Johnson v. McKune

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 15 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

NOBLE LEROY JOHNSON,

Petitioner - Appellant,
v.
No. 00-3113
DAVID R. MCKUNE; ATTORNEY
GENERAL OF KANSAS,

Respondents - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 97-CV-3269-DES)

Stephen W. Kessler, Topeka, Kansas, for Petitioner - Appellant.

Jared S. Maag, Assistant Attorney General, Office of the Kansas Attorney General,
Topeka, Kansas, for Respondents - Appellees.

Before BRORBY and HOLLOWAY, Senior Circuit Judges, and HENRY, Circuit
Judge.

HOLLOWAY, Senior Circuit Judge.

I

On March 25, 1976, Noble Leroy Johnson was convicted in the district court of Butler

County, Kansas of two counts of first degree murder and given two concurrent life sentences.
The Kansas Supreme Court affirmed his convictions on December 10, 1977. State v.

Johnson, 573 P.2d 994 (Kan. 1977). From 1981 to 1994 Johnson filed four post-conviction

motions pursuant to Kan. Stat. Ann. § 60-1507, all unsuccessful, in the Kansas state courts.

The first, second and fourth of these raised the issue that a jury instruction pertaining to

intent similar to an instruction given at Johnson’s trial had been declared unconstitutional by

the United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510 (1979). In all three

instances, the Kansas courts denied Johnson relief, holding that this issue had been waived

and defaulted.

In 1997 Johnson, then an inmate in Lansing Correctional Facility in Lansing, Kansas,

petitioned the United States District Court for the District of Kansas for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. On March 30, 2000, the District Court found the

Sandstrom issue not to have been defaulted or waived because Sandstrom was not decided

until after Johnson’s conviction was final and because he had raised the issue in his first

motion and appealed its denial to the highest state court. Johnson v. McKune, No. 97-3269-

DES, 2000 WL 422340 at *3-4 (D.Kan. Mar. 30, 2000). However, the court held that the

ruling in Sandstrom was not retroactively applicable on collateral review under Teague v.

Lane, 489 U.S. 288 (1989). Id. at *4-5, and denied habeas relief and dismissed the action.

Johnson now appeals the District Court’s denial of the writ. On November 2, 2000

we granted a certificate of appealability as to Johnson’s claim that Sandstrom should be

applied retroactively to the jury instruction issue. We exercise jurisdiction under 28 U.S.C.

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§ 1291. For reasons set forth below, we affirm the District Court’s decision.

II

In September 1975, Thomas and Darlene Woodyard were murdered in El Dorado,

Kansas. The Woodyards were friends of Noble Leroy Johnson and his wife Linda, and had

eaten dinner at their house a few hours before the murders. The bodies were discovered three

days later when the Woodyards’ landlady entered the house. Both victims had been stabbed,

their throats cut, and their bodies mutilated. Trial Transcript at 89, 95.

Linda Johnson, questioned separately from her husband, gave testimony implicating

her husband. According to her testimony, Noble Johnson fought with both victims after

dinner, injuring them. After apologizing, he walked home with them. After returning home,

her husband told her he was going to go back and kill them. She heard her husband using

his knife sharpener before he left. He returned 35 to 45 minutes later, demanding that she

wash his bloody clothing, telling her that Darlene had been the hardest to go, and saying that

God would never forgive him for what he had done. She also said that Johnson threatened

to kill her if she revealed what had happened. Trial Transcript at 16-26. A witness said he

had seen Noble Johnson crouching by the river behind the Woodyards’ house the day before

the bodies were discovered. Trial Transcript at 65-66.

The undersheriff said Johnson told him what happened the night of the murders.

According to the undersheriff, Johnson said he had drunk six beers and half a pint of whiskey

that evening and admitted being in the Woodyards’ house with a knife, but Johnson had said

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that Thomas Woodyard killed Darlene Woodyard in another room. Johnson said he became

very angry at this and hit Thomas Woodyard. Thomas, Johnson said, then attacked him with

a knife, cutting his hand. After this, Johnson said everything went “dark and blank,” which

frightened him. Johnson said that because the doors were locked from the inside, he dived

out the window. He said he then threw the knife into the river behind the Woodyards’ house

and returned home. However, the undersheriff said Johnson never indicated he remembered

killing anyone. Trial Transcript at 158-61.

Johnson also took the stand, providing a similar but somewhat less intelligible

explanation of the evening’s events. Johnson said he believed Thomas Woodyard had killed

Darlene Woodyard in another room. Johnson said he was angry at this, and that he “got all

mixed up,” thinking Darlene was his own daughter. Johnson admitted hitting Thomas

Woodyard, somehow cutting his own hand. He testified that after this, things became dark

and he immediately escaped through the window and ran home. Trial Transcript at 197-201.

Johnson’s position at trial was that he was not guilty by reason of insanity. He

introduced testimonial evidence in support of this defense, including his own testimony, the

testimony of his parents and siblings, and the testimony of a psychiatrist who had examined

him at the state’s request.

The prosecution offered rebuttal evidence that included the testimony of a different

psychiatrist. The two psychiatrists agreed that Johnson was troubled, but disagreed both as

to the degree of his psychological problems, and also as to whether Johnson could distinguish

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between right and wrong at the time of the murders.

At trial, the jury was given the following instruction regarding a legal presumption of

intent:

There is a presumption that a person intends all the natural and probable
consequences of his voluntary acts. This presumption is overcome if you are
persuaded by the evidence that the contrary is true.1

The jury was also given instructions that the state had to prove Johnson’s sanity beyond a

reasonable doubt, and that it bore the burden of proof concerning Johnson’s guilt. Trial

Transcript at 525-27 (Instructions 9, 13).

Johnson did not, either at trial or on appeal, challenge the intent instruction. At that

time, the instruction was in widespread use in Kansas, although it was later criticized by the

Kansas Court of Appeals, which indicated that it would no longer approve such an

instruction. State v. Acheson, 601 P.2d 375, 384, rev. denied 606 P.2d 1022 (1979), cert.

denied 449 U.S. 965 (1980). The instruction was then modified, and has since been

abandoned altogether. Compare PIK 2d 54.01 and 54.01-A with PIK 3d 54.01 (omitting

modified presumption of intent instruction).

