STATEMENT ON DENIAL OF REHEARING EN BANC
TAMM, MacKINNON, ROBB and WIL-KEY, Circuit Judges:We would grant a rehearing en banc in United States v. Frady (Frady III), 636 F.2d 506 (D.C.Cir. 1980), to ascertain whether the standard of judicial review upon collateral attack (under 28 U.S.C. § 2255 (1976)) of a criminal conviction was properly applied by the panel in Frady III. The panel set aside a sixteen-year-old convic*515tion for deliberate and premeditated, first-degree murder-a conviction which was affirmed fifteen years ago on direct appeal to this court sitting en banc, 348 F.2d 84 (D.C.Cir. 1965) (en banc) (one judge dissenting)1 (Frady I), and for which certiorari was denied by the Supreme Court, 382 U.S. 909, 86 S.Ct. 247, 15 L.Ed.2d 160 (1965).
We submit that finality of criminal con-' victions where justice has been done is such a basic social interest that all judges must observe scrupulously and responsibly the substantial distinction between standards of direct and collateral review of criminal convictions. We believe it is manifest that a court should not on collateral review attack in isolation one aspect of a criminal trial and overturn a jury verdict (for which an appellate court en banc found there to be sufficient supporting evidence). A court must “view the [jury] charge itself as part of the whole trial,” United States v. Park, 421 U.S. 658, 674, 95 S.Ct. 1903, 1912, 44 L.Ed.2d 489 (1975), to judge whether justice was served or disserved.
The facts in Frady are unpleasant: On 13 March 1963 the victim Bennett was unmercifully assaulted and murdered in his home. “His head had been caved in by several blows from a blunt instrument and a mixture of blood and brains was coming from the wounds. ... One of the victim’s eyes had been knocked from its socket and was lying on his cheek when the officers arrived.” Frady I, supra, 348 F.2d at 100. This battering, mayhem, and murder needed ten minutes, during which time a neighbor summoned police. They arrived in time to see Frady and codefendant Gordon run from the house and into a waiting car. Frady and Gordon, covered with blood, were arrested shortly thereafter.
On trial this evidence-and other amplifying details as to motive, plan, and preparation-was sufficiently convincing for the jury to return a verdict of guilty on the greatest offense charged-first-degree, premeditated, deliberate murder-and to earn Frady the death penalty, later set aside by a 4-3 vote in Frady I, supra. The prosecution’s evidence proved Frady and Gordon were contract killers; the defense theory, at trial, disclaimed any responsibility or involvement. The defense made no claim of self-defense or reduced culpability, but, rather, theorized that a third man was in fact the real murderer and, the defendant did not himself testify, thus waiving any opportunity to give any support whatsoever, then or now, to a defense based on reduced culpability. See Brief for Appellee United States of America (Frady I, Nos. 18,357 & 18,358) at 10-13; Trial Transcript at 793-99.
Fourteen years after Frady’s conviction was affirmed he challenged an instruction to the jury delivered by the trial judge. He predicated the asserted error in that part of the charge where the judge instructed that the law “infers or presumes” the “existence of the malice essential to culpable homicide” from the “use of [a deadly] weapon in the absence of explanatory or mitigating circumstances.” (Trial Transcript at 806). The trial court instructed the jury also, of course, as to the meanings of premeditation and deliberation, and instructed that these two elements were prerequisite to a conviction for first-degree murder and must be found by the jury beyond any reasonable doubt. The jury handed in a verdict finding premeditation and deliberation-in other words, the jury went far beyond the “malice” essential to find a defendant guilty of a murder in any degree and actually found Frady guilty of first-degree premeditated and deliberate murder. This court en banc upheld the jury verdict of first-degree murder, holding the evidence legally sufficient to find murder in that degree.
Frady now claims, before the Frady III panel, that is, that the jury was denied the chance to reach a reduced culpability verdict, in other words, that a finding of manslaughter in lieu of murder was precluded. We note, as did the Frady III panel (At 508), that the elements of first-degree *516murder include malice, specific intent, and premeditation; the elements of second-degree murder include malice but no premeditation; while manslaughter encompasses all other unlawful killings done without malice. So “malice” does segregate first- and second-degree murder categories from the category of manslaughter. “Malice” does not, however, distinguish between first- and second-degree murder-the jury reached a verdict of first-degree murder, finding premeditation and intent. A verdict of manslaughter is inconceivable, especially when no defense theory turning on self-defense, reduced culpability, or extenuating circumstances was adduced as limiting the responsibility of the defendants. See United States v. Green (Green II), 424 F.2d 912, 913 (D.C.Cir.1970), cert. denied, 400 U.S. 997, 91 S.Ct. 473, 27 L.Ed.2d 447 (1971) (“it is inconceivable that the jury that found the appellant guilty of deliberate and premeditated murder would have failed to find malice.... ”).
