Petitioner was tried in state court on charges of murder and armed robbery stemming from a 1981 store robbery during which his accomplice and the storekeeper's mother were killed in a fight after petitioner left the store. Although petitioner testified that the mother had not even entered the store before he left and that he had not intended to kill or harm anyone, the jury was instructed "that malice is implied or presumed from the use of a deadly weapon." After his conviction and death sentence were affirmed by the South Carolina Supreme Court, petitioner sought a writ of habeas corpus from that court, arguing, inter alia, that the burdenshifting instruction given at trial was unconstitutional under Sandstrom v. Montana, 442 U.S. 510 . While the habeas corpus application was pending, petitioner also called to the state court's attention this Court's subsequent decision in Francis v. Franklin, 471 U.S. 307 . After this Court summarily vacated the state court's summary denial of the writ and remanded the case "for further consideration in light of Francis," the state court, although acknowledging that the jury instruction suffered from the same infirmities addressed in Francis, denied relief on state-law grounds without considering whether Francis might apply retroactively and without discussing Sandstrom.
As a matter of federal law, petitioner's conviction cannot stand in light of Francis. Pp. 215-218.
STEVENS, J., delivered the opinion for a unanimous Court.
David I. Bruck argued the cause and filed briefs for petitioner.
Donald J. Zelenka, Chief Deputy Attorney General of South Carolina, argued the cause for respondents. With him on the brief was T. Travis Medlock, Attorney General.
JUSTICE STEVENS delivered the opinion of the Court.
Petitioner and an accomplice robbed a country store in South Carolina in 1981. After petitioner left the store, a fight occurred in which the accomplice and the storekeeper's mother were both killed. Petitioner was convicted of murder and armed robbery and sentenced to death. His conviction and sentence were affirmed by the South Carolina Supreme Court in 1982. State v. Yates, 280 S. C. 29, 310 S. E. 2d 805, cert. denied, 462 U.S. 1124 (1983).
At his trial, petitioner testified that the victim had not even entered the store before he left and that he had not intended to kill or to harm anyone. The jury, however, was instructed "that malice is implied or presumed from the use of a deadly weapon." 1 A few months after petitioner's conviction was affirmed, the South Carolina Supreme Court held that it was error to give such an instruction. See State v. Elmore, 279 S. C. 417, 308 S. E. 2d 781 (1983). Thereafter, petitioner sought a writ of habeas corpus from the South Carolina Supreme Court, arguing that the burden-shifting instruction given at his trial was unconstitutional under the state court's reasoning in Elmore and under our decision in Sandstrom v. Montana, 442 U.S. 510 (1979). While the application for habeas corpus was pending, we decided another [484 U.S. 211, 213] case involving a burden-shifting instruction, Francis v. Franklin, 471 U.S. 307 (1985), and petitioner promptly called that decision to the attention of the State Supreme Court. The court denied the writ without opinion.
Petitioner then sought a writ of certiorari in this Court. We summarily vacated the judgment of the South Carolina Supreme Court and remanded the case "for further consideration in light of Francis v. Franklin." Yates v. Aiken, 474 U.S. 896 (1985). On remand, the state court determined that the jury instruction at petitioner's trial "suffered from the same infirmities present in Elmore and addressed in Francis v. Franklin." 290 S. C. 231, 233, 349 S. E. 2d 84, 85 (1986). Nevertheless, the court held that petitioner was not entitled to relief. As an explanation for its holding, the court stated that its decision in Elmore should not be applied retroactively to invalidate a conviction that was final when Elmore was decided. The opinion did not consider whether the decision in Francis v. Franklin might apply retroactively and also did not discuss our decision in Sandstrom v. Montana, on which petitioner had relied.
In dissent, Justice Finney reasoned that Elmore and Francis v. Franklin should be applied retroactively because an instruction that shifts the burden of proof on an element of the offense - particularly in a capital case - substantially impairs the truth-finding function of the jury. Moreover, he reasoned, given our decision in Sandstrom v. Montana in 1979, the case did not represent a significant change in the law. 2 [484 U.S. 211, 214]
We granted certiorari because we were concerned that the South Carolina Supreme Court had not fully complied with our mandate. 480 U.S. 945 (1987). We now reverse.
Our order remanding the case for further consideration in the light of Francis v. Franklin was predicated entirely on the fact that petitioner's challenge to the jury instruction asserted a substantial federal question. Our opinion in Francis explained why a challenge of this kind is supported by the Federal Constitution:
The South Carolina Attorney General submits that we should adopt Justice Harlan's theory that a newly announced constitutional rule should not be applied retroactively to cases pending on collateral review unless the rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in part and dissenting in part), or enunciates a procedural rule that is "implicit in the concept of ordered liberty," id., at 693. Under this theory, the Attorney General argues, petitioner would not be entitled to the benefit of our ruling in Franklin.
We have already endorsed Justice Harlan's retroactivity analysis for cases pending on direct appeal, see Griffith v. Kentucky, 479 U.S. 314, 322 (1987); United States v. Johnson, 457 U.S. 537 (1982), and we have noted, as Justice Harlan did, Mackey, supra, at 682-687; Desist v. United States, 394 U.S. 244, 260 (1969) (Harlan, J., dissenting), the important distinction between direct review and collateral review. Compare Allen v. Hardy, 478 U.S. 255 (1986) (holding that Batson v. Kentucky, 476 U.S. 79 (1986) does not apply retroactively to cases on collateral review), with Griffith, supra, at 322-323 (holding that Batson does apply retroactively to cases pending on direct review); see, e. g., Pennsylvania v. Finley, 481 U.S. 551 (1987) (right to appointed counsel on direct appeal not applicable in collateral proceedings). To decide this case, however, it is not necessary [484 U.S. 211, 216] to determine whether we should go further and adopt Justice Harlan's reasoning as to the retroactivity of cases announcing new constitutional rules to cases pending on collateral review.
Although Justice Harlan believed that most collateral attacks on final judgments should be resolved by reference to the state of the law at the time of the petitioner's conviction, he emphasized the proposition that many "new" holdings are merely applications of principles that were well settled at the time of conviction. As he explained in Desist:
Respondents also argue that South Carolina has the authority to establish the scope of its own habeas corpus proceedings and to refuse to apply a new rule of federal constitutional law retroactively in such a proceeding. We reject this argument for two reasons. First, as we have just explained, [484 U.S. 211, 218] Francis did not announce a new rule. Second, we do not read the South Carolina Supreme Court's opinion as having placed any limit on the issues that it will entertain in collateral proceedings. Since it has considered the merits of the federal claim, it has a duty to grant the relief that federal law requires.
The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
[ Footnote 2 ] "The doctrine against burden shifting presumptions set out in Francis v. Franklin, [ 471 U.S. 307 (1985)], is not a clear break with prior law. The United States Supreme Court in Sandstrom v. Montana, 442 U.S. 510 . . . (1979), decided prior to Yates, held that conclusive presumptions or instructions which shift the burden of persuasion violate the Fourteenth Amendment's requirement that in every criminal trial, the state is required to prove each element of the criminal offense beyond a reasonable doubt. The Court went on to hold, concerning Elmore-type errors, that conclusive presumptions conflict with the presumption of innocence with which the law endows the accused. These presumptions, likewise, extend [484 U.S. 211, 214] to every element of the crime and invade the truth-finding function which, in a criminal case, the law assigns solely to the jury." 290 S. C., at 239, 349 S. E. 2d, at 88-89.