*1 Court, 36 Del. J. State Gatekeepers LANCASTER, Petitioner- Burt (2011); also 482-83 see

Corp. L. Appellant, Branson, Rogue Chasing the M. Douglas Private Securities After Professional 1995, 50 SMU Act Litigation Reform METRISH, Department Linda (1996); supra, 81 Seligman, L.Rev. Corrections, L. Caru and Patricia 21; Marc I. Stein- 253 n. U.L.Q. at Wash. Director, so, Respondents-Appellees. Claassen, Attorney Liability berg & Chris Laws: Land- State Securities No. 10-2112. Under Berkeley Bus. Minefields, 3 and scapes Appeals, States Court of view” is that (“prevailing L.J. Sixth Circuit. under the Uni- agents are not attorneys they ] Act because “do[ form Securities 29, 2012. June securities). or sale” purchase ‘effect’ the ordinary le- attorney performs who An documents, work, drafting giv-

gal such as client answering questions,

ing advice and Ky.Rev.Stat. under “agent” an

is not 292.480(4). accept if we all of the Even all complaint, that is alleged

facts

Durham did.

III. alternatively Clayton

Bennett to the certify questions these

ask us We decline the

Kentucky Supreme Court. Clayton filed their

invitation. Bennett and court, court, and in federal not state

claims certification until after the

did not seek against court ruled them.

district multiple already endured

parties briefing argument federal

rounds of And the authorities cited above

court. make a clear “to allow us to

suffice Pennington v. State

principled decision.” Co., Mut. Auto. Ins. 553 F.3d

Farm Cir.2009). (6th

IV. reasons,

For these we affirm. *2 a writ of habeas cor- petition

In his claims that his to due pus, Lancaster by the state court’s was violated Carpenter. retroactive *3 petition. For the court denied his district below, set forth we REVERSE reasons Mogill, Mogill, M. Kenneth ON BRIEF: the district court and the decision of Orion, Cohen, Michigan, Lake & Posner petition for a writ of GRANT Lancaster’s Moody, Office of the Laura Appellant. for unless the State commences corpus habeas General, Lansing, Michigan, Attorney Opinion days trial within 180 of this a new Appellees. to assert permitted in which Lancaster is BATCHELDER, Judge; Chief Before: capacity. of the defense GILMAN, Judges. Circuit CLAY and I. BACKGROUND GILMAN, J., opinion delivered 1993, Lancaster, CLAY, a former J., April On court, joined. in which 754-57), BATCHELDER, history with a (pp. police long Detroit officer C.J. dissenting opinion. illness, separate girl- delivered a and killed his of mental shot friend, King, parking Toni in the lot of a OPINION Southfield, Michigan. shopping plaza GILMAN, LEE Circuit RONALD murder, charged first-degree He with Judge. 750.316, § with in violation of M.C.L. firearm in commission of possessing from the district a appeals

Burt Lancaster for a writ of petition of his in violation of 750.227. felony, court’s denial a M.C.L. § 2254. In corpus court, under 28 U.S.C. habeas jury trial in state Lan- At his 1994 charged by the state Lancaster that he had killed his caster admitted first-degree with murder and of in- girlfriend, but asserted the defenses a firearm in the com- possession with jury sanity capacity. and diminished The trial, jury At his 1994 felony. mission of these defenses and convicted him rejected despite on both counts he was convicted on both counts. di- defenses of his asserted in state exhausting appeals After his judgment was la- capacity. minished court, for a writ petition Lancaster filed overturned, however, an error ter due to corpus in the States Dis- of habeas (a Bat- by during jury the State selection District of trict Court for the Eastern violation). son claims, in- Michigan. He raised several he Lancaster was retried When cluding Kentucky, a claim under Batson v. jury. without a Lancas- opted to be tried 79, 106 90 L.Ed.2d 69 ter to limit his defense in the planned had (1986), in which he contended capacity. trial to that of diminished second peremptory one of its chal- State had used prohibited But the trial court an African- lenges improperly exclude because, asserting the defense juror juror’s on the race. American based trials, his the Michi- interim between two conditionally granted The district gan had abolished the di- Supreme of Lancaster’s Batson writ on basis minished-capacity defense the case This court affirmed. Lancaster claim. People Carpenter, Cir.2003). (6th Adams, 423, 427 324 F.3d once N.W.2d Lancaster was retried in state court Lancaster was again plus to life convicted sentenced time, he charges. on the This prison. an same years additional two waived his to a trial. He also Court’s abolition of the diminished-capaci- limited his defense to that of diminished ty defense awas substantive change in capacity, abandoning his alternative de- state law and applying change insanity. The diminished-capacity fense of retroactively, the trial court violated his right to under the Fifth and defendant, though legally allows a even Fourteenth Amendments to the U.S. Con- sane, to offer evidence some mental stitution. The district court denied Lan- abnormality negate specific intent caster’s petition, reasoning that the aboli- required particular to commit a crime. tion of the diminished-capacity defense theory is that if because mental was foreseeable because the defense was disease or defect a defendant cannot not well-established in Michigan law. It *4 specific form the required state of mind granted then a certificate of appealability crime, as an essential element of a he issue, on the timely and this appeal fol- may only be convicted of a lower grade lowed. of the offense not that requiring particu- lar mental element. II. ANALYSIS (brackets, Carpenter, 627 N.W.2d at 280 citation, and internal quotation marks A. Standard of review omitted). “We review the district le court’s however, Carpenter, In Su- gal conclusions a habeas proceeding de preme Court held that diminished novo and its findings factual under the longer was no a valid defense under Michi- elear-error standard.” Lafler, Davis v. gan law aas result of the 1975 enactment (6th Cir.2011). 658 F.3d “Because by legislature the state of a statutory the Petition [in this was filed ease] after for framework defense. Id. at 24, 1996, April the effective date of the 285. The Michigan trial court in Lancas- Anti-Terrorism and Effective Death Pen ter’s case decided that applied alty (‘AEDPA’), Act of 1996 our review of retroactively, prohibiting thus Lancaster the decisions of the state trial appel asserting the diminished-capacity de- governed late courts is by AEDPA.” Lan fense at his trial. second Lancaster Adams, (6th caster v. 324 F.3d sought interlocutory an appeal from the .2003). Cir trial precluded court’s order that him from pursuing the defense of capaci- AEDPA provides pertinent part ty. But both the Ap- that peals Michigan Supreme and the declined to ap- consider the merits of the application for [a]n a writ of habeas peal. subsequently Lancaster was convict- corpus person on behalf of a in custody ed on charges both at the conclusion of the pursuant judgment to the of a State bench trial. He was sentenced to life im- granted court shall not be respect with conviction, prisonment for the murder to any to adjudicated claim that was on the be served consecutively years’ to two im- merits State court proceedings unless prisonment felony-firearm for the convic- adjudication of the claim ... result- tion. to, ed in a contrary decision or of,

