Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2000

West v. Vaughn
Precedential or Non-Precedential:

Docket 98- 1820




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Filed February 15, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-1820

NATHANIEL WEST,
       Appellant

v.

DONALD VAUGHN, SUPERINTENDENT of
SCI GRATERFORD; THE DISTRICT ATTORNEY OF
COUNTY OF PHILA.; THE ATTORNEY GENERAL
OF THE STATE OF PA.

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 97-cv-02297)
District Judge: Honorable James T. Giles, Chief Judge

Argued: September 28, 1999

Before: BECKER, Chief Judge, McKEE, and
NOONAN,* Circuit Judges.

(Filed: February 15, 2000)

       ANTHONY C.H. VALE, ESQUIRE
        (ARGUED)
       Pepper Hamilton, LLP
       3000 Two Logan Square
       18th & Arch Streets
       Philadelphia, PA 19103-2799

       Counsel for Appellant
_________________________________________________________________

*Honorable John T. Noonan, Jr., United States Circuit Judge for the
Ninth Circuit, sitting by designation.




       MARILYN F. MURRAY, ESQUIRE
        (ARGUED)
       Assistant District Attorney
       DONNA G. ZUCKER, ESQUIRE
       Chief, Federal Litigation
       RONALD EISENBERG, ESQUIRE
       Deputy District Attorney
       Law Division
       ARNOLD H. GORDON
       First Assistant District Attorney
       LYNNE ABRAHAM, ESQUIRE
       District Attorney

       1421 Arch Street
       Philadelphia, PA 19102-1582

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

In Cage v. Louisiana, 

(1990) (per curiam),
the Supreme Court taught that criminal convictions based
on jury instructions that equate reasonable doubt with
substantial doubt and grave uncertainty may suggest a
lower standard of proof than that required by the Due
Process Clause of the Fourteenth Amendment. In this state
habeas corpus case arising under 28 U.S.C. S 2254,
petitioner Nathaniel West claims that the jury charge in his
Pennsylvania state court murder trial violated Cage, and
that his counsel was ineffective for failing to raise the issue
at trial and on appeal. This is West's second habeas corpus
petition, his first having been filed before the Cage ruling.
The District Court dismissed his latest filing for running
afoul of the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214
(1996), insofar as AEDPA mandates that a new rule of law
can be the basis of a successive petition only if it has been
"made retroactive to cases on collateral review" by the
Supreme Court. See 28 U.S.C. S 2244(b)(2)(A).

                               2


West's appeal requires that we consider the meaning of
AEDPA's retroactivity requirement. The District Attorney
urges a restrictive reading, limiting the "made retroactive"
exception to situations in which the Supreme Court has
explicitly stated that a new rule of law is to be applied
retroactively or has actually applied the rule in a retroactive
manner. We conclude, however, that the statutory language
is not so narrow. AEDPA's text does not restrict retroactive
rules to those "held retroactive" or "applied retroactively" by
the Supreme Court, but rather employs the more general
term "made retroactive." At the time Congress enacted
AEDPA, prevailing Supreme Court precedent "made
retroactive" on habeas review new rules that implicated the
fundamental fairness of a criminal proceeding and related
to the accuracy of the underlying conviction, see, e.g.,
Teague v. Lane, 

(1989), and we assume
Congress to have been aware of this practice. The Supreme
Court's declaration in Sullivan v. Louisiana, 

(1993), that a Cage error represents a "structural defect"
that effectively nullifies the prior proceeding indicates that
the Cage rule satisfies these fundamental fairness and
accuracy requirements.

In our view, even though Sullivan did not arise in the
habeas context, it left no doubt as to how the Cage rule fits
within retroactivity analysis. Indeed, prior to AEDPA's
passage, several Courts of Appeals had found Cage
available for retroactive application in habeas proceedings
in light of Sullivan, largely obviating the Supreme Court's
need to make a more explicit announcement (and rendering
it less likely that there will ever be one). We believe that, in
this setting, Teague retroactivity survives AEDPA's
enactment, and we hold that the constitutional rule
announced by Cage v. Louisiana has indeed been "made
retroactive to cases on collateral review" within the meaning
of 28 U.S.C. S 2244(b)(2)(A).

Even though we rule that West's petition survives the
gatekeeping hurdle that the new rule must have been
"made retroactive," we conclude that West cannot obtain
the relief he seeks, for he clearly cannot prevail on the
merits of his claim. The jury instruction in his case did not
differ significantly from language that has been previously

                               3


approved of by this Court and the Supreme Court. We will
therefore affirm the District Court's dismissal of West's
habeas petition.1

I.

