Lead Opinion
OPINION
Burt Lancaster appeals from the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. In 1998, Lancaster was charged by the state of Michigan with first-degree murder and with possession of a firearm in the commission of a felony. At his 1994 jury trial, he was convicted on both counts despite his asserted defenses of insanity and diminished capacity. The judgment was later overturned, however, due to an error by the State during jury selection (a Bat-son violation).
When Lancaster was retried in 2005, he opted to be tried without a jury. Lancaster had planned to limit his defense in the second trial to that of diminished capacity. But the trial court prohibited Lancaster from asserting the defense because, in the interim between his two trials, the Michigan Supreme Court had abolished the diminished-capacity defense in the case of People v. Carpenter,
In his petition for a writ of habeas corpus, Lancaster claims that his right to due process was violated by the state court’s retroactive application of Carpenter. The district court denied his petition. For the reasons set forth below, we REVERSE the decision of the district court and GRANT Lancaster’s petition for a writ of habeas corpus unless the State commences a new trial within 180 days of this Opinion in which Lancaster is permitted to assert the defense of diminished capacity.
I. BACKGROUND
On April 23, 1993, Lancaster, a former Detroit police officer with a long history of mental illness, shot and killed his girlfriend, Toni King, in the parking lot of a shopping plaza in Southfield, Michigan. He was charged with first-degree murder, in violation of M.C.L. § 750.316, and with possessing a firearm in the commission of a felony, in violation of M.C.L. § 750.227. At his 1994 jury trial in state court, Lancaster admitted that he had killed his girlfriend, but asserted the defenses of insanity and diminished capacity. The jury rejected these defenses and convicted him on both counts.
After exhausting his appeals in state court, Lancaster filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. He raised several claims, including a claim under Batson v. Kentucky,
Lancaster was retried in state court in 2005 on the same charges. This time, he
allows a defendant, even though legally sane, to offer evidence of some mental abnormality to negate the specific intent required to commit a particular crime. The theory is that if because of mental disease or defect a defendant cannot form the specific state of mind required as an essential element of a crime, he may be convicted only of a lower grade of the offense not requiring that particular mental element.
Carpenter,
In Carpenter, however, the Michigan Supreme Court held that diminished capacity was no longer a valid defense under Michigan law as a result of the 1975 enactment by the state legislature of a statutory framework for the insanity defense. Id. at 285. The Michigan trial court in Lancaster’s case decided that Carpenter applied retroactively, thus prohibiting Lancaster from asserting the diminished-capacity defense at his second trial. Lancaster sought an interlocutory appeal from the trial court’s order that precluded him from pursuing the defense of diminished capacity. But both the Michigan Court of Appeals and the Michigan Supreme Court declined to consider the merits of the appeal. Lancaster was subsequently convicted on both charges at the conclusion of the bench trial. He was sentenced to life imprisonment for the murder conviction, to be served consecutively to two years’ imprisonment for the felony-firearm conviction.
After exhausting his state-court remedies, Lancaster filed a § 2254 habeas petition in the district court. In his petition, he argues that the Michigan Supreme Court’s abolition of the diminished-capacity defense was a substantive change in state law and that, by applying the change retroactively, the trial court violated his right to due process under the Fifth and Fourteenth Amendments to the U.S. Constitution. The district court denied Lancaster’s petition, reasoning that the abolition of the diminished-capacity defense was foreseeable because the defense was not well-established in Michigan law. It then granted a certificate of appealability on the issue, and this timely appeal followed.
II. ANALYSIS
A. Standard of review
“We review the district court’s legal conclusions in a habeas proceeding de novo and its factual findings under the elear-error standard.” Davis v. Lafler,
AEDPA provides in pertinent part that
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... 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____
B. The retroactive application of Carpenter violated Lancaster’s right to due process
Lancaster claims that his right to due process was violated by the state trial court’s retroactive application of the Michigan Supreme Court’s 2001 decision in Carpenter. The United States Supreme Court “has often recognized the basic [due process] principle that a criminal statute must give fair warning of the conduct that it makes a crime.” Rogers v. Tennessee,
“[A] judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’ ” Rogers,
Here, Lancaster was deprived of the defense of diminished capacity by the retroactive application of Carpenter. The Ex Post Facto Clause prohibits a state legislature from making certain changes in criminal statutes retroactive, including changes that “deprive[ ] one charged with crime of any defense available according to law at the time when the act was committed.” Collins v. Youngblood,
The district court concluded that the demise of the diminished-capacity defense was foreseeable because
the Michigan Supreme Court acknowledged in passing the concept of the diminished capacity defense, but it never specifically authorized its use in the*745 Michigan courts. Thus, although diminished capacity has been utilized as a defense since 1973, it has never been codified by the legislature as a viable defense or formally adopted by the state’s highest court. As such, the defense has never enjoyed a solid foothold in Michigan’s criminal law.