After involved an unreasonable exhausting his state-court reme- dies, law, clearly § Lancaster established peti- filed 2254 habeas Federal as de- tion the district court. In his termined petition, Supreme Court of the States____ he argues Michigan Supreme “retroactively subject to 2254(d)(1). that decision plies “A state court 28 U.S.C. con applica liability past criminal person an ‘unreasonable to may be decision Supreme Court him of due duct, deprive established effect is to clearly tion’ Bouie, court identifies ‘if the state at 354- precedent law.” 378 U.S. process of Su legal rule from the governing correct pro This tenet of due 84 S.Ct. 1697. unreasonably ap cases but preme Court’s to the Ex judicial counterpart cess is particular case’ the facts plies it to I of the found in Article Post Facto Clause unreasonably ... ‘if the state or Constitution, applies only which to a new principle to extend refuses 456, 121 532 U.S. at legislatures. Rogers, ” Lancas apply.’ where it should context (“[Limitations post on ex S.Ct. 1693 facto omitted) (alterations ter, at 429 324 F.3d judicial decisionmaking are inherent Taylor, 529 U.S. (quoting Williams “Indeed, an un process.”). notion of due 146 L.Ed.2d 389 120 S.Ct. enlargement of a crim judicial foreseeable (2000)). statute, retroactively, operates applied inal law, facto such as precisely post like an ex application of Car- B. The retroactive I, 10, of the Constitution forbids.” Art. right s[J penter Lancaster’s violated Bouie, claims that his Here, *5 deprived Lancaster was the trial violated state process was by the capacity of diminished the defense Michi application of the court’s retroactive Carpenter. retroactive in 2001 decision Car gan Supreme Court’s prohibits a state Ex Post Facto Clause States penter. changes in making certain legislature pro basic recognized [due often “has retroactive, including criminal statutes criminal statute must that a principle cess] “deprive[ charged one with changes ] conduct that it give warning fair of the any according crime of defense available Tennessee, Rogers v. 532 makes a crime.” the act was commit law at the time when 1693, 451, 457, 121 149 L.Ed.2d U.S. 37, Youngblood, ted.” v. 497 U.S. Collins (2001) (internal marks omit quotation (1990) 2715, 111 L.Ed.2d 30 110 S.Ct. ted). upon turns ... This “federal omitted). (internal Be quotation marks to the individual appearance Michigan Supreme in cause this case that moment status of state law as of Court, legislature, not the state eliminated allegedly commit the crime was [when Lan capacity, the defense of diminished Columbia, City Bouie v. 378 U.S. ted].” abolition caster must show that the Court’s 347, 354, 12 L.Ed.2d 84 S.Ct. in was unforeseeable order of the defense omitted). (1964) (internal marks quotation on his due claim. See to succeed alteration of a common judicial “[A] 353-54, Bouie, at 84 S.Ct. 1697. law doctrine of criminal law violates is, Carpen That he must demonstrate warning, fair and hence must principle of abrogated a consistent unexpectedly ter effect, only where given not be retroactive defense. recognizing of decisions line by refer ‘unexpected it is and indefensible The district court concluded expressed ence to the law which had been ” diminished-capacity defense demise of prior Rogers, to the conduct in issue.’ foreseeable because Bouie, (quoting at 121 S.Ct. 1693 U.S. acknowl- Michigan Supreme 1697). Put anoth of the di- passing concept edged way, er a state court overrules “[w]hen defense, it never but capacity minished interpreting consistent line” of decisions its use ap specifically authorized criminal statute or common law and Thus, although courts. dimin- appreciate either to wrongfulness capacity ished has been utilized as a his conduct or to conform his conduct to 1973, it defense since has never been the requirements of law. by the legislature

