*

Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for

the Ninth Circuit, sitting by designation. 

 1The relevant portion of the trial court's instruction is

affixed to this opinion as an appendix. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-6573.

Roy Avon HARVELL, Plaintiff-Appellant,

v.

John E. NAGLE, Warden; Attorney General of the State of Alabama,

Defendants-Appellees.

July 21, 1995.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CV-93-AR-467), William M. Acker, Jr.,

Judge.

Before KRAVITCH and BIRCH, Circuit Judges, and GOODWIN*

, Senior

Circuit Judge.

KRAVITCH, Circuit Judge:

The sole issue presented in this appeal from the district

court's denial of habeas corpus relief is whether the jury

instruction on reasonable doubt at Appellant's state trial for

murder was constitutionally sufficient.1 We hold that the jury

instruction did not violate Appellant's due process rights;

accordingly, we AFFIRM.

I.

The procedural background of this case is not disputed. A

jury convicted Roy Avon Harvell of murder in August 1989; he was

sentenced to life imprisonment without parole, and his conviction

was upheld on direct appeal. Harvell v. State, 572 So.2d 889

(Ala.Crim.App.), reh'g denied, 575 So.2d 1253 (Ala.Crim.App.1990).
 2

We note at the outset that no objection to the jury

instruction was made at trial or on direct appeal. The parties,

however, do not dispute that the Alabama courts later addressed

this claim on the merits; thus, any procedural bar has lapsed. 

See Alderman v. Zant, 22 F.3d 1541, 1549 (11th Cir.) ("[S]hould a

state court reach the merits of a claim notwithstanding a

procedural default, the federal habeas court is not precluded

from considering the merits of the claim."), cert. denied, ---

U.S. ----, 115 S.Ct. 673, 130 L.Ed.2d 606 (1994). 

 3

The magistrate judge recommended denying relief as to all

of Harvell's other claims. 

 4Victor and a companion case, Sandoval v. California, were

decided together in a single opinion. Id. 

 5The district court adopted the magistrate judge's

recommendation that the other claims raised by Harvell be denied. 

Harvell only appeals as to the reasonable doubt instruction. 

Following state collateral proceedings, Harvell filed a pro se

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,

in federal district court, alleging, inter alia, that the state

trial court's reasonable-doubt instruction denied him due process.2

The magistrate judge reviewing Harvell's petition recommended

granting habeas relief on the reasonable-doubt instruction claim,

based upon Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112

L.Ed.2d 339 (1990) (per curiam) (reasonable-doubt instruction

violated due process).3 Before rendering its decision, however,

the district court requested briefing to address the impact of an

intervening Supreme Court case, Victor v. Nebraska, --- U.S. ----,

114 S.Ct. 1239, 127 L.Ed.2d 583 (1994),4

 upon the claim. After a

de novo review of the record and consideration of the parties'

submissions, the district court held that, in light of Victor, the

jury instruction was not constitutionally defective and denied

Harvell's habeas petition.5

II.
 6

We note that Harvell does not challenge the "two-inference"

language in the charge, i.e., that the jury should acquit if the

evidence permits a conclusion of either guilt or innocence. See

 In a criminal case, the government must prove each and every

element of a charged offense beyond a reasonable doubt. In re

Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970);

Victor, --- U.S. at ----, 114 S.Ct. at 1242. Although a court must

instruct the jury that a defendant's guilt has to be proven beyond

a reasonable doubt, the Supreme Court has stated that "the

Constitution neither prohibits trial courts from defining

reasonable doubt nor requires them to do so as a matter of course."

Victor, --- U.S. at ----, 114 S.Ct. at 1243. If a trial court

defines reasonable doubt, however, it must explain the standard

correctly, although "the Constitution does not require that any

particular form of words be used in advising the jury of the

government's burden of proof." Id.

 When reviewing reasonable-doubt charges, we consider the

instruction as a whole to determine if the instruction misleads the

jury as to the government's burden of proof. See United States v.

Veltmann, 6 F.3d 1483, 1492 (11th Cir.1993). The Supreme Court has

phrased the proper constitutional inquiry as "whether there is a

reasonable likelihood that the jury understood the instructions to

allow conviction based on proof insufficient to meet the Winship

standard." Victor, --- U.S. at ----, 114 S.Ct. at 1243.

Harvell argues that the trial court's instruction on

reasonable doubt violated his due process rights because the

instruction equates reasonable doubt with: (1) "actual and

substantial doubt" and (2) "moral certainty."6 Harvell relies on
United States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir.) (expressing

disfavor with "two-inference" language), cert. denied, --- U.S. -

---, 115 S.Ct. 1835, 131 L.Ed.2d 754 (1995). Accordingly, we do

not address this possible contention. 

