                           Revised February 11, 2000

                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT
                            ___________________

                                    No. 99-30146
                                 __________________

                             BUFORD ANTHONY DUPUY,

                                                            Petitioner-Appellant,

                                       versus

           BURL CAIN, Warden, Louisiana State Penitentiary,

                                             Respondent-Appellee.
________________________________________________________________

           Appeal from the United States District Court
               for the Western District of Louisiana
_________________________________________________________________
                          January 24, 2000

Before JONES, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     For    this    pro    se,    successive      habeas    petition,   considered

pursuant to the applicable standards prior to those imposed by the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

primarily    at    issue    is    whether   the    district    court    abused   its

discretion in determining that the challenged reasonable doubt jury

instruction was not prejudicial for abuse of writ purposes.                      The

other claims were also treated similarly.                  We AFFIRM.
 I.




- 2 -
     Buford    Anthony        Dupuy’s      1974    conviction       for   second-degree

murder and life-sentence were affirmed in December 1975.                         State v.

Dupuy, 319 So.2d 299 (La. 1975).

     Dupuy’s        first    federal       habeas     petition,       filed     in    1977,

contended:          (1)     that     the    evidence     seized       during     claimed

unconstitutional          searches    of    his     residence       should    have     been

excluded;     (2)     that    he     was    not     allowed    to     examine        certain

prosecution evidence; and (3) that he had received an unfair trial,

based on claimed prejudicial remarks by the prosecutor.                                 The

petition was dismissed, on the merits, in 1979.                       Our court denied

a certificate of probable cause (CPC) in August 1982.

     Dupuy’s second, successive petition was filed on 12 April

1996, approximately two weeks before AEDPA became effective. He

raised seven new claims for relief: (1) that the use of his

confession violated the Fifth, Sixth, and Fourteenth Amendments;

(2) that the evidence was insufficient to convict him; (3) that he

received ineffective assistance of counsel; (4) that the reasonable

doubt and specific intent instructions violated the Fourteenth

Amendment; (5) that women were unconstitutionally excluded from the

grand and petit juries; (6) that the State suppressed evidence in

violation of Brady v. Maryland, 373 U.S. 83 (1963); and (7) that

his sentence was illegal.

     Pre-AEDPA, raising a new claim in a subsequent habeas petition

constitutes    an     abuse    of    the    writ,     unless    the    petitioner       can


                                           - 3 -
demonstrate both cause for not raising the claim in the first

petition and actual prejudice if the claim is not considered; if he

fails to do so, the court may still reach the merits in order to

prevent a “fundamental miscarriage of justice”. McCleskey v. Zant,

499 U.S. 467, 494 (1991).

     Pretermitting whether Dupuy had shown cause, the magistrate

judge determined that Dupuy would neither be prejudiced, nor suffer

a fundamental miscarriage of justice, and, therefore, recommended

that the writ be dismissed, pursuant to Rule 9(b) of the Rules

Governing Section 2254 Proceedings in the United States District

Courts.

     The district court adopted the magistrate judge’s report and

recommendation, except for the claim concerning Dupuy’s sentence.

For it, the court concluded that the sentence was illegally lenient

and that, therefore, Dupuy had not been prejudiced.     The petition

was dismissed with prejudice, as an abuse of the writ.

                                II.

     As in district court, Dupuy proceeds pro se.       Because his

second habeas petition was filed prior to AEDPA, pre-AEDPA habeas

law applies.   Lindh v. Murphy, 521 U.S. 320 (1997).   Nevertheless,

the district court granted an AEDPA certificate of appealability

(COA) for four of the seven claims.      A COA is the substantive

equivalent of a pre-AEDPA CPC, Blankenship v. Johnson, 118 F.3d

312, 315 & n.2 (5th Cir. 1997); but, when a pre-AEDPA CPC is


                               - 4 -
granted, we consider all of the claims raised in the petition.

Sherman v. Scott, 62 F.3d 136, 138-39 (5th Cir. 1995), cert.

denied, 516 U.S. 1093 (1996).         (Accordingly, our court permitted

Dupuy to file a supplemental brief covering the issues for which

the district court had not granted a COA.)