PIK 54.01 (1971).
1

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 III

A

Whether This Court Can Consider Johnson’s Sandstrom Claim

Because Johnson filed his petition with the United States District Court in 1997, the

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), effective April 24, 1996,

applies to this case. Ordinarily, under AEDPA a federal court may grant a petitioner a writ

of habeas corpus only if the state court’s adjudication of the claim on the merits

(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) 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.2

28 U.S.C. § 2254(d). On the other hand, “[i]f the claim was not heard on the merits by the

state courts, and the federal district court made its own determination in the first instance, we

review the district court’s conclusions of law de novo . . . .” La Fevers v. Gibson, 182 F.3d

705, 711 (10th Cir. 1999).

The Kansas Court of Appeals concluded that under Kansas Supreme Court Rule

183(c)(3), Johnson’s Sandstrom claim was not subject to review because he had failed to

raise the issue on direct appeal. It added, however, that Johnson’s claim was “one previously

rejected by this Court,” citing State v. Acheson, 601 P.2d 375 (Kan. 1979); State v. Egbert

Johnson argues in favor of an exception only under § 2254(d)(1), not §
2

2254(d)(2).

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606 P.2d 1022 (Kan. 1980); State v. Myrick & Nelms, 616 P.2d 1066 (Kan. 1980); State v.

McDaniel & Owens, 612 P.2d 1231 (Kan. 1980). Memorandum Opinion of March 31, 1983.

The federal District Court’s opinion implicitly rests on the assumption that the Kansas Court

of Appeals decided the Sandstrom claim on its merits. See Johnson, 2000 WL 422340 at *1,

*3 (applying AEDPA’s “contrary to, or involv[ing] an unreasonable application of, clearly

established Federal law” provision). However, Johnson asks us to apply the de novo standard

of review, pointing out that while the Kansas state courts did opine that he was not entitled

to relief on the merits, they found that his claim was procedurally barred. Brief of Appellant

at 3.

We agree with the District Court’s reasoning that Johnson, having raised the

Sandstrom claim in the first of his four post-conviction motions, did not waive his claim by

failing to raise it in all successive motions or appeal its denial, either of which would have

been futile. Johnson, 2000 WL 422340 at *4. We believe the denial of Johnson’s first

motion serves as an adjudication on the merits by the state court. Here, it appears that the

state court relied on the merits as an alternative basis for its holding, which is permissible.

See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (noting that state courts may both rely on

state procedural bars and reach federal substantive questions in denying habeas relief). See

also Michigan v. Long, 463 U.S. 1032, 1040-41 (1983) (stating the Court’s intention to

accept federal substantive law as the basis for a state court’s habeas denial where both state

and federal grounds were mentioned but where it was not apparent that state grounds were

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adequate); Andrews v. Deland, 943 F.2d 1162, 1188 (10th Cir. 1991) (stating the

presumption that a state court decision rests on federal substantive grounds in the absence

of a clear statement to the contrary and explaining that this presumption arises where the

decision “fairly appears . . . to be interwoven with federal law.”) (quoting Coleman v.

Thompson, 501 U.S. 722, 737 (1991)).

Because we agree with the District Court’s holding that no procedural default barred

Johnson’s claim, we conclude that federal substantive law is the only basis on which the state

court’s denial of habeas relief now rests. We therefore think the District Court was correct

in believing that the Kansas Court of Appeals did dispose of Johnson’s claim on the merits.

We need not resolve any apparent conflict here, however, since even under the more lenient

de novo standard which Johnson requests, we find that he cannot prevail.

B

1

The Sandstrom Holding

Sandstrom is premised on the holding of In re Winship that “the Due Process Clause

protects the 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). At issue in Sandstrom was a jury instruction quite similar to that given

at Johnson’s trial, namely “the law presumes that a person intends the ordinary consequences

of his voluntary acts.” Sandstrom, 442 U.S. at 512. The Sandstrom Court considered “the

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way in which a reasonable juror could have interpreted the instruction” as determinative of

“whether a defendant has been accorded his constitutional rights.” Id. at 514. The Court

determined that a reasonable juror “could easily have viewed such an instruction as

mandatory,” id. at 515, and concluded that such an instruction therefore violated a criminal

defendant’s right to procedural due process. The result of such a conclusion by a juror would

have been to shift to the defendant the burden of proof on the issue of intent. Id. at 518-521.

In particular, the Court suggested that a reasonable juror might have understood that

the presumption was either conclusive (that is, the instruction was “an irrebuttable direction

by the court to find intent once convinced of the facts triggering the presumption”), or else

that it was “a direction to find intent upon proof of the defendant's voluntary actions (and

their ‘ordinary’ consequences), unless the defendant proved the contrary by some quantum

of proof which may well have been considerably greater than ‘some’ evidence.” Id. at 517.

The Court did not determine that a reasonable juror would have interpreted the instruction

in either of these impermissible ways. Rather, it found only the risk of such a conclusion by

jurors impermissibly great:

We do not reject the possibility that some jurors may have interpreted the
challenged instruction as permissive . . . .3 However, the fact that a reasonable
juror could have given the presumption conclusive or persuasion-shifting

Mandatory presumptions, unlike permissive inferences, must be measured against
3

the Winship standard as explained in Sandstrom. Francis v. Franklin, 471 U.S. 307, 314
(1985). A permissive inference instruction violates the Due Process Clause “only if the
suggested conclusion is not one that reason and common sense justify in light of the
proven facts before the jury.” Id. at 314-15.

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 effect means that we cannot discount the possibility that Sandstrom’s jurors
actually did proceed upon one or the other of these latter interpretations. And
that means that unless these kinds of presumptions are constitutional, the
instruction cannot be adjudged valid.

Id. The Court considered whether these other possible interpretations of the instruction

by the jury might have the effect “of relieving the State of the burden of proof enunciated

in Winship on the critical question of petitioner's state of mind,” and concluded “that

under either of the [other two] possible interpretations of the instruction . . . , precisely

that effect would result, and that the instruction therefore represents constitutional error.”

Id. at 521.

2.

