Full opinion text
ORDER ADOPTING REPORT AND RECOMMENDATION BENSON, District Judge. I. BACKGROUND On the night of May 25, 1982, Petitioner Elroy Tillman entered the home of Mark Sehoenfeld, the new-found lover of Tillman’s ex-girlfriend. After quietly crawling into Schoenfeld’s darkened bedroom, Tillman signaled to his accomplice to turn on a light, whereupon Tillman hit Sehoenfeld several times in the head with an axe. While Scho-enfeld was still alive, Tillman set fire to the victim’s mattress, and quickly fled the scene. Soon after his accomplice agreed to cooperate with police officers investigating the homicide, Tillman was charged with first-degree murder. On January 14, 1983, a jury convened in Utah’s Third District Court found Tillman guilty of capital murder in violation of Utah Code Ann. § 76-5-202. Six days later, the same jury sentenced Tillman to death by lethal injection. On appeal, the Utah Supreme Court affirmed the conviction and sentence on December 27, 1987. State v. Tillman, 750 P.2d 546 (Utah 1987)(Tillman I). Tillman then sought a writ of habeas corpus through the Utah court system. The Third District Court denied his petition. On appeal, the Utah Supreme Court affirmed that denial, Tillman v. Cook, 855 P.2d 211 (Utah 1993)(Tillman II), and later denied Tillman’s request for rehearing on June 25, 1993. On January 10, 1994, the United States Supreme Court denied Tillman’s petition for a writ of certiorari. On March 8, 1994, Tillman filed a petition for a writ of habeas corpus with this Court under 28 U.S.C. § 2254. That petition was dismissed without prejudice to allow Tillman to fully exhaust his state remedies as required by § 2254. Tillman’s current Petition, filed August 13, 1995, pleads eight grounds for relief. The case was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). After the matter was fully briefed, the Magistrate Judge held a hearing. On December 23, 1997, the Magistrate Judge issued a Report and Recommendation, recommending that the Petition be denied. After the Court granted Petitioner an additional 30 days to respond to the Magistrate Judge’s Report and Recommendation, Petitioner submitted his Objections to the Report and Recommendation on February 2, 1998. Petitioner objects to each of the Magistrate Judge’s recommendations. Respondents submitted a Response to Petitioner’s Objections on February 17,1998. II. DISCUSSION As noted above, Petitioner Tillman takes issue with every finding and recommendation made by the Magistrate Judge in his Report and Recommendation. In ruling on the Petitioner’s objections, the Court has carefully reviewed all aspects of the Report and Recommendation, and finds it to be thorough and well-reasoned. Because this is a case involving the death penalty, nothing less than the most painstakingly thorough analysis is to be expected. The Court has now carefully examined de novo each legal principal raised by Petitioner’s objections. This explanation is provided at the outset of this relatively brief Opinion and Order to allay any question the Petitioner might otherwise have as to the level of scrutiny provided by the District Court in this review. The Magistrate Judge’s Report and Recommendation requires little, if any, amplification or elucidation. The Court finds no legal merit in any of the Petitioner’s objections. The objections are virtually identical to the points raised in the Petition itself. The Court adopts the Report and Recommendation in its entirety and without any modification. However, the Court does feel inclined to provide the following additional brief comments on two of the eight grounds for relief. A. The Reasonable Doubt Instruction Petitioner objects to the Magistrate Judge’s conclusion that the trial court’s reasonable doubt instruction was constitutionally acceptable. Specifically, Petitioner argues that the reasonable doubt instruction denied him of his right to a fair trial under Monk v. Zelez, 901 F.2d 885 (10th Cir.1990). In Monk, the United States Court of Appeals for the Tenth Circuit held that a reasonable doubt instruction given at that criminal trial violated the defendant’s constitutional rights. The instruction in Monk defined reasonable doubt as follows: “Reasonable doubt” means a substantial honest, conscientious doubt suggested by the material evidence or lack of it in the case. It is an honest, substantial misgiving generated by the material evidence or lack of it in this case. It is an honest, substantial misgiving generated by insufficiency of proof or guilt. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or court and unwarranted by the testimony, nor a doubt born of a merciful inclination to permit the accused to escape conviction, nor a doubt prompted by sympathy for him or those connected with him. Proof beyond a reasonable doubt means proof to a moral certainty although not necessarily an absolute or mathematical certainty. If you have an abiding conviction of [defendant’s] guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, then you have no reasonable doubt. Id. at 889. The Monk court concluded that “taken as a whole,” this reasonable doubt instruction did not “accurately convey[] the concept of reasonable doubt to the [jury].” Id. at 893. Using the word “substantial,” no fewer than three times, the instruction placed undue emphasis on the magnitude of doubt required for acquittal. The challenged instruction given at Petitioner Tillman’s trial reads as follows: I have heretofore told you that the burden is upon the State to prove the defendant guilty beyond a reasonable doubt. Now, by reasonable doubt is meant a doubt that is based on reason and one which is reasonable in view of all the evidence. Proof beyond a reasonable doubt is that degree of proof which satisfies the mind and convinces the understanding of those who are bound to act conscientiously upon it. A reasonable doubt is a doubt which reasonable men and women would entertain, and it must arise from the evidence or the lack of the evidence in this case. If after an impartial consideration and comparison of all the evidence in the case you can candidly say that you are not satisfied of the defendant’s guilt, you have a reasonable doubt. 