     As noted, a federal habeas petitioner is required to raise all

issues in the first petition; a subsequent, pre-AEDPA petition

raising new issues is subject to dismissal for abuse of writ,

pursuant to Rule 9(b).        Rodriguez v. Johnson, 104 F.3d 694, 696

(5th Cir.), cert. denied, 520 U.S. 1267 (1997).          Once the State has

met its burden of pleading such abuse, the petitioner must show

either cause and prejudice concerning the failure to plead the

issue in the first petition, or a fundamental miscarriage of

justice.      Id. at 697.

     We review an abuse of writ dismissal for abuse of discretion.

Id. at 696.     As did the district court, instead of looking to cause

vel non, we examine Dupuy’s claims to determine either actual

prejudice or a fundamental miscarriage of justice vel non.

     To show prejudice, Dupuy must demonstrate, “not merely that

the error at his trial created a possibility of prejudice, but that

they worked to his actual and substantial disadvantage, infecting

his entire trial with error of constitutional dimensions”.          United

States   v.    Frady,   456   U.S.   152,    170   (1982).   Similarly,   a



                                     - 5 -
miscarriage     of    justice    occurs       only    in   those     “extraordinary

instances when a constitutional violation probably has caused the

conviction of one innocent of the crime”.                  McCleskey, 499 U.S. at

494.

       For   starters,    in    reviewing       for    actual      prejudice   or   a

fundamental miscarriage of justice, we reject Dupuy’s objections

concerning the procedure employed by the district court for this

Rule 9(b) question: (1) that by analyzing Dupuy’s substantive

issues in the Rule 9(b) context, he has been held to a higher

standard of review; (2) that there are unresolved factual issues

regarding the state court suppression hearing which should not have

been resolved without an evidentiary hearing; (3) that the district

court erroneously relied on an uncertified state court record; (4)

that the State’s answer was served on him without copies of the

attached exhibits, and the district court failed to rule on his

motion to have the State provide him those exhibits; (5) that an

unresolved factual dispute remains; and (6) that the district

court’s order, that no further motions would be entertained while

the Rule 9(b) issue was pending, prohibited him from conducting

discovery    and     prosecuting   his    habeas      petition.       In   sum,   the

procedure employed by the district court for this Rule 9(b) matter

was proper.

                                         A.




                                     - 6 -
     For Dupuy’s claim that the reasonable doubt and specific

intent instructions were unconstitutional, we review a challenged

instruction to determine whether it so infected the entire trial

that the resulting conviction violated due process, not merely

whether   it    is   undesirable,    erroneous,   or   even   universally

condemned.     Rodriguez, 104 F.3d at 699 n.8.

                                     1.

     The reasonable doubt instruction provided:

          A reasonable doubt is a fair doubt based upon
          reason and common sense and arising from a
          state of the evidence. It is a doubt that you
          can give a reason for. It is rarely possible
          to prove anything to an absolute certainty.
          Proof beyond a reasonable doubt is such as you
          would be willing to rely and act upon in the
          most important of your own affairs.          A
          defendant is never to be convicted on mere
          suspicions or conjectures. A reasonable doubt
          may arise not only from the evidence produced
          but also from a lack of evidence. Since the
          burden is always on the prosecution to prove
          the accused guilty beyond a reasonable doubt
          of every essential element of the crime
          charged, a defendant has the right to rely
          upon the failure of the prosecution to
          establish such proof.    A defendant may also
          rely upon evidence brought out on cross
          examination of a witness for the prosecution.
          The law never imposes upon a defendant in a
          criminal case, the burden or duty of producing
          any evidence.   A reasonable doubt exists in
          any case when after careful and impartial
          consideration of all the evidence in the case,
          the jurors do not feel convinced to make [sic]
          a moral certainty that the defendant is guilty
          of the charge against him.

(Emphasis added.)



                                    - 7 -
     Dupuy contends that the “moral certainty” language suggests a

higher level of doubt than that — reasonable doubt — required for

acquittal, citing Cage v. Louisiana, 498 U.S. 39 (1990).            There,

the Court held that the charge

          equated a reasonable doubt with a “grave
          uncertainty” and an “actual and substantial
          doubt,” and stated that what was required was
          a “moral certainty” that the defendant was
          guilty.   It is plain to us 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.

Id. at 41.