On July 15, 1983, a jury of the Philadelphia County
Court of Common Pleas convicted petitioner West offirst-
degree murder, criminal conspiracy, and possession of an
instrument of crime. Prior to its deliberations, the jury
received the following instruction on reasonable doubt from
the trial judge, the Honorable Lisa Aversa Richette:

        Now, I just want to say that we have heard these
       words a great deal, the reasonable doubt phrase, and
       I think that all three lawyers did talk about reasonable
       doubt in a very intelligent and correct way. I think one
       of them, Mr. Voluck, even gave an example that I
       usually give, that one about going to look at a house
       and as you have seen all the specs on the house, it
       sounds magnificent, new copper tubing and all the
       rest. And as you are coming out of the house, you
       notice a very large stain on one wall which indicates
       some major kind of internal leak. You don't go racing
       back to the real estate office with a hefty down
       payment. You pause and you hesitate because this is
       a matter of high importance to yourself. You know,
       buying a house is probably the largest single
       expenditure most of us make in our lifetime short of,
       God forbid, if we ever have incapacitating medical bills
       without medical insurance. But that's what you would
       do, you would pause and you would hesitate. And
       there are matters of high importance to all of us in our
       lives in which in evaluating the evidence that we are
       using to make that decision, we come up with the kind
       and quality of evidence that makes us pause and
       hesitate before we make a decision. Now, it is this kind
       of doubt that we are talking about in this case, in all
       criminal cases, the kind of substantial doubt that
_________________________________________________________________

1. We express our appreciation to Anthony C.H. Vale, Esquire, who,
pursuant to appointment by the court, represented Mr. West both ably
and zealously.

                               4


       makes people pause before they plunge into action that
       is going to involve some important interests on their
       part.

        So think about the evidence completely. Do you have
       that kind of doubt about the defendants' guilt?

        . . . .

        What I was saying was that if you don't have this
       kind of doubt, then it is your duty to convict. Now, this
       doesn't mean to say that you should have no doubt,
       that you should be persuaded beyond all doubt
       because that is not Mr. McGill's burden. We said that
       earlier that there is -- there are almost no areas of
       human affairs in which there are no doubts. There is
       always a little edge of doubt somewhere. So we are not
       asking Mr. McGill to prove this case to you beyond a
       mathematical certainty, like an algebra or a calculus
       problem. What we are asking is that it be proved to you
       by the District Attorney beyond a reasonable doubt so
       that you don't have the kind of doubt that comes up in
       human affairs which makes a person pause and
       hesitate.

        Now, this doubt, of course, has to arise   from the
       evidence, not from your own suspicions or   your own
       speculations or your own predispositions,   but after
       considering the evidence if you have this   doubt, then I
       say you have a duty to acquit.
App. 119-21 (emphasis added).

West received a life sentence. After exhausting his direct
appeals in the Pennsylvania state courts, which resulted in
the vacatur of his judgment of sentence as to his conviction
for possessing an instrument of crime but left his other
sentences undisturbed, he filed a federal habeas corpus
petition that was denied on the merits on July 12, 1990,
four months before the Supreme Court decided Cage v.
Louisiana, 

(1990).

Cage held that jury instructions that equated reasonable
doubt with "actual substantial doubt" and "grave
uncertainty" in conjunction with language calling for "moral
certainty" suggested a higher degree of doubt than allowed

                                5


by the reasonable doubt standard.2 As a result, such
instructions have the potential of allowing a conviction
based on proof below the minimum required by the Due
Process Clause. See 

Thereafter, in Sullivan v.
Louisiana, 

(1993), the Court declared that
harmless error analysis does not apply to an instruction
that does not meet the rule articulated in Cage.3

On May 10, 1991, West filed a petition under
Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.
C.S. S 9541 et seq. He alleged ineffectiveness of counsel at
both the trial and appellate levels on the grounds that his
attorneys failed to object to a jury charge that allegedly
misdefined "reasonable doubt" as "substantial doubt." The
trial court denied his petition on March 8, 1994, and the
Pennsylvania Superior Court affirmed the ruling the
following year.4
_________________________________________________________________

2. The instruction in Cage provided:

       If you entertain a reasonable doubt as to any fact or element
       necessary to constitute the defendant's guilt, it is your duty to
give
       him the benefit of that doubt and return a verdict of not guilty.
Even
       where the evidence demonstrates a probability of guilt, if it does
not
       establish such guilt beyond a reasonable doubt, you must acquit the
       accused. This doubt, however, must be a reasonable one; that is one
       that is founded upon a real tangible substantial basis and not upon
       mere caprice and conjecture. It must be such doubt as would give
       rise to a grave uncertainty, raised in your mind by reasons of the
       unsatisfactory character of the evidence or lack thereof. A
       reasonable doubt is not a mere possible doubt. It is an actual
       substantial doubt. It is a doubt that a reasonable man can
seriously

       entertain. What is required is not an absolute or mathematical
       certainty, but a moral certainty.