'But if after such impartial consideration and comparison of all the evidence you can truthfully say that you have an abiding conviction of the defendant’s guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. A reasonable doubt must be a real, substantial doubt and not one that is merely possible or imaginary. Report and Recommendation at 7. A comparison of this instruction with the instruction given in Monk reveals obviously different approaches and contexts. The instruction in this case explained the reasonable doubt standard far more thoroughly than did the instruction declared invalid in Monk, and the reference to “substantial doubt” in this case constituted “merely a small part of an otherwise correct burden of proof charge.” Monk, 901 F.2d at 893. Moreover, in Tillman’s instruction the substantial doubt language was included only to distinguish reasonable doubt from “possible” or “imaginary” doubt, referring to the “existence rather than magnitude of the doubt.” Victor v. Nebraska, 511 U.S. 1, 20, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). This is significant. The Monk court cited with approval the Fourth Circuit’s opinion in Murphy v. Holland, 776 F.2d 470, 477 (4th Cir.1985), vacated on other grounds, 475 U.S. 1138, 106 S.Ct. 1787, 90 L.Ed.2d 334 (1986), explaining that in that case “substantial doubt language did not require reversal [because the] court cautioned [the] jury that conviction requires exclusion of ‘every reasonable hypothesis but that of guilt’ and only used substantial doubt language as a contrast to a ‘mere possible doubt’ that would not prevent conviction.” Monk, 901 F.2d at 893 (quoting Murphy, 776 F.2d at 477). The instruction given at Tillman’s trial served a similar purpose and had a similar construction. It is therefore consistent with the Tenth Circuit’s opinion in Monk. The Court concludes that “taken as a whole,” the instruction “correctly conveyed the concept of reasonable doubt” to the jury. Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Monk, 901 F.2d at 893. Furthermore, as explained in some detail in the Magistrate Judge’s Report and Recommendation, subsequent to the Tenth Circuit’s Monk decision in 1990, the United States Supreme Court has issued further guidance on the constitutionality of reasonable doubt instructions. In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Court upheld a trial court’s use of an instruction that described reasonable doubt as “an actual and substantial doubt” arising from the evidence. Id. at 18, 114 S.Ct. 1239. The Court explained that mere “reference to substantial doubt” is not “sufficient to render [an] instruction unconstitutional,” id. at 20, 114 S.Ct. 1239, concluding that where “the context makes clear that ‘substantial’ is used in the sense of existence rather than magnitude of the doubt,” the instruction may indeed “ ‘correctly convey[ ] the concept of reasonable doubt to the jury.’ ” Id. at 20, 22, 114 S.Ct. 1239 (quoting Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954)). In appears that the Supreme Court clarified Monk in Victor, and possibly overruled Monk as controlling precedent. However, regardless of whether Victor overruled or merely clarified Monk, the reasonable doubt instruction in the instant case is constitutionally valid under the rationale used in Monk and Victor. B. Improper Prosecutorial Argument During the Sentencing Phase Petitioner also takes issue with the Magistrate Judge’s conclusion that the prosecutor’s arguments about Tillman’s chances for parole were appropriate, and were not so inflammatory as to deny Tillman a fair trial. The prosecutor’s argument that Tillman would be eligible for parole within fifteen years unless sentenced to death was both accurate and constitutionally permissible. Simmons v. South Carolina, 512 U.S. 154, 168, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (“[N]othing in the Constitution prohibits the prosecution from arguing any truthful information relating to parole or other forms of early release.”). Furthermore, the prosecutor advanced this argument only in response to defense counsel’s potentially misleading statement that if Tillman were sentenced to life imprisonment he would either (a) never receive parole or (b) receive parole at a very old age. Under the totality of the circumstances, the prosecutor’s statement was appropriate and necessary to explain to the jury the risks associated with imposing a non-death penalty sentence. See e.g. Jurek v. Texas, 428 U.S. 262, 275, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). The Court agrees with the Magistrate Judge’s conclusion that the circumstances raise no grave doubt of substantial or injurious harm. III. CONCLUSION The Court ADOPTS the Magistrate Judge’s Report and Recommendation in its entirety. Accordingly, IT IS HEREBY ORDERED that Petitioner Elroy Tillman’s Petition for a Writ of Habeas Corpus is DENIED. REPORT & RECOMMENDATION BOYCE, United States Magistrate Judge. Elroy Tillman, an inmate at the Utah State Prison (USP) at Draper, Utah, filed a petition for habeas corpus based upon a challenge to a conviction for capital murder in violation of Utah Code Ann. § 76-5-202 (1978). Both the guilt and penalty were determined by a jury and petitioner was sentenced to death. The petitioner appealed his conviction to the Utah Supreme Court which affirmed the conviction and sentence on December 27, 1987. State v. Tillman, 750 P.2d 546 (Utah 1987) (Tillman I). The petitioner sought post conviction habeas corpus in the Utah Courts and the petition for habe-as corpus was denied by the Third District Court, State of Utah and petitioner appealed to the Utah Supreme Court which affirmed the denial of relief in Tillman v. Cook, 855 P.2d 211 (Utah 1993) (Tillman II). A rehearing before the Utah Supreme Court was denied on June 25, 1993. A petition for certiorari to the United States Supreme Court from the Utah post conviction judgment was denied on January 10, 1994. On March 8, 1994 a petition for habeas corpus under 28 U.S.C. § 2254 was filed in federal court for the District of Utah. The petition was dismissed without prejudice to allow Tillman to seek further exhaustion of state remedies required by § 2254. The Utah Supreme Court ruled Tillman was procedurally barred from further consideration of “Ground Two” of this.petition. The current petition filed August 13, 1995 pleads eight grounds for relief. A memorandum of points and authorities was submitted with the petition (File Entry # 2). An answer to the petition was filed by the respondent (File Entry # 8). The answer admitted most of the sequence of events alleged in the petition for habeas corpus. However, respondent contends there is no merit to any of the eight contentions of the petition. Respondent submitted an extensive memorandum with attachments and the complete state court record in support of the contention that the petition for habeas corpus should be denied. The petitioner submitted a reply memorandum (File Entry # 11). A supplement was submitted by respondent to its position to deny the petition (File Entry # 16). The petitioner submitted an additional post hearing reply (File Entry # 18). A rebuttal memorandum was submitted by respondent (File Entry # 19). Hearing was held on the petition but no evidence was taken at the hearing and the points for relief raised by the petitioner were argued by the parties. The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B). This report and recommendation is submitted pursuant to the reference on Elroy Tillman's petition for habeas corpus. Since the hearing on this matter, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132 (April 24, 1996). The Act in Section 107(c) provides with regard to the death penalty provision in Chapter 154 of title 28: “Chapter 154 of Title 28, United States Code (as added by subsection (a)) [this chapter] shall apply to cases