# Petition for Writ of Certiorari — Illinois Department of Corrections v. Flowers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1112%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 505 U.S. 1239 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1992 ILLINOIS DEPARTMENT OF CORRECTIONS, Petitioner, MARVIN FLOWERS, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR WRIT OF CERTIORARI ROLAND W. BURRIS Attorney General, State of Illinois ROSALYN B. KAPLAN Solicitor General, State of Illinois TERENCE M. MADSEN Assistant Attorney General MARK E. WILSON Assistant Attorney General STEVEN J. ZiICK Assistant Attorney General Counsel of Record 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-2139 Counsel for Petitioner rror - Printed by Authority of the State of Illinois (P.O. 35527—55—%-5-92) i QUESTIONS PRESENTED An Illinois jury, instructed with pattern jury instruc- tions on murder and voluntary manslaughter, found Marvin Flowers guilty of murder on October 11, 1980. About ten years later, the Seventh Circuit held in Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), that use of the twenty-year- old pattern instructions violated the Fourteenth Amend- ment’s Duc Process Clause because the instructions per- mitted a jury to find murder without considering evidence to support voluntary manslaughter, a lesser offense, as provided by state law. In Flowers v. Illinois Department of Corrections, 962 F.2d 703 (7th Cir. 1992), the decision below, the Seventh Circuit held that Falconer v. Lane did not announce a “new rule” under Teague v. Lane, 489 U.S. 288 (1989), thereby permitting Flowers to take advantage of Falconer’s holding retroactively in this habeas corpus action. This petition presents the following questions for review: 1. Did the Seventh Circuit err by holding that exist- ing precedent “‘dictated’”’ Falconer’s holding under Teague v. Lane even though (a) many opinions from the Seventh Circuit, the Illinois Supreme Court, the Illinois Appellate Court and federal district courts irreconcilably conflict with Falconer on the constitu- tionality of the pattern instructions, (b) Falconer radically extends criminal defendants’ Due Process rights by effectively requiring correct jury instruc- tions on affirmative defenses provided by state law, and (c) other circuit courts have expressly rejected the Falconer court’s reasoning? 2. When state law requires a judge to instruct a jury on a lesser offense if only ‘‘very slight evidence” supports the defense, does a federal court on habeas corpus review commit error by relying on the mere giving of the instruction in finding reversible ©~ror? il TABLE OF CONTENTS QUESTIONS PRESENTED .................. TABLE: OF AUTEUR EEIS 560s ccncstacnndeen fog h te ei reer Try rr ery FUME TET 6 6 006 0ceaccens eee eeepaeees CONSTITUTIONAL AND STATUTORY PRUV ECU AL MOWED 660s vues necasd sae STATEMENT OF THE CASE ............... REASONS FOR GRANTING THE WRIT.... I. FALCONER v. LANE, 905 F.2d 1129 (7th Cir. 1990), RADICALLY AND UNPREDICTABLY EXTENDED CONSTITUTIONAL LAW BY GRANTING CRIMINAL DEFENDANTS A DUE PROCESS RIGHT TO CORRECT JURY INSTRUCTIONS ON AN AFFIRMATIVE DE- PERIUEE ii svateortecesusd ous kh eaneeeee eee A. The Pattern Jury Instructions at Issue . B. State and Federal Courts Have Disagreed Radically on the Constitutionality of the Instructions Invalidated in Reddick... C. Falconer and Taylor Radically Extend Criminal Defendants’ Due Process Rights by Effectively Requiring Correct Jury In- structions on Affirmative Defenses Pro- vicod ty Shake Eee «oacivacnecste ees D. Other Circuit Courts Have Expressly Re- jected the Falconer and Taylor Courts’ | PPPoE rer hee PAGE La) qr ~ vo) 13 ill II. THE MERE GIVING OF AN INSTRUCTION CANNOT CONSTITUTE REVERSIBLE ERROR WHEN STATE LAW REQUIRED THE TRIAL JUDGE TO GIVE THE INSTRUCTION EVEN IF ONLY “VERY SLIGHT EVIDENCE” SUP- Cee ee eek kate oe 6 «8 19 NE GE 21 APPENDICES APP. PAGE A—Flowers v. Illinois Department of Corrections, oon pime foo (itm Cir. 1002) ............... 