Whether the Kansas State Courts Were Bound
to Apply Sandstrom Retroactively on Collateral Review

In 1977, when Johnson’s convictions became final, the instruction at issue here

was accepted by Kansas courts. Johnson argues that “the law clearly provided at the time

that an accused was presumed to be innocent and that one could not be convicted of a

crime without proof beyond a reasonable doubt of each and every element of the offense.”

Brief of Appellant at 5. He cites several Supreme Court cases in support of this

reasoning, including In re Winship, 397 U.S. 358 (requiring the prosecution to prove

beyond a reasonable doubt every fact necessary to constitute the crime charged). He also

cites Morissette v. United States, 342 U.S. 246 (1952), and United States v. U.S. Gypsum

Co., 438 U.S. 422 (1978), and Sandstrom’s reliance on them in its analysis. Sandstrom,

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442 U.S. at 519 (“It is the line of cases . . . exemplified by In re Winship that provides the

appropriate mode of constitutional analysis for these kinds of presumptions.”) (citation

omitted). These opinions had been issued at the time the Kansas Court of Appeals here

issued its Memorandum Opinion in March of 1983 rejecting Johnson’s state habeas claim

and would all constitute “clearly established Federal law, as determined by the Supreme

Court of the United States” as required under AEDPA.

However, in considering the Kansas Court of Appeals’ adjudication of Johnson’s

habeas claim, we note that at the time the court was bound by Morissette, In re Winship,

and U.S. Gypsum. While the Supreme Court relied on this line of cases, they did not,

taken together, constitute “clearly established Federal law;” rather, they together

“provide[d] the appropriate mode of constitutional analysis for [the] kinds of

presumptions” Sandstrom examined. Sandstrom, 442 U.S. at 519.

The Kansas Court of Appeals would have been bound to apply Sandstrom

retroactively only if “clearly established Federal law, as determined by the Supreme Court

of the United States” required it. 28 U.S.C. § 2254(d)(1). As our analysis below

indicates, we do not believe that Sandstrom should be applied retroactively on federal

collateral review. More importantly, however, the Supreme Court has never held

Sandstrom retroactive.4 Therefore, the Kansas Court of Appeals’ adjudication of

The question of whether principles of retroactivity set forth in Teague, 489 U.S. at
4

311-313, might require retroactive application of a rule is separate from the question of
whether the Supreme Court has already established that the same rule should be applied

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Johnson’s claim on the merits (assuming, as noted, that the court so adjudicated it) was

not contrary to, nor did it involve an unreasonable application of clearly established

Federal law, as determined by the Supreme Court. Under these circumstances, AEDPA

would forbid our granting the writ Johnson seeks.

3.

Whether This Court Should Now Apply Sandstrom Retroactively

a.

Standards for Conducting Retroactivity Analysis

In convicting Johnson, the jury necessarily found that he had committed the

killings. However, the issue of whether the jury properly found intent, which is an

element of the crimes charged, is problematic. Because Johnson’s convictions became

final in 1977 and Sandstrom was decided in 1979, his claim rests on the argument that

Sandstrom should be applied retroactively. In order to conduct a review de novo and

reach this issue, we would have to find that the Kansas state courts had not adjudicated

Johnson’s claim on the merits. However, even granting such a review, we must

nevertheless deny Johnson the relief he seeks.

We have previously applied Sandstrom and Francis v. Franklin, 471 U.S. 307

(1985), to find the jury instruction in PIK 54.01, read together with other instructions,

retroactively. See Tyler v. Cain, 121 S.Ct. 2478, 2479-80 (2001) (separating the issue of
whether the Supreme Court had already made a similar jury instruction ruling retroactive from
the issue of possible retroactive application in future cases).

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constitutionally deficient. Wiley v. Rayl, 767 F.2d 679 (10th Cir. 1985). Our reasoning

was that “a reasonable juror . . . could have read the instructions as a whole as shifting the

burden of persuasion” on the issue of intent to the defendant. Id. at 681. We note also

that, while Johnson relied on a defense of insanity which the jury necessarily rejected

when it convicted him,5 Johnson’s Sandstrom claim deals with his intent. While the issue

of Johnson’s mental health or capacity is obviously related to the issue of his mental state,

the two are not the same.6

There is no question that Sandstrom is applicable to cases decided after it was

issued. However, in order to determine whether Sandstrom should be applied

retroactively here so as to authorize us to grant Johnson the relief he now seeks, we look

to the principles of retroactivity set forth by a plurality of the Supreme Court in Teague,

489 U.S. at 311-13, and reaffirmed by a majority of the Court in Penry v. Lynaugh, 492

U.S. 302 (1989).

The trial court applied the M’Naghton test, “that is, whether the accused was
5

capable of distinguishing between right and wrong at the time of the commission of the
crime.” State v. Johnson, 573 P.2d at 997.
6
The Supreme Court has distinguished the two issues, holding that states may
require defendants to bear the burden of proving their affirmative defense of insanity,
though they may not require defendants to bear the burden of proving their mental state
where mental state (such as intent) is an element of the crime. Patterson v. New York,
432 U.S. 197, 206 (1977) (“[O]nce the facts constituting a crime are established beyond a
reasonable doubt, based on all the evidence including the defendant’s mental state, the
State may refuse to sustain the affirmative defense of insanity unless demonstrated by a
preponderance of the evidence.”). Here, however, we note that the jury instructions
required the state to prove beyond a reasonable doubt Johnson’s sanity during the
commission of the murders. Trial Transcript at 525-26 (Instruction 9).

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 In Teague the Court considered the intrusiveness and the inordinate and

overwhelming burden that widespread retroactivity would have on the states’ judicial

resources, noting that such application “continually forces the States to marshal resources

in order to keep in prison defendants whose trials and appeals conformed to then-existing

constitutional standards.” Teague, 489 U.S. at 310. The Court also weighed the need for

finality in criminal adjudications, observing that “[s]tate courts are understandably

frustrated when they faithfully apply existing constitutional law only to have a federal

court discover, during a [habeas] proceeding, new constitutional commands.” Id.

(citations omitted) (alterations in original).

