                          PUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


PETER SUTRO WAINE,                    
             Petitioner-Appellant,
                v.
JOSEPH P. SACCHET, Warden of                    No. 02-7104
Maryland Correctional Institution;
JOHN JOSEPH CURRAN, JR.,
             Respondents-Appellees.
                                      
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                Catherine C. Blake, District Judge.
                        (CA-00-1040-CCB)

                     Argued: December 3, 2003

                     Decided: January 22, 2004

      Before WILKINSON and NIEMEYER, Circuit Judges,
             and HAMILTON, Senior Circuit Judge



Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Wilkinson and Judge Niemeyer joined.


                            COUNSEL

ARGUED: Fred Warren Bennett, BENNETT & NATHANS, L.L.P.,
Greenbelt, Maryland, for Appellant. Ann Norman Bosse, Assistant
Attorney General, Criminal Appeals Division, OFFICE OF THE
ATTORNEY GENERAL, Baltimore, Maryland, for Appellees. ON
2                           WAINE v. SACCHET
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellees.


                                OPINION

HAMILTON, Senior Circuit Judge:

   Peter Sutro Waine (Waine) appeals from a district court order
denying his petition for a writ of habeas corpus, 28 U.S.C. § 2254, in
which he challenged his 1976 Maryland state court convictions and
two consecutive life sentences for the murders of Lyle Ager and Mar-
ilyn Smith of Abingdon, Maryland. Waine also challenged his related
1976 Maryland state court conviction and consecutive fourteen year
sentence for larceny of the victims’ automobile.

   On July 2, 2003, we granted Waine a certificate of appealability
with respect to his "claim that his counsel was ineffective based on
his failure to object to a jury instruction defining the Government’s
burden of proof in regard to reasonable doubt using ‘willing to act’
language without any indication that the evidence had to be sufficient
to make one willing to act ‘without hesitation’ or ‘without reservation.’"1
In the same order, we denied Waine a certificate of appealability and
dismissed his appeal with respect to all other issues.

   Having concluded that Waine is not entitled to habeas corpus relief
with respect to the sole claim on which we granted Waine a certificate
of appealability, we affirm the district court’s order.
    1
    Under the provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, an individ-
ual cannot appeal a denial of collateral relief without first obtaining a
certificate of appealability. 28 U.S.C. § 2253(c). A certificate of appeala-
bility "may issue . . . only if the applicant has made a substantial showing
of the denial of a constitutional right," id. § 2253(c)(2), and it must spec-
ify the issue or issues as to which the certificate of appealability has been
granted, id. § 2253(c)(3).
                          WAINE v. SACCHET                            3
                                   I

   In March 1975, Waine was arrested in Arizona while driving an
automobile belonging to Marilyn Smith (Smith). A month later, the
decomposing bodies of Smith and her companion, Lyle Ager (Ager),
were found in their home in Abingdon, Maryland. They had been
bludgeoned to death with numerous blows to their bodies by a blunt
instrument.

   In connection with the deaths of Smith and Ager and Waine’s pos-
session of Smith’s automobile, Waine was charged with two counts
of first degree murder and one count of larceny of an automobile. Fol-
lowing a jury trial in 1976, Waine was convicted on all three counts
and sentenced to consecutive life terms on the two murder convictions
and a consecutive term of fourteen years on the larceny conviction.
Maryland’s intermediate appellate court subsequently affirmed the
judgments against Waine. Waine v. State of Maryland, 377 A.2d 509
(Md. Ct. Spec. App. 1977).

   On April 23, 1997, Waine initiated state post-conviction proceed-
ings in the Circuit Court for Harford County (the Postconviction
Court). Waine’s petition for state post-conviction relief, as supple-
mented, was denied in a written decision filed June 17, 1999.

   In an unreported opinion filed on March 13, 2000, the Maryland
Court of Special Appeals declined to review Waine’s case, stating:
"The application of Peter S. Waine for leave to appeal from a denial
of post conviction relief, having been read and considered, is denied."
(J.A. 51). On or about April 7, 2000, Waine filed a motion for recon-
sideration in the Maryland Court of Special Appeals pursuant to
Maryland Rule 8-605.