1 B—People v. Flowers, 138 Ill. 2d 218, 516 N.E.2d ea encseunsseseee 19 iv TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES PAGE(S) Arizona v. Fulminante, 111 S. Ct. 1246 (1991) . 20 Beck v. Alabama, 447 U.S. 625 (1980) ......... 15 Boyde v. California, 494 U.S. 370 (1990) ...... 16, 18 Butler v. McKellar, 494 U.S. 407 (1990) ....... 7,12 Connecticut v. Johnson, 460 U.S. 73 (1983) .... 14 Cupp v. Naughten, 414 U.S. 141 (1973)....... 16, 18 Engle v. Isaac, 456 U.S. 107 (1982) ..... 11, 13, 14, 17 Delaware v. Van Arsdall, 475 U.S. 673 (1986) ... 20 Martin v. Ohio, 480 U.S. 228 (1987) .. 11, 12, 13, 14, 15, 17 Patterson v. New York, 432 U.S. 197 (1977) .... AOE eee ee ee Pp. Lp 11, 12, 18, 14, 17 Penry v. Lynaugh, 492 U.S. 302 (1989) ........ 7 Pope v. Illinois, 481 U.S. 497 (1987) .......... 20 Sawyer v. Smith, 110 S. Ct. 2822 (1990) ...... 7,9, 12 Stringer v. Black, 112 S. Ct. 1130 (1992)...... 7 Teague v. Lane, 489 U.S. 288 (1989) .......... passim OTHER CASES Allen v. Redman, 858 F.2d 1194 (6th Cir. 1988) .. 18 Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990) .. Flowers v. Illinois Dep’t of Corrections, 767 F. ee, CE TU PD i 6 ov i Kes enccccces 2,4 vV Flowers v. Illinois Dep’t of Corrections, 962 F.2d eR: SS! A Re ye Pore rn ry passim People v. Arnold, 139 Ill. App. 3d 429, 487 N.E.2d See Ce ED ska eU RS ceeecaneeae cee’ 19 People v. Bolden, 181 Ill. App. 3d 481, 586 N.E.2d 1308 (4th Dist.), appeal denied, 542 N.E.2d 116 i Te eiwissssarcccnti eae 9 People v. Brooks, 175 Ill. App. 3d 136, 529 N.E.2d 732 (1st Dist. 1988), appeal denied, 124 Ill. 2d 557, 535 N.B.2d 916 (1989) ............000. 10 People v. Flowers, 109 Ill. App. 3d 1211, 451 N.E.2d 1039 (ist Dist. 1962) ............... 1 People v. Flowers, 192 Ill. App. 3d 292, 548 N.E.2d Wee Ge Se SI 6 hah ck n an dagectvoaneeys 2,3 People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674 | PEEP Pree Pe ee Cer yee 2, 4, 6, 10, 14 People v. Garcia, 169 Ill. App. 3d 618, 523 N.E.2d 992 (1st Dist.), appeal denied, 122 Ill. 2d 584, SOO N.B.2d 255 (1GGE) . ww. ccc cccsvccssces 19, 20 People v. Howard, 139 Ill. App. 3d 755, 487 N.E.2d ee Ge GI. MD Ak ko hab htaddinaccawevaws 9 People v. McGee, 110 Ill. App. 3d 766, 443 N.E.2d Sees Ge Rs GG oka ca ckcckeveeksss cae 9 People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141 (RE W040i 65 ash nen de ceuas eae eee ee passim People v. Shields, 143 Ill. 2d 435, 575 N.E.2d 538 CRONED Keck dcenve chanel wecceuneess tens 10 People v. Taylor, 181 Ill. App. 3d 538, 536 N.E.2d 1312 (4th Dist.), appeal denied, 545 N.E.2d 127 PE Tee ee erro ee 9 vi People v. Williams, 205 Ill. App. 3d 751, 563 N.E. ie Be ee ee 19 Rose v. Lane, 910 F.2d 400 (7th Cir.), cert. denied, i es M0 UD eee eee 19 Taylor v. Gilmore, 954 F.2d 441 (7th Cir.), peti- tion for cert. filed, 60 U.S.L.W. 3783 (May 19, BD RENO. DO ACUE hc ccaccnniucnacanswee 6a passim United States ex rel. Fleming v. Gramley, 735 F. Supp. 302 (C.D. Ill. 1990), rev’d sub nom. United States ex rel. Fleming v. Huch, 924 F.2d 679 Se, UE a Dah ccd ans ue eeadesaeeses en ) United States ex rel. Fleming v. Huch, 924 F.2d ee ns Coke eeene een 10, 19 Walker v. Endell, 850 F.2d 470 (9th Cir.), cert. denied, 488 U.S. 926 (1988) ................ 18 Wood v. Marshall, 790 F.2d 548 (6th Cir. 1986), cert. denied, 479 U.S. 1036 (1987) .......... 18 FEDERAL CONSTITUTION AND STATUTES as . GUO. ALV, OE os cccavceccncnsas PP Rese ULE) COMO vac ccenadcnsenesncss ee Ps BOE COUUED onc cccncanssanvasscen ILLINOIS STATUTES Ill. Rev. Stat. ch. 38, 7-1 (1985) ............. Ill. Rev. Stat. ch. 38, 79-1 (1985) ............. Ill. Rev. Stat. ch. 38, 79-2 (1985) ............. 7,8 IN THE Supreme Court of the United States OCTOBER TERM, 1992 ILLINOIS DEPARTMENT OF CORRECTIONS, Petitioner, Vv. MARVIN FLOWERS, Respondent. Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit PETITION FOR WRIT OF CERTIORARI The Petitioner respectfully asks this Court to issue a writ of certiorari to the United States Court of Appeals for the Seventh Circuit to review that court’s judgment and opinion entered on May 7, 1992. OPINIONS BELOW The October 11, 1980, order of the Circuit Court of Cook County, Illinois, and the November 1, 1982, decision of the Illinois Appellate Court are unpublished. See People v. Flowers, 109 Ill. App. 3d 1211, 451 N.E.2d 1039 (1st Dist. 1982) (decision table). The February 1, 1983, order of the Illinois Supreme Court denying Flowers leave to appeal is unpublished. The Circuit Court of Cook Coun- ty’s August 12, 1986, denial of Flowers’s petitic \ for post- conviction relief is unpublished. The December 18, 1989, = decision of the Illinois Appellate Court is published at 192 fll. App. 3d 292, 548 N.E.2d 766 (1st Dist. 1989) (“Flowers I’). The September 26, 1990, decision of the Illinois Supreme Court is published at 138 II]. 2d 218, 561 N.E.2d 674 (1990) (“Flowers II’’), and is reprinted in the appen- dix to this petition at pages App. 19 to App. 38. The May 16, 1991, decision of the United States District Court for the Central District of Illinois is published at 767 F. Supp. 880 (N.D. Ill. 1991) (“Flowers IIT’). The May 7, 1992, de- cision of the United States Court of Appeals for the Seventh Circuit is reported at 962 F.2d 703 (7th Cir. 1992) (‘“Fiowers [V’’), and is reprinted in the appendix to this petition at pages App. 1 te App. 17. JURISDICTION The United States Court of Appeals for the Seventh Circuit entered its judgment on May 7, 1992 (App. 18). The Petitioner invokes this Court’s jurisdiction under 28 U.S.C. § 1254(1) (1988). CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE This case puts in issue the Fourteenth Amendment’s Due Process Clause: “No State shall . . . deprive any per- son of life, liberty, or property, without due process of law ....” U.S. Const. amend. XIV, § 1. The case also puts in issue 28 U.S.C. § 2254 (1988): “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution . . . of the United States.” willis STATEMENT OF THE CASE I. Flowers’s State Criminal Trial and Appeal. In 1979, Marvin Flowers repeatedly clubbed Robert Murray with a baseball bat until Murray died. Flowers then stole Murray’s car, along with other items, and drove away. An Illinois jury found Flowers guilty of murder, armed violence and armed robbery on October 11, 1980, and the Circuit Court of Cook County accordingly sen- tenced him to concurrent forty- and fifteen-year sentences. Flowers appealed to the Illinois Appellate Court, which affirmed on November 1, 1982, in an unpublished order. The Illinois Supreme Court denied his petition for leave to appeal on February 1, 1983. II. Flowers’s State Post-conviction Hearing and Appeal. Flowers then filed a petition for post-conviction relief under the Illinois Post-conviction Hearing Act, which the Circuit Court of Cook County denied on August 12, 1986. Flowers again appealed to the Illinois Appellate Court. After Flowers filed his appeal, the Illinois Supreme Court issued its opinion in People v. Reddick, 123 Ili. 2d 184, 526 N.E.2d 141 (1988), which appeared to invalidate the pattern murder and voluntary manslaughter instructions used at Flowers’s trial on state law grounds. The Illinois Appellate Court reversed, granting Flowers’s petition for post-conviction relief. The court noted that Reddick would not automatically apply to Flowers’s con- viction because the Illinois Supreme Court decided it while Flowers’s case was on appeal. Flowers J, 548 N.E.2d at 769. Believing, however, that Reddick ‘‘was clearly predi- cated upon well-settled principles of law,’”’ the court ap- plied Reddick retroactively. Jd. insiliien The Illinois Supreme Court reversed. The court affirmed the lower court’s decision that Reddick had announced a holding grounded in federal constitutional law rather than just state criminal law. It cited the Seventh Circuit’s re- cent decision in Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), to support that holding. The court refused, however, to apply Reddick retroactively. The court adopted, for Ili- nois post-conviction relief claims, this Court’s holding in Teague v. Lane, 489 U.S. 288 (1989). Finding that Red- dick announced a “‘new rule” under Teague, it refused to apply the rule retroactively. Flowers II, 561 