hired by George Bennett to do away with his brother." Frady I, supra, at 97, 348 F. 2d, at 103 (Miller, J., concurring in part and dissenting in part). They brought gloves to the scene of the murder which they discarded during their flight from the police, and the murder weapon bore no fingerprints. Finally, there was the unspeakable brutality of the killing itself.

Indeed, the evidence of malice was strong enough that the 10 judges closest to the case-the trial judge and the 9 judges who 17 years ago decided Frady's appeal en banc-were at that time unanimous in finding the record at least sufficient to sustain a conviction for second-degree murder-a killing with malice. Nine of the ten judges went further, finding the evidence sufficient to sustain the jury's verdict that Frady not only killed with malice, but with premeditated and deliberate intent.

We conclude that the strong uncontradicted evidence of malice in the record, coupled with Frady's utter failure to come forward with a colorable claim that he acted without malice, disposes of his contention that he suffered such actual prejudice that reversal of his conviction 19 years later could be justified. We perceive no risk of a fundamental miscarriage of justice in this case.

Should any doubt remain, our examination of the jury instructions shows no substantial likelihood that the same jury that found Frady guilty of first-degree murder would have concluded, if only the malice instructions had been better framed, that his crime was only manslaughter. The jury, after all, did not merely find Frady guilty of second-degree murder, which requires only malice. It found Frady guilty of first-degree deliberate and premeditated-murder.

To see precisely what the jury had to conclude to make this finding, it is necessary to examine the instructions the trial judge gave the jury on the meaning of premeditation and deliberation:

"[P]remeditation is the formation of the intent or plan to kill, the formation of a positive design to kill. It must have been considered by the defendants.

"It is your duty to determine from the facts and circumstances in this case as you find them surrounding the killing whether reflection and consideration amounting to deliberation occurred. If so, even though it be of exceedingly brief duration, that is sufficient, because it is the fact of deliberation rather than the length of time it continued that is important. Although some appreciable period of time must have elapsed during which the defendants deliberated in order for this element to be established, no particular length of time is necessary for deliberation; and it does not require the lapse of days or hours or even of minutes." Tr. in No. 402–63 (DC), p. 806, reprinted at App. 28.

By contrast, to have found Frady guilty of manslaughter the jury would have had to find the presence of the kind of excuse, justification, or mitigation that reduces a killing from murder to manslaughter. As the trial court put it:

"The element [sic] the Government must prove in order for you to find the defendants guilty of manslaughter are:

"One, that the defendants inflicted a wound or wounds from which the deceased died, these being inflicted in the District of Columbia.

"Two, that the defendants struck the deceased in sudden passion, without malice, that the defendants' sudden passion was aroused by adequate provocation. When I say sudden passion, I mean to include rage, resentment, anger, terror and fear; so when I use the expression 'sudden passion.' [sic] I include all of these.

"Provacation, [sic] in order to bring a homicide under the offense of manslaughter, must be adequate, must be such as might naturally induce a reasonable man in anger

Opinion of the Court

of the moment to commit the deed.

456 U. S.

It must be such

provocation would [sic] have like effect upon the mind of a reasonable or average man causing him to lose his selfcontrol.

"In addition to the great provocation, there must be passion and hot blood caused by that provocation. Mere words, however, no matter how insulting, offensive or abusive, are not adequate to induce [sic] a homicide although committed in passion, provoked, as I have explained, from murder to manslaughter." Id., at 809, reprinted at App. 30.

Plainly, a rational jury that believed Frady had formed a "plan to kill . . . a positive design to kill" with "reflection and consideration amounting to deliberation," could not also have believed that he acted in "sudden passion . . . aroused by adequate provocation . . . causing him to lose his self-control." We conclude that, whatever it may wrongly have believed malice to be, Frady's jury would not have found passion and provocation, especially since Frady presented no evidence whatever of mitigating circumstances, but instead defended by disclaiming any involvement with the killing." Surely there is no substantial likelihood the erroneous malice instructions prejudiced Frady's chances with the jury.

"Nor, on the facts of this case, would a finding of a premeditated and deliberate intent to kill be consistent as a matter of law with an absence of malice. See n. 18, supra.