Lancaster v. Metrish,
1. The defense of diminished capacity was well-established under Michigan law prior to Carpenter a. Michigan Court of Appeals
Diminished capacity was first recognized as a defense in People v. Lynch,
Then, in 1975, the Michigan legislature enacted a statutory framework for the defense of insanity. See People v. Mangiapane,
768.21a Persons deemed legally insane. [M.S.A. 28.1044(1) ]
Sec. 21a. (1) A person is legally insane if, as a result of mental illness ..., that person lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.
(2) A person who is under the influence of voluntarily consumed or injected alcohol or controlled substances at the time of his alleged offense shall not thereby be deemed to have been legally insane.
1975 Mich. Pub. Acts 386-87.
Diminished capacity was not specifically addressed in this statute, but in 1978, the Michigan Court of Appeals held “that the defense known as diminished capacity comes within th[e] codified definition of legal insanity” and that, in asserting the diminished-capacity defense, the defendant must follow the same procedures as outlined for the insanity defense in the statute. Mangiapane,
The Michigan Supreme Court acknowledged this history in Carpenter:
The [Michigan] Court of Appeals^] decision in Mangiapane was then followed by a series of decisions continuing to address diminished capacity defense as a form of the statutory insanity defense. See, e.g., People v. Denton,138 Mich.App. 568 ,360 N.W.2d 245 (1984); People v. Anderson,166 Mich.App. 455 ,421 N.W.2d 200 (1988).
Carpenter,
Absent from the 1975 statutory framework, however, was any indication of which party had the burden of proof required to demonstrate insanity. See People v. McRunels,
Under this burden-shifting framework, “[a] criminal defendant is presumptively sane. However, once there is any evidence introduced of insanity, the burden of proof is on the prosecution to establish defendant’s sanity beyond a reasonable doubt.” Id. at 143. This caused the Michigan Court of Appeals to hold that the same burden-shifting framework should be applied to both the insanity and diminished-capacity defenses. See Denton,
In 1994, however, the legislature amended the statutory definition of the insanity defense and shifted the burden of proof entirely to the defendant. Insanity was declared an affirmative defense that the defendant must prove “by a preponderance of the evidence.” Mich. Comp. Laws § 768.21a(3); see 1994 Mich. Pub. Acts 251-52 (containing the 1994 amendments); see also McRunels,
b. Michigan Supreme Court
Unlike the Michigan Court of Appeals, the Michigan Supreme Court never directly addressed the validity of a defense of diminished capacity based on mental illness or disability before Carpenter, but the Court conceded in that case that it had “several times acknowledged in passing the concept of the diminished capacity defense.” Id. at 281. The Court first did so in People v. Ramsey,
“A defendant in a criminal case, at the time he engaged in the conduct giving rise to the charges against him, may have been suffering from an abnormal mental condition which was not of a kind or character to afford him a successful insanity defense.... But, while this defendant is therefore ineligible for a finding of not guilty by reason of insanity, his mental abnormality may nonetheless be a most relevant consideration in the determination of whether he is guilty of the crime charged. Under the doctrine referred to as partial responsibility, diminished responsibility, or (somewhat less accurately) partial insanity, evidence concerning the defendant’s mental condition is admissible on the question of whether the defendant had the mental state which is an element of the offense with which he is charged.”
Thus, while his mental illness may be a consideration in evaluating the requisite state of mind for the crime charged, we decline to accept Ramsey’s invitation to hold that a finding of mental illness negates malice aforethought as a matter of law.
Had the trial judge indicated a refusal to consider the defendant’s mental illness as a diminishing factor in his decision of whether defendant possessed the requisite malice aforethought, we would find it necessary to address the question of the extent to which mental illness could dimmish the intent requirement for second-degree murder. But he did not.