N.E.2d at 681-84 (App. 33-38). III. Flowers’s Federal Habeas Corpus Proceeding. Flowers proceeded to federal court, filing a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. That court com- pletely rejected the Illinois Supreme Court’s Teague v. Lane analysis, holding that the Illinois Supreme Court had asked the wrong question in analyzing retroactivity. The issue, in the district court’s opinion, was not whether Fed- dick should apply retroactively, but whether Falconer should apply retroactively. Flowers III, 767 F. Supp. at 894. Finding that Falconer did not announce a new rule under Teague, the court granted Flowers’s petition. /d. The Seventh Circuit affirmed in the decision below, citing its recent decision in Taylor v. Gilmore, 954 F.2d 441 (7th Cir.), petition for cert. filed, 60 U.S.L.W. 3783 (May 19, 1992) (No. 91-1738).! Flowers IV, 962 F.2d at 705 (App. 4). Judge Easterbrook concurred. Although he 1 On June 9, 1992, this Court requested a brief in opposition to the Taylor petition for certiorari. ae believed that stare decisis required the court to follow current Seventh Circuit precedent, Judge Easterbrook argued that a Reddick error does not violate the Due Process Clause at all. Jd. at 707-12 (App. 7-17). The Illinois Department of Corrections seeks a writ of certiorari from this Court to review this judgment and opinion of the Seventh Circuit. REASONS FOR GRANTING THE WRIT The decision below has ominous national implications. In this habeas corpus action, the Seventh Circuit retro- actively applied an earlier case that invalidated, on novel constitutional grounds, pattern murder jury instructions that state and federal courts had considered constitutional for twenty years. In doing so, the court severely limited the scope of Teague v. Lane, 489 U.S. 288 (1989), in which the Court held that a case announces a “new rule” when “the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Jd. at 301 (plurality opinion). The Court should review this issue to reverse the Seventh Circuit’s momentous decision below and to resolve a circuit split on the proper scope of the Due Process Clause. The lower court’s harmless error decision aiso requires reversal because it fundamentally misapplies harmless error analysis. In finding reversible error, the Seventh Circuit erroneously assumed that the state court’s decision to give the jury instruction necessarily meant “that the evidence presented at trial could support either a voluntary man- slaughter verdict or a murder verdict.” Flowers IV, 962 F.2d at 706 (App. 4-5). That statement is patently untrue under settled Illinois law. If allowed to stand, the deci- sion below effectively clears the way for hundreds of con- a oe victed murderers to by-pass the harmless error standard for this jury instruction error. This Court should prevent such a calamity from occurring by reversing the Seventh Circuit’s incorrect decision below. I. FALCONER v. LANE, 905 F.2d 1129 (7th Cir. 1990), RADI- CALLY AND UNPREDICTABLY EXTENDED CONSTITU- TIONAL LAW BY GRANTING CRIMINAL DEFENDANTS A DUE PROCESS RIGHT TO CORRECT JURY INSTRUC- TIONS ON AN AFFIRMATIVE DEFENSE. In holding that Falconer v. Lane announced an old rule that applies retroactively, the Seventh Circuit dismissed rank confusion in the state and federal courts about why these twenty-year-old pattern jury instructions used at Flowers’s trial might violate the Constitution. Indeed, after a series cf inconsistent opinions from the Seventh Circuit itself, Judge Easterbrook concurred below specifi- cally to argue that the instructions do not violate the Due Process Clause at all. 962 F.2d at 707-12 (App. 7-17) (Easterbrook, J., concurring). He noted that the Seventh Circuit was “at loggerheads with the Supreme Court of Illinois, which held in this very case . . . that [Reddick] would not [apply retroactively].’”’ Jd. at 707 (App. 7) (cita- tions omitted). See Flowers II, 561 N.E.2d at 683 (App. 36-37) (finding that Reddick announced a new rule of crim- inal procedure). These facts alone establish that Falconer announced a new rule under Teague v. Lane. Moreover, even if Falconer correctly revealed a consti- tutional problem with these instructions, no decision of this Court “dictated” that result. To the contrary, Falconer oppugns a line of cases from this Court that suggest that criminal defendants have no Due Process right to affirm- ative defense instructions required by state law. Further- =< more, Falconer is patently inconsistent with cases from other circuits that have relied on this same line of cases when faced with similar issues. Falconer established a starkly new rule of criminal procedure that the court should not have applied retroactively to Flowers’s con- viction. A federal court generally cannot grant habeas corpus relief to a prisoner based on a “new rule” of criminal pro- cedure. Teague v. Lane, 489 U.S. at 301 (plurality opin- ion); Penry v. Lynaugh, 492 U.S. 302, 314 (1989). A deci- sion announces a new rule if the result was not dictated by precedent existing at the time the defendant’s convic- tion became final. Stringer v. Black, 112 S. Ct. 1180, 1135 (1992). If “reasonable jurists may disagree” as to whether an earlier decision “‘dictates’”’ a later one, then the later decision announced a “new rule” under Teague. Sawyer v. Smith, 110 S. Ct. 2822, 2827 (1990). As the Court ex- plained in Butler v. McKellar, 494 U.S. 407 (1990), ‘‘[t]he ‘new rule’ principle . . . validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Jd. at 414. Under these settled principles, the Seventh Circuit erred by holding that Falconer announced an old rule that it could apply retroactively to Flowers’s conviction. A. The Pattern Jury Instructions at Issue. Under the Illinois Criminal Code of 1961 (the ‘‘Code’’), a person committed murder if he killed someone with an intent to kill or commit great bodily harm. Ill. Rev. Stat. ch. 38, ¢ 9-1 (1985). In another statutory section, the Code also provided for a lesser crime of voluntary man- slaughter. Ill. Rev. Stat. ch. 38, 49-2 (1985). A person oe ee committed voluntary manslaughter rather than murder if the evidence established the two elements of murder noted above as well as a ‘‘mitigating circumstance.” See People v. Reddick, 123 Ill. 2d 184, 193-97, 526 N.E.2d 141, 144-45 (1988). The Code provided for two mitigating cir- cumstances: (a) that the defendant killed while acting under sudden and intense passion resulting from serious provocation, or (b) that the defendant had an unreasonable belief at the time of the killing that he had to protect himself. Ill. Rev. Stat. ch. 38, 49-2 (1985).2 In Reddick, the Illinois Supreme Court held that the mitigating circumstances described in the Code were par- tial affirmative defenses to a murder charge. Reddick, 123 Ill. 2d at 195-96, 526 N.E.2d at 145-46. The court held that defendants have the burden of producing evidence to warrant the instruction on voluntary manslaughter, but once the defendant raised the issue, the State had the burden of disproving the existence of the mitigating cir- cumstance beyond a reasonable doubt. /d., 123 Ill. 2d at 197, 526 N.E.2d at 146. The pattern jury instructions on these crimes—first published in 1968 and likely used in hundreds of criminal trials—did not accurately reflect the burdens of proof that the Reddick court announced. Ac- cordingly, the Reddick court invalidated them. Jd., 123 Ill. 2d at 197, 526 N.E.2d at 146. Flowers’s jury was in- structed with the same instructions invalidated on state- law grounds in Reddick. 2 If the defendant had a reasonable belief that he had to defend himself (7.e., if he acted in self-defense), a separate section of the Code provided for full acquittal. Ill. Rev. Stat. ch. 38, 7-1 (1985). ~ B. State and Federal Courts Have Disagreed Radically on the Constitutionality of the Instructions Invalidated in Reddick. Since Reddick, federal and state courts, including the Seventh Circuit itself as well as the Illinois Supreme Court, have issued markedly inconsistent opinions as to whether Reddick errors violate the Due Process Clause. Because disagreement among reasonable jurists estab- lishes that a