Concurring in the Judgment:
For reasons similar to those expressed in my dissent in Johnson v. McKune, 288 F.3d 1187 (10th Cir.2002), I concur separately. First, after review of the record, I would conclude that because, in this case as in Johnson, the Kansas courts never addressed Sandstrom’s retroactivity, that issue was never “adjudicated on the merits” for purposes of our 28 U.S.C. § 2254(d) habeas jurisdiction. Given this conclusion, I would consider de novo, under the law of the present-day, whether Sandstrom should in fact apply retroactively. Ultimately, I would conclude that, for the reasons stated in my opinion in Johnson, Sandstrom does not constitute a ‘new rule’ and thus should apply retroactively.
My views on the retroactive application of Sandstrom, however, are not the law of this circuit. Thus, I concur in the result reached in this case.