Id. at 304 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 42, at 326 (1972)). The Court thus acknowledged the substantive components of the diminished-capacity defense (albeit under a different name), but left open the questions of whether, and to what degree, the defense would apply to a general-intent crime like second-degree murder. See also People v. Langworthy,
A year after Ramsey, the Michigan Supreme Court revisited the use of the diminished-capacity defense in People v. Fernandez,
A conspiracy is a combination or agreement with , others to do something unlawful. Second-degree murder is an unlawful killing and a purpose to kill without that deliberation and premeditation which characterize murder in the first degree. For a conspiracy conviction to lie, there must be proof of two specific intents: (1) the intent to agree*748 (conspire) and (2) the intent to accomplish the substantive offense. However, second-degree murder is not a “specific intent” crime.
Id. at 569-70.
In reviewing the Michigan Court of Appeals’ decision in Fernandez, the Michigan Supreme Court examined California case-law because California was the only state to have “expressly discussed whether such a crime can logically exist.”
“[B]ecause no allegations of diminished capacity were made in this case,” the Michigan Supreme Court declined to rule on whether it would adopt the California holding on the issue. Id. But the Court acknowledged that,
[w]hile the California rule of the effect of diminished capacity on degrees of homicides varies significantly from the Michigan rule, the possibility exists under Michigan law that diminished capacity might possibly militate for the existence of the charge of conspiracy to commit second-degree murder.
Id. (citation omitted). Importantly, the phrase “the California rule of the effect of diminished capacity ... varies significantly from the Michigan rule” suggests that the Court recognized an extant diminished-capacity defense in Michigan.
The Michigan Supreme Court next mentioned the diminished-capacity defense in the context of an ineffective-assistance-of-counsel claim in People v. Griffin,
The Michigan Supreme Court caselaw in the years following Griffin supports this reading of the case. In 1994, the Court held that “a necessary component of the diminished capacity defense is that the defendant was mentally ill.” People v. Pickens,
Even in Carpenter itself, the Michigan Supreme Court suggested that diminished capacity was previously a valid defense, titling a section of its opinion “The Continued Viability of the Diminished Capacity Defense in Michigan.”
c. Michigan’s standard jury instructions
The belief that diminished capacity was a legitimate defense was so widely held by the Michigan legal community that, before Carpenter, the Michigan State Bar’s Criminal Jury Instructions included an instruction on the defense. Commentary accompanying the instruction noted that “[t]he defense of diminished capacity is available when the defendant’s mental impairment leaves him or her unable to form the specific intent needed to commit the crime.” Standing Comm, on Std.Crim. Jury Instructions, Mich. State Bar, 1 Mich.Crim. Jury Instructions 6.3, at 6-11 (2d ed. 1994) (This instruction was removed only after Carpenter was decided.).
The district court below discounted the importance of the standard instruction on diminished capacity because the Michigan Criminal Jury Instructions are not officially sanctioned by the Michigan Supreme Court. But the use of these Standard Criminal Jury Instructions “is urged by the [Michigan] Supreme Court, according to Administrative Order 1977-1,
Furthermore, the instruction demonstrates that the Michigan State Bar, the author of the instructions, recognized diminished capacity as a viable defense under Michigan criminal law prior to Carpenter. The instructions “are intended to accurately reflect the law in a format which is understandable to jurors.” Id. In addition, the instructions indicate acceptance of the defense by Michigan’s legal community. They are “used extensively by Michigan judges, prosecutors, and defense attorneys to instruct juries in criminal eases fairly and accurately.” Standing Comm, on Std.Crim. Jury Instructions, Mich. State Bar, 1 Mich. Criminal Jury Instructions, at ix (2d ed.1989). Even state prosecutors assumed that the diminished-capacity defense was a legitimate one, as indicated by the following comment made during closing argument by a prosecutor in People v. Garfield,
2. The holding in Rogers v. Tennessee is inapposite
As a result of the district court undervaluing the “foothold” that the diminished-capacity defense had established in Michigan law, it incorrectly concluded that this case is “strikingly similar to” Rogers v. Tennessee,
Rogers was convicted of second-degree murder for stabbing someone who died 15 months later as a result of medical complications caused by the attack. He appealed, contending that the common-law year- and-a-day rule precluded his conviction. This historic rule required that “no defendant could be convicted of murder unless his victim had died by the defendant’s act within a year and a day.” Rogers,
The United States Supreme Court affirmed, holding that the retroactive application of the abolition of the year-and-the-day rule to Rogers’s case did not violate his right to due process. Id. In so doing, the Court reasoned that “the Tennessee court’s abolition of the year and a day rule was not unexpected and indefensible,” id. at 462,
The year and a day rule is widely viewed as an outdated relic of the common law. Petitioner does not even so much as hint that good reasons exist for retaining the rule[.] ... [A]s practically every court recently to have considered the rule has noted, advances in medical and related science have so undermined the usefulness of the rule as to render it without question obsolete.