   On April 11, 2000, Waine filed this federal habeas petition,
together with a motion asking the district court to hold the petition in
abeyance pending complete exhaustion of his state post-conviction
remedies. His federal habeas petition listed all the claims he had
raised on state habeas and stated that he could not determine what
issues would be presented to the district court on his federal habeas
petition "until such time as the Court of Special Appeals of Maryland
acts on [his] timely filed Motion for Reconsideration." (J.A. 56). The
4                          WAINE v. SACCHET
petition also stated that each of the specific grounds that will be raised
on federal habeas "will have been raised and exhausted in state court."
(J.A. 56). One of the specific grounds raised by Waine and exhausted
on state habeas was his claim that his trial counsel had rendered inef-
fective assistance by failing to object to the trial court’s instruction
defining reasonable doubt.

   On April 18, 2000, the district court granted the motion to hold
Waine’s federal habeas petition in abeyance, and ordered Waine to
file a status report of his state post-conviction proceedings every
thirty days. On May 31, 2001, Waine filed in the district court a sup-
plement to his federal habeas corpus petition, alleging, as is relevant
here, that his trial counsel had rendered ineffective assistance by fail-
ing to object to the trial court’s instruction defining reasonable doubt.

   By order dated June 26, 2001, the Court of Special Appeals of
Maryland denied Waine’s motion for reconsideration. On June 27,
2001, the Court of Special Appeals of Maryland issued its mandate
in Waine’s case.

   On June 17, 2002, the district court denied Waine any relief on his
federal habeas petition. With respect to Waine’s ineffective assistance
of counsel claim regarding his trial counsel’s failure to object to the
trial court’s reasonable doubt instruction, the district court held that,
in applying the ineffective assistance of counsel test set forth in Str-
ickland v. Washington, 466 U.S. 668 (1984), the Maryland state court
"did not apply federal law unreasonably in finding that trial counsel
was not ineffective for failing to object to the reasonable doubt
instruction." (J.A. 167).

   Waine timely sought appeal of the district court’s order. As previ-
ously stated, we granted Waine a certificate of appealability with
respect to his "claim that his counsel was ineffective based on his fail-
ure to object to a jury instruction defining the Government’s burden
of proof in regard to reasonable doubt using ‘willing to act’ language
without any indication that the evidence had to be sufficient to make
one willing to act ‘without hesitation’ or ‘without reservation.’" We
denied Waine a certificate of appealability and dismissed his appeal
with respect to all other issues.
                           WAINE v. SACCHET                             5
                                   II

   The only claim before us is Waine’s claim "that his counsel was
ineffective based on his failure to object to a jury instruction defining
the Government’s burden of proof in regard to reasonable doubt using
‘willing to act’ language without any indication that the evidence had
to be sufficient to make one willing to act ‘without hesitation’ or
‘without reservation.’"

   At Waine’s 1976 trial, the trial court instructed the jury as follows
regarding reasonable doubt:

       The burden of proof in this case, as in all criminal cases,
    rests upon the State. Here the State has a different and
    greater burden than does a plaintiff in a civil case. In the lat-
    ter, the plaintiff must prove his case by a mere preponder-
    ance of the evidence. In a criminal case, the State must
    prove every element of the crime charged beyond a reason-
    able doubt and to a moral certainty. The jury must not
    assume that the accused is guilty merely because he is being
    prosecuted and because criminal charges have been prof-
    fered against him. He comes into court presumed to be inno-
    cent, and this status remains with him throughout the trial.

       The plea of not guilty is all the denial of the commission
    of the crime that a defendant need make. The State has the
    burden of proving him to be guilty by evidence which pro-
    duces an abiding conviction of guilt in the minds of the jury
    beyond a reasonable doubt and to a moral certainty.

       Now, this does not mean that the State has the burden of
    proving to a mathematical certainty that he is guilty, and
    that there is no other possibility beyond the evidence than
    that of guilt. If the evidence is of such a character as to per-
    suade the jury of the truth of the charges with the same force
    that would be sufficient to persuade a member of the jury to
    act on that conviction of truth in his own important business
    affairs or important affairs in his own life or career, then the
    jury may conclude the State has met the burden of proof
    beyond a reasonable doubt and to a moral certainty.
6                          WAINE v. SACCHET
      The verdict must represent the considered judgment of
    each juror. In order to return a verdict it is necessary that
    each juror agree thereto. Your verdict must be unanimous.