pending on or after the date of enactment of this Act [April 24, 1996].” However, 28 U.S.C. § 2261(a) provides that the chapter “shall apply only if the provisions of [28 U.S.C. § 2261(b) and (c) ] are satisfied.” See discussion on retroactivity in Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In this case, the State of Utah has not complied with § 2261(b) & (c) and therefore the death penalty provisions of AEDPA are not retroactive and applicable to this case. The other substantive provisions of AEDPA (Chap.153) are not retroactive Lindh, supra. Preliminary Facts The petitioner and respondent, in their respective memoranda, have not submitted a detailed factual statement of the circumstances of the crime, but the record has been provided. The information on which Tillman was prosecuted alleged that the homicide was committed while he was “engaged in the commission of burglary, aggravated burglary, arson or aggravated arson.” Utah Code Ann. § 76-5-202(l)(d) (1978). The Utah Supreme Court summarized the facts in Tillman I: On May 26, 1982, Mark Schoenfeld was found dead in his smoke-filled apartment. He was lying on a smoldering bed, and his body was badly burned. Experts determined that the fire had been deliberately started and that its point of origin was the victim’s mattress. Although the victim had received several severe blows to the head, the primary cause of death was asphyxiation. The evidence indicated, however, that the blows to the victim’s head could have produced fatal brain damage independent of the fire. Defendant’s former girlfriend, Lori Groneman, had been dating the victim at the time of his death. Groneman had been with the victim earlier in the evening on the night he was killed. On the basis of information provided by Groneman, defendant was arrested by the police. At trial, Groneman testified that she had known defendant for over five years and that after breaking off their relationship in January 1982, she had repeatedly received threatening phone calls from defendant and a female caller who did not identify herself. Groneman also said that defendant had followed her and the victim on at least three occasions and that defendant had further harassed and threatened her. Carla Sagers, defendant’s girlfriend at the time of the murder, was picked up by the police a few days after the murder. Although she originally confirmed the alibi defendant had given the police, Sagers later recanted her statement and became the State’s key witness, for which she was granted immunity from prosecution. Apparently, Sagers recanted her initial statement after the police confronted her with the fact that Groneman had identified Sag-ers’ voice as that of the female who had made the threatening calls. Sagers testified at trial that she had been romantically involved with defendant and that she had made the calls to Grone-man at his request. Sagers also testified that in March 1982, defendant began to talk about killing Groneman, but later decided to kill the victim instead. Sagers described how, at various times before the murder, defendant discussed a number of alternative means of killing the victim, including poisoning him or using a bomb. At defendant’s request, Sagers purchased two handguns. Sagers also helped locate the victim’s address and learn the physical layout of the victim’s home. In March 1982, defendant and Sagers went to the victim’s house to shoot him, but did not commit the crime. On the night of May 25, however, defendant and Sagers again went to the victim’s home intending to kill him. Both defendant and Sagers entered the house and sat in the dark near the victim’s front door. After waiting for what Sagers estimated to be about an hour, defendant crept to the victim’s bedroom door, slowly opened it, and after finding that it was too dark to see, went to the kitchen and briefly turned on a light. Defendant then went back to the bedroom and crawled inside. Once in the bedroom, defendant whispered for Sagers to again turn on the kitchen light. Then defendant hit the victim several times in the head with an ax. While the victim was still alive and after Sagers suggested that they start a fire to cover up the homicide, defendant ignited the victim’s mattress and scattered cigarette butts around the room to create the impression that the fire had been caused by a burning cigarette. Defendant and Sagers then left the house and disposed of the evidence used in the crime: a towel (which was used to wipe blood off the wall) and an article of clothing (which had been placed over the victim’s head) were burned; the ax was thrown into a river; and defendant’s gloves were discarded. The two then returned to defendant’s apartment. During the course of the homicide investigation, Sagers directed the police to the places where the evidence had been disposed of, and the police recovered the gloves, the burned towel, and the burned piece of clothing. The ax was never recovered. Defendant was tried and convicted of first-degree murder and sentenced to death. Tillman I, 750 P.2d at 550-51 (footnote omitted). See also Tillman v. Cook, (Tillman II), at 855 P.2d at 214. Contentions Petitioner has raised eight grounds for relief. First, he contends the reasonable doubt instruction in both the guilt and penalty phases unconstitutionally lowered the state’s burden of proof and undermined the jury’s sense of responsibility for its guilt and sentencing verdicts. Second, it is argued that the prosecutor’s argument at sentencing denied a fair trial and denied due process of law. Third, it is contended that the instructions on the guilt phase allowed the jury to convict based on arson and aggravated arson when those statutory crimes were not proved and that this denied due process. Fourth, petitioner asserts that because a special verdict was not required on the penalty phase it cannot be determined if the jury agreed unanimously on any one aggravator. Fifth, it is urged that the information was defective because it did not list the alleged aggravating crime in sufficient detail so that defendant could understand the crime and was improperly amended after preliminary hearing. Sixth, it is argued that the Utah capital murder statute is unconstitutional. Seventh, petitioner claims that the evidence was insufficient to prove Tillman committed aggravated arson or arson for sentencing purposes. Eighth, petitioner contends that because three members of the Utah Supreme Court had at one time or another expressed the opinion that Tillman should not be executed and that his execution would violate the Eighth Amendment prohibition against cruel and unusual punishment. Discussion Ground One — Reasonable Doubt Instruction, Guilt Phase Petitioner contends the reasonable doubt instruction given to the jury by the Utah trial court in the guilt phase of the trial denied petitioner due process of law. He challenges the reasonable doubt instruction given at both the guilt phase and the penalty phase. The petitioner asserts the instruction at the guilt phase lowered the state’s