Finally, and perhaps most importantly, at the time of [Rogers]’s crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee. The rule did not exist as part of Tennessee’s statutory criminal code. And while the Supreme Court of Tennessee concluded that the rule persisted at common law, it also pointedly observed that the rule had never once served as a ground of decision in any prosecution for murder in the State. Indeed, in all the reported Tennessee cases, the rule has been mentioned only three times, and each time in dicta.
Id. at 462-64,
Applying Rogers to this case, the district court concluded that, just like the year- and-a-day rule, the diminished-capacity defense was ripe for abolition. But none of the United States Supreme Court’s reasons for concluding that the elimination of the year-and-a-day rule was foreseeable pertain to Michigan’s diminished-capacity defense.
First, unlike the year-and-a-day rule, the diminished-capacity defense had been in existence only since 1973. It was anything but an “outdated relic” rendered “obsolete” by advances in medical and related sciences at the time of Lancaster’s offenses in 1993. The rationale behind the diminished-capacity defense is that mental illnesses and disabilities can cause a person, though legally sane, to lack the specific intent necessary to commit certain crimes. Carpenter,
3. The abolition of the diminished-capacity defense was unforeseeable
Lancaster could not have reasonably foreseen in 1993 — when his crime was committed — that the consistent line of Michigan Court of Appeals’ decisions upholding the diminished-capacity defense would have been overturned before his retrial in 2005. See Bouie v. City of Columbia,
In Rathert v. Galaza,
Here, the intermediate-appellate-court precedent was much more robust than in Rathert. Indeed, numerous uncontradicted Michigan Court of Appeals’ rulings recognized diminished capacity as a defense over the course of 28 years — almost triple the 10-year span that existed in Rathert. And the Michigan Court of Appeals, unlike California’s courts of appeals, serves the state as a whole. See Mich. Const, art. VI, § 1 (“The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, [and] one court of appeals.... ”).
Furthermore, the question at the heart of the foreseeability analysis is whether Lancaster had been deprived of the “due process of law in its primary sense of an opportunity to be heard and to defend (his) substantive right.” Bouie,
In McRunels, the defendant was charged with assault with intent to commit murder for acts that occurred in 1993. McRunels asserted the insanity defense at his jury trial. The trial court, however, retroactively applied the 1994 amendments to the codified insanity defense and required McRunels to prove his insanity by a preponderance of the evidence. At the time that McRunels committed the alleged acts, however, the insanity defense was still governed by the common-law burden of proof, which required the government to prove beyond a reasonable doubt that McRunels was not insane once he presented evidence in support of the argument that he was.
Under the new and more stringent evidentiary standard, the jury rejected McRunels’s defense of insanity and found him guilty. McRunels appealed, arguing that the trial court had erred in instructing the jury to apply the newly enacted burden of proof. His appeal was reviewed under the plain-error standard because he had failed to object to the jury instruction at the time that it was given. For an error to warrant reversal under the Michigan (and federal) plain-error standard of review, the error must have “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” Id. at 97; accord United States v. Young,
The Michigan Court of Appeals concluded that altering the burden of proof was a substantive change to the law, and that its retroactive application violated the Ex Post Facto Clause. It also determined that the Ex Post Facto Clause violation seriously affected the fairness, integrity, or public reputation of the judicial proceedings. The court therefore reversed the judgment and remanded the case for a new trial using the old common-law burden of proof. We believe that the 2001 judicial elimination of the diminished-capacity defense here was just as unforeseeable to Lancaster in 1993 as was the statutory alteration in the burden of proof for insanity in McRunels, and at least as substantive.
C. The retroactive application of Carpenter was an unreasonable application of clearly established Supreme Court precedent
Having determined that Carpenter’s abolition of the diminished-capacity defense was unforeseeable, we must next decide whether the Michigan courts’ retroactive application of Carpenter to Lancaster’s retrial in 2005 was an unreasonable application of clearly established United States Supreme Court precedent. See 28 U.S.C. § 2254(d)(1). “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Williams v. Taylor,
Without question, the Supreme Court has clearly established that the unforeseeable judicial enlargement of criminal statutes, if applied retroactively, would violate a defendant’s right to due process. See, e.g., Rogers v. Tennessee,
*753 In criminal cases, ... due process concerns prevent retroactive application [of court decisions] in some cases. This is especially true where the decision is unforeseeable and has the effect of changing existing law. But retroactive application does not implicate due process or ex post facto concerns where the decision does not change the law and is not unforeseeable.
