With no explanation, chose the best option from "A", "B", "C" or "D". neither cause nor prejudice). Although a court "must apply Teague before considering the merits of the claim” when the government challenges the retroactive application of a decision, Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994), a disposition based on the appellant’s procedural default does not require us to decide the merits of the underlying Apprendi claim. See United States v. Lafayette, 337 F.3d 1043, 1048 n. 7 (D.C.Cir.2003). 10 . See Bousley, 523 U.S. at 623, 118 S.Ct. 1604 ("It is important to note ... that ‘actual innocence’ means factual innocence, not mere legal insufficiency.”). 11 . See Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice 0, 766, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). 17 . See Frady, 456 U.S. at 172, 102 S.Ct. 1584 (<HOLDING>); Dale, 140 F.3d at 1054 (finding no prejudice

A: holding that the government bears the burden of proving voluntary consent under the totality of the circumstances
B: holding that plaintiff bears burden of proving malice to defeat qualified privilege once defendant shows privilege applies
C: holding in a murder case that the strong uncontradicted evidence of malice in the record coupled with the defendants utter failure to come forward with a colorable claim that he acted without malice disposes of his contention that he suffered  actual prejudice from an instructional error that relieved the government of the burden of proving that element
D: holding that the defendant bears the burden of proving outside contact with the jury
C.