 7Although we examine each of the allegedly offending

portions, we are mindful that in the end analysis the

instruction's constitutionality is tested as a whole. 

Cage, in which the Supreme Court held that the use of these terms,

as well as the term "grave uncertainty," in a reasonable-doubt

instruction violated the accused's due process rights. Cage, 498

U.S. at 39-41, 111 S.Ct. at 329-30. The Cage court explained:

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. We address the use of "actual and substantial doubt" and

"moral certainty" in turn.7

III.

Although the use of the term "actual and substantial doubt" is

somewhat problematic and perhaps even ill-advised, the Supreme

Court made clear, subsequent to Cage, that the use of such a term

in the proper context, bolstered by adequate explanatory language,

can survive constitutional scrutiny. See Victor, --- U.S. at ----,

114 S.Ct. at 1250; Adams v. Aiken, 41 F.3d 175, 182 (4th Cir.1994)

("Victor explains that the offending words can be neutralized by

words or phrases that preclude the jury from requiring more than a

reasonable doubt to acquit."), cert. denied, --- U.S. ----, 115

S.Ct. 2281, --- L.Ed.2d ---- (1995). The instruction challenged in
 8

The instruction mentions approximately ten times, in one

way or another, the need for the jury to base its decision upon

the evidence. Although the constitutional inquiry should not be

viewed as a pure "numbers game," we cannot ignore the impact of

the trial court's repeated admonitions. It is unlikely that the

jury in this case believed that it could go outside of the

evidence presented to convict. 

Victor provided in part:

A reasonable doubt is an actual and substantial doubt 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.

Id. --- U.S. at ----, 114 S.Ct. at 1249 (emphasis added by Supreme

Court).

The Supreme Court held that the actual and substantial doubt

language did not violate Victor's due process rights because the

rest of the sentence made clear that substantial was being used in

"the sense of existence rather than magnitude of the doubt." Id.

at ----, 114 S.Ct. at 1250. In other words, in context,

substantial meant actual or real rather than abundant or plentiful.

 The surrounding language in the trial court's instruction in

Harvell's case likewise established that substantial meant real and

not imaginary. The trial court accomplished this in two ways.

First, as in Victor, the instruction provided that substantial

doubt arises from the evidence itself, stating that reasonable

doubt had to be derived from the evidence, lack of evidence, or any

part of the evidence.8

 Second, Harvell's instruction stated that

reasonable doubt cannot be fanciful, vague, whimsical, capricious,

conjectural or speculative.

The reasonable doubt which entitles Mr. Harvell to an

acquittal, again, is not a mere fanciful, vague, conjectural
 9

The terms capricious and whimsical are mentioned elsewhere

in the instruction. 

or speculative doubt. But, a reasonable, substantial doubt

arising from the evidence and remaining after a careful

consideration of the testimony such as reasonable and

fair-minded and conscientious men and women such as yourselves

would entertain under all the circumstances.

R1-5, Exh. A at 574 (emphasis added).9 This distinguishes Cage,

where the substantial doubt language was not directly contrasted

with another type of doubt. See Cage, 498 U.S. at 39-41, 111 S.Ct.

at 329; Victor, --- U.S. at ----, 114 S.Ct. at 1250 ("This

explicit distinction between a substantial doubt and a fanciful

conjecture was not present in the Cage instruction."). For these

reasons, the instruction was not rendered constitutionally infirm

by the reference to substantial doubt.

IV.

We now turn to the trial court's use of the term "moral

certainty." In Sandoval, the companion case to Victor, the charge

provided:

Reasonable doubt is defined as follows: It is not a mere

possible doubt; because everything related to human affairs,

and depending on moral evidence, is open to some possible or

imaginary doubt. It is that state of the case, which, after

the entire comparison and consideration of all the evidence,

leaves the minds of the jurors in that condition that they

cannot say they feel an abiding conviction, to a moral

certainty, of the truth of the charge.

Victor, at ----, 114 S.Ct. at 1244 (emphasis added by Supreme

Court).

Sandoval raised two related challenges to the term "moral

certainty": (1) that it would be understood by modern jurors to

mean a standard of proof lower than beyond a reasonable doubt, id.

at ----, 114 S.Ct. at 1247; and (2) "that a juror might be
 10The Court explained: "As used in this instruction ... we

are satisfied that the reference to moral certainty, in

conjunction with the abiding conviction language, "impress[ed]

upon the factfinder the need to reach a subjective state of near

certitude of the guilt of the accused.' " Victor, --- U.S. at --

--, 114 S.Ct. at 1247 (quoting Jackson v. Virginia, 443 U.S. 307,

315, 99 S.Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979)). 

convinced to a moral certainty that the defendant is guilty even

though the government has failed to prove his guilt beyond a

reasonable doubt." Id. at ----, 114 S.Ct. at 1248.

