definition was first approved by the Supreme Court in 1907, Victor, supra, at 9, 114 S.Ct. 1239 (citing Perovich v. United States, 205 U.S. 86, 92, 27 S.Ct. 456, 51 L.Ed. 722 (1907), and widely adopted by state courts, although it later met with criticism in various states. Id. at 9, 114 S.Ct. 1239 (citing) People v. Brigham, 25 Cal.3d 283, 157 Cal.Rptr. 905, 599 P.2d 100, 106-121 (1979)). Nevertheless, the jury instruction at issue in Cage represents a clear break from the past insofar as the Court criticized one form of jury instruction in which “reasonable doubt” was defined, in part, as “moral certainty,” Cage, supra, at 41, and is retroactively appl ies the prejudice requirement for establishing federal habeas jurisdiction. Cf. Restrepo v. Kelly, 178 F.3d 634, 640-41 (2d Cir.1999) (<HOLDING>). As such, Mercer has satisfied both the cause
holding in context of sixth amendment ineffective assistance of counsel based on asserted failure of counsel to file appeal established prejudice per se for purpose of establishing habeas review jurisdiction as if proven such failure constitutes denial of a fundamental constitutional right holding that failure to file brief on appeal to bia constitutes ineffective assistance but affirming the denial of habeas because petitioner could not show prejudice holding that an attorneys conflict of interest gives rise to a claim of ineffective assistance of counsel under the sixth amendment and establishes prejudice per se recognizing a constitutional claim for ineffective assistance of counsel holding on appeal from a habeas corpus denial that counsel was not ineffective for failure to file a notice of appeal because of defendants escape