            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                          _______________

                                            m 98-31072
                                          _______________

                                    MILTON ERIC DICKINSON,
                                                             Petitioner-Appellant,
                                               VERSUS

                                      BURL CAIN,
                         WARDEN, LOUISIANA STATE PENITENTIARY,
                                                             Respondent-Appellee.
                                    _________________________

                            Appeal from the United States District Court
                               for the Middle District of Louisiana
                                 _________________________
                                         March 10, 2000

Before DAVIS, HALL,* and SMITH,                      life sentence. His convictions and sentence
  Circuit Judges.                                    were affirmed on direct appeal.

PER CURIAM:**                                           In November 1995, after filing several
                                                     applications for postconviction relief in state
    Milton Dickinson appeals the denial of his       and federal court, Dickinson filed the instant
petition for writ of habeas corpus under             petition for federal habeas relief. The district
28 U.S.C. § 2254. Finding no error, we               court denied relief and denied a certificate of
affirm.                                              appealability (“COA”). Because Dickinson’s
                                                     petition was filed before the effective date of
                      I.                             the Antiterrorism and Effective Death Penalty
   Dickinson was convicted of two counts of          Act (“AEDPA”),1 this court granted a
attempted aggravated rape and two counts of          certificate of probable cause to appeal instead
aggravated kidnapping. He was sentenced to           of a COA. See Green v. Johnson, 116 F.3d
two consecutive life sentences on the                1115, 1119-20 (5th Cir. 1997).
kidnapping counts and two forty-year
sentences on the rape counts, the latter to run         Dickinson contends that the trial court’s
concurrently with each other and with the first      reasonable doubt jury instruction was
                                                     constitutionally infirm; that the prosecution
                                                     suppressed favorable evidence in violation of
   *
     Cynthia Holcomb Hall, Circuit Judge of the      Brady v. Maryland, 373 U.S. 83 (1963); that
Ninth Circuit, sitting by designation.               the court improperly instructed the jury as to
   **
      Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
                                                        1
published and is not precedent except under the           Pub. L. No. 104-132, 110 Stat. 1214 (1996).
limited circumstances set forth in 5TH CIR.          We apply pre-AEDPA habeas law to Dickinson’s
R. 47.5.4.                                           claims. See Green, 116 F.3d at 1120.
the elements of aggravated kidnapping; and              defendant's guilt. To put it differently,
that the evidence was insufficient to support           you must be satisfied of both
aggravated kidnapping.                                  defendants’ guilt by that degree of
                                                        assurance which induces a man of sound
                       II.                              mind to act without a doubt upon the
   “In a habeas corpus appeal, we review the            conclusions to which it leads.
district court’s findings of fact for clear error
and review its conclusions of law de novo,
applying the same standard of review to the
state court’s decision as the district court.”
Thompson v. Cain, 161 F.3d 802, 805 (5th
Cir. 1998). Mixed questions of fact and law
generally receive independent review. See
Blackmon v. Johnson, 145 F.3d 205, 208 (5th
Cir. 1998), cert. denied, 526 U.S. 1021
(1999). The legal standard in a due process
challenge to a reasonable doubt instruction is
“whether there is a reasonable likelihood that
the jury understood the instructions to allow
conviction based on proof insufficient to meet
the Winship standard.” Victor v. Nebraska,
511 U.S. 1, 6 (1994). See also Morris v.
Cain, 186 F.3d 581, 585 (5th Cir. 1999).

   Cage v. Louisiana, 498 U.S. 39 (1990), is
the only case in which the Court has held that
a reasonable doubt instruction violated the
Due Process Clause. The Court refined the
Cage analysis in Victor v. Nebraska, 511 U.S.
1 (1994). In Humphrey v. Cain, 138 F.3d
552, 553 (5th Cir.) (en banc), cert. denied,
525 U.S. 943, and cert. denied, 525 U.S. 935
(1998), we held that “Cage-Victor error fits
within the second Teague exception, making it
available in federal habeas to a state prisoner
whose criminal conviction was final when
those cases were decided.” Therefore, we
apply the Cage-Victor analysis to the
instruction given at Dickinson’s trial.