(emphasis in the original).
3. The standard for reviewing jury instructions for a Cage error is
whether there is a reasonable likelihood that the jury applied the
instruction in an unconstitutional manner. See Estelle v. McGuire, 

, 72 & n.4 (1991). In making this evaluation, a reviewing court is
to consider the instructions as a whole. See Victor v. Nebraska, 

, 5 (1994).

4. West further contended that his attorneys failed to object to a faulty
jury charge on the presumption of innocence. This claim was rejected.
He raised this claim in his second pleaded habeas petition, but the
District Court rejected it because West failed to present an argument
that the issue involved either a new rule of constitutional law or new
evidence and was therefore barred by 28 U.S.C. S 2244(b)(2). That ruling
is not before us today.

                               6


West filed his second petition for federal habeas relief on
April 1, 1997, raising the same issues as his PCRA petition,
and arguing that the jury instructions he received violated
Cage. Pursuant to 28 U.S.C. S 2244(b)(3)(C), a panel of this
Court, after determining that West had made a prima facie
showing that he met the requirements of S 2244(b)(2)(A),
granted him permission to file a second claim on June 23,
1997. In so doing, the panel construed West's filing as
requesting permission to file both due process and
ineffective assistance of counsel claims.

In their argument before the magistrate judge to whom
the case was assigned, the state appellees maintained that,
notwithstanding our finding that West met the prima facie
showing required to file a successive petition under S 2244,
his petition was still barred by his failure to satisfy the
terms of S 2244(b)(2). The magistrate judge agreed. He
recommended that West's petition be dismissed with
prejudice because West had failed to establish that Cage
has been "made retroactive to cases on collateral review by
the Supreme Court" as required by S 2244(b)(2)(A). The
District Court adopted the recommendation and dismissed
the petition with prejudice on July 28, 1998. We granted an
application for a Certificate of Appealability under 28 U.S.C.
S 2253(c)(2) and directed the parties to brief the issue of
whether Cage has been "made retroactive to cases on
collateral review by the Supreme Court" as required by
S 2244(b)(2).
Our jurisdiction over this appeal from a final judgment of
the District Court for the Eastern District of Pennsylvania
stems from 28 U.S.C. S 1291 and 28 U.S.C.S 2253. The
District Court had jurisdiction over West's petition under
28 U.S.C. S 2254 and 28 U.S.C. S 1331. Our review of the
District Court's interpretation of AEDPA is plenary. See
DeSousa v. Reno, 

, 180 (3d Cir. 1999) (citing
Idahoan Fresh v. Advantage Produce, Inc., 

,
202 (3d Cir. 1998)).

II.

AEDPA amended 28 U.S.C. S 2244(b) to declare in
pertinent part:

                               7


        (2) A claim presented in a second or successive
       habeas corpus application under section 2254 that was
       not presented in a prior application shall be dismissed
       unless--

        (A) the applicant shows that the claim relies on a
       new rule of constitutional law, made retroactive to
       cases on collateral review by the Supreme Court, that
       was previously unavailable; or

        (B)(i) the factual predicate for the claim could not
       have been discovered previously through the exercise of
       due diligence; and

        (ii) the facts underlying the claim, if proven and
       viewed in light of the evidence as a whole, would be
       sufficient to establish by clear and convincing evidence
       that, but for constitutional error, no reasonable
       factfinder would have found the applicant guilty of the
       underlying offense.

West does not offer any newly discovered or innocence-
establishing facts, so our decision depends on
S 2244(b)(2)(A). Accordingly, we turn to the question on
which we directed briefing: whether the Supreme Court has
made the rule of Cage v. Louisiana retroactive for purposes
of collateral review.

A.