codified as a viable (2) A person who is under the influence formally adopted defense or by the voluntarily consumed or injected alco- such, highest state’s court. As the de- hol or controlled substances at the time enjoyed fense has never a solid foothold alleged of his offense thereby shall not Michigan’s criminal law. be deemed to have legally been insane. Metrish, F.Supp.2d 1975 Mich. Pub. Acts 386-87. (E.D.Mich.2010) (citations omitted). Diminished capacity specifically was not But the district materially court understat- statute, addressed in this but in ed the “foothold” that the diminished-ca- Michigan Court of Appeals held “that the pacity defense had established in Michigan defense known as capacity recognize law and failed to the plethora of comes within codified definition th[e] appellate state recognizing cases legal insanity” and in asserting the validity of the defense. defense, the defendant capaci- 1. The defense of diminished must follow the procedures same as out ty was well-established under lined for the the stat prior law Mangiapane, ute. 271 N.W.2d at 249. a. Thus, despite the statutory new frame Diminished recognized first work, the court continued to recognize di Lynch, as a defense in People 47 Mich. minished as a legitimate defense. (1973), App. years 208 N.W.2d 656 Mette, See People 243 Mich.App. before Carpenter was decided. The court (observing that in Lynch held that the trial court erred *6 court has consistently “[t]his held that the the prohibiting charged defendant with of diminished capacity defense comes with first-degree murder presenting medi legal codified definition of insanity cal partial evidence “of diminished or re subject and is procedural to the same re 662; sponsibility.” Carpen Id. at see also cases)). quirements” (collecting ter, 627 at 281 (recognizing N.W.2d that The Michigan Supreme Court acknowl- Lynch “introduced to the dimin edged history Carpenter: this capacity ished sepa defense” as a “defense The [Michigan] of Appeals^] deci legal rate from insanity”). in Mangiapane sion was then followed Then, 1975, Michigan legislature by a series of continuing decisions to enacted a statutory framework for the de address capacity diminished defense as a insanity. fense of People Mangia See v. statutory form of the insanity defense. 379, pane, 240, 85 Mich.App. 271 N.W.2d See, Denton, e.g., People v. 138 Mich. (1978) 246-49 (holding that 1975 Public Act 568, (1984); App. 360 N.W.2d 245 People Nos. 179 and 180 modified the rule estab Anderson, 455, v. 166 Mich.App. 421 Lynch). lished in newly One of the enact N.W.2d 200 ed statutes insanity codified the 282; for the first time: Carpenter, 627 N.W.2d at see also 99, People Lipps, v. 167 421 legally Mich.App. 768.21a Persons deemed in- 28.1044(1) (1988) (“Conditions 586, [M.S.A. sane. ] N.W.2d 589-90 (1) which are recognized as defenses to Sec. person [a 21a. A in- legally if, intoxication, ..., specific sane as a crime include intent] result of mental illness person that capacity lacks substantial insanity capacity”); People diminished 746 276, Denton, Paris, See Mich.App. ed-capacity 420 N.W.2d defenses. 360

v. 166 (1988) (holding that the prosecu that all (reasoning N.W.2d at 247 because discovery rights general tor does procedures other for the two defenses requires law a defendant because same, were the the allocation of bur- insanity [only] a defense of or “to disclose suit). proof of den should follow capacity” (citing M.C.L. diminished however, legislature In amend- Kvam, 768.20a)); Mich. People § statutory ed definition (1987) (ex N.W.2d App. burden proof defense and shifted the of capacity diminished de plaining that “[t]he entirely Insanity to the defendant. was merely aspect one of whether a fense is declared an affirmative defense that intent”); requisite Peo has defendant prove “by a preponder- defendant must Jones, Mich.App. ple 390 N.W.2d Comp. ance of the evidence.” Mich. Laws (holding that “once evi 768.21a(3); see Pub. Acts diminished is introduced dence of amendments); (containing 251-52 the 1994 defendant, prosecution bears the by a McRunels, see also 603 N.W.2d at 99-100 establishing the defendant’s burden ”). (holding amendments When capacity’ ‘normal therefore, changed proof his crimes the burden of the de- committed Appeals had consis with insanity). fense Consistent its ear- the use of the diminished- tently upheld decisions, Michigan Ap- lier capacity defense. insanity-defense peals held in 2000 that the statutory the 1975 frame statute as amended continued to apply

Absent from however, work, any indication of which Mette, defense. proof required party had the burden (holding 621 N.W.2d at 719 the trial insanity. People See demonstrate correctly instructed the that the McRunels, Mich.App. “defendant had to establish evidence (1999) (remarking that “the [1975] outweighed against the evidence him made no reference to the insanity statute that he to form specific lacked the proof,” proof so the burden of burden intent”); Carpenter, 627 see also N.W.2d law”). by common “governed (“[T]he at 282 held that a Michigan Supreme Court thus continued seeking present defendant method of shifting the common-law capacity defense bears burden of es- *7 that was well proof established burden tablishing by a a preponder- such insanity defense before the was codified. evidence.”). ance of the Savoie, People See Mich. (1984) (citing cases as N.W.2d Michigan Supreme b. Court for early burden-shifting as 1868 Unlike Court of Appeals, defense). insanity framework never Michigan Supreme direct- framework, burden-shifting this Under ly validity of a addressed defense of is presumptively criminal defendant “[a] on capacity based mental ill- However, any once sane. there is evi- disability Carpenter, ness or before but insanity, dence introduced of the burden of case that Court conceded in that it had proof prosecution on the to establish acknowledged passing “several times beyond sanity defendant’s a reasonable the diminished de- concept of This Mich- doubt.” Id. caused the first fense.” 281. The Court did so Id. at igan Appeals hold that 422 Mich. People Ramsey, burden-shifting be same framework should (1985). applied N.W.2d to both the and diminish- a Ramsey appeal consolidated could dimmish the intent requirement challenged two defendants who the consti- second-degree murder. But he did tutionality Michigan’s “guilty but men- not. defendants, tally ill” verdict. One of the Id. at 304 (quoting Wayne R. LaFave & Ramsey, second-degree was convicted of Scott, Jr., Austin W. Criminal Law murder following bench trial. As an (1972)). at 326 The Court thus acknowl- alternative to his constitutional challenge, edged the substantive components of the argued by being “guilty he but men- (albeit diminished-capacity defense under ill,” tally requisite he lacked the intent for name), a different but left open ques- second-degree murder as a matter of law. whether, tions of degree, and to what rejected Ramsey’s contention apply defense would general-intent to a