   A portion of that instruction is as follows:

   This doubt must be a reasonable one;
   that is, one founded upon a real,
   tangible, substantial basis and not upon
   a mere caprice, fancy or conjecture. It
   must be such a doubt as would give rise
   to a grave uncertainty in your minds by
   reason of the unsatisfactory character of
   the evidence, one that would make you
   feel that you had not an abiding
   conviction to a moral certainty as to the
                                                    2
Although the references to “grave uncertainty”          charge.’ An instruction cast in terms of
and “moral certainty” are not optimal, we               an abiding conviction as to guilt,
affirm the district cour’s conclusion that the          without reference to moral certainty,
instruction did not violate the Due Process             correctly states the government’ burden
Clause.                                                 of proof. . . . As used in this instruction,
                                                        therefore, we are satisfied that the
   In Cage, the Court held that the reasonable          reference to m oral certainty, in
doubt instruction in that case, which included          conjunction with the abiding conviction
the terms “grave uncertainty,” “actual                  language, impressed upon the factfinder
substantial doubt,” and “moral certainty,”              the need to reach a subjective state of
violated due process:                                   near certitude of the guilt of the
                                                        accused.
   It is plain to us that the words
   “substantial” and “grave,” as they are            Id. at 14-15 (internal citation and quotation
   commonly understood, suggest a higher             marks omitted). The Court went on to stress
   degree of doubt than is required for              other elements of the instruction explicitly
   acquittal under the reasonable-doubt              requiring that the jurors’ conclusions be based
   standard. When those statements are               solely on the evidence in the case. See id.
   then considered with the reference to             at 16.2
   “moral certainty,” rather than
   evidentiary certainty, it becomes clear              The instruction given in Dickinson’s trial
   that a reasonable juror could have                contained the language “an abiding conviction
   interpreted the instruction to allow a            to a moral certainty as to the defendant’s
   finding of guilt based on a degree of             guilt.” This is identical in all crucial respects
   proof below that required by the Due              to the “moral certainty” language accepted in
   Process Clause.                                   Victor. Dickinson’s instruction also contained
                                                     requirements that the jurors’ conclusions be
Cage, 498 U.S. at 41. The instruction given in       based solely on the evidence, similar to the
Dickinson’s trial includes identical “grave          requirements in Victor.3
uncertainty” language but does not contain the
“substantial doubt” language. It does contain
“moral certainty,” but that phrase was used in          2
a context different from that in Cage; the                 “The jury was told ‘to determine the facts of
                                                     the case from the evidence received in the trial and
Court articulated the significance of the            not from any other source.’ The court continued
difference in Victor.                                that ‘you must not be influenced by pity for a
                                                     defendant or by prejudice against him. . . . You
   In Victor, the Court held that two                must not be swayed by mere sentiment, conjecture,
instructions defining reasonable doubt did not       sympathy, passion, prejudice, public opinion or
violate the Due Process Clause. While neither        public feeling.” Victor, 511 U.S. at 16 (internal
instruction contained the “grave uncertainty”        citation omitted). In Victor and in this case, “the
language, both contained “moral certainty,”          evidence” is mentioned in the same sentence
and one contained “actual and substantial            containing “moral certainty.”
doubt.” See Victor, 511 U.S. at 7, 18.                      3
Discussing the “moral certainty” component,                   The language is as follows: “You are
the Court stated that                                prohibited by law and by your oath from going
                                                     beyond the evidence to seek for doubts upon which
                                                     to acquit the accused, but must confine yourselves
   [a]lthough . . . moral certainty is               strictly to a dispassionate consideration of the
   ambiguous in the abstract, the rest of the        testimony upon the trial. You must not resort to
   instruction . . . lends content to the            extraneous or outside facts or factors or
   phrase. The jurors were told that they            circumstances in reaching your verdict, and you are
   must have ‘an abiding conviction, to a            not at liberty to adopt unreasonable theories or
   moral certainty, of the truth of the                                         (continued...)