Were the Supreme Court to state explicitly that Cage is
retroactive on collateral review or retroactively apply Cage,
the issue would be resolved. West contends that the Court
has already retroactively applied Cage in Adams v. Evatt,

001 (1994), a pre-AEDPA case. There, in
considering a habeas petition, the Court of Appeals for the
Fourth Circuit ruled that Cage should not be applied
retroactively. See Adams v. Aiken, 

, 1312
(4th Cir. 1992) ("Adams I"). In Adams v. Evatt ("Adams II"),
the Supreme Court vacated the judgment with directions
that the Court of Appeals reconsider the case in light of the
Supreme Court's decision Sullivan v. Louisiana . See 

001. On remand, the Court of Appeals altered its
original conclusion and determined that Cage is available

                               8


for retroactive application. See Adams v. Aiken , 

, 178-79 (4th Cir. 1994) ("Adams III").

West claims that the Supreme Court's granting of
certiorari, vacatur of the appellate court's judgment, and
remand to the Court of Appeals (a "GVR" order), effectively
made Cage retroactive on collateral review, a conclusion
buttressed by the Court of Appeals's changed decision after
the GVR order. We need not tarry long over this argument.
The Supreme Court has made clear that, though remand
may indicate that intervening precedent is sufficiently
analogous or decisive to compel re-examination, it is not a
"final determination on the merits." Henry v. City of Rock
Hill, 

, 777 (1964). More recently, the Court has
stated that, although GVR orders may be issued in
situations where redetermination in light of intervening
developments may decide the merits of a case, they require
only "consideration" by the lower court and are not
summary reversals. See Lawrence v. Chater, 

,
167-68 (1996); see also Fontroy v. Owens, 

, 66
(3d Cir. 1994); Hughes Aircraft Co. v. United States, 

, 1473 (Fed. Cir. 1998) ("Vacatur and remand by
the Supreme Court, however, does not create an
implication that the lower court should change its prior
determination.").

In his reply brief, West concedes that "[i]n form, a GVR
order may never be a final decision on the merits," but
contends that "in substance, it sometimes is." Reply Br. at
2. We decline to engage in the parsing of Supreme Court
intent necessary to breathe life into so abstract a
contention. Whatever a GVR's order value as a predictor of
the Court's position on a particular matter, we do not treat
such an order as a dispositive ruling. See Rodriguez v.
Superintendent, Bay State Correctional Ctr., 

,
276 (1st Cir. 1998). Other than his attempt to rely on
Adams, West offers no Supreme Court precedent that he
claims explicitly states that the Cage rule is to be applied
retroactively for purposes of S 2244 or applies the rule in
such a manner. We are similarly unaware of such
precedent.
                               9


B.

In determining which new rules of law are retroactive
under AEDPA, we are, of course, bound by the statute's
plain meaning. See Wilson v. United States Parole Comm'n,

, 198 (3d Cir. 1999) ("We must give the
natural and customary meaning to the words, and if that is
plain, our sole function is to enforce it according to its
terms." (citing Caminetti v. United States, 

, 485
(1917))). Unfortunately, as the Supreme Court itself has
recognized, AEDPA is less than a masterpiece of clarity. See
Lindh v. Murphy, 

, 336 (1997) ("All we can say
is that in a world of silk purses and pigs' ears, the Act is
not a silk purse of the art of statutory drafting.").

1.

The plain meaning argument against Cage retroactivity is
simply stated: If the Supreme Court has never explicitly
applied the rule retroactively or stated that the rule so
applies, a successive habeas corpus petition based on Cage
is unavailable because Cage has not been"made
retroactive." Several of our sister circuits have already
employed this logic to exclude successive petitions based on
Cage. See In re Smith, 

, 835-36 (5th Cir.
1998); Rodriguez v. Superintendent, Bay State Correctional
Ctr., 

(1st Cir. 1998); In re Hill, 

(11th Cir. 1997), or other "new" rules for which petitioners
sought retroactive application, see Bennett v. United States,

(7th Cir. 1997); In re Vial, 

(4th
Cir. 1997) (en banc).

We do not, however, share the view of these courts of
appeals that Congress's directive is so clear. More
specifically, we are not convinced that "made retroactive"
deserves the restrictive gloss applied by these courts in
construing the term. Although "made retroactive" obviously
encompasses direct retroactive application of a rule by the
Supreme Court or express statements to that effect, we
doubt that those meanings exhaust the phrase. Had
Congress intended to cabin AEDPA retroactivity in that
manner, it could have employed more specific terminology.
Terms such as "held retroactive" or "applied retroactively"

                               10


would have left no doubt as to Cage's retroactivity. Instead,
Congress chose the broader verb "made," which includes
among its many meanings to have "cause[d] to occur" and
"cause[d] to be or become: put in a certain state or
condition." Webster's Third New International Dictionary
1363 (1966). A natural question, therefore, is whether there
are alternative methods through which the Supreme Court
could cause a rule to become retroactive.