Persuaded by these weighty considerations, the Court announced a new standard

for the retroactive application of new rules: “Unless they fall within an exception to the

general rule, new constitutional rules of criminal procedure will not be applicable to those

cases which have become final before the new rules are announced.” Id. The Court later

explained that this “‘new rule’ principle . . . validates reasonable, good-faith

interpretations of existing precedents made by state courts even though they are shown to

be contrary to later decisions.” Butler v. McKellar, 494 U.S. 407, 414 (1990). The Court

has also said that it would “not disturb a final state conviction or sentence unless it can be

said that a state court, at the time the conviction or sentence became final, would have

acted objectively unreasonably by not extending the relief later sought in federal court.”

O’Dell v. Netherland, 521 U.S. 151, 156 (1997). Nonretroactivity under Teague is

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considered a defense to habeas claims and courts must entertain it where, as here, the

state has raised it. Goeke v. Branch, 514 U.S. 115, 117 (1995).

b.

Whether Sandstrom Announced a New Rule

In order to determine whether Sandstrom should be applied retroactively, we must

first determine whether it is a “new rule” as contemplated by Teague and, if so, whether it

falls within one of the exceptions to the rule. In determining whether a rule is new, a

court conducting habeas review “considers whether a state court considering [the

defendant's] claim at the time his conviction became final would have felt compelled by

existing precedent to conclude that the rule [he] seeks was required by the Constitution.

If not, then the rule is new.” O’Dell, 521 U.S. at 156 (citations and quotation marks

omitted). A rule is new when it “breaks new ground or imposes a new obligation on the

States or the Federal government” or if it “was not dictated by precedent existing at the

time the defendant’s conviction became final.” Teague, 489 U.S. 288, 301. A rule is not

new where precedents “inform, or even control or govern” but do not “compel” its

creation. Saffle v. Parks, 494 U.S. 484, 491 (1990). Furthermore, the Court has explained

that

the fact that a court says that its decision is within the “logical compass” of an
earlier decision, or indeed that it is “controlled” by a prior decision, is not
conclusive for purposes of deciding whether the current decision is a “new
rule” under Teague. Courts frequently view their decisions as being
“controlled” or “governed” by prior opinions even when aware of reasonable
contrary conclusions reached by other courts.

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Butler, 494 U.S. at 415. The burden of demonstrating that a rule is not new falls on the

habeas applicant. O’Dell, 521 U.S. at 156.

The Sixth Circuit has considered this question and, analyzing the precedents on which

Sandstrom relied, has determined that it “was not controlled or governed by any particular

precedent, but was the result of an analysis of cases generally dealing with the presumption

of innocence and the allocation of the burden of proof.” Cain v. Redman, 947 F.2d 817, 821

(6th Cir. 1991), cert. denied 503 U.S. 922 (1992). Other circuits have likewise concluded

that Sandstrom announced a new rule. Prihoda v. McCaughtry, 910 F.2d 1379, 1382 (7th

Cir. 1990); Hall v. Kelso, 892 F.2d 1541, 1543 n.1 (11th Cir. 1990). But see Mains v. Hall,

75 F.3d 10, 14 (1st Cir. 1996) (reasoning that because Sandstrom was “a lineal descendant

of Winship” it therefore did not announce a new rule) (quoting Gilmore v. Taylor, 508 U.S.

333, 343 (1993)).

Although Sandstrom was a unanimous opinion which strongly came out against the

kind of instruction given at Johnson’s trial, we are not convinced that its ruling was dictated

or compelled by precedent as contemplated by Teague. The Sandstrom Court described its

decision-making process as follows: “It is the line of cases urged by petitioner, and

exemplified by In re Winship that provides the appropriate mode of constitutional analysis

for these kinds of presumptions.” Sandstrom, 442 U.S. at 519 (citation omitted). In so

deciding, the Court rejected other lines of cases urged by the respondent, the State of

Montana. Id. at 519, n.9. The fact that contrary federal or state precedent exists, while not

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dispositive, is relevant to our analysis. Caspari v. Bohlen, 510 U.S. 383, 394-95 (1994)

(looking to both state and federal decisions to determine whether a new rule had been

announced).

While it is apparent that the Court heavily relied on precedent to reach the result,

there is no indication that the Court thought that precedent “dictated” or “compelled” the

result. We are mindful that in later cases the Court has used language suggesting it

considered Sandstrom to have announced a new rule. See, e.g., Yates v. Aiken, 484 U.S.

211 (1988) (explaining that Sandstrom “established that the Due Process Clause of the

Fourteenth Amendment prohibits jury instructions that have the effect of relieving the

State of its burden of proof . . . .”) (emphasis added). Furthermore, we note that at least

one case Sandstrom cites and substantially relies upon, U.S. Gypsum, 438 U.S. 422, was

decided after Johnson’s convictions became final and was thus unavailable to the Kansas

state courts at trial or on direct appeal.

While the Kansas state courts had some reason to believe the instruction at issue

here might have presented a due process problem, Teague requires more than this. We

are convinced that the Kansas state courts, “considering [Johnson’s] claim at the time his

conviction became final” would not “have felt compelled by existing precedent to

conclude that the rule [he now] seeks was required by the Constitution.” O’Dell, 521

U.S. at 156 (citations and quotation marks omitted). Accordingly we hold that Sandstrom

announced a new rule.

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 c.

Whether the New Rule Announced in Sandstrom
Falls Within an Exception to Nonretroactivity Under Teague

Teague forbids the retroactive application of a new rule on collateral review unless

it falls within one of two narrow exceptions. Tyler, 121 S.Ct. at 2479. The exceptions

include only rules that

place[] certain kinds of primary, private individual conduct beyond the power
of the criminal law-making authority to proscribe, or . . . require[] the
observance of those procedures that . . . are implicit in the concept of ordered
liberty. . . .

Teague, 489 U.S. at 290 (citations and quotation marks omitted). Johnson presents only a

cursory assertion that the first exception might apply, and offers no argument or citation to

authority for that proposition. It is clear, however, that Sandstrom does not place any

conduct beyond the state’s power to proscribe, as contemplated by Teague and its

progeny.7 “Plainly, this exception has no application here because the rule [Johnson] seeks

would [not] decriminalize a class of conduct . . . .” Graham v. Collins, 506 U.S. 461, 477

(1993). Even if the exception were to apply in this situation, however, our inquiry would

be subsumed within our analysis of the second exception.

