dissenting:

Because I believe that the use of Nevada’s reasonable doubt instruction violated Ramirez’s right to due process, I respectfully dissent. •

I. Retroactivity of Cage

I first must resolve the issue that the majority needlessly avoids: whether the Supreme Court’s holding in Cage v. Louisiana, 498 U.S. 39 , 111 S.Ct. 328 (per curiam), may be retroactively applied to Ramirez’s claim. We have already held that a petitioner made a “prima facie” showing that the Teague doctrine did not bar the retroactive application of Cage. See Nevius v. Sumner, 105 F.3d 453, 462 (9th Cir.1996). There is no doubt on the merits that Teague does not bar Ramirez’s claim.

Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), and its progeny deny habeas petitioners the benefit of “new rules” of constitutional law announced after petitioners’ convictions became final, subject to two exceptions: a constitutional rule must be applied retroactively if (1) it places “certain kinds of, primary, private individual conduct beyond, the power of the- criminal lawmaking to proscribe,” id at 307, 109 S.Ct. at 1073-74 (quotation omitted); or if (2) it is “central to an accurate determination of innocence or guilt,” id. at 319 , 109 S.Ct. at 1080 ; see also Graham v. Collins, 506 U.S. 461, 477 , 113 S.Ct. 892, 903 , 122 L.Ed.2d 260 (1993) (holding that retroactive application is required if rule implicates the fundamental fairness and accuracy of criminal proceeding). The second exception controls, here. I therefore agree with the only two circuits that have published reasoned opinions on the issue 1 and would hold that Cage announced a new rule that must be applied retroactively.

*1216 To fall within the purview of Teague’s second exception, a constitutional rule must satisfy two criteria: (1) it must relate to the accuracy of the conviction; and (2) it must alter “our understanding of the bedrock procedural elements essential to the [fundamental] fairness of a proceeding.” Sawyer v. Smith, 497 U.S. 227, 242 , 110 S.Ct. 2822, 2831 , 111 L.Ed.2d 193 (1990) (internal quotation omitted). The Supreme Court’s unanimous decision in Sullivan v. Louisiana, 508 U.S. 275 , 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993), leaves no doubt that the Cage rule meets this standard.

First, jury instructions that relate to the burden of proof or elements of proof in a criminal ease quite obviously relate to the accuracy of convictions. Moreover, reasonable doubt instructions not only relate to thé accuracy of convictions; they provide for systematic accuracy in convictions. See Sullivan, 508 U.S. at 280 , 113 S.Ct. at 2082 (where reasonable doubt instruction is faulty, “there is no object, so to speak, upon which harmless-error scrutiny can operate”). When there is “no verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of gmlty-beyond-a-reasonable-doubt would have been rendered beyond absent the constitutional error is utterly meaningless,” and courts are prohibited from even attempting to answer it. Id.

Second, the Cage rule defines a bedrock procedural element of fundamental fairness in criminal proceedings. In fact, this court has already held that Sullivan’s application to a claim alleging the failure to define an offense for a jury satisfies this fundamental fairness prong. See Harmon v. Marshall, 69 F.3d 963, 966 (9th Cir.1995) (per curiam). Sullivan explained that the rule announced in Cage required automatic reversal of the conviction. Thus, we have held that “[a]ny rule announced in Sullivan ... is central to an accurate determination of [the defendant’s] guilt and implicates the fundamental fairness of the trial.” Id.

In altering our understanding of the constitutionally required level of proof required for all criminal convictions, Cage unquestionably affected our view of what constitutes fundamentally fair criminal proceedings. The Sullivan Court explained that the “[d]e-nial of the right to a jury verdict beyond a reasonable doubt is certainly [a structural error], the jury guarantee being a ‘basic pro-tectio[n]’ whose precise effects are unmeasurable, but without which a criminal court cannot reasonably serve its function.” Id. at 281 , 113 S.Ct. at 2083 (quoting Rose v. Clark, 478 U.S. 570, 577 , 106 S.Ct. 3101, 3105-06 , 92 L.Ed.2d 460 (1986)); see also In re Winship, 397 U.S. 358, 372 , 90 S.Ct. 1068, 1076-77 , 25 L.Ed.2d 368 (1970) (Harlan, J., concurring) (stating that reasonable doubt standard is “an expression of fundamental procedural fairness”). 2 “A misdescription of the burden of proof ... vitiates all of the jury’s findings.” Id. If jury instructions regarding the government’s burden of proof are inordinately lenient, the defendant is stripped of one of his most basic procedural protections. Accordingly, I would acknowledge that Cage is one of those cases that reshapes our view of the bedrock element necessary for fundamentally fair convictions. Cage must be applied retroactively.