Such an alternative existed when Congress passed
AEDPA, through the framework created by Teague v. Lane,

(1989). Teague established that federal courts
may retroactively apply new rules of law on habeas
petitions if the rules are "watershed rules of criminal
procedure implicating the fundamental fairness and
accuracy of the criminal proceeding," Graham v. Collins,

, 478 (1993) (internal quotations omitted), that
"alter our understanding of the bedrock procedural elements
essential to the fairness of a proceeding."5 Sawyer v. Smith,

, 242 (1990) (internal quotations omitted)
(emphasis in the original); see also Bousley v. United
States, 

, 1610 (1998) ("[U]nless a new rule
of criminal procedure is of such a nature that `without [it]
the likelihood of an accurate conviction is seriously
diminished, there is no reason to apply the rule
retroactively on habeas review.' " (quoting 

)).6

In Sullivan v. Louisiana, 

(1993), the
Supreme Court made clear that the Cage rule involves
procedural elements essential to the fundamental fairness
and accuracy of a criminal proceeding. Sullivan declared
that harmless error analysis does not apply to an
_________________________________________________________________

5. Although Teague was a plurality opinion, the Teague rule has been
applied in subsequent Supreme Court cases. See, e.g., O'Dell v.
Netherland, 

, 157 (1997).

6. There does not appear to be significant dispute over whether the Cage
rule was indeed "new" law. See Rodriguez , 139 F.3d at 273-74 ("A string
of federal appellate decisions have held that Cage announced a new rule
of constitutional law, see, e.g., Adams v. Aiken, 

, 178-79 (4th
Cir. 1994) (Adams III); Nutter v. White, 

, 1157-58 (11th Cir.
1994); Skelton v. Whitley, 

, 1043-44 (5th Cir. 1992), and
we see no principled basis for sundering this unbroken strand.").

                               11


instruction that was "essentially identical" to the one
present in Cage. 

281. In so ruling, the Court
classified denial of a right to a jury verdict beyond a
reasonable doubt as a "structural defect" "without which a
criminal trial cannot reliably serve its function."7 

Harmless error analysis cannot apply to a jury instruction
that violates Cage because the error is so fundamental that,
effectively, there is no verdict for an appellate court to
review. See 

_________________________________________________________________

7. The list of errors that are structural in quality is a limited one.

       [W]e have found an error to be "structural," and thus subject to
       automatic reversal, only in a "very limited class of cases."
Johnson

         v. United States, 

, 468, 

, 

(1997) (citing Gideon v. Wainwright, 

, 

,

       

(1963) (complete denial of counsel); Tumey v. Ohio,
       

, 

, 

(1927) (biased trial
judge);
       Vasquez v. Hillery, 

, 

, 

       (1986) (racial discrimination in selection of grand jury); McKaskle
v.
       Wiggins, 

, 

, 

(1984) (denial
       of self-representation at trial); Waller v. Georgia, 

,

, 

(1984) (denial of public trial); Sullivan
v.
       Louisiana, 

, 

, 

(1993)
       (defective reasonable-doubt instruction)).

Neder v. United States, 

, 1833 (1999).

8. In discussing why the harmless error standard of Chapman v.
California, 

(1967), could not apply, the Court explained:

          Harmless-error review looks, we have said, to the basis on which
         "the jury actually rested its verdict." The inquiry, in other
words,
is
         not whether, in a trial that occurred without the error, a guilty
         verdict would surely have been rendered, but whether the guilty
         verdict actually rendered in this trial was surely unattributable
to

         the error. That must be so, because to hypothesize a guilty verdict
         that was never in fact rendered--no matter how inescapable the
         findings to support that verdict might be--would violate the jury-
         trial guarantee.

          Once the proper role of an appellate court engaged in the
         Chapman inquiry is understood, the illogic of harmless-error review
         in the present case becomes evident. Since, for the reasons
         described above, there has been no jury verdict within the meaning
         of the Sixth Amendment, the entire premise of Chapman review is
         simply absent. There being no jury verdict of guilty-beyond-a-

                                 12
Sullivan had a significant effect on the reception and
interpretation of Cage for retroactivity purposes. Prior to
Sullivan, several Courts of Appeals refused to apply Cage
retroactively. See Adams I, supra; Skelton v. Whitley, 

, 1044-45 (5th Cir. 1992). Since then, however,
the decisions have been monolithically in favor of
retroactivity. See Humphrey v. Cain, 

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

("[T]he rule that
a constitutionally deficient reasonable doubt instruction
violates the Due Process Clause satisfies Teague's second
exception. It should be applied retroactively."); Nutter v.
White, 

, 1158 (11th Cir. 1994) ("[H]ere we
confront one of those rare instances where our interest in
certainty is so clearly implicated that finality interests must
be subordinated. In sum, together with Sullivan, Cage has
reshaped our view of the importance of precise reasonable
doubt instructions.").