     Victor v. Nebraska, 511 U.S. 1 (1994), modified Cage.              The

three phrases were still disapproved; accordingly,

          trial courts must avoid defining reasonable
          doubt so as to lead the jury to convict on a
          lesser showing than due process requires.
          [But, for the] cases [under review], we
          conclude   that   taken  as   a   whole,   the
          instructions correctly conveyed the concept of
          reasonable doubt to the jury.

Id. at 22.

     Thereafter, in Schneider v. Day, 73 F.3d 610, 611 (5th Cir.

1996), for example, our court held that the reasonable doubt

instruction   at   issue   there,     which   employed   “an   actual   and

substantial doubt”, “a serious sensible doubt as such you could

give a good reason for”, and “a moral certainty”, was acceptable.

In so doing, our court applied Victor, and held “that there is no




                                    - 8 -
reasonable likelihood that the jury ... applied the instruction in

a way that violated the Constitution”.           Id. at 611.

     Humphrey v. Cain, 138 F.3d 552 (5th Cir.)(en banc), cert.

denied, ___U.S.___, 119 S. Ct. 348, and cert denied, ___U.S.___,

119 S. Ct. 365 (1998), adopted the panel opinion, 120 F.3d 526

(1997),    concerning,    inter   alia,     whether   the    defendant     was

prejudiced by the reasonable doubt instruction.             The instruction

provided, at the end, that the jury “could acquit only if it had a

serious doubt, for which you could give good reason”; it earlier

employed the terms “substantial doubt”, “grave uncertainty”, and

“moral certainty”.       The requirement that a juror had to have a

“serious doubt, for which [he] could give a good reason”, in

conjunction with the disapproved phrases, was held to violate due

process.    See Humphrey, 120 F.3d at 530 (panel opinion).                 But,

Humphrey expressly did not consider whether the “give good reason”

requirement, alone, was violative of due process.              Id. at 531.

     Dupuy’s reasonable doubt instruction contains favored and

disfavored phrases.       Of course, it is not the use of a single

phrase     that   determines      whether    a     jury     instruction      is

unconstitutional; instead, the instruction is examined as a whole.

Victor, 511 U.S. at 22.

     Dupuy’s instruction required jurors to be able to articulate

a “good reason” and had one of the disfavored Cage phrases (“moral

certainty”).      But,   otherwise,   the    instruction       has   far   less

                                   - 9 -
disfavored     language      than    in    Humphrey;    and,       additionally,       the

instruction      has    further          clarifying    language         to    assist    in

determining reasonable doubt vel non.                 Humphrey, 120 F.3d at 533

(discussing why Schneider and other cases, faced with “good reason”

phrase held instruction not unconstitutional, because not faced

with    all    the   other     disfavored        phrases      as   in    the    Humphrey

instruction).        Moreover, the “good reason” requirement is placed

much earlier in the instruction and given far less emphasis.

Finally, Humphrey was not a successive petition/abuse of writ

situation, as is the case at hand.

       We   conclude    that       the    district    court    did      not    abuse   its

discretion in holding that Dupuy has not shown the requisite

prejudice resulting from the instruction.                      For example, unlike

Humphrey, as discussed infra, this is not a “close case” as to

guilt or innocence.          Id.

                                            2.

       The specific intent jury instruction provided:

              As a general rule it is reasonable to infer
              that a person ordinarily intends all the
              natural and probable consequences of acts
              knowingly done or knowingly omitted by him.
              So, unless the evidence in this case leads the
              jury to a different or contrary conclusion,
              the jury may draw the inference implied and
              find that the accused intended all the natural
              and probable consequences which one standing
              in like circumstances and possessing like
              knowledge should reasonably have expected to
              result from any act knowingly done or
              knowingly omitted by the accused.

                                          - 10 -
     Dupuy contends that this instruction created a presumption of

intent, prohibited by Sandstrom v. Montana, 442 U.S. 510, 515

(1979).    It held that the phrase “the law presumes that a person

intends the ordinary consequences of his voluntary acts” created

such a prohibited presumption.      Id.

     Here, the instruction provided for an allowable inference; it

did not create the prohibited presumption.         Accordingly, the court

did not abuse its discretion in determining that Dupuy has not

demonstrated prejudice.

                                    B.

     Dupuy asserts that his due process rights were violated

because his confession was elicited in violation of the Fifth and

Sixth Amendments.