                                                 3
    In discussing the “moral certainty” language           ternative definition of reasonable doubt”
in the second charge, the Victor Court stated:             concerning “a man of sound mind,” we held
                                                           that the language as a whole satisfied due
   Instructing the jurors that they must                   process. See id. at 123. The same is true
   have an abiding conviction of the                       here.
   defendant’s guilt does much to alleviate
   any concerns that the phrase “moral                        This holding is consistent with Morris,
   certainty” might be misunderstood in the                because there the unconstitutional instruction
   abstract. The instruction also equated a                contained not only “grave uncertainty” and
   doubt sufficient to preclude moral                      “moral certainty” but also “actual or
   certainty with a doubt that would cause                 substantial doubt,” and did not contain
   a reasonable person to hesitate to act.                 “abiding conviction” and other relevant
                                                           qualifying language. See id. at 586-87.
Id. at 21 (internal citation omitted). Although
the language is slightly different, Dickinson’s                                   III.
instruction similarly analogizes the “moral                    Dickinson claims that the prosecution
certainty” language: “To put it differently, you           suppressed favorable evidence in violation of
must be satisfied of both defendants’ guilt by             Brady. The Due Process Clause of the
that degree of assurance which induces a man               Fourteenth Amendment requires that the
of sound mind to act without a doubt upon the              government turn over evidence in its
conclusions to which it leads.”                            possession that is both favorable to the
                                                           accused and material to either guilt or
    In Gaston v. Whitley, 67 F.3d 121 (5th Cir.            punishment. See Brady, 373 U.S. at 87;
1995), we upheld a reasonable doubt                        United States v. Stephens, 964 F.2d 424, 435
instruction that included the phrases “grave               (5th Cir. 1992).         “Favorable” evidence
uncertainty” and “moral certainty,” the same               includes both exculpatory substantive evidence
disfavored phrases included at Dickinson’s                 and impeachment evidence. See United States
trial:                                                     v. Bagley, 473 U.S. 667, 676 (1985).
                                                           “[E]vidence is material only if there is a
   It must be such a doubt as would give                   reasonable probability that, had the evidence
   rise in your minds to a grave uncertainty               been disclosed to the defense, the result of the
   by reason of the unsatisfactory character               proceeding would have been different.” Id. at
   of the evidence, one that would make                    682, 685. “A ‘reasonable probability’ is a
   you feel that you had not an abiding                    probability sufficient to undermine confidence
   conviction to a mortal–moral certainty                  in the outcome.” Id. at 682.5
   as to the accused’s guilt for that degree
   of assurance which induces a man of
   sound mind to act without doubt upon                    (...continued)
   the conclusion to which his mind leads                  that Cage was not retroactive. See Gaston,
   him.                                                    67 F.3d at 122. The foregoing discussion of Cage
                                                           and Victor establishes that applying Cage-Victor,
Id. at 121.4 Based on the inclusion of the “al             rather than just Victor, does not affect the Gaston
                                                           holding.
                                                              5
                                                                 Dickinson’s conviction was in 1977 and thus
(...continued)                                             predated United States v. Bagley, 473 U.S. 667
suppositions in considering the evidence in order to       (1985). Therefore, the trial court applied Brady
justify a verdict of conviction. You are to be             and United States v. Agurs, 427 U.S. 97 (1976).
governed exclusively by the evidence and by the            Nothing in Bagley would alter the court’s analysis,
law as heard by you in this courtroom.”                    because, as discussed below, the court found that
                                                           the information was not material, meaning it would
   4
       When Gaston was decided, we had precedent           not have affected the outcome of the trial. Agurs
                           (continued...)                                             (continued...)