Though this Court has, until now, reserved the issue, see
Flamer v. Delaware, 

, 756 n.25 (3d Cir. 1995)
(en banc), it seems clear that, were we operating in the pre-
AEDPA context, we would recognize Sullivan as compelling
retroactive application of Cage to habeas petitions. A
"structural" error so severe that it resists harmless error
analysis because it effectively nullifies the guilty verdict, as
Sullivan described a Cage error to be, 

-
80, must necessarily implicate the fundamental fairness of
the proceeding in a manner that calls the accuracy of its
_________________________________________________________________

       reasonable-doubt, the question whether the same verdict of guilty-
       beyond-a-reasonable-doubt would have been rendered absent the
       constitutional error is utterly meaningless. There is no object, so
to
       speak, upon which harmless-error scrutiny can operate. The most
       an appellate court can conclude is that a jury would surely have
       found petitioner guilty beyond a reasonable doubt--not that the
       jury's actual finding of guilty beyond a reasonable doubt would
       surely not have been different absent the constitutional error.
That

       is not enough. The Sixth Amendment requires more than appellate
       speculation about a hypothetical jury's action, or else directed
       verdicts for the State would be sustainable on appeal; it requires
an
       actual jury finding of guilty.

(citations omitted) (emphasis in the original).

                               13
outcome into doubt.9 See Graham v. Collins, 

,
467 (1993); see also 

(Rehnquist,
C.J., concurring) ("A constitutionally deficient reasonable
doubt instruction will always result in the absence of
`beyond a reasonable doubt' jury findings.").

2.

We must, however, decide if AEDPA eliminates traditional
Teague retroactivity analysis for pre-AEDPA decisions by
the Supreme Court. We conclude that precedent that
makes clear that a new constitutional rule fits the Teague
retroactivity exception suffices to make a rule retroactive for
purposes of successive habeas petitions under AEDPA. This
is so even if the pronouncements are not made in the
context of an actual retroactive application of the new rule
on habeas review.

In so doing, we assume that when Congress passed
AEDPA, it was aware of then-current practices in the courts
vis-a-vis retroactivity. See Cannon v. Univ. of Chicago, 

, 696-97 (1979) ("It is always appropriate to
assume that our elected representatives, like other citizens,
know the law."); Sandoval v. Reno, 

, 235 (3d
_________________________________________________________________

9. As a panel of the Court of Appeals for the Fifth Circuit explained in
Humphrey v. Cain, 

, 529 (5th Cir. 1997) in the context of
allowing retroactive application of Cage on a first petition of habeas
corpus:

        In our view, the Supreme Court has made it plain that Cage-Victor
       errors fit with the second Teague exception. The Court in Sullivan
v.
       Louisiana, 

, 

, 

(1993),
       explained that denying the right to a jury verdict beyond a
       reasonable doubt is a structural defect. Such an error takes away a
       " `basic protectio[n]' whose precise effects are unmeasurable, but
       without which a criminal trial cannot reliably serve its function."

113 S.Ct. at 2083. In other words, a jury that purports to
       convict based on a constitutionally defective reasonable-doubt
       instruction has in fact not rendered any conviction at all.

The panel was unable to apply Cage retroactively because of prior
precedent, but its discussion of the issue was the basis of the en banc
court's decision to make Cage retroactive for Teague purposes. See
Humphrey v. Cain, 

, 553 (5th Cir. 1998) (en banc).

                               14


Cir. 1999) (declaring Congress aware of relevant court
precedents in enacting AEDPA). At the time of AEDPA's
passage, Congress knew that new constitutional rules were
retroactively applicable to habeas petitions if the Supreme
Court declared them to be of a certain quality. Congress did
not explicitly alter this mechanism and chose language
consistent with then-contemporary practice instead of a
more restrictive formulation.10 We are therefore satisfied
that the language in Sullivan v. Louisiana that describes the
violation in Cage as structural suffices to establish Cage's
retroactivity.

