CONCURRING:
These matters come before the Court on certiorari to two circuit court orders denying petitioners’ applications for post-conviction relief (PCR). I concur in the majority’s decision to affirm the orders, but write separately because I view the issues in a slightly different light.
A. Donnie Ray Gibson
Petitioner Donnie Ray Gibson (Donnie) contends the circuit court erred in summarily dismissing his PCR application as successive.2 While I tend to agree,3 the PCR judge went *436further and addressed the merits of Donnie’s claim that his trial counsel were ineffective in failing to object to the trial judge’s malice charge. I agree with the PCR judge that counsel were not ineffective in failing to anticipate at Donnie’s 1976 trial that in 1979 the United States Supreme Court would declare the malice charge unconstitutional. See, e.g., Gilmore v. State, 314 S.C. 453, 445 S.E.2d 454 (1994) (trial counsel not required to be clairvoyant). The question is whether trial counsels’ performance met prevailing professional norms.4 Robinson v. State, 308 S.C. 74, 417 S.E.2d 88 (1992). There is probative evidence in this record to support the PCR judge’s finding that counsel were not ineffective in failing to object to the malice charge, and therefore we should uphold that finding. Id. Accordingly, I agree with the majority that we should affirm the PCR order denying Donnie relief.
B. David Gibson
We granted certiorari to review Petitioner David Gibson’s (David’s) claim that the circuit court judge erred in denying David’s request for PCR. Like his brother Donnie, he contends that the malice charge given at their joint 1976 trial violated the Constitution. Like Donnie, David raised this claim below solely as one of ineffective assistance of counsel. For the reasons given above, I agree with the majority that *437we should affirm the PCR judge’s ruling denying David relief on this claim.
C. Conclusion
I concur in the majority’s decision to affirm the PCR orders denying Donnie and David post-conviction relief Unlike the majority, I would not reach the retroactivity issue. Were I to find it necessary to reach the claim, I would employ a different analytical approach. In my opinion, whether to apply a new decision retroactively under Teague v. Lane is determined by applying the Teague v. Lane exceptions to that new decision. Therefore, I would analyze the Sandstrom decision to determine whether it met a Teague v. Lane exception. Only if I found that Sandstrom met one of these exceptions would I engage in a review of the facts of the case in which the unconstitutional malice charge was given to determine, on a case-by-case basis, whether the defendant in that pre-Sandstrom case had been so prejudiced by the charge that he was entitled to a new trial.
For the reasons given above, I concur in the majority’s decision to affirm the PCR orders.
. In 1998, we remanded an order summarily dismissing Donnie’s and David’s petitions for habeas corpus and instructed the circuit court to treat the habeas petitions as PCR applications. Gibson v. State, 329 S.C. 37, 495 S.E.2d 426 (1998). On remand, the brothers were required to show why their applications were not impermissibly successive. Id.
. But see Keeler v. Mauney, 330 S.C. 568, 500 S.E.2d 123 (Ct.App.1998) (South Carolina’s reluctance to acknowledge and apply Sandstrom v. *436Montana did not excuse applicant’s failure to raise claim in first PCR application).
. I recognize the validity of Donnie's contention that Sandstrom v. Montana is merely a logical extension of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). See, e.g. Francis v. Franklin, 471 U.S. 307, 326, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) ("Sandstrom v. Montana made clear that the Due Process Clause of the 14th Amendment prohibits lire State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in In re Winship on the critical question of intent in a criminal prosecution. Today we reaffirm the rule of Sandstrom and tire wellspring due process principle from which it was drawn”). Had Donnie framed his claim as a violation of his due process rights, rather than as a violation of his sixth amendment right to counsel, I would reach the issue of retroactivity under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Were I to reach this issue, I would not necessarily find that Sandstrom did not apply retroactively. See, e.g., Hall v. Kelso 892 F.2d 1541 (11th Cir.1990).