                                                       4
    During trial, Dickinson filed a motion to             that Dickinson’s claim fails on the merits.
compel the prosecution to give access to all              First, he alleges only minor discrepancies
tape-recorded statements of the victims. The              between the taped statements and trial
court did not grant the motion but instead                testimony that, even if proven, would not
listened to the tapes in camera following the             create a reasonable probability that the result
trial testimony of both victims, to determine             would have been different.8 More importantly,
whether they contained favorable material.                he has no evidence regarding the content of
                                                          the tapes other than the findings of the court,
   The court found that the tapes contained no            which do not support his claims of tape
exculpatory evidence, that the content was                content.
virtually identical to the victims’ in-court
testimony, and that the tapes actually                                         IV.
contained testimony more incriminating to the                Dickinson claims that the court improperly
defendant than did the victims’ trial testimony.          instructed the jury as to the elements of
The court therefore denied defense access to              aggravated kidnapping.
the tapes, finding “no material of such a nature
that a jury on these tapes alone could find a                The burden of demonstrating that an
divergence or a disagreement with the                        erroneous instruction was so prejudicial
testimony given by these witnesses in court as               that it will support a collateral attack on
to elevate itself to constitute a reasonable                 the constitutional validity of a state
doubt in the minds of the jury.” The tapes                   court’s judgment is even greater than
were not introduced at trial and are no longer               the showing required to establish plain
available.                                                   error on direct appeal. The question in
                                                             such a collateral proceeding is whether
    “Ordinarily when the trial court has                     the ailing instruction by itself so infected
conducted an in camera examination we will                   the entire trial that the resulting
not go beyond its finding to determine whether
exculpatory materials were withheld.” Jones
v. Butler, 864 F.2d 348, 356 (5th Cir. 1988).6
Therefore, we need not consider the merits of             (...continued)
Dickinson’s Brady claim. Because, however,                claimed exculpatory evidence alone must create a
we have some concern with what standard the               reasonable doubt, but that the entire record
trial court may have applied,7 we also conclude           including that evidence creates such a doubt:
                                                             The proper standard of materiality must
                                                             reflect our overriding concern with the
(...continued)                                               justice of the finding of guilt. . . . This
and Bagley recognize this general requirement. See           means that the omission must be evaluated
Bagley, 473 U.S. at 674-75 (quoting Agurs).                  in the context of the entire record. If there is
                                                             no reasonable doubt about guilt whether or
   6
    See also United States v. Ross, 511 F.2d 757,            not the additional evidence is considered,
765 (5th Cir. 1975); United States v. Register, 496          there is no justification for a new trial. On
F.2d 1072, 1081 (5th Cir. 1974) (“We will not go             the other hand, if the verdict is already of
beyond the trial court’s finding to encourage                questionable validity, additional evidence of
shipping prosecutor’s files to the appellate court           relatively minor importance might be
whenever the defense cries Brady.”).                         sufficient to create a reasonable doubt.
   7
     The court found that there was no material on        Agurs, 427 U.S. at 112-13.
the tapes “of such a nature that a jury on these
                                                             8
tapes alone could find a divergence or a                       These alleged discrepancies consist of minor
disagreement with the testimony . . . as to elevate       variations in the victims’ descriptions of the
itself to constitute a reasonable doubt” (emphasis        attackers, their vehicle, and their apartment, none
added). The correct standard is not that the              of which goes to the heart of the abundant
                           (continued...)                 identification evidence.

                                                      5
   conviction violates due process, not
   merely whether the instruction is                     The trial court instructed the jury by first
   undesirable, erroneous, or even                   reciting the precise text of LA. R.S. 14:44(1),
   universally condemned.                            with the exception of the following two
                                                     inconsequential modifications: “[A] release”
Henderson v. Kibbe, 431 U.S. 145, 154                was replaced by “the release,” and “seizing and
(1977) (internal quotation marks and citation        carrying away of” was used in place of
omitted); see also Kinnamon v. Scott, 33 F.3d        “seizing and carrying of.” The court then
462, 465 (5th Cir. 1994). Any error or               emphasized the necessary “state of mind that
omission must be evaluated in the context not        [it] just set out above, the intent to force the
only of the overall charge, but also of the          victim to give up something of apparent value
entire record, including testimony and the           to secure their release.”
argument of counsel. See Cupp v. Naughten,
414 U.S. 141, 146-47 (1973); Henderson, 431             The court then went on to define and
U.S. at 152. We must determine whether               distinguish the lesser included offense of
there is a reasonable likelihood that the jury       simple kidnapping and stated the following:
applied the aggravated kidnapping instruction
in a constitutionally impermissible way. See            Bear in mind the difference. The first
Kinnamon, 33 F.3d at 465.                               one, aggravated[,] has that additional
                                                        element that it must be done with the
   At the time of Dickinson’s offenses and              intent thereby to force the victim to give
currently, LA. R.S. 14:44 provides as follows:          up something of apparent present or
                                                        prospective value. Simple kidnapping
   Aggravated kidnapping is the doing of                does not have that in it.
   any of the following acts with the intent
   thereby to force the victim, or some              Dickinson claims this was error, because the
   other person, to give up anything of              court failed similarly to emphasize that another
   apparent present or prospective value,            difference between simple and aggravated
   or to grant any advantage or immunity,            kidnapping is that aggravated kidnapping
   in order to secure a release of the person        requires the conditioning of release on the
   under the offender’s actual or apparent           victims’ relinquishment of that value.
   control:
                                                         The decision to “emphasize” only one of
        (1) The forcible seizing and carrying        the distinguishing elements of aggravated
   of any person from one place to another;          kidnapping did not violate due process: There
   or                                                is no reasonable likelihood that the jury applied
                                                     the instruction in a constituti onally
       (2) The enticing or persuading of             impermissible way. By first giving the
   any person to go from one place to                complete statutory definition of both offenses,
   another; or                                       and then attempting to highlight the key
                                                     distinction between the offenses, the court
       (3) The imprisoning or forcible               gave the jury adequate direction.9 Although it
   secreting of any person.                          may not have been optimal to term the one
                                                     distinction “the difference” (emphasis added),
Subsection (1) is at issue here.                     the instruction did not violate due process.