The second exception, which Johnson urges much more forcefully, covers rules

requiring procedures that are “implicit in the concept of ordered liberty.” Teague, 489

This exception was broadened somewhat in Penry, 492 U.S. 302, to include rules
7

immunizing certain classes of defendants (there, a mentally retarded man) from certain
types of punishment (there, the death penalty). The broader exception is not applicable
here.

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U.S. at 290 (citation and quotation marks omitted). The Supreme Court has defined this

exception narrowly, Butler, 494 U.S. at 417 (characterizing the two exceptions to

nonretroactivity as “narrow”), and has reserved the second exception only for “watershed

rules of criminal procedure.” Teague at 311. See also Parks, 494 U.S. at 495 (requiring

“primacy and centrality” before a rule can be considered “watershed,” and citing as an

example the rule announced in Gideon v. Wainwright, 372 U.S. 335 (1963), that criminal

defendants charged with serious offenses have the right to be represented at trial by

counsel). Such rules must “implicat[e] the fundamental fairness and accuracy of the

criminal proceeding.” Parks, 494 U.S. at 495. The standard required for a rule to qualify

for retroactivity under Teague’s second exception is high, and only “a small core of rules”

can meet it. Graham, 506 U.S. at 478. The Supreme Court expressed its belief that such

“watershed” rules were rare: “Because we operate from the premise that such procedures

would be so central to an accurate determination of innocence or guilt, we believe it

unlikely that many such components of basic due process have yet to emerge.” Teague,

489 U.S. at 313.

The circuits’ earlier opinions examining the retroactivity of Sandstrom are split.

The Eleventh Circuit has held the kind of rule announced in Sandstrom to fall within the

second Teague exception, and has applied it retroactively. Hall, 892 F.2d 1541, 1543 n.1

(applying Sandstrom retroactively). However, the Sixth Circuit has addressed these same

issues in Cain, 947 F.2d 817, and, after conducting a Teague analysis, concluded that

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Sandstrom should not be applied retroactively. Id. at 822. Some courts examining

analogous rules have applied them retroactively. The Fifth Circuit, considering a similar

rule, determined it should be applied retroactively. Humphrey v. Cain, 138 F.3d 552 (5th

Cir. en banc 1998) (applying retroactively the rule required under Cage v. Louisiana, 498

U.S. 39 (1990), and Victor v. Nebraska, 511 U.S. 1 (1994), regarding jury instructions as

to reasonable doubt), cert. denied, 525 U.S. 943 (1998) .8 The Ninth Circuit, examining a

court’s failure to instruct the jury on any element at all of the charged offense,

retroactively applied the rule announced in Sullivan v. Louisiana, 508 U.S. 275 (1993),

that a constitutionally deficient reasonable doubt instruction requires reversal. Harmon v.

Marshall, 69 F.3d 963 (9th Cir. 1995).

This court has considered the same issue in an analogous case, Andrews, 943 F.2d

1162. There, we considered the rule announced in Beck v. Alabama, 447 U.S. 625

(1980), requiring that the jury in a capital case be permitted to consider a verdict of guilty

of a lesser included offense if the evidence supports such a conviction. While the Beck

rule is without question an important one, we concluded in Andrews that it was not a

“watershed rule” as contemplated by Teague. We relied on Sawyer v. Smith, 497 U.S.

8
Drawing on Winship, Cage held that a jury instruction describing reasonable
doubt as “grave uncertainty,” “moral certainty,” or “actual substantial doubt”
impermissibly raised the standard of proof beyond that required by the Due Process
Clause. Cage, 498 U.S. at 40-41. Cage’s rule, as the Supreme Court has characterized it,
reaches somewhat deeper than Sandstrom’s. Sullivan v. Louisiana, 508 U.S. 275, 280-81
(1993) (distinguishing “a misdescription of the burden of proof, which vitiates all the
jury’s findings” from a Sandstrom error, which might not).

- 20 -
227 (1990), for the principle that, even where a rule enhanced the reliability or accuracy

of a proceeding, “the second [Teague] exception is reserved only for rules ‘essential to

the fairness of the proceeding.’” Andrews at 1187 (quoting Sawyer at 228).

In the instant case, we realize that application of the Sandstrom rule might have

enhanced the reliability or accuracy of Johnson’s trial. However, the Supreme Court

explained the principle given in Sawyer still further in Tyler:

To fall within this exception, a new rule must meet two requirements:
Infringement of the rule must seriously diminish the likelihood of obtaining an
accurate conviction, and the rule must alter our understanding of the bedrock
procedural elements essential to the fairness of a proceeding.

121 S.Ct. at 2484 (citations and internal quotation marks omitted). We cannot agree with the

Eleventh Circuit’s holding in Hall that Sandstrom’s rule meets both of these requirements.

We accept that the instruction at issue in this case may have “seriously diminish[ed]

the likelihood of an accurate conviction.” We are not aware of any explanation by the

Supreme Court of the meaning of the “serious diminishment” standard, though Sandstrom

made clear that violation of its rule was serious enough to warrant reversal of a conviction.

Although Sandstrom did not delve into the issue of the accuracy of a conviction obtained in

violation of its rule, the Court did consider unacceptable the level of risk that a conviction

might be obtained under a constitutionally impermissible standard. We therefore assume,

without deciding, that a Sandstrom violation would meet Tyler’s first requirement.

With regard to the second requirement, we take note of the Supreme Court’s opinion

in Yates, 484 U.S. 211, on which the Eleventh Circuit relies. There, the Court called

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Winship’s holding that “the Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime

with which he is charged” a “bedrock, axiomatic and elementary constitutional principle.”

Yates at 214 (citations, internal quotation marks, and brackets omitted). Yates arose after

Sandstrom but before Francis. The Court relied on Francis, explaining that Francis did not

announce a new rule but was merely an application of the governing principle established in

Sandstrom and therefore not subject to retroactivity analysis. Id. at 211, 216-17. While this

means that for our purposes the Court’s characterization of Winship’s holding is dictum, this

court nevertheless “considers itself bound by Supreme Court dicta almost as firmly as by the

Court’s outright holdings . . . .” Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

We also note that the Court in Francis “reaffirm[ed] the rule of Sandstrom and the wellspring

due process principle from which it was drawn.” Francis, 471 U.S. at 326.

