concurring:
I concur in the judgment of the court. I write separately because, in my view, the majority erroneously concludes that had Dupuy established a Cage error his habeas petition might nevertheless have been subject to dismissal for abuse of the writ because a Cage error is not necessarily sufficiently pervasive and prejudicial as to so infect the entire trial that the resulting conviction violated due process.1
Preliminarily, I agree that in this case the reasonable doubt instructions taken as a whole are not infirm because “[tjhere is no reasonable likelihood that the jurors who determined petitioner’s guilt applied the instructions in a way that violated the Constitution.” Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). This is especially evident when the instant instructions are compared and contrasted to those in Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) and Humphrey v. Cain, 138 F.3d 552 (5th Cir.l998)(en banc). Thus I agree with the majority that Dupuy suffered no Cage error.
Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), as I read it, precludes the possibility that a Cage error may not be sufficiently prejudicial to satisfy the showing required to avoid abuse of the writ dismissal. In Sullivan, Justice Scalia stated in no uncertain terms that a Cage error is not subject to harmless error review because it operates as a complete deprivation of the defendant’s Sixth Amendment right to jury trial and violates the Fifth Amendment requirement of proof beyond a reasonable doubt. This result obtains because, unlike many other jury instruction errors, an instructional error misdescribing the burden of proof vitiates all the jury’s findings such that reviewing courts “can only engage in pure speculation — its view of what a reasonable jury would have done. And when it does that, ‘the wrong entity judge[s] the defendant guilty.’ ” Sullivan, 508 U.S. at 280-81, 113 S.Ct. 2078 (citing and quoting Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)).
Accordingly, I do not believe that we are free to conclude, as the majority opinion suggests, that a Cage error may not be prejudicial. Surely if Dupuy had been convicted and sentenced without a jury finding of guilt, it could only have “worked to his actual and substantial disadvantage, infecting his entire trial withe error of constitutional dimension.” United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Thus, Dupuy was required to prove only that there was a Cage error, as defined by Sullivan and Victor, in order to show the requisite prej*592udice to overcome dismissal for abuse of the writ.
. As both the district court and the majority pretermitted the issue of cause as required in addition to a showing of actual prejudice in a pre-AEDPA subsequent habeas petition raising a new claim, see McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), I do not contend that a Cage error in and of itself would be enough for Dupuy to avoid dismissal for abuse of the writ — only that a Cage error is sufficient to satisfy the requisite showing of prejudice.