     Dupuy must demonstrate that his confession was not voluntarily

given and that, for this abuse of writ inquiry, the district court

abused its discretion in determining that he was not prejudiced.

“[T]he    ultimate   question   whether,   under   the   totality   of   the

circumstances, [a] challenged confession was obtained in a manner

compatible with the requirements of the Constitution is a matter

for independent federal determination.” Muniz v. Johnson, 132 F.3d

214, 219 (5th Cir.), cert. denied, ___ U.S.___, 118 S.Ct. 1793

(1998) (citation omitted). “Subsidiary factual questions, however,

are entitled to a presumption of correctness”.           Id. at 219.


                                  - 11 -
                                1.

     After Dupuy’s arrest, he was interrogated at the sheriff’s

office, beginning with the Sheriff asking Dupuy whether he knew his

rights.   Dupuy responded that he did, and then admitted killing

Normand in a “tussle”.   (At trial, Dupuy’s defense was based upon

Normand being accidentally shot during a “tussle”.      Dupuy, 319

So.2d at 301.)

     Dupuy’s motion to suppress the confession, because he had not

been advised of his rights, was denied.    At the hearing on that

motion, a Deputy Sheriff testified that he could not remember if

Dupuy had been read his rights pre-interrogation.   Another Deputy

testified that, when he arrested Dupuy, he read him his rights;

that initially, Dupuy stated that he did not understand; that he

then reread those rights to Dupuy; and that, Dupuy stated that he

understood.

     Moreover, at the sheriff’s office, prior to the interrogation,

Dupuy signed a memorandum waiving his rights.    Additionally, the

Sheriff testified that he

          told [Dupuy], of course, that we were there to
          talk to him and that we were going to read him
          his rights or tell him his rights and that’s
          when he told us we didn’t have to. That they
          had already been read to him. And, he already
          knew his rights and that we didn’t have to
          tell him his rights.

     The magistrate judge noted that Dupuy had not offered any

evidence to demonstrate that he had not waived his rights, and,


                              - 12 -
accordingly,     determined     that      Dupuy    failed   to    overcome     the

presumption     of    correctness    that   attaches   to    state-court      fact

finding.    See Mann v. Scott, 41 F.3d 968, 976 (5th Cir. 1994),

cert. denied, 514 U.S. 1117 (1995).                 In sum, Dupuy has not

demonstrated     prejudice.         Therefore,     there    was   no   abuse    of

discretion by the district court.

                                       2.

      Citing Edwards v. Arizona, 451 U.S. 477, 487 (1981), Dupuy

maintains that he requested counsel immediately after his arrest,

and   should    not   have   been   interrogated     without      counsel    being

present.       Dupuy’s conviction, however, became final prior to

Edwards.    To the extent that Edwards created a new per se rule, it

does not apply retroactively to cases on collateral review.                    See

Solem v. Stumes, 465 U.S. 638, 650 (1984).

      The   pre-Edwards      rule   was     that   States    could     not secure

“criminal convictions through the use of involuntary confessions

resulting from coercive police conduct”. Self v. Collins, 973 F.2d

1198, 1205 (5th Cir. 1992), cert. denied, 507 U.S. 996 (1993).

Dupuy has not demonstrated an abuse of discretion by the district

court’s concluding that the admission of the confession did not

work to his “actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions”.                 Murray v.

Carrier, 477 U.S. 478, 493 (1986).



                                     - 13 -
                                   C.

     Dupuy next raises a sufficiency challenge regarding his intent

to kill Normand.    For such a claim, we consider whether, viewing

the evidence “in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt”.          Jackson v. Virginia, 443

U.S. 307, 319 (1979).       This standard is applied with “explicit

reference to the substantive elements of the criminal offense as

defined by state law”.      Id. at 324 n.16.   Under Louisiana law, the

elements of second degree murder are (1) the killing of a human

being; and (2) that defendant had the specific intent to kill or

inflict great bodily harm. LA. REV. STAT. ANN. 14:30.1.

     Specific criminal intent is “that state of mind which exists

when the circumstances indicate that the offender actively desired

the prescribed criminal consequences to follow his act or failure

to act”.     State v. Williams, 714 So.2d 258, 263 (La. App. 5 Cir.

1998) (citation omitted).      Specific intent is a question of fact

which may be inferred from the circumstances and actions of the

defendant.    Id. at 263.