II. The Jury Instruction

As the majority correctly notes, we must inquire de novo. “whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient” to constitute proof beyond a reasonable doubt. Victor v. Nebraska, 511 U.S. 1, 6 , 114 S.Ct. 1239, 1243 , 127 L.Ed.2d 583 (1994). Unlike the majority, however, I conclude that the Nevada instruction read as *1217 a whole more closely resembles the Cage instruction, than that used in Victor and, therefore, would hold that Nevada’s instruction violated Ramirez’s right to due process.

Nevada’s instruction contained the same threshold infirmity as the Cage and Victor instructions in that it stated that reasonable doubt must be “substantial.” Compare Cage, 498 U.S. at 41 , 111 S.Ct. at 329-30 ; Victor, 511 U.S. at 19 , 114 S.Ct. at 1249-50 . The word “substantial,” as the Court has explained, can be understood as meaning “considerable in quantity” — which “could imply a doubt greater than that required for acquittal” under the Due Process Clause — rather than “real,” which does not. See Victor, 511 U.S. at 19-20 , 114 S.Ct. at 1249-50 ; compare Webster’s Ninth New Collegiate Dictionary 1176 (1985) (“substantial” defn 1(b)) with id. (defn 3(b)). We must look, therefore, to the curative language in the instruction.

In this ease, “substantial doubt” was contrasted with “mere possibility or speculation.” Contrary to the majority’s assertion, this phraseology is not “unexceptionable.” Maj. op. at 1212. This places Nevada’s primary curative language right in between the comparable phrase in Cage (“mere possible doubt”), which was insufficient to cure the “problematic” connotation of “substantial,” 498 U.S. at 41 , 111 S.Ct. at 329-30 , and that in Victor (“from mere possibility, from bare imagination, or from fanciful conjecture”), which was sufficient, 511 U.S. at 20 , 114 S.Ct. at 1250 . See Humphrey v. Cain, 120 F.3d 526, 533 (5th Cir.1997) (holding that presence of “actual and substantial doubt” phrase, even though contrasted with “possible doubt” and “mere caprice, fancy, or conjecture” contributed to rendering instruction unconstitutional); Adams v. Aiken, 41 F.3d 175, 181 (4th Cir.1994) (holding that reference to substantial doubt was cured by contrast with “whimsical, imaginary, weak, and slight doubt”), cert. denied, 515 U.S. 1124 , 115 S.Ct. 2281 , 132 L.Ed.2d 284 (1995).

If the use of “substantial”, were the Nevada instruction’s only infirmity, it might be difficult to determine whether Cage or Victor controls the constitutional outcome, although the contrasting phrase employed in the Nevada statute is clearly not as sharp or distinctive as that in Victor and, indeed, adds little of substance to the contrast drawn in Cage . I am influenced, however, by the fact that Nevada’s instruction also described the quantum of doubt necessary for acquittal in a manner that directly contravenes the standard set forth by the Court in Victor .

The Nevada instruction erroneously equated reasonable doubt with “doubt as would govern or control a person in the more weighty affairs of life.” The Supreme Court has for decades strongly disfavored phrasing reasonable doubt even as doubt “which [people] in more serious and important affairs of [their] own lives might be willing to act upon.” Holland v. Unites States, 348 U.S. 121, 140 , 75 S.Ct. 127, 138 , 99 L.Ed. 150 (1954) (emphasis added). The Court has explained that “this section of the charge,” if made at all, should be cast “in terms of the kind of doubt that would make a person hesitate to act.” Id. The Victor court forcefully adopted this position, stating that the “hesitate to act standard gives a commonsense benchmark for just how substantial such a doubt must be.” 511 U.S. at 20-21 , 114 S.Ct. at 1250 . The circuit courts are in agreement, uniformly criticizing deviations from the “hesitate to act” language and declaring unconstitutional instructions that contain “willing to act” phrases, without curative elements. See, e.g., Monk v. Zelez, 901.F.2d 885, 889-90 (10th Cir.1990) (holding unconstitutional an instruction that defined reasonable doubt as “substantial” doubt and used “willing to act” language); United States v. Jensen, 561 F.2d 1297, 1300-01 (8th Cir.1977) (stating that instruction was “defective” because it failed to use “hesitate to act” language, but declining to reverse conviction because issue was not raised on appeal); Scurry v. United States, 347 F.2d 468, 470 (D.C.Cir.1965) (stating that instruction “den[ied] the defendant the benefit of a reasonable doubt” in stating that the evidence “must be such that you would be willing to act upon in the more important matters in your own life”), cert. denied, 389 U.S. 883 , 88 S.Ct. 139 , 19 L.Ed.2d 179 (1967); see also United States v. Williams, 20 F.3d 125, 129 (5th Cir.) (approving of instruction that defined proof beyond a reasonable doubt as *1218 proof such that jurors would be “willing to rely and act upon it without hesitation”), cert. denied, 513 U.S. 891 , 115 S.Ct. 239 , 130 L.Ed.2d 162 (1994); United States v. Daniels, 986 F.2d 451 (11th Cir.1993) (approving similar instruction), cert. denied, 511 U.S. 1054 , 114 S.Ct. 1615 , 128 L.Ed.2d 342 (1994); Nolasco, 926 F.2d at 871-73 (noting this court’s warnings against significant departures from “hesitate to act” language). 3