burden of proof. At the guilt phase of petitioner’s trial, the judge instructed the jury with regard to reasonable doubt (Instruction 14, at 193): All presumptions of law, independent of evidence, are in favor of innocence, and a defendant is presumed innocent until he is proved guilty beyond a reasonable doubt. And in ease of a reasonable doubt as to whether his guilt is satisfactorily shown, he is entitled to an acquittal. I have heretofore told you that the burden is upon the State to prove the defendant guilty beyond a reasonable doubt. Now, by reasonable doubt is meant a doubt that is based on reason and one which is reasonable in view of all the evidence. Proof beyond a reasonable doubt is that degree of proof which satisfies the mind and convinces the understanding of those who are bound to act conscientiously upon it. A reasonable doubt is a doubt which reasonable men and women would entertain, and it must arise from the evidence or the lack of the evidence in this case. If after an impartial consideration and comparison of all the evidence in the case you can candidly say that you are not satisfied of the defendant’s guilt, you have a reasonable doubt. But if after such impartial consideration and comparison of all the evidence you can truthfully say that you have an abiding conviction of the defendant’s guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. A reasonable doubt must be a real, substantial doubt and not one that is merely possible or imaginary. The petitioner attacks that portion of the instruction that refers to “an abiding conviction of the defendant’s guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable ‘doubt.’” The petitioner did not assert any other deficiency, but in his reply to the respondent’s memorandum (File Entry # 11 at 3), petitioner contends the offending language has to be assessed in context with the last sentence of the instruction, that a “reasonable doubt must be a real, substantial doubt and not one that is merely possible or imaginary.” The petitioner contends the real and substantial language also offends due process by diluting the prosecution’s burden of proof. Before considering the argument of defendant as to the specifics of the claimed deficiency in the instruction, it should be noted that additional instructions given by the trial judge in this case addressed reasonable doubt. Instruction number 3 (R. at 183) advised the jury that defendant’s plea of not guilty “casts upon the State the burden of proving each and all the essential allegations thereof to your satisfaction and beyond a reasonable doubt.” In an additional instruction (number 15, at 194), the jury was told defendant had pled not guilty and denies every element of the offense. The jury was told the state had to prove every one of the elements of the offense beyond a reasonable doubt and “if you find the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty ...” Later in the same instruction (R. at 195) referring to second degree murder, the jury was told “you must find from the evidence, beyond a reasonable doubt” all the elements of the offense. The instructions in total on reasonable doubt, went beyond just the instruction challenged by petitioner. The Teague v. Lane issue In the respondent’s memorandum (p. 11) it is asserted that the petitioner’s argument on the instructional error as to reasonable doubt would create a “new rule” within the doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) and petitioner cannot on collateral petition raise the issue. In Teague, the Supreme Court said a habeas corpus petitioner may not seek to enforce a “new rule” of law that was announced after his conviction had become final unless the new rule fits into one of two narrow exceptions. The first is if the new rule “places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe.” The second is if the rule “requires the observance of those procedures that ... are implicit in the concept of ordered liberty.” 489 U.S. at 307, 109 S.Ct. 1060; Earnest v. Dorsey, 87 F.3d 1123 (10th Cir.1996). A “case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” 489 U.S. at 301, 109 S.Ct. 1060. A state conviction “[becomes] final for purposes of [Teague] retroactivity analysis when the availability of direct appeal to the' state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied.” Caspari v. Bohlen, 510 U.S. 383, 390, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994); Earnest, supra, at 1132. See also Teague, 489 U.S. at 310, 109 S.Ct. 1060. In making a determination as to whether a contention would announce a new rule the habe-as court must “determine whether a state court considering [the petitioner’s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [petitioner] seeks was required by the Constitution.” Caspari, supra, at 390, 114 S.Ct. 948, (quoting from Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990)); Earnest, supra at 1132. The Teague principle applies to capital cases. Penry v. Lynaugh, 492 U.S. 302, 313-14, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). In application of Teague to an instruction issued in a death penalty case, where the defendant claimed a right to a lesser included offense instruction, the court held the issue to be Teague barred. See Andrews v. Deland, 943 F.2d 1162 (10th Cir.1991). In Andrews the Court also found the instruction request as to a lesser offense did not fit within the two exceptions in Teague for retroactive application of a new rule. Id. at 1180. In Davis v. Maynard, 911 F.2d 415 (10th Cir.1990), the court held a challenge to an anti-sympathy instruction did create a new rule, but as to an instruction on an aggravator for an especially heinous, atrocious or cruel killing, did not. The Teague doctrine applied as to the new rule, but where a new rule was not created, Teague did not apply. In this case, the Utah Supreme Court upheld the petitioner’s conviction on December 22, 1987 and denied his petition for rehearing on February 24, 1988. The petitioner did not apply for certiorari to the United States Supreme Court. In accord with the time frame set forth in Caspari v. Bohlen, supra, the time the petitioner’s case became final was ninety days later on May 23, 1988. The question as to whether the petitioner’s contention would be a new rule as of May 23, 1988 must be determined on whether it would be dictated by precedent at that time. In Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708 (1887), the Supreme Court considered a “reasonable doubt” issue on review of a death sentence from the Territory of Utah. It was therefore a review of a lower federal court. The defendant challenged the instruction given on reasonable doubt by the trial court. It does not appear that the Court considered the issue in a constitutional context. Part of the instruction given advised the jury that “if, after such impartial comparison and consideration of all the evidence, you can truthfully say that you have an abiding conviction of the defendant’s guilt, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt.” Id. at 