However, both of these opinions refer to the principle announced in Winship upon

which Sandstrom was predicated, and not Sandstrom itself, as “bedrock” or “wellspring.”

Not every holding that draws on a wellspring rule is itself a wellspring holding. United

States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001) (“[W]atershed principles in turn spawn

numerous subsidiary questions, which are closer to the constitutional margins. These

subsidiary questions may qualify as arguable applications of a bedrock principle, but they are

not core guarantees themselves.”). We consider it worth noting that Francis, 471 U.S. at

326, referred to the Winship principle as “wellspring,” and “bedrock, axiomatic and

- 22 -
elementary,” but in the same sentences the Court refrained from identifying the Sandstrom

principle as such. Johnson cites no opinion, nor can we find any, where the Supreme Court

has made plain that it considers the Sandstrom rule to be bedrock or wellspring, or to be one

of the extraordinary watershed rules like that announced in Gideon requiring procedures

“implicit in the concept of ordered liberty.”9

In examining Sandstrom itself, we find no indicia that the Court thought the rule

announced there was of the “primacy and centrality” required for retroactivity, Parks, 494

U.S. at 495. We do not believe that Sandstrom announced one of the rare “watershed rules

of criminal procedure” that “alter our understanding of the bedrock procedural elements

essential to the fairness of a proceeding,” Tyler, 121 S.Ct. at 2484. Thus, we hold that the

rule in Sandstrom is neither a “wellspring” or “bedrock” principle, nor is it a “watershed

rule” that “requires the observance of those procedures that . . . are implicit in the concept

of ordered liberty.” Teague, 489 U.S. at 290 (internal quotation marks omitted). While

Sandstrom provides defendants significant protections in criminal proceedings, the standard

required to apply a rule retroactively is high indeed and we do not believe it is met here.

Because we hold that the rule announced in Sandstrom is not to be applied retroactively in

9
The Second Circuit recently examined all known Supreme Court cases in which
the Court was asked to apply a new rule retroactively under Teague’s second exception.
United States v. Mandanici, 205 F.3d 519, 529 (2d Cir. 2000). In none of the eleven such
cases did the Court apply a new rule retroactively. Id. The Court has, however, cited by
way of example the rule announced in Gideon, 372 U.S. 335, as a rule that would qualify
as “watershed.” Parks, 494 U.S. at 495. Circuit courts of appeals, of course, have
applied some such rules retroactively.

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federal collateral review proceedings, Johnson’s claim necessarily fails.

IV

For these reasons, we hold that Johnson’s petition for habeas relief was properly

denied. The District Court’s decision is therefore

AFFIRMED.

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00-3113, Johnson v. McKune

HENRY, Circuit Judge, Dissenting:

The majority opinion is well-written and as thoughtful as always; nevertheless, in

what I admit to be a close and difficult case, I must respectfully dissent. I write

separately, first, simply to clarify how I think that AEDPA demands that we analyze this

case and, second, because I disagree with the majority’s ultimate conclusion that

Sandstrom should not apply retroactively.

I. The Scope of our Habeas Jurisdiction

Prior to the passage of AEDPA, we reviewed de novo any legal questions arising

under our habeas jurisdiction. After the passage of AEDPA, however, that standard

persists only where the state court failed to “adjudicate[] on the merits” the particular

issue we are addressing. 28 U.S.C. § 2254(d); see LaFevers v. Gibson, 182 F.3d 705,

711 (10th Cir. 1999) (“If the claim was not heard on the merits by the state courts, and

the federal district court made its own determination in the first instance, we review the

district court’s conclusions of law de novo . . .”). Otherwise, we are constrained by the

more deferential standard of § 2254(d)(1) (permitting the grant of a writ of habeas corpus

only where the state court adjudication “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined
by the Supreme Court of the United States”). In a habeas case governed by AEDPA,

then, the scope of our review depends upon determination of the ground(s) on which the

state court(s) denied relief.

Here, Mr. Johnson raised the Sandstrom issue in three of his four state post-

conviction petitions. The Kansas state courts denied each petition; we examine the

decision of the highest state court to address each relevant petition. Examination of the

three relevant decisions reveals four reasons (“adjudicat[ions] on the merits,” § 2254(d))

for the Kansas state court denials of relief: (1) Mr. Johnson, after raising the issue in his

second petition for post-conviction relief (the 1985 petition) failed to appeal the denial of

that petition; (2) Mr. Johnson failed to raise the issue at all in his third petition for post

conviction relief (the 1991 petition); (3) Mr. Johnson failed to object, at trial, to the

relevant jury instruction; and (4) the relevant jury instruction, in fact, remained

constitutional even after Sandstrom. Each of the grounds for denial constitutes an

adjudication on the merits and thus demands our § 2254(d)(1) deference. Even given

this deference, however, the district court rejected grounds (1), (2), and (3). The district

court did not explicitly address ground (4), presumably because Kansas failed to raise

this argument.

On appeal, Kansas now abandons not only ground (4) but also grounds (1), (2),

and (3); instead, Kansas relies only on an argument that Sandstrom should not benefit

Mr. Johnson because Sandstrom should not apply retroactively. In so doing, of course,

-2-
Kansas abandons the four grounds on which we would owe § 2254(d)(1) deference: the

four issues actually “adjudicated on the merits” by the Kansas state courts. Since the

Kansas state courts never relied upon (or even alluded to) the asserted non-retroactivity

of Sandstrom, those courts did not adjudicate that issue – the issue now before us – on

the merits; hence, § 2254(d)(1) is inapplicable and we are governed by our pre-AEDPA

standards of review: in this case, de novo consideration of the retroactivity issue.1

In sum, then, I agree with the majority opinion that we must address, de novo, the