Our reasoning is bolstered by the fact that Sullivan's
clarity obviated the need for the Supreme Court to make a
future, more explicit, pronouncement on whether Cage
should be applied retroactively. In practical terms, Sullivan
choked off the flow of cases in which an explicit
pronouncement might be necessary. As federal courts
follow the Supreme Court's lead, see, e.g., Adams 

; 

, there will be no
reason to make matters explicit, as the issue will not reach
the Supreme Court on appeal when retroactivity was
obvious. Adams II appears the rare case in which the Court
had a chance to address the issue, but it remanded in light
of the relative freshness of Sullivan to give the court of
appeals an opportunity to pass on the issue itself. Though
the GVR order in Adams II is not a retroactive application
of Cage, 

Part II.A, it is quite persuasive on the
question of Sullivan's applicability to the Cage retroactivity
issue notwithstanding the fact that Sullivan arose on a
direct appeal.

We acknowledge that other courts have taken a different
view on retroactivity under AEDPA. See, e.g., In re Vial, 

(4th Cir. 1997) (en banc). In Vial, the court ruled
that for purposes of a S 2255 motion, which has the same
_________________________________________________________________

10. Of course, Congress did indeed narrow the range of retroactive
constitutional rules by restricting the range of new rules to those made
retroactive by the Supreme Court in particular and not federal courts in
general. The question is not whether only the Supreme Court can make
a new rule retroactive, but how that retroactivity is expressed. We find
no indication that AEDPA eliminated the role of the lower federal courts
in interpreting the effect of Supreme Court pronouncements.

                               15


statutory retroactivity standard as a S 2244 motion, "we
conclude that a new rule of constitutional law has been
`made retroactive to cases on collateral review by the
Supreme Court' within the meaning of S 2255 only when
the Supreme Court declares the collateral availability of the
rule in question, either by explicitly so stating or by
applying the rule in a collateral proceeding." 

The court refused to interpret "made retroactive" as
encompassing situations in which Supreme Court
precedent establishes "that the new rule is of the type
available to those proceeding on collateral review," because
it viewed such an approach as contrary to the plain
language of S 2255. 

As discussed above, we differ on what a plain language
approach compels in this case. We note also that the
Fourth Circuit acknowledged that, prior to AEDPA, the
Supreme Court had no reason to be more explicit in its
pronouncements on retroactivity. "Of course, it seems
unlikely that the Supreme Court would grant certiorari to
declare the applicability of a rule announced on direct
review to collateral proceedings when . . . lower federal
courts uniformly rule in favor of collateral availability." 

n.8. A consequence of the Fourth Circuit approach,
therefore, would be to preclude habeas review for claims
most clearly deserving of retroactive application. In the
absence of more specific language, we do not think this was
Congress's intention in passing AEDPA.

For all of these reasons, we hold that Cage claims have
been "made retroactive" for purposes of 28 U.S.C.
S 2244(b)(2)(A).

III.

In holding that Cage claims are available for retroactive
application under AEDPA, we do not rule that West is
entitled to the relief he seeks. Several issues stand between
West and a favorable judgment on the merits. First, though
West's initial petition for habeas relief raised only issues of
ineffective assistance of counsel, a panel of this Court
construed West's request as including both ineffective
assistance and due process claims. The question remains

                               16


whether a due process claim has met exhaustion
requirements and whether it has been procedurally
defaulted. Another potential issue is whether the claim was
"previously unavailable" for purposes of AEDPA, see
S 2244(b)(2)(A), or if West still should have raised his due
process claims in earlier proceedings notwithstanding the
fact that the Supreme Court had as yet not announced the
Cage rule.11

We might determine these issues in the first instance or
remand them to the District Court. Alternatively, we may
exercise our ability to dispose of habeas cases adversely to
a petitioner regardless of considerations of exhaustion if the
merits are clearly against the petitioner. See 28 U.S.C.
S 2254(b)(2); Granberry v. Greer, 

, 135 (1987).
Such a disposition appears in order here, as West cannot
prevail under either an ineffective assistance or a due
process claim regardless of the resolution of the procedural
issues. Whatever the soundness of the procedural
foundation of his habeas petition, it is fatally weak at its
substantive core, for there was simply no constitutional
defect at West's trial.

The portion of the jury instruction at issue in this case
does not appear to differ significantly from an instruction
that we approved in Flamer v. Delaware, 

(3d
Cir. 1995). In Flamer, this Court, sitting en banc, held that
refusing, on grounds of procedural default, to review a jury
instruction that contained a sentence equating substantial
doubt and reasonable doubt would not constitute a
miscarriage of justice because the instruction was similar
to one approved of by the Supreme Court. The challenged
instruction stated:

       Reasonable doubt does not mean a vague, speculative
       or whimsical doubt, nor a mere possible doubt, but a
       substantial doubt and such a doubt as intelligent,
       reasonable and impartial men and women may
       honestly entertain after a careful and conscientious
       consideration of the evidence in the case.

