No. 99-30681 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-30681 Conference Calendar

GERALD BAILEY,

Petitioner-Appellant,

versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

-------------------- Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 98-CV-2775-J -------------------- April 11, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges

PER CURIAM:*

Gerald Bailey, Louisiana state prisoner # 99688, appeals the

denial of his petition under

for habeas corpus

relief. The district court granted Bailey a certificate of

appealability (“COA”) as to the issue whether the instructions

given at his jury trial regarding reasonable doubt

unconstitutionally raised the degree of doubt required for

acquittal.

Bailey has failed to demonstrate that the jury instructions

given at his trial regarding reasonable doubt were

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-30681 -2-

constitutionally infirm. Although Bailey attempts to rely on

Cage v. Louisiana,

(1990) and Humphrey v. Cain,

(5th Cir.)(en banc), cert. denied,

(1998),

the language contained in his jury instructions was not the same

as the language held to be unconstitutional in the above cases.

Bailey argues that his attorney rendered ineffective

assistance at trial. The district court’s COA did not include

this issue, and Bailey has not requested an additional COA. This

court will not consider the ineffectiveness argument. Lackey v.

Johnson,

(5th Cir. 1997).

The decision of the district court denying Bailey’s petition

for habeas relief is AFFIRMED.