As the Frady III opinion outlines, the “malice” instruction was adjudged erroneous in subsequent (i. e., post-Frady) decisions of this Circuit. The contention we make here in support of our position to grant the rehearing en banc imports absolutely no claim that the jury instruction regarding “malice” in Frady should now be deemed the current and proper standard. We only note that the cases (e. g., United States v. Wharton, 433 F.2d 451 (D.C.Cir.1970); Green v. United States (Green I), 405 F.2d 1368 (D.C.Cir.1968)), holding that instruction to be invalid were themselves all on direct appeal from guilty verdicts and not upon collateral attacks pressed years and years after trial.
Frady was represented at trial by an attorney. Counsel, in derogation of Fed.R.Crim.P. 30, never raised the issue of erroneous jury charge at trial or on direct appeal. No miscarriage of justice or prejudice to the defendant is apparent under these circumstances, as viewed by the jury finding first-degree murder and this court affirming that verdict. In Frady III the erroneous jury charge was considered in isolation from the trial as a whole and from justice in the end. Frady III was not an appeal; it was a collateral review whose purpose is to ensure against a fundamental miscarriage of justice and, therefore, should have focused on all evidence of guilt and the conduct of the trial as a whole before overturning a conviction, see Wainwright v. Sykes, 433 U.S. 72, 88-91, 97 S.Ct. 2497, 2507-2508, 53 L.Ed.2d 594 (1977); Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The Supreme Court in Henderson v. Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730, 1736, 52 L.Ed.2d 203 (1977), laid down the different and enhanced standard of error required to be proved:
The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court’s judgment [see Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947) (collateral attack will not serve as appeal for federal convictions)] is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is “whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process,” Cupp v. Naughten, 414 U.S., at 147, [94 S.Ct., at 400], not merely whether “the instruction is undesirable, erroneous, or even ‘universally condemned,’ ” id., at 146 [94 S.Ct., at 400].
Regrettably, the panel in Frady III found it necessary to mischaracterize the proof in the record as “equivocal” in order to sustain its extraordinary result. “Equivocal” was not the way the first court and this court en banc (Frady I) saw it. Judge Miller, with whom joined Judges Bastían, Danaher, and Burger, writing in Frady I, stated:
The court cannot set aside the verdict of the jury unless the evidence was insufficient to sustain it or unless prejudicial error occurred during the progress of the trial. From what has been said, it is apparent that the evidence amply supported the verdict; and there is no prejudicial error in the record. The able District Judge conducted the trial in exem*517plary fashion, and charged the jury in a manner which was beyond criticism. The appellants had no real defense and there is no real reason shown on appeal why they should not pay that penalty [j. e., capital punishment] for their atrocious crime which the law provides and the jury imposed.
348 F.2d at 111 (emphasis added). On this point we suggest that the panel 15 years later (Frady III) is bound by our en banc decision and not free to redetermine on this collateral attack what was settled en banc on direct appeal. The evidence which this court sitting en banc found sufficient to support a verdict of first-degree murder simply cannot fairly be described as “equivocal.” Judge McGowan, in Frady I, also “share[d] the view that the convictions of appellants should be affirmed.” 348 F.2d at 91. Whereas he could not approve the death penalty, this was, Judge McGowan said, “not because I believe there were errors in the instructions....” Id. (emphasis added).
One other mischaracterization of the record, important to the panel’s line of reasoning, must be refuted. The opinion asserts: “Were the evidence of malice overwhelming, the error [in the instructions] might seem harmless. But here the evidence of malice was equivocal. Based on the verdict after trial, the jury obviously concluded that the robbery was not part and parcel of the killing [footnotes omitted],” citing in support of this that the jury acquitted Frady of felony murder. At 511.
Nowhere in the opinion does the panel mention that Frady had driven past the victim’s house two separate times that day, nor that Frady’s co-murderer, Gordon, had picked up a pair of gloves before entering the house, so that “[significantly, the murder weapon bore no fingerprints.” 348 F.2d at 101 n. 3, and 103. And, as anyone familiar with trial instructions might guess, the jury’s failure to convict on felony murder was not for lack of malice, as the panel implies, but because the trial judge properly instructed the jury that it could not find the defendants guilty of both felony murder and first-degree premeditated murder (Trial Transcript at 803). The verdict clearly reflected the jury’s belief that Frady entered the house intending not to rob, but to kill, i. e., that there was malice aplenty. There was malice and evidence so overwhelming as originally to justify imposing the death penalty. In light of the evidence it is inconceivable that the trial could have been fatally infected by two short phrases in the court’s charge.
Using the standard of direct appeal instead of collateral review; ignoring the en banc decision of this court on direct appeal; mischaracterizing evidence this court had found to be clear, convincing and sufficient; misconstruing the jury’s acquittal on the felony murder count; misinterpreting and misapplying recent Supreme Court cases on instructions, plain error, and retroactivity to be accorded; this panel of our court has managed to free at last a brutal contract killer originally thought worthy of the death penalty. The rest of the court should awake to what has taken place.
. Chief Judge Bazelon and Judges Miller, Fahy, Washington, Danaher, Bastían, Burger, and McGowan concurred in affirming the first degree conviction. Only Judge Wright dissented.