IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 99-30709 __________________________

HERMAN BOWIE, Petitioner-Appellant,

versus

BURL CAIN, Respondent-Appellee.

___________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (No. 98-CV-2020-T) ___________________________________________________ March 7, 2002

Before KING, Chief Judge, and REAVLEY and WIENER, Circuit Judges.

PER CURIAM*:

Petitioner-Appellant Herman Bowie appeals the denial of his

petition for a writ of habeas corpus.1 We affirm.

I. FACTS AND PROCEEDINGS

In 1988, a jury found Bowie guilty of heroin distribution, and

he was sentenced to life imprisonment. His conviction was affirmed

on direct appeal.2 After the United States Supreme Court decided

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 Bowie filed his initial brief pro se. His reply and supplemental briefs were prepared by counsel. 2 State v. Bowie,

(La. Ct. App. 1990). Cage v. Louisiana3 in 1990, and as a result of Bowie’s first

application for state postconviction relief, he was allowed a

second appeal. Louisiana’s Fourth Circuit Court of Appeal held

that Bowie had not preserved for review his Cage claim, regarding

the reasonable-doubt instruction to the jury, because he had not

contemporaneously objected at trial.4 Bowie sought a writ

invalidating this decision from the Louisiana Supreme Court, which

denied his request in 1994.5

Bowie filed a second application for postconviction relief in

state court. The date of this application is somewhat unclear, but

the Fourth Circuit Court of Appeal accepted Bowie’s representation

that he filed the application on March 18, 1996, and the District

Attorney concedes that Bowie did file sometime in that month. The

state district court denied this application on January 8, 1997.

Bowie sought review of this denial by applying for a writ from the

Fourth Circuit Court of Appeal on February 28, 1997; that court

tersely denied his application on March 25, 1997. Then, on May 28,

1997, Bowie sought a further writ from the Louisiana Supreme Court,

which also tersely denied his request on December 19, 1997.

Bowie filed the instant petition for federal habeas review on

July 7, 1998 in the Eastern District of Louisiana. The magistrate

3 Cage v. Louisiana,

(1990). 4 The ruling is recorded in table form at State v. Bowie,

(La. Ct. App. 1993), cert. denied,

(1994). 5 State v. Bowie,

(La. 1994).

2 judge, finding insufficient information in the record as it then

stood to determine whether the petition was time-barred, made

several recommendations on the merits: that the district court hold

alternatively that (1) Cage did not invalidate Bowie’s conviction

because it had not been decided before his trial, and (2) the

reasonable-doubt instruction was not as defective as that in Cage,

so that it was not “reasonabl[y] likel[y]” that the jurors who

convicted Bowie “applied the instructions in a way that violated

the Constitution.”6 The district court adopted these

recommendations, dismissed Bowie’s petition with prejudice, and

entered final judgment on the merits on May 6, 1999.

Bowie then sent a letter to our Clerk of Court indicating his

intent to appeal.7 The letter is dated “June 7, 1999” —— the last

day for Bowie, proceeding pro se, to appeal by depositing documents

in the prison mail system —— but the letter lacked a declaration or

a notarization supporting its date.8 We received it on June 14,

1999, and forwarded it to the district court. The district court

declined to issue Bowie a certificate of appealability (COA), but

we did so on the question whether the reasonable-doubt instruction

was defective. We also remanded for a determination whether Bowie

had given timely notice of appeal, and the district court

6 Bowie v. Cain,

, *4 (E.D. La. 1999) (quoting Victor v. Nebraska,

, 22–23 (1994)). 7 Pursuant to FED. R. APP. P. 4(d), we consider this letter filed as having been filed in the district court. 8 FED. R. APP. P. 4(c)(1).

3 determined that he had. We therefore have jurisdiction of this

appeal.

II. ANALYSIS

We need decide only two issues: first, whether Bowie’s federal

petition was timely under

, and, second, whether

Louisiana’s contemporaneous-objection rule is an independent

procedural bar that precludes Bowie’s Cage claim.9

A. Timeliness

As Bowie’s conviction became final before the effective date

of the Antiterrorism and Effective Death Penalty Act (AEDPA), he

had until April 24, 1997, to file his § 2254 petition.10 The

statute also provides, however, that this period is tolled during

the pendency of “a properly filed application for State post-

conviction or other collateral review.”11

The state argues that because Bowie’s application for a writ

from the Louisiana Supreme Court was not properly filed, Bowie is

entitled to no more than 365 days of tolling —— a time equivalent

to the post-AEDPA pendency of his applications in the state

district court and court of appeal, plus thirty days after the

9 These issues distinguish this case from Cockerham v. Cain, No. 99-31044 (Feb. 20, 2002), where we affirmed the district court’s grant of a writ of habeas corpus to a prisoner who timely pressed a Cage claim on collateral review and whose counsel, the record suggested, had raised the objection at trial. 10 Flanagan v. Johnson,

, 201–02 (5th Cir. 1998). 11

(d)(2).

4 latter’s refusal to issue a writ.12 Bowie urges that his

application to the Louisiana Supreme Court was properly filed

because, he insists, that court gave him sixty more days to file,

extending his filing deadline from late April 1997 to June 1997.

Thus, he reasons, his filing on May 28, 1997, was timely. Because

the state supreme court considered his application for another six

months, the timeliness of his federal petition (filed in July 1998)

depends on whether Bowie “properly filed” his application to the

state supreme court.

Bowie has not provided us the extension letter he says he

received from the state supreme court, but he has given us, as an

exhibit, a similar letter from that court to another prisoner.