Of all these cases, I believe that Nevada’s instruction is most like the definition of reasonable doubt that the Tenth Circuit held unconstitutional in Monk and that the Court itself said was “similar” to the unconstitutional instruction in Cage, 498 U.S. at 41 n. *, 111 S.Ct. at 330 n. *; compare Monk, 901 F.2d at 889-90 (holding that instruction erroneously equated reasonable doubt with “substantial doubt” and with doubt that would prevent a person from acting in the “weighty and important” affairs of life). In addition to erroneously likening reasonable doubt to “substantial” doubt, the Nevada instruction’s “govern or control” phrase contravenes Victor’s “hesitate to act” standard and is even less respectful of that standard than Holland’s, disfavored “might be willing to act” phrase. The Nevada phrase confuses the issue by focusing the jurors on their ultimate choice in the face of uncertainty, instead of on the existence of the doubt itself, and implies that “reasonable doubt” is doubt that is so substantial that it would prevent an ordinary person from acting a certain way in his “weighty” decisions, rather than doubt that causes a person to hesitate to act. See Monk, 901 F.2d at 890; Scurry, 347 F.2d at 470 . Defining reasonable doubt as “decision-controlling” doubt, when combined with the reference to substantial doubt, and the potentially inadequate contrasting language, would likely incorrectly “convey the concept of reasonable doubt to the jury.” Holland, 348 U.S. at 140 , 75 S.Ct. at 138 .

The majority apparently agrees that Nevada’s instruction is most similar to that in Monk, but it declines to follow the Tenth Circuit’s analysis. See maj. op. at 1214 n. 11. Relying throughout its opinion primarily on Fifth Circuit cases that follow a “downward swing” theory of interpreting Cage 4 — a theory not even remotely hinted at in Cage and not followed by a single other circuit — the majority further claims that Monk probably would not come out the same after Victor because Victor renders Nevada’s use of “substantial doubt” “unexceptionable.” Furthermore, the majority emphasizes that “[t]he charge in this case communicated correctly the concepts of presumed innocence, the government’s burden of proof, and the nature of reasonable doubt.” Maj. op. at 1214.

Contrary to the majority, I prefer to take the Supreme Court at its word and to follow the Tenth and a variety of other circuits’ opinions rather than the Fifth Circuit’s. Insofar as the majority rejects Monk based on the assumption that the Supreme Court in Victor overruled its reasoning in Cage , it is *1219 plainly incorrect. Nothing in Victor indicates that it was overruling Cage ; rather, the Court made it clear that the “same con-cernís]” were “not present” in Victor as in Cage ; “substantial” was not distinguished from “mere possible,” but rather “from mere possibility, from bare imagination, or from fanciful conjecture.” 511 U.S. at 20 , 114 S.Ct. at 1250 . Moreover, insofar as the majority rejects Ramirez’s claim based on the Fifth Circuit’s reasoning in this area of law, I would respectfully decline to follow that circuit on this issue. After being unanimously reversed in Cage , the Fifth Circuit decided to stand alone in adopting the untenable stance that Cage cannot be applied retroactively to habeas claims. See supra note l. 5

Lastly, I cannot join in the majority’s belief that simply reciting to the jury the truism of presumed innocence or properly explaining the burden of proof somehow makes a defective definition of reasonable doubt more intelligible or more constitutionally acceptable. If the court misinstrueted the jury on those fundamental points, that would only provide additional reasons for reversal. Getting those parts of the instruction correct, however, does not cure an error regarding the meaning of reasonable doubt. I also disagree with the majority that the instruction’s infirmities were cured by telling the jurors that if they “feel an abiding conviction of the truth of the charge, there is not a reasonable doubt.” While the use of “abiding conviction” can serve to alleviate an ambiguity that arises in the use of the term “moral certainty,” it cannot cure the two manifestly, defective definitions of reasonable doubt in the Nevada instruction. See Monk, 901 F.2d at 885 (declaring unconstitutional instruction with same two defects as Nevada instruction and with “abiding conviction” phrase). The Court in Victor stated that instructing the jurors that they must have “an abiding conviction of the defendant’s guilt” helped to alleviate concerns that the phrase “‘moral certainty’ might be misunderstood in the abstract.” 511 U.S. at 21 , 114 S.Ct. at 1250 . The Court did not suggest that “abiding conviction” in itself stated the proper degree of certainty or that such term did so in a manner that could overcome conflicting and erroneous, definitions used in the same instruction. In fact, the phrase employed in Victor was “abiding conviction to a moral certainty,” which establishes a considerably higher standard than does the simple term “abiding conviction” without the added exponential phrase. Nevada’s instruction contained “abiding conviction” language, but it lacked any “moral certainty” language. Moreover, the “abiding conviction” phrase appears in a separate thought; it is not, nor could it logically be, said to modify either of the instruction’s faulty definitions of reasonable doubt.