                                                           9
                                                              “The essential difference” between the
                                                     offenses is the distinction emphasized by the trial
                                                     court. See State v. Arnold, 548 So. 2d 920, 923
                                                     (La. 1989) (quoting State v. Polk, 376 So. 2d 151,
                                                     152 n.1 (La. 1979)).

                                                 6
                       V.                                  gratification.
    Dickinson claims insufficient evidence to
support his aggravated kidnapping                       Arnold, 548 So. 2d at 924.
convictions. “In evaluating a challenge to the
sufficiency of the evidence, we view the                   Citing Bouie v. City of Columbia, 378 U.S.
evidence in the light most favorable to the             347 (1964), Dickinson argues that the Arnold
verdict and uphold the verdict if, but only if, a       holding cannot be applied to his 1977
rational juror could have found each element            conviction. In Bouie, the Court held that an
of the offense beyond a reasonable doubt.”              unforeseeable state-court construction of a
United States v. Brown, 186 F.3d 661, 664               criminal statute cannot be applied
(5th Cir. 1999); see also Foy v. Donnelly, 959          retroactively. See id. Dickinson’s claim is
F.2d 1307, 1313 (5th Cir. 1992). We apply               without merit, because the Arnold court
this standard with explicit reference to the            specifically addressed the precedent and
substantive elements of the criminal offense as         opined that
defined by state law, and give great weight to
the state court’s determination that the                   [a] review of the history of the statute
evidence is sufficient. See Foy, 959 F.2d at               and our jurisprudence reveals that [the
1314.                                                      requirement Dickinson advocates] has
                                                           never been part of the law of aggravated
   In State v. Arnold, 548 So. 2d 920, 923                 kidnapping. Rather, all the law has
(La. 1989), the court identified the elements of           required is evidence of defendant’s
aggravated kidnapping as follows: (1) the                  intent to extort something of value by
forcible seizing, and (2) the carrying of any              playing upon the victim’s hope of
person from one place to another, (3) with the             release.
intent to force the victim to give up anything
of value, (4) in order to secure the release of         Arnold, 548 So. 2d at 923.10
that person. Dickinson argues that there was
no evidence of the fourth element; in other                The evidence is sufficient to support
words, he contends there was no evidence that           Dickinson’s conviction. He abducted both
he intended to condition the victims’ release           victims at knifepoint, forced them into a car,
on their submitting to sexual intercourse. As           and drove them to an apartment where they
we will explain, Arnold makes plain that the            were raped by him and his cohort. Both
evidence is sufficient to prove all four elements       victims gave substantial test imony
of the offense:                                         corroborating their claims. The opinion in
                                                        Arnold, 548 So. 2d at 921, 924, makes plain
   [T]he relevant factor in applying the                that when a victim is forcibly abducted at
   fourth element of aggravated kidnapping              knifepoint, driven to a remote location, and
   is not whether the kidnapper explicitly              forced to have sexual intercourse, the
   communicated to the victim that                      requirements of aggravated kidnapping are
   performance of sexual acts would result              established.
   in his or her release, but whether the
   kidnapper intended to extort sexual                     AFFIRMED.
   gratification from the victim by playing
   upon the victim’s hope for release. This
   intent is manifested not merely by the
   kidnapper’s words or actions, but by
   analyzing whether a reasonable person                  10
                                                             In fact, even the dissent in Arnold specifically
   in the victim’s place, given the totality of         cites the case sub judice as one in which sufficient
   the circumstances, would believe that he             evidence to satisfy all elements of the offense did
   or she would not be safely released                  exist. See Arnold, 548 So. 2d at 929 n.5
   unless he or she complied with the                   (Calogero, J., dissenting in part) (discussing State
   kidnapper’s demands for sexual                       v. Dickinson, 370 So. 2d 557 (La. 1979)).

                                                    7