1
See, e.g., Battenfield v. Gibson, 236 F.3d 1215, 1234 (10th Cir. 2001).
Battenfield holds, albeit implicitly, that § 2254(d)(1) applies on an issue-by-issue basis,
even where two particular issues are both part of the same ‘claim of error.’ In other
words, if a claim (in our case, the applicability of Sandstrom) features several sub-issues
(in our case, (1) does the given jury instruction run afoul of Sandstrom and, if so, (2) does
Sandstrom apply retroactively), § 2254(d)(1) deference applies only to the sub-issue(s)
actually adjudicated by the state court. See Battenfield, 236 F.3d at 1220 (“Because the
[Oklahoma Court of Criminal Appeals (the “OCCA”)] never addressed this issue [the
prejudice component of Mr. Battenfield’s ineffective assistance of counsel claim], we are
free to exercise our independent judgment.”) (footnote omitted).
This holding is apparent through examination of the analysis conducted by the
Battenfield court. In Battenfield, the OCCA had rejected Mr. Battenfield’s appeal based
upon Mr. Battenfield’s asserted failure to establish the deficient performance prong of his
ineffective assistance of counsel claim; the OCCA had not reached consideration of the
prejudice prong of the ineffective assistance claim.
The Battenfield court granted habeas relief upon making two determinations. The
court first concluded that, under the § 2254(d)(1) standard, the OCCA unreasonably
applied the relevant precedent in inquiring into whether Mr. Battenfield’s attorney
rendered deficient assistance. Having determined that Mr. Battenfield’s counsel’s
performance was in fact deficient, the court proceeded to further conclude, now under a
de novo standard, that the petitioner had established resultant prejudice. Thus, the
Battenfield court provided § 2254(d)(1) deference not to every sub-issue of the ineffective
assistance of counsel claim but, rather, only to those issues actually adjudicated by the
state court.

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retroactivity of Sandstrom. Since, however, I believe that the Kansas courts did not

“adjudicate[] on the merits” the retroactivity issue, I would particularly omit the

discussion found within Section III(B)(2) of the majority opinion.

II. Whether Sandstrom Requires Retroactive Application

We turn, then, to the primary issue presented by this appeal: whether, under the

law of retroactivity as that law stands today, Sandstrom requires retroactive application.

As the majority explains, our inquiry proceeds in two steps: (1) Does Sandstrom present

a “new rule of criminal procedure” and, if so, (2) Is that new rule one of “watershed”

importance?2 Teague v. Lane, 489 U.S. 288, 311 (1989). Because I would conclude that

Sandstrom does not constitute a new rule of criminal procedure (rather, Sandstrom

merely constitutes an ‘old rule’), I do not reach the applicability of the watershed

exception.

A. The Precedent

I begin by looking to the decisions of our sister circuits. The parties identify a

circuit split on the issue of whether Sandstrom constitutes a new rule for purposes of

Teague analysis; according to the parties three circuits have concluded that Sandstrom

2
Our case does not implicate the second Teague exception, that for new rules
“plac[ing] certain kinds of primary, private individual conduct beyond the power of the
criminal law-making authority to proscribe.” Teague, 489 U.S. at 311 (internal quotation
marks omitted).

-4-
does constitute a new rule, while one circuit has concluded otherwise. Compare Cain v.

Redman, 947 F.2d 817, 821-22 (6th Cir. 1991); Prihoda v. McCaughtry, 910 F.2d 1379,

1382 (7th Cir. 1990); and Hall v. Kelso, 892 F.2d 1541, 1543 n.1 (11th Cir. 1990)

(assertedly each standing for the proposition that Sandstrom constitutes a new rule) with

Mains v. Hall, 75 F.3d 10, 14-15 (1st Cir. 1996) (assertedly standing for the proposition

that Sandstrom does not constitute a new rule). On closer examination, however, these

opinions are less helpful than the parties suggest.

First, the Seventh Circuit’s opinion in Prihoda v. McCaughtry, 910 F.2d 1379

(7th Cir. 1990) is, quite simply, irrelevant to the question before our panel. In Prihoda,

the Seventh Circuit concluded: “Any federal decision holding instruction 1100

unconstitutional therefore would be a new rule for purposes of Teague and could not be

applied on collateral review.” Prihoda, 910 F.2d at 1382. Instruction 1100, as it turns

out, is a jury instruction that, under Seventh Circuit precedent, unquestionably remains

constitutional after Sandstrom – a question settled several years before Prihoda. See,

e.g., Fencl v. Abrahamson, 841 F.2d 760, 770 (7th Cir. 1988) (holding that instruction

1100 remains constitutional after Sandstrom and the Sandstrom progeny: “[W]e agree

with the district court that no constitutional error was committed by the trial court [in]

giving Jury Instruction 1100.”). The Prihoda language quoted above, then, simply states

the unremarkable fact that, were the Seventh Circuit to now hold instruction 1100

unconstitutional after-all, that decision would constitute a ‘new rule.’ Whether or not

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such a decision would constitute a new rule is, of course, entirely irrelevant to the

question of whether Sandstrom itself constitutes a ‘new rule.’

The Eleventh Circuit opinion cited by the parties does address the retroactivity of

Sandstrom; the opinion, however, does not address whether Sandstrom constitutes a new

rule for purposes of retroactivity. Rather, in a footnote, the Eleventh Circuit simply

concludes: “Teague is no bar to the application of Sandstrom” because the Sandstrom

rule constitutes a “bedrock, axiomatic[,] and elementary constitutional principle” that

“diminishes the likelihood of an [in]accurate conviction.” Hall, 892 F.2d at 1543 n.1

(quotation marks omitted). Given this conclusion (that, even if Sandstrom does

constitute a new rule for Teague purposes, Teague’s ‘watershed’ exception is, in any

case, applicable), the Eleventh Circuit had no reason to consider whether Sandstrom

actually constituted a ‘new rule.’