439, 7 S.Ct. 614. This is much like the instruction given in this case. The Court observed that: “It is difficult to conceive what amount of conviction would leave the mind of a juror free from a reasonable doubt, if it be not one which is so settled and fixed as to control his action in the more weighty and important matters relating to his own affairs.” Id. The Court noted that some courts suggested no amplification of reasonable doubt was necessary, but the Supreme Court said some “explanation or illustration of the rule may aid in its full and just comprehension.” Id. at 440, 7 S.Ct. 614. “The rule may be, and often is, rendered obscure by attempts at definition, which serve to create doubts instead of removing them.” Id. at 440-41, 7 S.Ct. 614. The Court said an instruction which refers to the “weighty and important concerns of life, would be likely to aid [the jury] to a right conclusion.” Id. at 441, 7 S.Ct. 614. The Court said the instruction given was “as just a guide” as could be given. Id. In Dunbar v. United States, 156 U.S. 185, 15 S.Ct. 325, 39 L.Ed. 390 (1895) the Court again considered an instruction on reasonable doubt in a federal prosecution for smuggling. The issue was not considered as a Constitutional issue. Defendant contended the trial court failed to instruct the jury on what constituted reasonable doubt and in instructing the jury as to reasonable doubt used language in terms of “strong probabilities.” Id. at 199, 15 S.Ct. 325. The Court referred to Hopt and Miles and said “[w]hile it is true that [the trial court] used the words ‘probabilities’ and ‘strong probabilities,’ yet it emphasized the fact that those probabilities must be so strong as to exclude any reasonable doubt, and that is unquestionably the law.” Id. See also Wilson v. United States, 232 U.S. 563, 34 S.Ct. 347, 58 L.Ed. 728 (1914). Subsequently, in Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954) the Supreme Court again addressed the reasonable doubt issue in a tax prosecution. The Court did not refer to its prior decision in Hopt, supra, but referred to Miles v. United States, 103 U.S. 304, 26 L.Ed. 481 (1880), a polygamy case from Utah, where the court did not really decide the reasonable doubt issue but referred in Miles to the instruction of the trial court on reasonable doubt where the trial court stated: A juror in a criminal case ought not to condemn unless the evidence excludes from his mind all reasonable doubt; unless he be so convinced by the evidence, no matter what the class of the evidence, of the defendant’s guilt, that a prudent man would feel safe to act upon that conviction in matters of the highest concern and importance to his own dearest personal interests. Miles, 103 U.S. at 309. The reporter (Otto) in the case head notes concludes the instruction provided no “just grounds of exception.” In Holland, supra, the court did not consider the issue of reasonable doubt in a constitutional context, but on review of a federal prosecution. The Court, referring to Miles, noted the “[a]ttempts to explain the term ‘reasonable doubt’ do not usually result in making it any clearer to the minds of the jury.” 348 U.S. at 140, 75 S.Ct. 127. The Court did say that it believed “that the instruction as given was not of the type that could mislead the jury into finding no reasonable doubt when in fact there was some.” Id. The Court referred to the instruction given that reasonable doubt is “the kind of doubt ... which you folks in the more serious and important affairs of your own lives might be willing to act upon.” Id. The Court directed a modification saying, “[w]e think this section of the charge should have been in terms of the kind of doubt that would make a person hesitate to act.” Id. However, the Court then said that, “taken as a whole, the instruction correctly conveyed the concept of reasonable doubt to the jury.” Id. The Supreme Court’s holding in Holland did not fault the instruction given to the extent of finding error, let alone a violation of due process. This appears to be the extent of the Supreme Court’s decisions as of 1988 when Tillman’s state conviction became final for Teague purposes. During argument and his memorandum petitioner referred to and relied heavily on Monk v. Zelez, 901 F.2d 885, 889-90 (10th Cir.1990). However, for Teague purposes the case came after Tillman’s conviction was final. Further, the case was an expansion of legal analysis from prior Supreme Court precedent on reasonable doubt instructions and due process claims. However, the Supreme Court had, before Tillman’s conviction became final, decided In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The court held that in a juvenile court delinquency proceeding involving an act which if committed by an adult would be criminal, due process required proof at a level of beyond a reasonable doubt. In the course of the discussion, the court said: The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation .... Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does reflect a profound judgment about the way in which law should be enforced and justice administered. Winship 397 U.S. at 361-62, 90 S.Ct. 1068. The court also said: Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required. See, for example, Miles v. United States, 103 U.S. 304, 312[, 26 L.Ed. 481] (1881); Davis v. United States, 160 U.S. 469, 488[, 16 S.Ct. 353, 40 L.Ed. 499] (1895); Holt v. United States, 218 U.S. 245, 253[, 31 S.Ct. 2, 54 L.Ed. 1021] (1910); Wilson v. United States, 232 U.S. 563, 569-570[, 34 S.Ct. 347, 58 L.Ed. 728] (1914); Brinegar v. United States, 338 U.S. 160, 174[, 69 S.Ct. 1302, 93 L.Ed. 1879] (1949); Leland v. Oregon, 343 U.S. 790, 795[, 72 S.Ct. 1002, 96 L.Ed. 1302] (1952); Holland v. United States, 348 U.S. 121, 138[, 75 S.Ct. 127, 99 L.Ed. 150] (1954); Speiser v. Randall, 357 U.S. 513, 525-526[, 78 S.Ct. 1332, 2 L.Ed.2d 1460] (1958); Cf. & Coffin v. United States, 156 U.S. 432[, 15 S.Ct. 394, 39 L.Ed. 481] (1895). Mr. Justice Frankfurter stated that “[i]t is the duty of the Government to establish ... guilt beyond a reasonable doubt. This notion— basic in our law and rightly one of the boasts of a free society — is a requirement and a safeguard of due process of law in the historic, procedural content of ‘due process.’ ” Leland v. Oregon, supra, 343 U.S. [790] at 802-803, at 1009[, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952)] (dissenting opinion). In a similar vein, the Court in Brinegar v. United States, supra, 338 U.S., at 174[, 69 S.Ct. 1302], that “[g]uilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.” Davis v. United States, at 488[ 16 S.Ct. 353], stated that the requirement is implicit in “constitu-tions____[which] recognize the fundamental principles that are deemed essential for the protection of life and liberty.” In Davis a murder conviction was reversed because the trial judge instructed the jury that it was their duty to convict when the evidence was equally balanced regarding the sanity of the accused. This Court said: “On the contrary, he is entitled to an acquittal of the specific crime charged, if upon all the evidence, there is reasonable doubt whether he was capable in law of committing crime____No man should be deprived of his life under the forms of law unless the jurors who try him are able, upon their consciences, to say that the evidence before them .... is sufficient to show beyond a reasonable doubt the existence of every fact necessary to constitute the crime charged.” Winship, 397 U.S. at 362-63, 90 S.Ct. 1068. Thus, In re Winship made it clear that due process requires proof beyond a reasonable doubt in a criminal prosecution. However, Winship dealt with the level of proof, not the instruction to define that level. However, it is important to recognize that the reasonable doubt standard is a part of fundamental due process. However, for Teague purposes, and petitioner’s claim of instructional error as undermining the reasonable doubt standard, petitioner’s argument would require a “new rule” since it was not to be reasonably anticipated from prior precedent, and is barred from consideration by Teague unless subject to an exception. See O'Dell v. Netherland, 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997) (rule requiring capital defendant to be allowed to inform sentencing jury of parole eligibility is a new rule); Lambrix v. Singletary, 520 U.S. 518, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (rule on how sentencing judge should consider factors of jury recommendation and weigh aggravating circumstances in a capital case was a new rule); Gray v. Netherland, 518 U.S. 152, 116 S.Ct. 2074, 2084, 135 L.Ed.2d 457 (1996) (ruling that due process required more than one day’s notice of evidence to be used by the prosecution would be a new rule); Caspari v. Bohlen, 510 U.S. 383, 393, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994) (application of double jeopardy clause to noncapital sentencing situation would be a new rule); Gilmore v. Taylor, 508 U.S. 333, 344, 113 S.Ct. 2112, 124 L.Ed.2d 306 (1993) (rule requiring express instruction on mitigating mental state is new rule); Graham v. Collins, 506 U.S. 461, 477, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (argument that Texas capital sentencing scheme prevented jury from adequately considering mitigating evidence raised a new rule); Saffle v. Parks, supra, (Eighth Amendment requires a jury to consider certain mitigating evidence in death sentence cases is a new rule). However, if the rule draws from existing precedent it is not new. Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Penry v. Lynaugh, supra; Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) (no new rule). In this the petitioner’s contention is a “new rule.” The next consideration is whether petitioner’s argument falls under any of the exceptions to Teague that would allow retroactive application of the petitioner’s contention. The petitioner contends that Teague is inapplicable to the issue of reasonable doubt. As noted before, in Teague, the court said the first exception to its nonretroactive application of a new rule was “if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ ” 489 U.S. at 311, 109 S.Ct. 1060. This exception has no application in this case. The Court, however, said a second exception applies to “watershed rules of criminal procedure” and requires “observance of ‘those procedures that are implicit in the concept of ordered liberty.’ ” Id. The Court went on and, quoting from Justice Harlan’s opinion in Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (concurring in judgments and dissenting in part), adopted the assessment of what is “watershed” procedure. “Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction.” Teague, 489 U.S. at 311, 109 S.Ct. 1060. See O’Dell v. Netherland, supra, 117 S.Ct. at 1978 (finding little watershed character in the rule allowing a defendant to advise a capital jury about parole eligibility); Earnest v. Dorsey, 87 F.3d 1123, 1132 (10th Cir.1996); Castro v. State of Oklahoma, 71 F.3d 1502, 1511 n. 9 (10th Cir.1995). It should be noted that in In re Winship, supra, the Supreme Court held the requirement of proof beyond a reasonable doubt to be fundamental. However, a distinction can be made between Winship where the state practice did not use a reasonable doubt standard and the situation where a reasonable doubt standard is used but the claim is that there is a deficiency in the instruction that is provided. It is the latter that is involved in this case. As noted before, the Tenth Circuit has applied Teague where the petitioner was essentially making a claim of instructional error. Andrews v. Deland, supra, (lesser offense instruction). Davis v. Maynard, supra, does not support a different conclusion because the court held that a “new rule” was not involved. By contrast, in Rael v. Sullivan, 918 F.2d 874, 875 (10th Cir.1990) the court held that “a complete failure to instruct on an essential element of an offense violates the right to due process.” In Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) defendant was tried for first degree murder in state court. The reasonable doubt instruction given by the trial judge was one that had been condemned as unconstitutional by the Supreme Court in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990)(per curiam). The state court had held on appeal that the instruction was harmless beyond a reasonable doubt. 508 U.S. at 277, 113 S.Ct. 2078. The United States Supreme Court held that giving a deficient reasonable doubt instruction was constitutional error that required reversal of the conviction rather than being one amenable to harmless error analysis. The court held an erroneous reasonable doubt instruction vitiates all factual findings of the jury. There is no jury verdict within the meaning of the Sixth Amendment and the premise for harmless error analysis is absent. Id. at 280, 113 S.Ct. 2078. The court referred to the error as a violation of a “basic protection.” Id. at 281, 113 S.Ct. 2078. The error is structural error. Id. at 282, 113 S.Ct. 2078. This case is a strong argument for the position that instructional error on reasonable doubt is to be treated no differently than a failure to use a reasonable doubt standard. This is supported by the characterization of instructional error as diluting the requirement for the reasonable doubt standard. See also Victor v. Nebraska, supra. However, the majority of the court did not cite to or mention the Teague v. Lane issue, nor was it apparently raised by the defendant in Sullivan. Therefore, although Sullivan is strongly pertinent to the Teague question, it does not directly resolve it. Several circuits have addressed the issue of whether Teague is a bar to a deficient reasonable doubt instruction. However, the circuits are split in their positions. In Skelton v. Whitley, 950 F.2d 1037, 1044-46 (5th Cir.1992), a decision before Sullivan but after Cage, the defendant contended the court’s instructions called for a higher degree of doubt than that required