The Court rejected both possibilities in holding that

Sandoval's charge was constitutional. Id. at ---- - ----, 114

S.Ct. at 1247-48. The first argument was rebuffed because the rest

of the instruction lent content to the phrase "moral certainty."

In particular, the Court emphasized the fact that the jurors were

told that they had to have an abiding conviction, to a moral

certainty, of the truth of the charge. Id. at ----, 114 S.Ct. at

1247. The abiding conviction language, in light of other portions

of the instruction, served to impress upon the factfinder the

proper standard of proof. 10 Id. Sandoval's second argument was

rejected because the Court concluded that the charge as a whole

communicated that the government had to meet its burden of proof

through the evidence presented in the case. Id. at ----, 114 S.Ct.

at 1248.

The instruction in Victor also contained the phrase "moral

certainty"; it provided: "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." Id. at ----, 114 S.Ct. at 1249

(emphasis added by Supreme Court). The Court stated that the
 11We emphasize that we do not endorse the use of such

troublesome language; rather, our inquiry is confined to whether

Harvell's constitutional rights were violated by its invocation. 

 12The Supreme Court explained: "[T]he judge had already

informed the jury that matters related to human affairs are

proven by moral evidence ... giving the same meaning to the word

moral in this part of the instruction, moral certainty can only

mean certainty with respect to human affairs." Id. --- U.S. at -

---, 114 S.Ct. at 1247. 

reference to an abiding conviction, as in Sandoval, did "much to

alleviate any concerns that the phrase moral certainty might be

misunderstood in the abstract." Id. at ----, 114 S.Ct. at 1250.

The Court also noted the instruction's use of an alternative

definition ("doubt that would cause a reasonable person to hesitate

to act"), id. at ---- - ----, 114 S.Ct. at 1250-51, and the

instruction's emphasis on the evidence in the case, in holding that

the term "moral certainty," while not countenanced, did not render

Victor's charge unconstitutional. Id.

 As in Sandoval and Victor, any potential constitutional harm

created by the moral certainty language in Harvell's case was

eviscerated by the rest of the jury charge.11 The charge made clear

that the jury was to render its decision based upon the evidence

presented in the case. Thus, any objection to the term "moral

certainty," on the ground that it encouraged the jury to go outside

of the evidence presented at trial in arriving at its verdict, is

without merit.

Appellant correctly points out that his instruction lacked the

definition of "moral" contained in Sandoval 's instruction12 and did

not provide a useful alternative definition of reasonable doubt as
 13Appellant made this latter observation at oral argument. 

 14The Third Circuit has held that "[i]n light of the Supreme

Court's criticism of the phrase "moral certainty,' it goes

without saying that this antiquated phrase should no longer be

used." See United States v. Jacobs, 44 F.3d 1219, 1226 (3d Cir.)

(reviewing federal district court instruction), cert. denied, ---

U.S. ----, 115 S.Ct. 1835, 131 L.Ed.2d 754 (1995). Absent a

constitutional violation, we, of course, cannot dictate to state

courts the language that they may properly use in their jury

charges, but we do note that the use of this term does not

illuminate the meaning of reasonable doubt and conceivably could

be constitutionally infirm in a different context. 

in Victor.13 Nevertheless, the instruction refers at least six

times to the necessity for the jury to have an abiding conviction

in either Harvell's guilt or the truth of the murder charge. The

use of this term specifically was sanctioned by the Supreme Court

in Sandoval and Victor, id. at ----, ----, 114 S.Ct. at 1247, 1250,

and was not used in the instruction struck down in Cage. See Cage,

498 U.S. at 39-41, 111 S.Ct. at 329. The combination of the

abiding conviction language and the rest of the instruction, which

emphasized the jury's obligation to focus on the evidence presented

in court, convinces us that it was not reasonably likely that the

jury understood the instructions to allow conviction based on proof

insufficient to meet the Winship standard. Victor, --- U.S. at ---

-, 114 S.Ct. at 1243; see also Bias v. Ieyoub, 36 F.3d 479, 481

(5th Cir.1994) (reference to moral certainty not unconstitutional

where used in connection with the phrase "abiding conviction").14

V.

In sum, we conclude that the references to actual and

substantial doubt and moral certainty in Harvell's reasonable-doubt

instruction did not create a reasonable likelihood that the jury

understood the instruction to allow conviction based on proof
insufficient to meet the Winship standard. Accordingly, we AFFIRM

the district court's denial of Appellant's petition for a writ of

habeas corpus.

AFFIRMED.