We are left, then, with the Sixth Circuit’s decision in Cain and the First Circuit’s

decision in Mains. The Sixth Circuit concluded that the correctness of the Sandstrom

holding was, prior to the decision in Sandstrom itself, “susceptible to debate among

reasonable minds,” as evidenced by the apparent “pervasive use” of that instruction just

prior to the Court’s Sandstrom decision. Cain, 947 F.2d at 821. Thus, according to the

Sixth Circuit, Sandstrom constitutes a new rule for purposes of Teague analysis. The

First Circuit, on the other hand, classified Sandstrom as “a lineal descendant of [In re

Winship, 397 U.S. 358, 364 (1970) (holding that “the Due Process Clause protects the

-6-
accused against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which [the accused] is charged”)].” Mains, 75

F.3d at 14 (quotation marks omitted). “[Sandstrom] simply held that an instruction

which creates a presumption of fact violates due process if [that presumption] relieves

the State of its burden of proving all of the elements of the offense charged beyond a

reasonable doubt.” Id. (quotation marks omitted). In short, according to the First

Circuit, “[Sandstrom] does not constitute a ‘new rule’” for purposes of Teague

retroactivity analysis. Id. at 15.

B. Facing the Issue

The issue is close. As the Supreme Court recognized as early as Teague itself,

determination of whether the holding of a particular case constitutes a ‘new rule’ is often

a task imbued with uncertainty: “It is admittedly often difficult to determine when a case

announces a new rule, and we do not attempt to define the spectrum of what may or may

not constitute a new rule for retroactivity purposes.” Teague, 489 U.S. at 301. After

careful consideration of the issue, however, I conclude that Sandstrom does not

constitute a new rule for purposes of Teague retroactivity.

I so conclude based upon my understanding of three pre-Sandstrom decisions of

the Supreme Court; I am convinced that these decisions compelled the Sandstrom result:

Winship, 397 U.S. at 364 (holding, as noted, that “the Due Process Clause protects the

-7-
accused against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which [the accused] is charged.”); Morissette v.

United States, 342 U.S. 246, 275-76 (1952) (holding that the Due Process Clause renders

jury instructions unconstitutional where those instructions direct the jury to presume,

from the defendant’s act of taking particular property, an intent to steal that property);

and Mullaney v. Wilbur, 421 U.S. 684, 703-04 (1975) (holding that the Due Process

Clause dictates that, as to the intent element of first degree murder, the government bears

the burden of proving, beyond a reasonable doubt, the absence of heat of passion). See

Saffle v. Parks, 494 U.S. 484, 491 (1990) (holding that a rule is ‘old’ where existing

Supreme Court precedent “compel[led]” the result in the case providing the relevant

rule).

I need look no further than Sandstrom itself for satisfaction that existing precedent

(specifically: Winship, Morissette, and Mullaney) indeed compelled the result in that

case. Sandstrom, of course, held unconstitutional a particular jury instruction where that

instruction “had the effect of relieving the State of the burden of proof enunciated in

Winship [i.e. the ‘beyond a reasonable doubt’ burden of proof] on the critical question of

petitioner’s state of mind.” Sandstrom v. Montana, 442 U.S. 510, 521 (1979).

According to Sandstrom itself, then, the Sandstrom holding is merely an application of

Winship.

In applying Winship, the Sandstrom Court relied on both Morissette and

-8-
Mullaney for guidance. The Sandstrom Court noted that, as early as 1952, the Morissette

Court had observed:

‘[T]he trial court may not withdraw or prejudge the [mens rea] issue by instruction

that the law raises a presumption of intent from an act. . . . [Such a presumption]

would conflict with the overriding presumption of innocence with which the law

endows the accused and which extends to every element of the crime.’

Sandstrom, 442 U.S. at 522 (quoting Morissette, 342 U.S. at 274-75) (emphasis deleted).

Similarly, in Mullaney, the Court, four years before Sandstrom, had unanimously

concluded: “‘[The defendant’s] due process rights [were] invaded by [a] presumption

casting upon him the burden of proving by a preponderance of the evidence that he had

acted in the heat of passion upon sudden provocation.’” Sandstrom, 442 U.S. at 524

(quoting Patterson v. New York, 432 U.S. 197, 214 (1977)).3

In light of Winship, Morissette, and Mullaney, then, the Sandstrom holding was

hardly surprising. Given that the government must prove every element of every crime,

specifically including the element of intent, beyond a reasonable doubt, and given that

jury instructions shifting the burden of proof on the intent element violate due process,

3
The Sandstrom Court also noted the Court’s admonition in Patterson: “‘[A]
state must prove every ingredient of an offense beyond a reasonable doubt[] and . . . may
not shift the burden of proof to the defendant by presuming that ingredient upon proof of
the other elements of the offense.’” Sandstrom, 442 U.S. at 524 (quoting Patterson, 432
U.S. at 215).

-9-
the Sandstrom conclusion as to the unconstitutionality of a jury instruction establishing a

presumption of intent, upon proof of a voluntary act, was most certainly one

“compel[led]” by pre-existing Supreme Court precedent. Saffle, 494 U.S. at 491.

Indeed, the extent to which prior Court precedent compelled the Sandstrom decision is

strongly suggested by the Court’s unanimity in reaching the Sandstrom holding.

On the other hand, of course, and as noted by both the majority here and the Sixth

Circuit in Cain, despite Winship, Morissette, and Mullaney, the Sandstrom jury

instruction remained in widespread use at the time of the Sandstrom decision.

Admittedly, this fact suggests some confusion as to whether pre-Sandstrom precedent in

fact compelled the Sandstrom result. The Supreme Court, however, has labeled

particular rules as ‘old’ even where conflicting authority existed at the time that the Court

announced the given rule. See, e.g., Stringer v. Black, 503 U.S. 222, 230-31 (1992)

(giving retroactive effect to the Court’s decision in Clemons v. Mississippi, 494 U.S. 738,

741 (1990), despite the fact that several pre-Clemons lower court opinions held contrary

to Clemons).

Given, then, my determination that Sandstrom itself broke no new ground – but,

rather, merely applied existing precedent (Winship, Morissette, and Mullaney) to reach

the result those cases compelled4 – I would conclude that Sandstrom did not constitute a

4
See also Rose v. Clark, 478 U.S. 570, 580 (1986) (referring to Sandstrom as
merely “a logical extension of the Court’s holding in [Winship] that the prosecution must
prove every fact necessary to constitute the crime with which the defendant is charged”)

-10-
new rule for purposes of Teague retroactivity.

(quotation marks omitted)

-11-