with the following explanation: crime like second-degree murder. See case, “A defendant in a criminal at the People also v. Langworthy, 416 Mich. engaged time he giving conduct 331 N.W.2d (holding him, charges rise to the against may unlike the specific-intent crime of first- suffering been from an abnormal murder, degree second-degree murder is a mental condition which was not of a kind general-intent crime for which the defense or character to afford him a successful voluntary available). intoxication is not But, insanity defense.... while this de- ineligible fendant is therefore for a find- yearA after Ramsey, the Michigan Su- ing guilty by insanity, of not reason of preme Court revisited the use of the di- abnormality may his mental nonetheless minished-capacity defense in People v. be a most relevant consideration in the Fernandez, 398 N.W.2d 311 guilty determination of whether he is (1986). Fernandez challenged his convic- the crime charged. Under the doctrine conspiracy tion of to commit first-degree partial referred to as responsibility, di- murder on the basis that the trial court (somewhat minished responsibility, or erred refusing to instruct on accurately) partial insanity, less evi- conspiracy lesser-included offense of concerning dence the defendant’s mental second-degree commit murder. But condition is question admissible Michigan courts had never before deter- of whether the defendant had the mental charge mined whether such a recog- state which is an element of the offense nized under law. Holding that a which charged.” with he is conspiracy to commit second-degree mur- Thus, while his mental may illness be “logical impossibility,” der was a the Mich- in evaluating consideration the requi- igan affirmed Fernan- site state of mind for the crime charged, Fernandez, People dez’s conviction. Ramsey’s we decline to accept invitation Mich.App. finding to hold that a of mental illness explained: It negates malice aforethought as a matter *8 A conspiracy of law. is a agree- combination or , ment with something others to do un- lawful. Second-degree murder is an judge Had the trial indicated a refusal killing unlawful a purpose to kill to consider the defendant’s mental ill- premedi- without that deliberation and diminishing ness as a factor in his deci- tation which characterize murder in the sion of whether possessed defendant the degree. first For a conspiracy convic- requisite aforethought, malice we would lie, tion to there must be necessary proof find it to address the of two question (1) of the extent to which mental specific agree illness intents: the intent to found that he had 140. The Court to accom- the intent (conspire) However, ... for which testi- offense. an issue substantive “identified the plish “specific not a developed” murder is and re- second-degree record must be monial evidentiary intent” crime. hear- the case for an manded Although the Court the issue. Id. ing on Id. at 569-70. validity of the directly on the not rule did Ap- Michigan the Court reviewing In defense, to its decision diminished-capacity Fernandez, Michigan the decision peals’ evidentiary hearing sug- remand for an case- examined California Court Supreme believed, at least in its curso- that it gests only state because California law review, could have been that counsel ry whether such discussed “expressly to have assert failing for found ineffective exist.” 398 N.W.2d logically can a crime had been capacity If diminished California defense. “[T]he at 319-20. defense, of diminished that evidence then coun- illegitimate Court held an deemed intent negate specific capacity could failing to not be faulted for assert sel could first- to commit conspiracy required it, hearing on that issue would and no murder, the crime to con- reducing degree necessary. been second-degree murder to commit spiracy Michigan Supreme Court caselaw case.” manslaughter, appropriate or this following supports years Griffin Id. at 320. case. In the Court reading of the of diminished allegations no “[B]ecause necessary component that “a held case,” the were made in this capacity defense is that capacity diminished declined to rule Michigan Supreme Court v. mentally People ill.” defendant adopt the on whether it would California Pickens, Id. But the Court holding on the issue. (1994). recently, People More acknowledged N.W.2d 738 Lloyd, 459 Mich. the effect the California rule of [w]hile (1999), the concluded that defense degrees of diminished to the strategy “present[ ] counsel’s from the significantly homicides varies premeditation defense of no merged rule, un- possibility exists Michigan the defense capacity” instead of diminished capac- Michigan der law that diminished Id. entirely “was reasonable.” militate for the exis- ity might possibly Indeed, at 745. charge conspiracy tence of the affirmatively “rec- Lloyd held that murder. second-degree commit of a diminished ca- ognized propriety (citation omitted). Importantly, Id. first-degree charge to a pacity defense effect of “the rule phrase California Mette, People murder.” premeditated ... significantly varies 318, 621 N.W.2d 718-19 Mich.App. suggests rule” (2000). extant recognized an diminished-ca- itself, Even in Michigan. defense in pacity that diminished suggested men- Michigan Supreme Court next defense, previously a valid capacity was tioned the “The titling opinion a section of its Contin- the context of an ineffective-assistance-of- Capacity Diminished Viability of the ued People Griffin, claim in counsel 627 N.W.2d at 282 Michigan.” Defense 860, 444 Griffin Mich. N.W.2d 139 added). Lancaster had indeed (emphasis that his “trial counsel was ineffec- asserted *9 well-recognized defense at his this utilized ... failing explore tive for the defenses been a defense that had first trial insanity.” Id. capacity of diminished by years over 20 developed Michigan attorneys fense juries instruct in crimi precedent at time that con- nal fairly accurately.” eases Standing Comm, recognized right up tinued to be to Car- on Jury Instructions, Std.Crim. in 2001. penter Bar, Mich. State Jury Criminal Instructions, (2d ed.1989). at ix Even Michigan’s

c. standard prosecutors state assumed that the dimin jury instructions ished-capacity legitimate defense was a capacity The belief that diminished was one, by as indicated the following comment legitimate widely defense was so held by made during closing argument by prose the Michigan legal community before cutor in People Garfield, 166 Mich.App. Carpenter, Michigan State Bar’s Crim- (1988): 420 N.W.2d 124 are “[T]here Jury inal Instructions included an instruc- other defenses such as insanity or dimin Commentary tion on the defense. accom- capacity ished which are not before this panying the instruction noted that “[t]he Thus, Court....” Id. 128. contrary to defense of diminished is available conclusion, the district court’s the status of when the impairment defendant’s mental aas defense in Michi him or leaves her unable to form the spe- gan quite well-established when Lan cific intent needed to commit the crime.” caster committed his offenses in 1993. Comm, Standing Jury Std.Crim. In- structions, Bar, Mich. State Mich.Crim. holding Rogers v. Tennes- 6.3, (2d Jury Instructions at 6-11 ed. inapposite see is 1994) (This instruction was removed only As a result of the district court under- decided.). after valuing the “foothold” that the diminished- The district court below discounted the capacity defense had established in Michi- importance of the standard instruction on law, gan incorrectly it concluded that this diminished capacity because the Michigan “strikingly case is Rogers similar to” Jury Criminal Instructions are not official- Tennessee, ly by sanctioned Supreme (2001), 149 L.Ed.2d 697 in which the Unit- Court. But the use of these Standard ed States Court held that Jury Criminal urged by Instructions “is abolition of a Tennessee common-law de- Court, [Michigan] Supreme according fense was Rogers foreseeable. But Mich, 1977-1, to Administrative Order readily distinguishable. lxxii.” News & Notices: From the Com- mittee on Standard Criminal Jury In- Rogers was convicted of second-degree structions, 78 Mich. B.J. stabbing murder for someone who died 15 months later as a result of medical compli-