     Dupuy admitted killing Normand.      He had Jesse Bordelon throw

Normand’s body into a bayou.      Dupuy drove to another location and

threw the gun into the bayou.     Normand had been hogtied and shot in

the back of the head.    Normand left a note saying “If I get killed,

it’s Anthony Dupuy, that did it.”


                                 - 14 -
     Obviously, the evidence is sufficient for a reasonable juror

to find, beyond a reasonable doubt, that Dupuy intended to kill

Normand.   The district court did not abuse its discretion.

                                  D.

     Relying on Taylor v. Louisiana, 419 U.S. 522 (1975), Dupuy

contends that he was prejudiced because women were systematically

excluded from grand and petit juries. In Daniel v. Louisiana, 420

U.S. 31 (1975), the court held that Taylor would not be applied

retroactively to “convictions obtained by juries empaneled prior to

the date of that decision”.   Id. at 32.    Dupuy’s grand and petit

juries were empaneled prior to Taylor.

                                  E.

     Dupuy asserts that police reports were withheld from him in

violation of Brady. To establish such a violation, Dupuy must prove

that the State withheld evidence; that it was favorable; and that

it was material to the defense.    E.g., Little v. Johnson, 162 F.3d

855, 861 (5th Cir. 1998), cert. denied, ___U.S.___, 119 S.Ct. 1768

(1999).

     Dupuy maintains that the police report would have shown (1)

that Normand’s fingerprints were found in Dupuy’s home; (2) that

Normand was not kidnaped; (3) that a table in Dupuy’s home was

damaged and that blood samples matching Normand’s blood type were

found in Dupuy’s home; and (4) that there was evidence that would

have supported Dupuy’s testimony that Normand had been accidentally

                              - 15 -
killed. During post conviction proceedings in 1992, 17 years after

his conviction, a police report was furnished to Dupuy in response

to a discovery request. Dupuy contends that there are other police

reports   that   were   not   provided   to   him;   however,   he   has   not

demonstrated that they are in existence.         The State responded that

all such records were delivered to Dupuy.

     Dupuy did not demonstrate that the reports were withheld from

him. Accordingly, the district court did not abuse its discretion.

                                    F.

     Dupuy claims that he was illegally sentenced by the trial

court, because his sentence failed to specify that he would not be

eligible for parole, probation, or suspension of sentence for 20

years.    In a state collateral proceeding, the court ruled that the

sentence was not illegal.        Louisiana v. Dupuy, No. 31,391 (12th

J.D.C. 27 Aug. 1993) (motion for resentencing).

     The district court determined that his sentence was illegally

lenient and that, therefore, Dupuy had not been prejudiced.            Dupuy

has not demonstrated that the wording of the court’s minute entry

will affect his eligibility for release. Accordingly, the requisite

abuse of discretion has not been shown.

                                    G.

     For his ineffective assistance of counsel claim, Dupuy must

show that his attorneys’ performance was deficient and that this

prejudiced his defense.       Strickland v. Washington, 466 U.S. 668,


                                  - 16 -
687 (1984).   Dupuy must overcome the strong presumption that their

conduct fell within the wide range of reasonable professional

assistance.   Id. at 689.

                                      1.

     Dupuy contends that his attorneys failed to object when the

prosecution moved to amend the indictment after the voir dire

commenced.    The indictment was amended on 31 October 1974.           But,

the first juror was not called until 4 November 1974.

                                      2.

     Claiming that false and perjurious testimony was presented to

the grand jury that he had committed an aggravated kidnaping, Dupuy

contends that his attorney should have moved to quash the original

indictment for first degree murder.           Likewise, claiming that, at

the preliminary hearing, no evidence was presented to show that

there was a kidnaping, he asserts that counsel should have moved to

suppress the indictment. But, he was neither tried, nor convicted,

for first degree murder.

                                      3.

     Dupuy    contends   that   his        attorney   rendered   ineffective

assistance in prosecuting the motion to suppress the confession.

As discussed, supra, Dupuy has not demonstrated prejudice.

                                      4.

     In conjunction with Dupuy’s contention that the evidence was

insufficient to prove that he had the specific intent to kill


                                 - 17 -
Normand, Dupuy contends that counsel failed to present motions at

the conclusion of trial to protect his rights.                But, he concedes

that    counsel   moved     to   arrest      the   judgment    on   grounds   of

insufficient evidence.