(emphasis in original). We stated that
_________________________________________________________________

11. The state appellees do not raise this issue.

                               17


notwithstanding the equation of substantial doubt to a
reasonable doubt, the instruction "contrasted a`substantial
doubt' with `a doubt arising from a mere possible doubt,' `a
vague, speculative' doubt, and a `whimsical doubt.' " 

. Similar use of the term "substantial doubt" was
approved by the Supreme Court in Victor v. Nebraska, 

(1994).

Addressing this issue at oral argument, West's counsel
offered arguments seeking to distinguish the instructions at
issue here from those in Flamer by noting that the
instructions by the trial judge did not similarly contrast
substantial doubt with a merely speculative or fanciful
doubt, thereby leaving the implication that the term
"substantial" was used in the sense of connoting a large
amount, rather than the acceptable "not imaginary." We are
unpersuaded. We bear in mind that jury instructions are to
be considered as a whole. "[T]he Constitution does not
require that any particular form of words be used in
advising the jury of the government's burden of proof.
Rather, taken as a whole, the instructions [must] correctly
conve[y] the concept of reasonable doubt to the jury."

(citations and quotations omitted).
West's instructions went beyond the statement concerning
substantial doubt and further defined the term "reasonable
doubt:"

       Now, it is this kind of doubt that we are talking about
       in this case, in all criminal cases, the kind of
       substantial doubt that makes people pause before they
       plunge into action that is going to involve some
       important interests on their part.

       . . .

       What we are asking is that it be proved to you by the
       District Attorney beyond a reasonable doubt so that
       you don't have the kind of doubt that comes up in
       human affairs which makes a person pause and
       hesitate.

App. 119-21 (emphasis added).

In Victor, the Supreme Court stated that even though the
instruction at issue was not a constitutional violation

                                18


because it contrasted substantial doubt with a fanciful
conjecture, "[i]n any event, the instruction provided an
alternative definition of reasonable doubt: a doubt that
would cause a reasonable person to hesitate to act. This is
a formulation we have repeatedly approved." 

.12 The Court concluded that such an instruction
is not likely to mislead a jury. "[T]o the extent the word
`substantial' denotes the quantum of doubt necessary for
acquittal, the hesitate to act standard gives a common
sense benchmark for just how substantial such a doubt
must be." 

It is clear that that is precisely what
the jury instruction in West's case did. Therefore, although
a sentence that appears to equate reasonable doubt and
substantial doubt is problematic, see 

such a
statement used one time in an otherwise unobjectionable
charge does not render the instruction constitutionally
suspect as a whole.13
_________________________________________________________________

12. The instruction at issue in Victor was as follows:

       "Reasonable doubt" is such a doubt as would cause a reasonable
       and prudent person, in one of the graver and more important
       transactions of life, to pause and hesitate before taking the
       represented facts as true and relying and acting thereon. It is
such

       a doubt as will not permit you, after full, fair, and impartial
       consideration of all the evidence, to have an abiding conviction,
to
a
       moral certainty, of the guilt of the accused. At the same time,
       absolute or mathematical certainty is not required. You may be
       convinced of the truth of a fact beyond a reasonable doubt and yet
       be fully aware that possibly you may be mistaken. You may find an
       accused guilty upon the strong probabilities of the case, provided
       such probabilities are strong enough to exclude any doubt of his
       guilt that is reasonable. A reasonable doubt is an actual and
       substantial doubt reasonably arising from the evidence, from the
       facts or circumstances shown by the evidence, or from the lack of
       evidence on the part of the State, as distinguished from a doubt
       arising from mere possibility, from bare imagination, or from
fanciful
       conjecture.

(emphasis in the original).

13. In his argument before the District Court, West also maintained that
the trial judge's example of a stain indicating"some major kind of leak"
in a house that prompted hesitation in a buyer also served to dilute the
reasonable doubt standard. The state appellees claim that West failed to

                               19


properly raise the issue in state proceedings. We think it clear, however,
that the hypothetical in the jury instruction was drawn to give context
to the court's explanation of what the meaning of hesitation to act is,
and that the word "major" was not equated to "major doubt" or the like.
In this context, the instruction was unobjectionable.
We therefore conclude that West is unable to prevail on
the merits. Accordingly, we decline to consider the other,
unresolved, issues that could potentially preclude review of
his Cage claim.

For the foregoing reasons, we will affirm the District
Court's order dismissing West's habeas petition.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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