Furthermore, the instruction demon- by cations caused the attack. He appeal- Bar, strates that the State ed, contending that the year- common-law instructions, author of the recognized di- and-a-day precluded rule his conviction. minished capacity as a viable defense un- required This historic rule that “no defen- der criminal prior law to Car- dant could be convicted of murder unless penter. The instructions “are intended to his victim had died the defendant’s act accurately reflect the law in a format year day.” within a Rogers, and a jurors.” which is understandable to Id. In addition, U.S. at S.Ct. 1693. On accep- appeal, instructions indicate tance of the by Michigan’s legal Tennessee Court “found that community. They are extensively original “used reasons for recognizing the by Michigan judges, prosecutors, exist[ed],” longer and de- rule no formally abol- *10 it, appeal concluding sons for that the elimination of Rogers’s denied the and

ished longer the rule no existed. ground year-and-a-day the rule was foreseeable 455, 121S.Ct. at Id. Michigan’s to pertain diminished-capacity defense. af- Supreme Court The States appli- firmed, holding that the retroactive First, rule, year-and-a-day unlike the year-and-the- abolition of the cation of the had diminished-capacity the been Rogers’s did not to case violate day rule only It was any- existence since 1973. process. doing, Id. In so to due his an thing but “outdated relic” rendered “ob- that “the reasoned Tennessee the Court solete” in medical and advances related day a year the and rule court’s abolition at sciences time of Lancaster’s of- indefensible,” unexpected and id. in 1993. behind fenses The rationale and further ex- is that diminished-capacity defense mental plained: per- illnesses and disabilities can cause a widely a year day and rule is viewed son, sane, though legally specif- an relic of the common law. to lack the as outdated does not even so much as hint Petitioner necessary ic intent commit to certain retaining good reasons exist for Carpenter, crimes. 627 N.W.2d at 280. practically every ... [A]s rule[.] decades, In recent the scientific communi- recently to have the rule considered has ty’s knowledge understanding and of men- noted, advances in medical related has greatly tal illnesses increased. See have so undermined the useful- science Satcher, Surgeon General David rule it ness of the as to render without Servs., Dep’t of Health & Human Mental question obsolete. Report Health: A Surgeon General (1999), http://www.surgeongeneral.gov/ Finally, perhaps important- most (“This .pdf library/mentalhealth/pdfs/cl time of crime ly, [Rogers]’s at the Surgeon Report first General’s on Mental day only year and rule had most Health is issued at the culmination of a part tenuous foothold as criminal half-century that has witnessed remarka- law of the State of Tennessee. rule understanding ble advances in the of men- part not exist as of Tennessee’s stat- did ”). tal disorders and the brain.... And utory criminal And while the Su- code. scientific these advancements worked Tennessee concluded preme greater provide support for the dimin- law, persisted rule at common that the it defense, See, ished-capacity not lesser. rule pointedly also observed that the had e.g., Thomas L. Nicole Hafemeister & A. ground served of deci- never once as Stockey, Last Stand? The Criminal Re- any prosecution sion in for murder in sponsibility Returning War Veterans Indeed, reported the State. all the cases, Iraq Afganistán with Posttrau- the rule has been men- Tennessee Disorder, times, only tioned three and each time matie Stress Ind. L.J. dicta. that, (explaining 126-28 as un- derstanding of Stress (citations Posttraumatic Disor- 462-64, 121 Id. at (PTSD) “[rjecent omitted). increased, has der cases willing illustrate that courts are some case, Applying Rogers to this district ... consider PTSD evidence rebut year- court concluded like the just claim the defendant prosecution’s had rule, and-a-day de- requisite charged rea for a mens ripe fense was But none of abolition. crime”). rea- United States Court’s

751 Moreover, above, as discussed the status Supreme States Court in United States v. in diminished-capacity Lanier, of the defense 520 U.S. 117 S.Ct. fairly having “only

cannot be described as (1997), L.Ed.2d 432 where the Court held Michigan foothold” in the most tenuous “that decisions of the Courts of recognized by law. It had been the Michi- provide and other courts” could “fair warn times, Appeals many both gan Court ing” proscribed by of what is a criminal after before and the 1975 codification of 268-69, statute. Id. at 117 S.Ct. 1219. defense, and both before and Galaza, In Fed.Appx. Rathert the 1994 to that after amendments statute. (9th Cir.2006), the applied Ninth Circuit Although Michigan Supreme Court did Lanier to the Supreme California Court’s squarely validity address the of the interpretation of a criminal statute. Rat- until clearly defense Court had hert, burglary convicted of in a California acknowledged the defense in several of its court, state petitioned for federal habeas previous rulings. Diminished relief under 28 U.S.C. 2254 because “the recognized also a defense in the Michigan California retroac- [had] Jury State Bar’s Standard Criminal In- tively a abrogated specific intent require- And, importantly, structions. most it was old, ment by established a decade uncon- widely years used defendants in the tradicted, and controlling [intermediate] widely prior accept- 2001. So used and appellate court case.” Id. at 99. The ed, fact, in that Lancaster himself was Ninth granted petition, Circuit holding pursue allowed to during defense his that “the California Court unrea- Accordingly, first trial 1994. the hold- sonably applied clearly established United ing Rogers inapposite to this case.

