihood” existed
that a juror interpreted a jury instruction unconstitutionally, was
later disavowed. Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991).

                                - 5 -