We are not alone in finding that an erroneous malice instruction is not necessarily cause for reversal. Even on direct appeal rather than on collateral attack, the highest court in the District of Columbia has refused to reverse convictions obtained after the use of precisely the same instructions of which Frady complains here. For example, in Belton v. United States, 127 U. S. App. D. C. 201, 382 F. 2d 150 (1967), the first decision expressly to disapprove the instruction that the law infers malice from the use of a deadly weapon, the court affirmed a first-degree murder conviction with the observation that a “jury inferring premeditation and deliberation could hardly have failed to infer malice." Id., at 206, 382 F. 2d, at 155. Similarly, in Howard v. United States, 128 U. S. App. D. C. 336, 389 F.2d 287 (1967), a second-degree murder conviction was affirmed on direct ap

152

BLACKMUN, J., concurring in judgment

V

In sum, Frady has fallen far short of meeting his burden of showing that he has suffered the degree of actual prejudice necessary to overcome society's justified interests in the finality of criminal judgments. Therefore, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

THE CHIEF JUSTICE and JUSTICE MARSHALL took no part in the consideration or decision of this case.

JUSTICE STEVENS, concurring.

Although my view of the relevance of the cause for counsel's failure to object to a jury instruction is significantly different from the Court's, see Wainwright v. Sykes, 433 U. S. 72, 94-97 (STEVENS, J., concurring); Rose v. Lundy, 455 U. S. 509, 538 (STEVENS, J., dissenting); Engle v. Isaac, ante, at 136-137, n. 1 (STEVENS, J., concurring in part and dissenting in part), I have joined the Court's opinion in this case because it properly focuses on the character of the prejudice to determine whether collateral relief is appropriate.

JUSTICE BLACKMUN, concurring in the judgment.

Like JUSTICE BRENNAN, I believe that the plain-error rule of Federal Rule of Criminal Procedure 52(b) has some applicability in a § 2255 proceeding. In my view, recognizing a federal court's discretion to redress plain error on collateral review neither nullifies the cause-and-prejudice requirement articulated in Wainwright v. Sykes, 433 U. S. 72 (1977), nor disserves the policies underlying that requirement.

peal, although the same defective instruction had been given. In two cases in which the defendants put malice in issue by raising self-defense claims at trial, however, the court, on direct appeal, reversed murder convictions obtained through the use of the faulty instructions. Green I, 132 U. S. App. D. C. 98, 405 F. 2d 1368 (1968); United States v. Wharton, 139 U. S. App. D. C. 293, 433 F. 2d 451 (1970).

BLACKMUN, J., concurring in judgment

456 U. S.

Despite the Court's assertions that Rule 52(b) was intended for use only on direct appeal and that the Court of Appeals ignored "long-established contrary authority," ante, at 164, I find nothing in the Rule's seemingly broad language supporting the Court's restriction of its scope. In fact, the plain-error doctrine is specifically made applicable to all stages of all criminal proceedings, which, as the dissenting opinion points out, include the collateral review procedures of §2255. See post, at 179–180, 182, and nn. 5, 6. Even more striking, §2255 Rule 12 explicitly permits a federal court to "apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure, whichever it deems most appropriate, to motions filed under these rules.”*

The cause-and-prejudice standard of Wainwright v. Sykes, supra, is premised on the notion that contemporaneousobjection rules are entitled to respect-in the interests of preserving comity and effecting the administrative goals such rules are designed to serve. See 433 U. S., at 88-90. As the Court concedes, considerations of comity are not at issue here. See ante, at 166. The second objective of the causeand-prejudice requirement-to enforce contemporaneousobjection rules and, in particular, to ensure finality-is, in

*Although § 2255 Rule 12 does not "mandate by its own force the use of any particular Rule of Civil or Criminal Procedure," ante, at 167, n. 15, it does afford a federal court discretion in determining whether to apply the Federal Rules of Criminal Procedure or the Federal Rules of Civil Procedure. The Court's extended discussion, in the same footnote, of the Advisory Committee's Note to § 2254 Rule 11, is beside the point. The Advisory Committee's Note to § 2255 Rule 12 expressly observes that Rule 12 "differs" from § 2254 Rule 11 in that the former "includes the Federal Rules of Criminal Procedure as well as the civil." 28 U. S. C., p. 287. And the note to Rule 12 apparently refers to the note accompanying § 2254 Rule 11 "[f]or discussion" only of "the restrictions in Fed. R. Civ. P. 81(a)(2). . . .' Even if the note to § 2254 Rule 11 is relevant to our decision in this case, I do not subscribe to the Court's conclusion that the plain-error doctrine is “'inconsistent or inequitable in the overall framework'" of collateral review pursuant to § 2255. See ante, at 167-168, n. 15, quoting Advisory Committee's Note to §2254 Rule 11.

"