by the reasonable doubt standard and relied on Cage for reversal of a conviction. The court found the issue procedurally barred in part. The court considered the Cage ruling. The court concluded that Cage was a new rule (as is the petitioner’s claim in this case). Skelton, 950 F.2d at 1043—44. The court then addressed whether the second exception of Teague was applicable. The court held the second exception inapplicable, noting: Here, the problem is not a complete absence of the reasonable doubt standard or a deliberate reliance on an incorrect standard of proof, compare Jackson v. Virginia, 443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 2790, n. 14, 61 L.Ed.2d 560 (1979), but rather whether the jury instruction inadvertently diluted the reasonable doubt standard to some degree. Both the gravity of the procedural error and the determination whether it cause an inaccurate verdict are much more ambiguous in Cage and in this case than in Winship. Moreover, the Court has observed the scope of Teague exceptions “must be consistent with the recognition that ‘[a]pplication of constitutional rules not in existence at the time of a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.’ Teague, 489 U.S. at 309, 109 S.Ct., at 1074 ... [T]he ‘cost imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus thus generally far outweigh the benefits of this application.’ ” Sawyer v. Smith 497 U.S. 227, 110 S.Ct. 2822, 2831, 111 L.Ed.2d 193 (1990). In Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1264, 108 L.Ed.2d 415 (1990, the Court stated that: Although the precise contours of this [second] exception may be difficult to discern, we have usually cited Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ] [citation omitted], holding that the defendant has the right to be represented by counsel in ali criminal trials for serious offenses, to illustrate the type of rule coming within the exception. Finally, in Teague, the Court believed it “unlikely that many such components of basic due process have yet to emerge.” Teague, 489 U.S. at 313, 109 S.Ct. at 1076. These passages highlight the critical difference between Winship and Cage. The failure to give reasonable doubt instruction would seriously diminish the likelihood of obtaining an accurate conviction. Errors in an instruction long used, seldom challenged, and promulgated with good intentions, however, should not lightly be held to have violated fundamental constitutional norms in a way that requires retroactive habeas relief. Skelton, 950 F.2d at 1045 (footnotes omitted). The court concluded Teague barred the retroactive application of Cage. Subsequently, in Brown v. Cain, 104 F.3d 744 (5th Cir.1997), the defendant argued his trial denied due process because the instructions given by the Louisiana trial court violated the standard in Cage v. Louisiana, supra. The defendant contended that Sullivan v. Louisiana, supra, required overruling Skelton v. Whitley, supra. The court adhered to its prior position absent a decision from the circuit, en banc. See also United States v. Shunk, 113 F.3d 31, 37 (5th Cir.1997). Most recently, in Humphrey v. Cain, 120 F.3d 526 (5th Cir.1997) a panel of the Fifth Circuit concluded it was bound by its prior precedent but in a strong opinion by Judge Higginbotham, the panel set up the case for en banc review by concluding the instruction was error of a Constitutional dimension and found positions of other circuits in applying Teague that were contrary to the Fifth Circuit position. This suggests a recognition that the Fifth Circuit position may not be on solid ground and in transition in that circuit. The Fourth Circuit addressed the issue in Adams v. Aiken, 41 F.3d 175 (4th Cir.1994). The court concluded that Sullivan v. Louisiana, supra, put the reasonable doubt instruction issue under the second exception of Teague: What Sullivan does cast into doubt is our holding that a Cage error does not qualify for retroactive application under the second Teague exception. This exception provides that “a new rule should be applied retroactively if it requires the observance of those procedures that are implicit in the concept of ordered liberty.” 489 U.S. at 311, 109 S.Ct. at 1076 (citation and internal quotation marks omitted). The exception is limited to “those new procedures without which the likelihood of an accurate conviction is seriously diminished.” 489 U.S. at 313, 109 S.Ct. at 1077. In Sawyer v. Smith, 497 U.S. 227, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990), the Court emphasized that to qualify under Teague’s second exception a rule “must not only improve accuracy, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” 497 U.S. at 242, 110 S.Ct. at 2831 (citations and internal quotation marks omitted). In view of these explanations of Teag-ue ’s second exception, the question arises whether the remedy for an unconstitutional reasonable doubt instruction should be applied retroactively. The answer is found in Sullivan’s explanation of the crippling effects of such an instruction: “a misde-scription of the burden of proof ... vitiates all the jury’s findings.” - U.S. - at -, 113 S.Ct. at 2082. Without a jury’s constitutional finding of guilt, a conviction lacks both “accuracy” and one of the “bedrock procedural elements essential to the fairness of the proceeding.” Sawyer, 497 U.S. at 242, 110 S.Ct. at 2831. Sullivan also describes denial of a right to a jury verdict of guilt beyond a reasonable doubt as a “structural” error. — U.S. at - and -, 113 S.Ct. at 2082-83 and 2083-84 (Rehnquist, C.J., concurring). In the context of harmless error doctrine, the Supreme Court has stated that a criminal trial infected by a structural error “cannot reliably serve its function as a vehicle for determination of guilt or innocence and no criminal punishment may be regarded as fundamentally fair.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991) (citation and internal quotation marks omitted). In light of Sullivan, a constitutionally deficient reasonable doubt instruction not only dilutes the standard of proof beyond a reasonable doubt mandated by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), but it also prevents a jury verdict of guilty from coming into existence. This failure is a breach of the right to a trial by jury resulting in a lack of accuracy and the denial of a bedrock procedural element essential to fairness. It is also a structural error that deprives a defendant of a fundamentally fair trial. Consequently, the rule that a constitutionally deficient reasonable doubt instruction violates the Due Process Clause satisfies Teague!s second exception. It should be applied retroactively. Adams, 41 F.3d at 178-79. A similar position has been taken by the Eleventh Circuit. Nutter v. White, 39 F.3d 1154 (11th Cir.1994)(Cape rule satisfied accuracy and fundamental fairness prongs of exception to Teague’s nonretroaetivity rule allowing retroactive application of new rules that involve procedures that are implied in the concept of ordered liberty). But see, In