States precedent” prohibited the ret- 3. The abolition of the diminished- roactive application of an “unforeseeable

capacity defense was unforesee- judicial enlargement of a criminal statute.” able Id. at 98-99. reasonably

Lancaster could not have Here, the intermediate-appellate-court foreseen 1993—when his crime was precedent was much more robust than in committed —that the consistent line of Indeed, Rathert. numerous uncontradict- Michigan Appeals’ up Court of decisions ed of Appeals’ rulings rec- holding defense ognized aas would been overturned before his years over the course of 28 triple —almost retrial in 2005. v. City See Bouie Co 10-year span that existed in Rathert. lumbia, And the Appeals, unlike (1964) (“When 12 L.Ed.2d 894 a state appeals, California’s courts of serves the proce court overrules a consistent line of Const, VI, state as a whole. See Mich. art. dural decisions with the retroactive effect (“The § 1 judicial power of the state is a denying litigant hearing pending a exclusively vested in one justice court of case, thereby deprives it him of pro which shall be divided one supreme into cess of law in primary its sense of an court, ”). one appeals.... court of [and] (his) opportunity to be and to heard defend Furthermore, question at the heart (internal right.” substantive quotation foreseeability analysis of the is whether omitted)). marks prece The fact that the had deprived been of the “due dent is Michigan’s ap intermediate primary of law in its sense of an pellate high rather than the state’s (his) opportunity to be heard and to defend significance. est court does not diminish its Bouie, point recognized by This right.” substantive at fairness, integrity, or seriously affected the McRunels, judicial proceed- People reputation public decision Appeals’ (1999), Mich.App. court therefore reversed ings. how retroac support for strong provides the case for judgment and remanded *12 adversely affect Carpenter tively applying bur- using trial the old common-law new fairness of Lancaster’s ed the fundamental that the 2001 proof. We believe den of trial. diminished-ca- judicial elimination of the McRunels, just was as unforesee- defendant defense here was pacity

In with intent to commit assault was the statu- charged with to Lancaster 1993 as able in 1993. that occurred for acts murder proof in the burden of tory alteration insanity defense at McRunels asserted McRunels, at least as sub- insanity in however, court, trial The jury his trial. stantive. amendments

retroactively applied the 1994 re- insanity defense and the codified to of Car- application retroactive C. The insanity by his a prove McRunels to quired penter was an unreasonable applica- At the of the evidence. preponderance clearly Supreme tion of established alleged time that McRunels committed precedent Court however, acts, insanity the common-law burden governed by still Carpen Having determined required government proof, of which of the ter’s abolition beyond a reasonable doubt prove unforeseeable, next defense was we must present- he was not insane once McRunels courts’ retro decide whether argument support ed evidence Carpenter of to Lancas application active that he was. retrial in 2005 was an unreasonable ter’s evi- stringent the new and more Under clearly established United application of standard, jury rejected dentiary precedent. See 28 States and found McRunels’s defense 2254(d)(1). habeas federal “[A] U.S.C. appealed, arguing guilty. him McRunels applica making court ‘unreasonable instructing that the trial court had erred whether the state inquiry tion’ should ask newly enacted bur- jury apply application clearly established court’s appeal His was reviewed proof. den of objectively unreasonable.” federal law was because he plain-error under the standard Taylor, 529 U.S. Williams object to the instruction had failed (2000). 1495, 146L.Ed.2d 389 given. it was For an at the time question, Without warrant reversal under the Michi- error to the unforesee- federal) clearly has established that (and standard of gan plain-error of criminal stat- judicial enlargement review, “seriously must have af- able the error fairness, rep- utes, integrity, public retroactively, fected the or if would violate applied 97; See, judicial proceedings.” utation Id. at right process. to due a defendant’s Young, Tennessee, States v. 470 U.S. accord United e.g., Rogers v. (1985). 84 L.Ed.2d 105 S.Ct. 1693, 149 L.Ed.2d 697 121 S.Ct. Columbia, (2001); City Bouie v. conclud- 347, 354, 12 L.Ed.2d altering proof

ed that the burden of Ap- law, to the and that its change substantive much in the last peals acknowledged as the Ex application retroactive violated it issued this opinion that substantive It determined Post Facto Clause. also violation case: that the Ex Post Facto Clause prejudiced cases, process ... due con- D. Lancaster was the ret-

