UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30279 Summary Calendar

JERRALD WILSON,

Petitioner-Appellee,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana No. 97-CV-1551-LLM

October 20, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

The respondent appeals from the judgment of the district court

granting Jerrald Wilson’s application for habeas corpus relief

under

, and remanding Wilson’s petition to the

State either to re-try Jerrald Wilson or to release him from

custody. The respondent argues that the judgment should be

reversed because this case is controlled by the standard of review

in the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), as applied in Muhleisen v. Ieyoub,

(5th Cir.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1999). Under Muhleisen, prisoners whose convictions were final at

the enactment of the AEDPA had one year from April 24, 1996 to file

petitions for habeas relief and avoid the heightened standard of

review under the AEDPA, which precludes relief if a state court's

determination of law was consistent with United States Supreme

Court precedent existing when the prisoner was convicted. See

Muhleisen,

. Because Wilson's claim is barred by an

adequate and independent state procedural rule, the district court

could not grant habeas relief, and we reverse the district court

without reaching this issue.

Wilson's petition was timely filed. The district court deemed

the petition to have been filed within the 1 year limitations

period of the AEDPA because it was dated April 22, 1997, and

stamped as tendered for filing on April 24, 1997, on the date of

the deadline for prisoners whose convictions were final at the

AEDPA's passage. We review the district court's findings of fact

for clear error. See Amos v. Scott,

(5th Cir.

1995). The court's finding that the petition was filed on April 24

is not clear error. Furthermore, this court applies the "mail box

rule" for pleadings submitted by prisoners acting pro se, and the

date on which prison officials receive the pleading is deemed the

time of filing for limitations purposes. See Cooper v. Brookshire,

(5th Cir. 1995).

In Muhleisen we applied the AEDPA standard of review to affirm

the district court’s denial of relief to a petitioner whose state-

court conviction became final before a challenged jury instruction

2 was declared unconstitutional in Cage v. Louisiana,

(1990). Muhleisen,

. In doing so, the Muhleisen

opinion implies that the Cage issue was adjudicated on the merits

in the state court. However, in Wilson’s case the district court’s

judgment was not based on the AEDPA standard of review. The

district court concluded that the AEDPA standard of review did not

apply to Wilson’s petition, because the state court had determined

that Wilson’s Cage claim was procedurally barred and thus the claim

was not “adjudicated on the merits in State court proceedings” for

purposes of the AEDPA.

(d). Since the state

courts did not adjudicate the merits of Wilson's petition, federal

review is not precluded by

(d).

A state procedural bar to habeas review resting on the failure

to lodge a contemporaneous objection constitutes an adequate and

independent state ground that forecloses federal habeas review.

See, e.g, Amos v. Scott,

(5th Cir. 1995).

Louisiana's contemporary objection rule constitutes an adequate and

independent state ground for denying federal habeas review of a

Cage claim that a "reasonable doubt" jury instruction ran afoul of

the Due Process clause of the Fourteenth Amendment. See Muhleisen

v. Ieyoub,

(5th Cir. 1999). The Louisiana

Supreme Court denied Wilson's application for post-conviction

relief without explanation, and the Louisiana Fifth Circuit Court

of Appeal denied his application on the ground that his Cage claim

was procedurally barred because his defense counsel failed to lodge

a contemporaneous objection at his trial in 1988. Cage was decided

3 in 1990. Since the Louisiana Supreme Court denied Wilson's

application without explanation, the last reasoned state court

decision on the matter was that of the Louisiana Fifth Circuit

Court of Appeal, which applied the state procedural bar. When a

state court does not give grounds for its decision, a federal court

should assume that the court relied on the same grounds as the last

reasoned state court decision. See Ylst v. Nunnemaker,

(1991). Accordingly, we presume the Louisiana Supreme

Court denied Wilson's application on the basis of the procedural

bar.

Federal review is available in spite of a prior decision's

resting on adequate and independent state grounds if the petitioner

can show cause for the default and actual prejudice as a result.

Reed v. Ross,

(1984); Amos,

. The

cause requirement is satisfied when petitioner's defense counsel

failed to raise a constitutional objection for which there was "no

reasonable basis in existing law" at the time, the novelty of the

potential claim depriving counsel of a reasonable basis to assert

the claim. Reed,

. This court has determined

that habeas relief on the basis of Cage error is available for

prisoners whose convictions were final when Cage was decided. See

Humphrey v. Cain,

(5th Cir. 1998)(en banc).

Wilson has not shown cause for his procedural default. The

Supreme Court has found that "[w]here the basis of a constitutional

claim is available, and other defense counsel have perceived and

litigated that claim, the demands of comity and finality counsel

4 against labeling alleged unawareness of the objection as cause for

procedural default." Engle v. Isaac,

(1981).

The constitutional stature of the reasonable-doubt standard was

well established long before Wilson's trial. See In re Winship,

(1970). In re Winship provided defense counsel

with a legal basis for challenging jury instructions that defined

"reasonable doubt" on the grounds that the instructions reduced the

state's burden of proof, violating the defendant's right to due

process of law. Decisions in a variety of procedural contexts in

federal and Louisiana courts demonstrate that objections to jury

instructions defining "reasonable doubt" were raised during the

late 1980s, when Wilson was tried. See, e.g., Bumpus v. Gunter,

(1st Cir.), cert. denied,

(1981); Lanigan v. Maloney,

(1st Cir.), cert

denied,

(1989); Rogers v. Carver,

, 382-

83 (1st Cir.), cert. denied,

(1988); People v. Yang,

(9th Cir. 1986); United States v. Love,

, 1060 (4th Cir.), cert. denied,

(1986);

State v. Cage,

(La.), rev'd,

(1990);

State v. West,

(La. Ct. App.), rev'd,

(La. 1990); State v. Flank,

(La. Ct. App.

1988); State v. Miller,

(La. Ct. App. 1986).

That many of these efforts were unsuccessful is of no consequence:

"the futility of presenting an objection to the state courts cannot

alone constitute cause for failure to object at trial." Engle,

.

5 Absent a showing of cause and prejudice, habeas review is

barred in federal courts when an adequate and independent state

procedural ground precludes review of a claim. Wainwright v.

Sykes,

, (1977). Since Wilson has not shown cause for

his procedural default, the district court erred in granting him

habeas relief.

REVERSED.

6