re Hill, 113 F.3d 181 (11th Cir.1997) reacknowledging Nutter but refusing to allow a successive petition under 28 U.S.C. § 2244(b)(2)(A). In Murray v. Delo, 34 F.3d 1367, 1382 (8th Cir.1994) the Eighth Circuit addressed a deficient reasonable doubt instruction. The petitioner claimed the use of “firmly convinced” in a reasonable doubt instruction was constitutionally infirm. The court said that such a claim would create a new rule within Teague ’s doctrine. The petitioner had relied on Cage in support of his argument. Id. at 1381. The court rejected the Cage basis for the argument finding for a new rule and without considering the Teague exceptions, said, “Therefore, we hold that this claim is barred by Teague.” Id. at 1382. The court did not address whether the second exception in Teague was applicable. Therefore, the case is not as significant as if it had decided the issue of the fundamental nature of a deficiency in a reasonable doubt instruction. Based on a careful consideration of the cases and especially the Supreme Court’s ruling in Sullivan v. Louisiana, supra, it must be concluded that the position of the Fourth and Eleventh Circuits is correct. The Fifth Circuit’s position has been undermined' and no other reasonable conclusion can be accepted than that Teague does not bar consideration of petitioner’s claim of a deficient reasonable doubt instruction. The question of whether the reasonable doubt instruction given to the jury in this case is constitutionally deficient must be considered on the merits in light of the relevant Supreme Court and circuit court opinions. Petitioner’s first contention is the language in the instruction 14 (Tr. at 193) that if, after “impartial consideration and comparison of all the evidence you can truthfully say you have an abiding conviction of defendant’s guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt” is deficient. No objection or exception was taken to instruction 14. (Tr. at 1743-1747). The reasonable doubt instruction requested by the petitioner is very similar. It contains the “substantial” language wording and the language of “best able to act in the more important affairs of his life”. (Tr. at 148) The trial judge believed the court’s instruction encompassed defendant’s request “in substance.” This part of the instruction is to directly caution the jury as to the seriousness and importance of their decision and the high standard required to overcome the presumption of innocence discussed in the first part of the instruction. Further, the instruction indicates the proof is the prosecution’s burden and must be satisfied from the evidence. The petition has placed strong emphasis on United States v. Holland, supra, to attack the language as constitutionally deficient. However, as noted before, Holland did not address the instruction in that case in constitutional terms. Holland did indicate the instruction should be in terms of the “kind of doubt that would make a person hesitate to act,” 348 U.S. at 140, 75 S.Ct. 127, rather than “willing to act,” but did not reverse the finding that the instructions taken as a whole conveyed the concept of reasonable doubt. Holland will not support petitioner’s claim for relief. See United States v. McIntyre, 836 F.2d 467, 473 (10th Cir.1987) (instructions on reasonable doubt must be viewed in the context of the instructions as a whole). The Second Circuit has characterized Holland as stating a preference for the position it expressed. United States v. McBride, 786 F.2d 45 (2nd Cir.1986). Subsequently, in Monk v. Zelez, 901 F.2d 885 (10th Cir.1990), the court reviewed a court-martial conviction on petition for habeas corpus. The petitioner contended the instruction given which used the referenced phrase that reasonable doubt meant “a substantial, honest, conscientious doubt” was defective and that the instruction on “willing to act upon in the more weighty and important matters relating to your own affairs” was also defective. Id. at 889. Holland was cited for the alleged wrongfulness of the “substantial doubt” instruction to require reversal. Id. at 890. However, Holland never addressed that matter and is only properly cited for a harmless error standard. Id. The “willingness to act” language was condemned by the court, but without observing that Holland had found the instruction not to offend to the extent as to require reversal. The court did not discuss Hopt v. Utah, supra, in terms of the instruction upheld in that case. The Monk court concluded the instruction denied due process and that the Court of Military Appeals had reached the same conclusion in United States v. Salley, 9 M.J. 189 (C.M.A.1980). Id. at 891. The court did observe that in United States v. Smaldone, 485 F.2d 1333, 1348 (10th Cir.1973) the “willing to act” language did not require reversal of an otherwise unobjectionable charge. Id. at 893. There was also a “moral certainty” charge in the Monk instruction. Id. at 889-90, 893. The court found a denial of due process because the instruction on substantial doubt along with the instruction as a whole diluted the reasonable doubt standard. Thus Monk is, if it still has controlling validity, a strong argument for petitioner’s position. However, as will be seen, the Monk analysis has been rejected by the Supreme Court in its analysis. The Supreme Court considered a reasonable doubt instruction in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990)(per curiam). The instruction given was in terms of reasonable doubt as “such doubt as would give rise to a grave uncertainty” and as an “actual substantial doubt.” Id. at 40, 111 S.Ct. 328. The instruction said the certainty for conviction was a “moral certainty.” Id. The court said: In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole. Francis v. Franklin, 471 U.S. 307, 316, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a “grave uncertainty” and an “actual 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. When those statements are then considered with the reference to “moral certainty,” rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause. Id. at 41, 111 S.Ct. 328. Cage does reinforce Monk’s condemnation of the instruction in that case. However, what Cage found deficient in the Louisiana, reasonable doubt instruction, when taken as a whole, were three expressions, 1) “grave uncertainty,” 2) “actual substantial doubt,” and 3) “moral certainty.” However, in this case, the instruction given to the jury did not use “grave uncertainty” or “moral certainty” nor “actual substantial,” although “substantial” was used. Therefore, the instruction condemned in Cage taken as “whole” is significantly different that the instruction given in this ease and Cage does not actually support the petitioner’s position in this case. After Cage, in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the court again addressed a reasonable doubt instruction. The court said the “Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course.” Id. at 1243. No particular “form of words” is required. Id. The