In criminal application roactive prevent [of cerns retroactive cases. This is in some decisions] Finally, argues the State that even the decision is un- especially true where application Carpenter if retroactive vi chang- the effect of foreseeable and has process, olated Lancaster’s to due But retroactive ing existing appli- law. the violation was But harmless. the State cation does not or implicate failed to raise this issue district post ex facto where the deci- concerns court and has therefore waived it on ap sion the law change does not peal. Bobby, See Keith v. 618 F.3d (6th Cir.2010) unforeseeable. (ruling 599 n. 4 that a party argument habeas case waives an *13 Lancaster, People v. No. 2006 WL appeal by failing to the argu raise same 2006) (Mich.Ct.App. at *1 Dec. court). ment before the district curiam) (cita- (per (unpublished opinion) assuming arguendo And even that omitted). Following principles, tions these the State has not this argument, waived it the court then that “did held Preventing would still fail. a defendant not involve a in the law it change because from presenting only his viable defense at unambiguous concerned an statute that prejudicial trial is so holding that the viola interpreted by Supreme the Court [of suggest tion harmless that would almost Michigan] for the time.” Id. first no constitutional would violation warrant of application We find this Bowie and See, e.g., reversal. v. Kentucky, Crane 476 Rogers objectively It ig- unreasonable. 683, 687, U.S. 90 106 S.Ct. L.Ed.2d nores Michigan’s codified rules that (1986) (explaining 636 that a defendant has the regard published opinions Michigan of right a “fundamental constitutional to a binding precedent Court of un- Appeals as defense”); opportunity fair present Michigan less by overturned (6th Yukins, v. F.3d Rockwell 341 517 7.215(C)(2) (ex- Court. See R. Cir.2003) Mich. Ct. (“The [Supreme] long Court has plaining published Michigan that of Court that held an accused’s to establish a Appeals’ opinions precedential ef- is a element of “ha[ve] defense fundamental (internal decisis”). fect under the rule of stare omit process.” quotation marks ted)). assertion Appeals’ Court of the reversal of several decades of its own briefly The district court addressed the precedent “change was not a the law” harmlessness, even though issue of thus Michigan Supreme belies the Court’s either by party, issue was not raised Moreover, Michigan own rules. Court jury in Lan- concluded because Appeals’ of determination him despite caster’s first trial convicted his insanity-defense unambiguously statute capacity, defense of diminished the later diminished-capacity abolished the defense yielded trial bench would have the same of similarly disregards all its own cases even if result the defense had been al- upholding however, ignores lowed. This reasoning, even after the enactment of that statute. jury impermissi- the fact that the trial was Appeals’ and, decision bly by tainted violation Batson as a case, therefore, result, an objectively this un- jury’s had to be verdict vacated. clearly application rely upon reasonable of estab- that the To the conclusion reached, prec- despite discriminatory lished United means States would jury, negate edent. used select the City (quoting Bouie first convic- 121 S.Ct. vacating the for very reason 347, 354, Columbia, violation the Batson allow and would tion (1964)). Lan- the outcome of Although affect again 12 L.Ed.2d to once per- are therefore We not ex caster’s case. did analysis on court’s rule, the district suaded rejected the court pressly apply this claim, this issue. finding Lancaster’s due Carpenter's abolishing of III. CONCLUSION diminished-capacity defense to Lancas above, set forth the reasons For all of trial did not violate his due ter’s second of the district the decision we REVERSE Giving Michigan process rights. petition Lancaster’s GRANT court and the benefit Appeals’s determination unless the State corpus habeas a writ of highly AEDPA’s under required the doubt days within 180 a new trial commences standard, Bagley, Slagle deferential permit- in which Lancaster Opinion this Cir.2006) (6th (quoting F.3d of diminished assert the defense ted to Visciotti, 19, 24, Woodford capacity. (per 154 L.Ed.2d curiam)), objec agree I cannot that it was BATCHELDER, M. Chief ALICE tively unreasonable. *14 dissenting. Judge, Michi- majority concludes that the majori from the respectfully I dissent unreasonably applied gan Appeals Court of not Lancaster has ty’s because decision that and Bouie when it held Car- Rogers to very high standard overcome AEDPA’s a in the law change did not involve penter Michigan Ap of that the Court establish process to a due chal- susceptible that was anwas unreasonable peals’s determination However, concern majority’s the lenge. contrary Supreme of or application of Michigan Ap- not on the Court rests obtaining Before habeas precedent. Court Bouie, Rogers peals’s court, prison “a state relief from a federal application Michigan that but on court’s ruling court’s er show that the state must did not concluding law. In in federal being presented claim the law, in change Michigan constitute lacking justification court was so appeals applied Michigan state court well understood and there was an error Bouie, law; Rogers, any or apply it did not existing beyond any law comprehended precedent. See other Court disagreement.” for fairminded possibility Lancaster, 263483, 2006 Michigan v. No. — Richter, U.S. -, 131 Harrington v. 21, 3751420, Dec. (Mich.Ct.App. at *1 WL (2011). 786-87, 770, 178 L.Ed.2d 624 S.Ct. 2006) (citing Michigan Doyle, challenges Michigan Court (1996), holding as process denial of his Appeals’s law, first inter- Michigan that under claim, unreasonably applied it arguing that not unambiguous of an statute is pretation contrary Rogers a decision or issued post of ex change purposes in law for Tennessee, 121 S.Ct. 532 U.S. concerns). Al- process and due (2001). facto Rogers holds that 149 L.Ed.2d 697 for the illogical it seems though common law doc “a alteration of a judicial practical ignore principle criminal law violates the trine of Carpenter and conclude consequences of and hence must not be warning, of fair diminished-capacity de- abolishing the effect, only where it is given retroactive law, that conclu- change was not a fense indefensible reference ‘unexpected and because relevant to our review sion is not prior expressed to the law which had been ” state, federal, not law. it was based on at to the conduct issue.’ U.S. McGuire, 62, 67-68, 112 Estelle v. legislature And when the (1991) (“[I]t L.Ed.2d 385 S.Ct. amended the insanity statute in it province of a federal habeas still did not any include reference to di- state-court determinations to reexamine on minished capacity. Surely the legisla- Instead, questions.”). we must state-law ture’s choice not to codify diminished ca- if Ap determine Court of pacity significant is more than the state peals’s adjudication of Lancaster’s due bar association’s choice to include it in its claim process clearly contradicts estab publication of standard instructions. lished Supreme precedent. See Simply put, prior to Carpenter’s official Packer, 3, 8, Early v. defense, elimination of the neither curiam); (per L.Ed.2d Michigan legislature nor the Michigan (6th Ohio, Murphy v. 551 F.3d gave courts diminished standing Cir.2009) (“[A] state-court decision can be separate Instead, as a defense. long found reasonable as as neither the courts discussed as an reasoning nor result of the decision aspect insanity, they applied the contradicts United States concept through parameters of the in- (internal precedent.” quotation marks sanity statute. omitted)). Because the court’s conclusion Bouie, Rogers is consistent with it was It is indisputable that defendants were justification” not “so lacking as to entitle able to prior raise the defense to Carpen- Lancaster to habeas relief. Harring See ter, but availability of the defense ton, 131 786-87. alone does not make its elimination unex- Indeed, pected. in Rogers, year-and-a- Appeals’s denial day rule had been available to of Lancaster’s due claim was rea- defendants primarily sonable for nearly because the diminished- one years, hundred but the Su- *15 capacity defense was not well-established preme Court nevertheless concluded that was, in Michigan and its elimination there- its elimination was foreseeable because the fore, Rogers, foreseeable. Under ret- rule never as served the basis for a deci- application judicial roactive of a alteration sion in many the state and other states common process only of law violates due had Michigan, abolished the rule. In di- when the unexpected alteration was capacity minished likewise never served as indefensible. Rogers, 532 U.S. at 121 the any basis for court’s decision. Even in Bouie, 1693 (quoting S.Ct. at U.S. Michigan Griffin, 1697). case, In S.Ct. Lancaster’s (1989), N.W.2d 139 the Michigan Supreme Carpenter’s abolishing of the diminished- Court’s remand for an evidentiary hearing capacity defense was foreseeable. As the to determine if counsel was ineffective for notes, majority capacity diminished arose failing to capacity raise diminished as a in Michigan but courts chose to dis- defense reemphasizes only point capacity cuss diminished not as a separate the defense was available. It does not defense, but rather as an of aspect insani- indicate that the defense so well estab- ty. legislature When the codified insanity lished that unexpected. its elimination was any as a defense in it omitted refer- majority attempts distinguish standard, ence to a lower-capacity Rogers's holding by arguing that “none of Michigan courts issued “a of series deci- the United States Court’s rea- continuing sions to address diminish- [the] concluding sons for that the elimination of ed defense as a form of the stat- utory year-and-a-day rule was insanity defense.” foreseeable Carpenter, 464 Mich. pertain 627 N.W.2d to Michigan’s conclusion, insanity statute. the still-available der reaching this In defense.” fact overlooks the on however, majority majority’s reliance abol expressly states McRunels, several Mich.App. diminished-capacity use ished the (1999), contrary is mis- argue factor many contexts1 —a in is not instructive because McRunels placed Rogers to determine to in looked foreseeability. In McRu- on the issue foresee elimination was rule’s whether a nels, the retroactive the court considered re does not Although able. statutory, rather than a of a law be aware of the that a defendant quire therefore, law; judicial, change states, stated of other change whether the court never considered juris a vast number that “the fact McRunels, 603 See was foreseeable. a rule that has so abolished dictions have 99-102; Rogers, 532 at see also N.W.2d surely rele purpose its clearly outlived 459-62, (explaining at S.Ct. abolition of the rule vant to whether statutory applications that retroactive to be unex can be said case particular analyzed post in law are under ex changes by reference to the indefensible pected and judicial changes are principles while facto Rogers, 532 U.S. it then existed.” law as “in accordance with the more ba- analyzed 464, 121 1693. at warning”). general principle of fair sic and Moreover, majority ignores the Su- materially dis- Accordingly, McRunels is Rogers— main concern preme Court’s majority’s and the reliance tinguishable, application of the retroactive whether the foreseeability is incorrect. it to illustrate of the sort was “an exercise change law elimination Considering jurisdictions’ other arbitrary judicial action of unfair and defense, Due Process Clause against which the length Carpenter of time between protect.” Id. aims trial, and the lack Lancaster’s second abolished the diminished- standing that the defense had independent nearly years five before capacity defense of which were consider- view, my ap- trial. In —each Lancaster’s second Rogers princi- ations of the Court several to Lancaster —the plying Carpenter Rogers Carpenter’s indicate that ples down was nei- years after it was handed unex- abolishing of the defense was not when arbitrary, especially nor ther unfair *16 argue insanity pected. un- Lancaster was able 643, (2011); See, 25(a) (La.Ct.App. Thompson, 665 So.2d 647 e.g., Cal.Penal Code

