The following excerpt is from Roy v. Coxon, 907 F.2d 385 (2nd Cir. 1990):
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 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," ... not merely whether "the instruction is undesirable, erroneous, or even 'universally condemned,' "....
.... An omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law....
Id. (quoting Cupp v. Naughten, 414 U.S. at 147, 146, 94 S.Ct. at 400, 400) (footnotes omitted).
In the present case, we conclude that the failure to instruct on the issue of
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