I find, therefore, nothing in the Nevada instruction that sufficiently cures its constitutional deficiencies in accordance with Victor . Accordingly, I would hold that there is a reasonable likelihood that, when considering the instruction as a whole, the jury interpreted Nevada’s two definitions of reasonable doubt in the instruction as allowing a “finding of guilt based on a degree of proof below that required by the Due Process Clause.” Cage, 498 U.S. at 41 , 111 S.Ct. at 330 .

I would reverse the district court and direct it to grant the writ of habeas corpus.

. See Adams v. Aiken, 41 F.3d 175, 178-79 (4th Cir.1994) (holding that Cage satisfies second Teague exception), cert. denied, 515 U.S. 1124 , 115 S.Ct. 2281 , 132 L.Ed.2d 284 (1995); Nutter v. White, 39 F.3d 1154 , 1157-58 (11th Cir.1994) (same); cf. Harmon v. Marshall, 69 F.3d 963 , 967 (9lh Cir.1995) (per curiam) (citing both cases with approval). The Fifth Circuit, in Humphrey v. Cain, 120 F.3d 526, 530 (5th Cir.1997), reh'g en banc granted (Sept. 9, 1997), ruled that Cage did not satisfy the second Teague exception. The court, however, provided no reasoning in support of Us holding; rather, it merely stated that it was bound by a prior, unpublished decision, Smith v. Stalder, No. 93-03683, 26 F.3d 1118 (5th Cir.1994) (table). In fact, the court went so far as to explain that "[i]n our view the Supreme Court has made it plain that Cage-Victor errors fit within the second Teague exception," but "[i]n spite of our view that Sullivan *1216 makes Cage available retroactively, this panel may not grant Humphrey the relief he requests.” Id. at 529-30. Because the Smith decision was not published and is not available on-line, I do not know what motivated the Fifth Circuit initially to deny retroactive application of Cage , and the respondent makes no arguments here in support of that court's holding other than simply citing it.

. The Supreme Court has stated that a criminal trial infected by 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 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991) (citation and internal quotation marks omitted).

. .This court also previously criticized instructing jurors to convict if they had "an abiding conviction of the accused’s guilt such as you would be willing to act upon in the more weighty and important matters relating to your own affairs.” Hatheway v. Secretary of the Army, 641 F.2d 1376 , 1378 n. 2, 1384 (9th Cir.), cert. denied, 454 U.S. 864 , 102 S.Ct. 324 , 70 L.Ed.2d 164 (1981) (citing Holland, 348 U.S. at 140 , 75 S.Ct. at 137-38 ). We declined to hold the instruction unconstitutional in that case, however, because, at that time, neither that language nor the equation of reasonable doubt with "substantial doubt" had ever been “held to be reversible error.” Id. at 1384. The Court's decision in Cage obviously renders that reasoning inapplicable here. Moreover, since Cage , the "willing to make ... important decisions” phraseology has become officially disfavored in this circuit because "the most important decisions in life" may be made notwithstanding "a heavy element of uncertainty and risk-taking” and, therefore, are "wholly unlike the decisions jurors ought to make in criminal cases.” Ninth Circuit Pattern Jury Instructions (Criminal) No. 3.03, at 31 (1995), cited with approval in United States v. Jaramillo-Suarez, 950 F.2d 1378, 1386 (9th Cir.1991); see also Victor, 511 U.S. at 24-25 , 114 S.Ct. at 1252-53 (Ginsburg, J., concurring) (criticizing the analogy to important life decisions even when accompanied with "hesitate to act” language).

. See Brown v. Cain, 104 F.3d 744, 755 (5th Cir.), cert. denied, -U.S. -, 117 S.Ct. 1489 , 137 L.Ed.2d 699 (1997), cited in maj. op. at 1212; Weston v. Ieyoub, 69 F.3d 73 (5th Cir.1995), cited in maj. op. at 1213; Bias v. Ieyoub, 36 F.3d 479, 481 (5th Cir.1994), cited in maj. op. at 1212; United States v. Tobin, 576 F.2d 687, 694 (5th Cir.), cert. denied, 439 U.S. 1051 , 99 S.Ct. 731 , 58 L.Ed.2d 711 (1978), cited in maj. op. at 1213.

. Even a panel of the'Fifth Circuit subsequently criticized the court’s decision, saying that it was bo'und to' follow it éven though it was wrong. See supra note 1.