APPENDIX

The state trial court in the present case charged the jury on

reasonable doubt as follows:

Let's don't forget the central issue that we are here

about: Are you convinced—and I will talk about the measure of

proof in just a moment, beyond a reasonable doubt and to a

moral certainty that the State has proven Roy Avon Harvell

intentionally, that is purposely, shot and killed Mr. Midgett

or shot him for the purpose of killing him....

 * * * * * *

You have heard it said that the State has the burden of

proof, the burden of persuasion, the burden of going forward

with the evidence.

What is the quantum of proof required in the Criminal

Division?

In the Civil Division, where you are arguing over real

estate, perhaps, or money or products liability, things like

this, the plaintiff, the one that brings the lawsuit, has to

put on a preponderance of the evidence. He has to convince

the jury, that is, by the preponderance of the evidence in

order for him to prevail; just put on a tad bit more than the

defendant might.

In the Criminal Division, the State, the government, has

a more onerous or higher burden. The State has to bring you

strong and cogent evidence that convinces you people beyond a

reasonable doubt of Mr. Harvell's guilt before the presumption

of evidence [sic] is overcome.

So, let's stay for just a minute on that. Again, we are

talking about the quantum of proof required here in the case.

The State does not have to prove guilt beyond all

possible doubt, the State does not have to prove guilt to a

mathematical certainty. And we are not talking, when we say

a reasonable doubt, about a capricious, whimsical or fanciful

doubt, but just use your common sense, a doubt founded upon a

good, sound, sensible reason.
So, the State, again, has to prove guilt beyond a

reasonable doubt or to a moral certainty in order to overcome

the presumption of innocence.

I would say this: If after a full and fair consideration

of all the evidence in the case, if there should remain in

your collective minds—I will remind you in a little while that

your verdict has to be unanimous. But, if there should remain

in your collective minds an abiding conviction that Mr.

Harvell is guilty of the unlawful homicide, a killing without

justification or excuse, intentional killing without

justification or excuse, then you must convict.

On the other hand, if after that same full and fair

consideration of all the evidence in the case, if there does

not remain in your collective minds that abiding conviction

that he is guilty, then that's kind of like saying that you

are not convinced by the full measure of proof required by the

law and he should be acquitted.

You should know that a reasonable doubt may spring from

the evidence, from a lack of evidence or from any part of the

evidence.

I would like to summarize in the area of the State's

burden of proof by reading a little something from the Fuller

case at 473 Southern 2d 1159. The State is not required to

convince you of Mr. Harvell's guilt beyond all doubt and to

the point that you could not possibly be mistaken, but simply

beyond all reasonable doubt and to a moral certainty.

If after comparing and considering all the evidence in

the case, your minds are left in such a condition that you

cannot say that you have an abiding conviction to a moral

certainty of Defendant Harvell's guilt, then you are not

convinced beyond a reasonable doubt, and, of course, he would

be entitled to an acquittal.

The doubt which would justify an acquittal must be an

actual and substantial doubt and not a mere possible doubt.

A reasonable doubt is not a mere guess or surmise, and it

is not a forced, capricious doubt.

As I stated earlier, if you have an abiding conviction of

the truth of the charge that is embraced in the indictment,

then you are convinced beyond a reasonable doubt and it would

be your duty to convict.

The reasonable doubt which entitles Mr. Harvell to an

acquittal, again, is not a mere fanciful, vague, conjectural

or speculative doubt. But, a reasonable, substantial doubt

arising from the evidence and remaining after a careful

consideration of the testimony such as reasonable and
fair-minded and conscientious men and women such as yourselves

would entertain under all the circumstances.

 * * * * * *

So, I would say to you that if after a full and fair

consideration of all of the evidence in this case, if there

should remain in your collective minds an abiding conviction

that Mr. Harvell is guilty to the exclusion of all reasonable

doubt, then he should be convicted of the offense.

On the other hand, if after that same full and fair

consideration of all of the evidence in the case there does

not remain in your minds that abiding conviction of guilt,

then you should not convict the defendant, but of course, he

should be acquitted.

Much of this is repetitious. But, in this context, as

you know, a reasonable doubt may come from the evidence, from

a lack of evidence or from any part of the evidence. Let's

put it this way: if after considering all of the evidence in

the case as measured against the applicable legal principles,

if your minds are left in a state of doubt or confusion as to

whether or not Mr. Harvell is guilty of the offense of murder,

or if the evidence suggests that it permits either of two

conclusions, one of innocence and the other of guilt, then, of

course, you should adopt the theory of innocence; the State

not having proved their case by the full measure of proof

required by the law.

Do remember that a reasonable doubt which entitles Mr.

Harvell to an acquittal is not a mere fanciful doubt, vague,

conjectural or speculative doubt, but a reasonable doubt

arising from the evidence and remaining after a careful

consideration of the testimony.

R1-5, Exh. A at 568-95 (emphasis added) (omissions indicated).