1. Head, 1106, (11th Greco, 646, 1995); Mincey 206 F.3d 1139 Maryland Md.App. v. v. 199 Cir.2000) Georgia recog (applying law and 135, (2011); v. 24 A.3d 144 Massachusetts adopted nizing state court has that no 200, 638, Finstein, 426 687 N.E.2d 640 Mass. Alabama, 810, defense); So.2d Barnett v. 540 Minnesota, (1997); Cuypers v. Laffoon, (Ala.Crim.App.1988); v. 812 Arizona 100, (Minn.2006); Mississippi, v. Stevens 105 1045, 484, (1980); 1047 610 P.2d 125 Ariz. 1031, (Miss.2001); 1051 North Car 806 So.2d States, 282, v. United 962 A.2d 300-01 O’Brien Adams, 200, N.C.App. v. 85 354 S.E.2d olina Florida, 338, (D.C.2008); Hodges v. 885 So.2d Wilcox, 338, (1987); v. 70 Ohio 343 Ohio (Fla.2004); Klafta, Hawaii v. 73 352 n. 8 182, 523, (1982); 436 N.E.2d South St.2d 117, (Haw.1992); 109, Haw. 831 P.2d 512 153, 634 Santiago, 370 S.C. Carolina v. Indiana, (Ind. Cardine v. 475 N.E.2d Tennessee v. (App.2006); 28-29 S.E.2d Plowman, 1985); N.W.2d Iowa v. Grose, (Tenn.Crim.App. 982 S.W.2d (Iowa (stating Ct.App.1986) that the de Texas, 1997); 313 S.W.3d Davis general intent fense is not available for Wyoming, 115 (Tex.Crim.App.2010); Keats crimes); Pennington, 281 Kan. Kansas v. (2006); (Wyo.2005). Louisiana v. P.3d 132 P.3d diminish- elimination of the Because was nei-

ed-capacity indefensible, unexpected nor

ther Appeals’s adjudication was con- claim

of Lancaster’s precedent. with

sistent justifi-

Accordingly, lacking it was not so entitle habeas

cation as to standard, and, AEDPA’s strict

relief under

therefore, I respectfully must dissent. DAY

DOMINIC’S RESTAURANT OF Inc., INC.,

TON, fka dba Dominic’s

Dominic’s; Day Dominic’s Foods Inc.,

ton, Domin Anne Mantia’s d/b/a Restaurant; B. Man

ic’s Italian Anne (10-3376

tia, Plaintiffs-Appellees &

10-3377), MANTIA, Defendants, al., L. et

Christie III, Defendant-Appellant

Reece Powers

(10-3376 10-3377), &

Shirley’s Non-Party- Village Inn, (10-3377).

Appellant 10-3376,

Nos. 10-3377. States of Appeals,

Sixth Circuit.

July *17 Scaccia, John J. &

ON BRIEF: Scaccia LLC, Associates, Ohio, Springboro, Ap- Morris, M. K. pellants. James Sharon