People v. Lancaster, No. 263483,
We find this application of Bowie and Rogers objectively unreasonable. It ignores Michigan’s codified court rules that regard published opinions of the Michigan Court of Appeals as binding precedent unless overturned by the Michigan Supreme Court. See Mich. Ct. R. 7.215(C)(2) (explaining that published Michigan Court of Appeals’ opinions “ha[ve] precedential effect under the rule of stare decisis”). The Michigan Court of Appeals’ assertion that the reversal of several decades of its own precedent was not a “change in the law” thus belies the Michigan Supreme Court’s own rules. Moreover, the Michigan Court of Appeals’ determination that the 1975 insanity-defense statute unambiguously abolished the diminished-capacity defense similarly disregards all of its own cases upholding the diminished-capacity defense even after the enactment of that statute. The Michigan Court of Appeals’ decision in this case, therefore, was an objectively unreasonable application of clearly established United States Supreme Court precedent.
D. Lancaster was prejudiced by the retroactive application of Carpenter
Finally, the State argues that even if the retroactive application Carpenter violated Lancaster’s right to due process, the violation was harmless. But the State failed to raise this issue in the district court and has therefore waived it on appeal. See Keith v. Bobby,
And even assuming arguendo that the State has not waived this argument, it would still fail. Preventing a defendant from presenting his only viable defense at trial is so prejudicial that holding the violation harmless would suggest that almost no constitutional violation would warrant reversal. See, e.g., Crane v. Kentucky,
The district court briefly addressed the issue of harmlessness, even though the issue was not raised by either party, and concluded that, because the jury in Lancaster’s first trial convicted him despite his defense of diminished capacity, the later bench trial would have yielded the same result even if the defense had been allowed. This reasoning, however, ignores the fact that the jury trial was impermissibly tainted by a Batson violation and, as a result, the jury’s verdict had to be vacated. To rely upon the conclusion that the jury reached, despite the discriminatory means used to select the jury, would negate the
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the decision of the district court and GRANT Lancaster’s petition for a writ of habeas corpus unless the State commences a new trial within 180 days of this Opinion in which Lancaster is permitted to assert the defense of diminished capacity.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s decision because Lancaster has not overcome AEDPA’s very high standard to establish that the Michigan Court of Appeals’s determination was an unreasonable application of or contrary to Supreme Court precedent. Before obtaining habeas relief from a federal court, “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, — U.S. -,
The majority concludes that the Michigan Court of Appeals unreasonably applied Rogers and Bouie when it held that Carpenter did not involve a change in the law that was susceptible to a due process challenge. However, the majority’s concern rests not on the Michigan Court of Appeals’s application of Rogers and Bouie, but on that court’s application of Michigan law. In concluding that Carpenter did not constitute a change in Michigan law, the court of appeals applied Michigan state law; it did not apply Bouie, Rogers, or any other Supreme Court precedent. See Michigan v. Lancaster, No. 263483,
The Michigan Court of Appeals’s denial of Lancaster’s due process claim was reasonable primarily because the diminished-capacity defense was not well-established in Michigan and its elimination was, therefore, foreseeable. Under Rogers, the retroactive application of a judicial alteration of common law violates due process only when the alteration was unexpected and indefensible. Rogers,
It is indisputable that defendants were able to raise the defense prior to Carpenter, but the availability of the defense alone does not make its elimination unexpected. Indeed, in Rogers, the year-and-a-day rule had been available to defendants for nearly one hundred years, but the Supreme Court nevertheless concluded that its elimination was foreseeable because the rule never served as the basis for a decision in the state and many other states had abolished the rule. In Michigan, diminished capacity likewise never served as the basis for any court’s decision. Even in Michigan v. Griffin,
The majority attempts to distinguish Rogers's holding by arguing that “none of the United States Supreme Court’s reasons for concluding that the elimination of the year-and-a-day rule was foreseeable pertain to Michigan’s diminished capacity
Moreover, the majority ignores the Supreme Court’s main concern in Rogers— whether the retroactive application of the change in law was “an exercise of the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect.” Id. at 467,
Notes
. See, e.g., Cal.Penal Code § 25(a) (2011); Mincey v. Head,