       If, after consideration of the whole case, any juror should
    entertain a reasonable doubt of the guilt of the defendant, it
    is the duty of the juror so entertaining such doubt not to vote
    for a conviction.

(J.A. 6-7). For reasons that follow, we affirm the district court’s
denial of federal habeas relief on Waine’s claim of ineffective assis-
tance of counsel with respect to counsel’s failure to object to the trial
court’s jury instruction defining the government’s burden of proof in
regard to reasonable doubt using "willing to act" language without
any indication that the evidence had to be sufficient to make one will-
ing to act "without hesitation" or "without reservation."

   The Sixth Amendment requires that, "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defense," U.S. Const. amend. VI, and that such assistance be
effective, Strickland, 466 U.S. at 686. In order to establish an ineffec-
tive assistance of counsel claim, a defendant must establish that his
"counsel’s representation fell below an objective standard of reason-
ableness," measured by the "prevailing professional norms," id. at
688, and "that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different," id. at 694. "Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result unreliable."
Id. at 687.

   Because this claim was adjudicated on the merits by the Postcon-
viction Court, our review is limited to determining whether the deci-
sion of that court "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States" or "resulted in a decision that
was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding." 28 U.S.C.
§ 2254(d)(1)-(2). The phrase "clearly established Federal law," id.
§ 2254(d)(1), "refers to the holdings, as opposed to the dicta, of the
                           WAINE v. SACCHET                              7
Court’s decisions as of the time of the relevant state-court decision."
Booth-El v. Nuth, 288 F.3d 571, 575 (4th Cir. 2002) (internal quota-
tion marks and alteration marks omitted). Further, a state postconvic-
tion court’s decision is "contrary to" clearly established federal law,
as determined by the Supreme Court, either: (1) "if the state court
applies a rule that contradicts the governing law set forth in [Supreme
Court] cases," or (2) "if the state court confronts a set of facts that are
materially indistinguishable from a decision of [the Supreme] Court
and nevertheless arrives at a result different from [Supreme Court]
precedent." Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Finally,
"[u]nder the ‘unreasonable application’ clause, a federal habeas court
may grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court’s decisions but unreason-
ably applies that principle to the facts of the prisoner’s case." Wil-
liams, 529 U.S. at 413. Notably, an "unreasonable application of
federal law is different from an incorrect application of federal law,"
because an incorrect application of federal law is not, in all instances,
objectively unreasonable. Id. at 410.

   Waine contends that the Postconviction Court’s decision denying
his ineffective assistance of counsel claim with respect to his trial
counsel’s failure to object to the "willing to act" language in the trial
court’s reasonable doubt instruction was contrary to and/or involved
an unreasonable application of clearly established federal law as
determined by the Supreme Court. In support, Waine primarily relies
upon the Supreme Court’s decision in Holland v. United States, 348
U.S. 121 (1954), and the Court of Appeals of Maryland’s decision in
Lambert v. State, 69 A.2d 461 (Md. 1949). According to Waine, from
these two decisions, a competent lawyer, at the time of his trial in
1976, would have known that the inclusion of the "willing to act" lan-
guage in the reasonable doubt instruction given at his trial without
any indication that the evidence had to be sufficient to make one will-
ing to act "without hesitation" or "without reservation" violated the
Due Process Clause of the Fourteenth Amendment. U.S. Const.
amend. XIV. Waine argues, therefore, in failing to object to the rea-
sonable doubt instruction given at his trial, his counsel’s representa-
tion fell below an objective standard of reasonableness as is necessary
to satisfy the performance prong of Strickland’s two-prong test for
successfully establishing an ineffective assistance of counsel claim.
Strickland, 466 U.S. at 687. Waine further argues that he has satisfied
8                          WAINE v. SACCHET
Strickland’s prejudice prong because under Sullivan v. Louisiana, 508
U.S. 275 (1993), a constitutionally deficient reasonable doubt instruc-
tion is not amenable to harmless error analysis. Id. at 279-82.