This letter appears to be a standard form, is unsigned, and

contains the following paragraph, checked with a typed “X”:

(x) The Court has filed your letter as an application for writs and has assigned it the above number. You may have an additional 60 days from the date of this letter to complete your application. Sincerely, Central Staff

Even if Bowie accurately describes both the facts of his

application and the Louisiana Supreme Court’s general procedure in

such cases, that court’s acceptance and liberal construction of

Bowie’s letter as a timely application for relief do not determine

whether the application was “properly filed” under § 2244(d)(2).

12 We did not decide in Williams v. Cain,

, 309–11 (5th Cir. 2000), whether a state application remains pending during the 30-day period for filing. We here assume without granting that it does.

5 We have adopted a narrow view of the “properly filed” requirement,

stating that “an application is not ‘properly filed’ if it fails to

meet a filing deadline clearly established in state law.”13 And we

have applied this standard rigorously to applications for writs

from the Louisiana Supreme Court, in part because of the wording of

the relevant court rule14:

A straightforward application of the above cases to the thirty-day time limit established by Louisiana Supreme Court Rule X, § 5(a) supports the conclusion that [an] “application” for post-conviction relief in the Louisiana courts ceased to be “properly filed” for the purpose of section 2244(d)(2) when [the applicant] failed to file his application for a supervisory writ with the Louisiana Supreme Court within the time allowed by Rule X, § 5(a). Rule X, § 5(a) is a procedural requirement governing the time of filing. The rule sets out no specific exceptions to, or exclusions from, this requirement. Indeed, the rule forbids any extension of the thirty-day limit.15

Therefore, despite the alleged extension letter, our precedent does

not permit us to construe either that letter or the Louisiana

Supreme Court’s subsequent one-word denial of Bowie’s application

as a waiver of Rule X, § 5(a) that renders his federal petition

timely.

Bowie’s federal petition was therefore filed over two months

after the statutory period of limitation expired. We must perforce

F.3d at 307 (citing cases). 14 See LA. SUP. CT. R. X, § 5(a) (emphasis added): An application seeking to review a judgment of the court of appeal . . . shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal . . . . No extension of time therefor will be granted.

F.3d at 308.

6 dismiss his petition as untimely.

B. Procedural Bar

Even if, in dismissing this petition as untimely, we are

misconstruing the rules and practice of the Louisiana Supreme Court

(to whatever extent its extension letter should control our

interpretation of § 2244), there is an alternative and more

substantive basis for dismissal. The last reasoned state court

judgment addressing Bowie’s Cage claim held that it was barred by

his failure to object contemporaneously to the jury instruction at

trial. When a state court has denied a petitioner’s claim on an

independent and adequate state-law ground, federal habeas review is

barred unless the petitioner shows cause for the default and actual

prejudice from the alleged violation of federal law, or

demonstrates that a fundamental miscarriage of justice will occur

if the claims are not considered.16 The independence of the

contemporaneous-objection rule as applied here is not in doubt.17

16 Coleman v. Thompson,

, 729–30, 750 (1991). 17 The Fourth Circuit Court of Appeal clearly and expressly relied on a state procedural bar, not federal law. See Glover v. Cain,

(5th Cir. 1997). In affirming Bowie’s conviction for the second time, that court stated that: By his first assignment of error defendant assails the trial court’s instruction to the jury on reasonable doubt which is essentially the same as the one condemned in Cage v. Louisiana [citation omitted]. Because there was no contemporaneous objection the alleged error was not preserved for appellate review. C. Cr. P. art. 801; State v. Dobson,

(La. App. 4th Cir. 1991), writ denied,

(La. 1991).

7 Neither is that rule constitutionally inadequate.18

Cause for a default may include the reasonable unavailability

of the legal basis for the claim.19 If Cage had struck like a bolt

from the blue, Bowie’s claim might have been reasonably

unavailable. But we have held that “[b]ecause it is clear that

claims of defective ‘reasonable doubt’ instructions have been

percolating in the Louisiana courts at least since 1982, there is

no excuse for [a petitioner’s] failure to allege the definitional

defect” in habeas applications filed before Cage was announced.20

Therefore Bowie lacks cause excusing his procedural default.

Finally, to meet the fundamental-miscarriage-of-justice

standard, a petitioner must show, “as a factual matter, that he did

not commit the crime of conviction.”21 Bowie does not argue that

he is actually innocent of distributing heroin. Therefore, he has

not shown a fundamental miscarriage of justice.

18 Muhleisen v. Ieyoub,

(5th Cir. 1999) (“We believe Louisiana’s use of the contemporary [sic] objection rule, as applied specifically to Cage claims, is constitutionally adequate.”). Muhleisen expressed some doubt as to whether this rule was being consistently applied, but the rule appears to have reestablished itself even in capital cases in the wake of State v. Taylor,

(La. 1996). See State v. Smith,

, ___ *12 (La. 2001) (internal quotation marks and citation omitted) (“Applied in any case, the contemporaneous objection rule prevent[s] a defendant from gambling for a favorable verdict and then resorting to appeal on errors that might easily have been corrected by objection.”). 19 Rodriguez v. Johnson,

(5th Cir. 1997). 20 James v. Cain,

(5th Cir. 1995). 21 Ward v. Cain,

(5th Cir. 1995).

8 III. CONCLUSION

For the foregoing reasons, we determine that Bowie’s habeas

petition is time-barred and, in the alternative, that it fails to

overcome an adequate and independent state procedural bar. The

district court’s denial of the requested writ is

AFFIRMED.

9