                                        5.

       Dupuy asserts that counsel should have objected to the court’s

reasonable    doubt   and    specific     intent    instructions.       Dupuy’s

conviction was final in 1975. Cage was decided in 1990.                       The

failure to so object, in the light of the state of the law existing

at the time, is not deficient performance.             Schneider, 73 F.3d at

612.

                                        6.

       Dupuy cites the failure to object to the exclusion of women

from grand and petit juries.        He states, however, that he believes

counsel did object to such exclusion.              In fact, counsel moved to

quash the indictment (motion denied), because women were not

impaneled on either the grand or petit jury.

       In sum, concerning the ineffective assistance of counsel

claims, the requisite Rule 9(b) prejudice is lacking. The district

court did not abuse its discretion in so concluding.

                                     III.

       Dupuy has failed to demonstrate that any of his claims result

in either prejudice or a fundamental miscarriage of justice.

Accordingly, he has not demonstrated that the district court abused


                                    - 18 -
its discretion in denying his second habeas petition on the basis

of abuse of writ.    Therefore, the dismissal of Dupuy’s second

habeas petition is

                                                        AFFIRMED.




                             - 19 -
DENNIS, Circuit Judge, concurring:



     I concur in the judgment of the court.             I write separately

because, in my view, the majority erroneously concludes that had

Dupuy   established     a   Cage   error    his   habeas   petition    might

nevertheless have been subject to dismissal for abuse of the writ

because a Cage error is not necessarily sufficiently pervasive and

prejudicial as to so infect the entire trial that the resulting

conviction violated due process.1

     Preliminarily, I agree that in this case the reasonable doubt

instructions taken as a whole are not infirm because “[t]here is no

reasonable likelihood that the jurors who determined petitioner’s

guilt   applied   the   instructions   in    a    way   that   violated   the

Constitution.”    Victor v. Nebraska, 511 U.S. 1, 6 (1994).           This is

especially evident when the instant instructions are compared and

contrasted to those in Cage v. Louisiana, 498 U.S. 39 (1990) and

Humphrey v. Cain, 138 F.3d 552 (5th Cir. 1998)(en banc).              Thus I

agree with the majority that Dupuy suffered no Cage error.

     Sullivan v. Louisiana, 508 U.S. 275 (1993), as I read it,

precludes the possibility that a Cage error may not be sufficiently

    1
     As both the district court and the majority pretermitted the
issue of cause as required in addition to a showing of actual
prejudice in a pre-AEDPA subsequent habeas petition raising a new
claim, see McCleskey v. Zant, 499 U.S. 467, 494 (1991), I do not
contend that a Cage error in and of itself would be enough for
Dupuy to avoid dismissal for abuse of the writ -- only that a Cage
error is sufficient to satisfy the requisite showing of prejudice.


                                   - 20 -
prejudicial to satisfy the showing required to avoid abuse of the

writ dismissal. In Sullivan, Justice Scalia stated in no uncertain

terms that a Cage error is not subject to harmless error review

because it operates as a complete deprivation of the defendant’s

Sixth   Amendment   right   to    jury   trial   and   violates   the   Fifth

Amendment requirement of proof beyond a reasonable doubt.               This

result obtains because, unlike many other jury instruction errors,

an instructional error misdescribing the burden of proof vitiates

all the jury’s findings such that reviewing courts “can only engage

in pure speculation -- its view of what a reasonable jury would

have done.   And when it does that, ‘the wrong entity judge[s] the

defendant guilty.’”     Sullivan, 508 U.S. at 280-81 (citing and

quoting Rose v. Clark, 478 U.S. 570, 578 (1986)).

     Accordingly, I do not believe that we are free to conclude, as

the majority opinion suggests, that a Cage error may not be

prejudicial.   Surely if Dupuy had been convicted and sentenced

without a jury finding of guilt, it could only have “worked to his

actual and substantial disadvantage, infecting his entire trial

withe error of constitutional dimension.”         United States v. Frady,

456 U.S. 152, 170 (1982).        Thus, Dupuy was required to prove only

that there was a Cage error, as defined by Sullivan and Victor, in

order to show the requisite prejudice to overcome dismissal for

abuse of the writ.




                                   - 21 -