    The Due Process Clause of the Fourteenth Amendment protects an
accused "against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he
is charged." In re Winship, 397 U.S. 358, 364 (1970). Thus, "[t]he
beyond a reasonable doubt standard is a requirement of due process
. . . ." Victor v. Nebraska, 511 U.S. 1, 5 (1994). While the Constitu-
tion requires that juries be instructed on the necessity that the defen-
dant’s guilt be proven beyond a reasonable doubt, it "neither prohibits
trial courts from defining reasonable doubt nor requires them to do so
as a matter of course." Id. "Indeed, so long as the court instructs the
jury on the necessity that the defendant’s guilt be proved beyond a
reasonable doubt, the Constitution does not require that any particular
form of words be used in advising the jury of the government’s bur-
den of proof." Id. (internal citation omitted). "Rather, taken as a
whole, the instructions must correctly convey the concept of reason-
able doubt to the jury." Id. (internal quotation marks and alteration
marks omitted).

   Waine argues that with Holland on the books at the time of his
1976 trial, his trial counsel’s failure to object to the reasonable doubt
instruction given at his trial was objectively unreasonable. Waine’s
reliance on Holland is misplaced. In Holland, the Supreme Court
addressed a defendant’s challenge to the trial court’s jury instruction
defining reasonable doubt as "‘the kind of doubt . . . which you folks
in the more serious and important affairs of your own lives might be
willing to act upon.’" Id. at 140. In dicta, the Court criticized the
"willing to act" language and stated a preference for language defin-
ing reasonable doubt as the kind of doubt that would make a person
hesitate to act. Id. The Court then stated:

    But we believe that the instruction as given was not of the
    type that could mislead the jury into finding no reasonable
    doubt when in fact there was some. A definition of a doubt
    as something the jury would act upon would seem to create
    confusion rather than misapprehension. Attempts to explain
    the term reasonable doubt do not usually result in making it
                           WAINE v. SACCHET                            9
    any clearer to the minds of the jury, and we feel that, taken
    as a whole, the instructions correctly conveyed the concept
    of reasonable doubt to the jury.

Id. at 140 (internal quotation marks and citations omitted).

   Of significant importance in the present appeal, the Supreme
Court’s holding in Holland did not fault the instruction given to the
extent of finding error, let alone find a violation of the Due Process
Clause. Also of significant importance, some sixty-seven years prior
to Holland, in Hopt v. Utah, 120 U.S. 430 (1887), the Supreme Court
unequivocally upheld the following jury instruction, which is materi-
ally indistinguishable from the "willing to act" language challenged
by Waine: "[I]f, after such impartial comparison and consideration of
all the evidence, you can truthfully say that you have an abiding con-
viction of the defendant’s guilt, such as you would be willing to act
upon in the more weighty and important matters relating to your own
affairs, you have no reasonable doubt." Id. at 439. Indeed, the Court
observed: "It is difficult to conceive what amount of conviction would
leave the mind of a juror free from a reasonable doubt, if it be not one
which is so settled and fixed as to control his action in the more
weighty and important matters relating to his own affairs." Id.

   Hopt and Holland are the sum total of Supreme Court precedent
available to Waine’s trial counsel in 1976 with respect to the "willing
to act" language in the trial court’s reasonable doubt instruction to the
jury. Given the state of this precedent, we cannot say that Waine’s
counsel was objectively unreasonable in failing to object to such lan-
guage at Waine’s trial in 1976. In this regard, we are mindful that
"[j]udicial scrutiny of counsel’s performance must be highly deferen-
tial," and "every effort [must] be made to eliminate the distorting
effects of hindsight . . . and to evaluate the [challenged] conduct from
counsel’s perspective at the time." Strickland, 466 U.S. at 689.

   Moreover, consideration of Lambert v. State, 69 A.2d 461 (Md.
1949) does not change our view. At oral argument, Waine’s counsel
vigorously contended that twenty-seven years before his trial, Lam-
bert held erroneous an instruction containing the same "willing to act"
language instructed at his trial. Given Strickland’s teaching that we
measure counsel’s professional performance under the professional
10                         WAINE v. SACCHET
norms prevailing at the time of counsel’s challenged conduct,
Waine’s counsel argued that trial counsel was objectively unreason-
able in failing to object to the "willing to act" language given that the
charge did not also include language indicating that the evidence had
to be sufficient to make one willing to act "without hesitation" or
"without reservation."

   As with Waine’s reliance on Holland, his reliance on Lambert is
also misplaced. The following instruction upheld in Lambert is mate-
rially indistinguishable from the "willing to act" language charged at
Waine’s trial: "‘[Reasonable Doubt] means such evidence as you
would act upon in a matter involving important affairs in your life or
your business or with regard to your property. If the evidence is suffi-
cient that you would act upon it in a very important matter in your
own lives, then it is sufficient to convict in a criminal case.’" Id. at
464. Finally, given that jury instructions must be reviewed as a whole,
United States v. Wills, 346 F.3d 476, 492 (4th Cir. 2003), the fact that
the reasonable doubt instruction given at Waine’s trial contained lan-
guage equating the concept of guilty beyond a reasonable doubt with
an "abiding conviction of guilt in the minds of the jury beyond a rea-
sonable doubt," (J.A. 7), firmly cements our conclusion that the dis-
trict court did not err with respect to the claim before us. Cf. Victor,
511 U.S. at 21 (reviewing a challenged reasonable doubt instruction
and stating: "Instructing the jurors that they must have an abiding
conviction of the defendant’s guilt does much to alleviate any con-
cerns that the phrase ‘moral certainty’ might be misunderstood in the
abstract.").

   In sum, the reasonable doubt instructions upheld in the pre-1976
cases of Hopt, Holland, and Lambert, are materially indistinguishable
with respect to the presence of the "willing to act" language and the
absence of "without hesitation" or "without reservation" language in
the reasonable doubt instruction given at Waine’s trial. While we
acknowledge that, prior to Waine’s trial, the Supreme Court had criti-
cized, in dicta, "willing to act" language similar to that charged at
Waine’s trial, dicta does not and cannot overrule established Supreme
Court precedent. United States v. Pasquantino, 336 F.3d 321, 329
(4th Cir. 2003) (en banc) (dicta cannot serve as a source of binding
authority in American jurisprudence); see also United States v. Dixon,
509 U.S. 688, 706 (1993) (quoting United States Nat. Bank of Or. v.
                            WAINE v. SACCHET                             11
Independent Ins. Agents of Am., Inc., 508 U.S. 439, 463, n. 11 (1993),
on "‘the need to distinguish an opinion’s holding from its dicta’").
Therefore, we hold that Waine’s counsel was not objectively unrea-
sonable in failing to object to the "willing to act" language in the rea-
sonable doubt instruction given at his trial. It follows that the
Postconviction Court’s denial of Waine’s ineffective assistance of
counsel claim challenging the same language is not contrary to or an
unreasonable application of clearly established Supreme Court prece-
dent. Having failed Strickland’s performance prong, we need not
address Strickland’s prejudice prong.2

                                    III

   In conclusion, we hold the Postconviction Court’s denial of relief
to Waine with respect to Waine’s claim that his trial counsel was con-
stitutionally ineffective for failing to object to the "willing to act" lan-
guage in the reasonable doubt instruction given at his trial was not
contrary to or an unreasonable application of federal law, as estab-
lished by the Supreme Court. Accordingly, we affirm the district
court’s order denying Waine’s petition for a writ of habeas corpus.3

                                                              AFFIRMED

  2
     Waine argues that we should review his claim de novo, without giving
the Postconviction Court AEDPA deference, because the Postconviction
Court misdescribed the burden of proof with respect to Strickland’s prej-
udice prong. We need not address this argument, because as we have
already explained, Waine’s ineffective assistance of counsel claim does
not satisfy Strickland’s initial performance prong.
   3
     As an alternative to affirmance, the State contends that we should dis-
miss Waine’s federal habeas petition as untimely. We have carefully
reviewed the entire record in this regard and find the State’s contention
to be without merit.