constitutional principle is “‘new’’ under Teague, Falconer announced a new rule. Sawyer, 110 S. Ct. at 2827. Before the Seventh Circuit decided Falconer, many courts held that a Reddick error did not violate the Due Process Clause. These courts typically reasoned that, if anything, a Reddick errvr deprived a defendant of an af- firmative defense, and the Due Process Clause does not guarantee defendants the right to receive an affirmative defense instruction. See, e.g., People v. Bolden, 181 Ill. App. 3d 481, 487-88, 536 N.E.2d 1308, 1311-12 (4th Dist.), appeal denied, 542 N.E.2d 116 (Ill. 1989); People v. Taylor, 181 Ill. App. 3d 538, 540, 5386 N.E.2d 1312, 1313 (4th Dist.), appeal denied, 545 N.E.2d 127 (Ill. 1989); United States ex rel. Fleming v. Gramley, 735 F. Supp. 302, 305- 08 (C.D. Ill. 1990), rev’d sub nom. United States ex rel. Fleming v. Huch, 924 F.2d 679 (7th Cir. 1991). See also People v. McGee, 110 Ill. App. 3d 766, 775, 4438 N.E.2d 1057, 1063-64 (2d Dist. 1982) (affirming convictions on direct review after trials using the pattern instructions); Peopie v. Howard, 139 Ill. App. 3d 755, 760-61, 487 N.E.2d 656, 660-61 (2d Dist. 1985) (same). As the Bolden Court explained, ‘‘No United States Supreme Court case has held that due process is denied when an imperfect instruc- tion is given in regard to an included offense.” 181 III. App. 3d at 487, 536 N.E.2d at 1312. = Other courts, however, including the Seventh Circuit and the Illinois Supreme Court, disagreed with this rea- soning. These courts held that the Reddick court reversed on constitutional rather than state-law grounds even though the instructions related to an affirmative defense. See, e.g., Falconer v. Lane, 905 F.2d at 1134 & n.5; Flowers II, 138 Ill. 2d at 235-37, 561 N.E.2d at 680-81 (App. 31-33); People v. Shields, 143 Ill. 2d 435, 442-48, 575 N.E.2d 538, 542 (1991); People v. Brooks, 175 Ill. App. 3d 136, 142, 529 N.E.2d 732, 736 (1st Dist. 1988), appeal denied, 124 Ill. 2d 557, 585 N.E.2d 916 (1989). These courts either held or strongly suggested that Red- dick itself announced a Due Process holding, because the Reddick court considered the jury instruction error to vio- late a defendant’s alleged fundamental right to accurate jury instructions. As the Falconer court stated, ‘“‘{all- though the Reddick Court itself did not use the magic words ‘due process’ as the petitioner did, the Court obvi- ously considered the errors resulting from the invalid in- structions to be of constitutional magnitude.” 905 F.2d at 1134. The court explicitly approved of various Illinois Ap- pellate Court decisions, including People v. Brooks, which held that Reddick announced a constitutional rule because ‘(t]he right of an accused to have the State prove all the elements of his alleged crime is incontestably of constitu- tional dimension.”’ Brooks, 175 Ill. App. 3d at 142, 529 N.E.2d at 736 (citation omitted). See Falconer, 905 F.2d at 1134 & n.5 (adopting Brooks and other Illinois Appel- late Court decisions). As the Seventh Circuit later recognized, however, ‘‘an ambiguity exist{ed] as to the precise nature of the due process violation.” United States ex rel. Fleming v. Huch, 924 F.2d 679, 682 (7th Cir. 1991). In particular, earlier statements in the Seventh Circuit’s decisions never ex- Tan plained why Reddick errors did not merely violate state law since, at most, they deprived a defendant of his state- law right to present an affirmative defense. See Patter- son v. New York, 482 U.S. 197, 210 (1977) (state need not “disprove beyond a reasonable doubt every fact constitut- ing any and all affirmative defenses related to the culpa- bility of an accused’’); Engle v. Isaac, 456 U.S. 107, 119-21 (1982) Gury instruction error could not be challenged on habeas review because it related to an affirmative defense, not an element of the crime); Martin v. Ohio, 480 U.S. 228, 233 (1987) (states may shift burden of proving self- defense to accused in homicide case). See infra § 1.C., pp. 13-17. Only in Taylor v. Gilmore, 954 F.2d 441 (7th Cir.), peti- tion for cert. filed, 60 U.S.L.W. 3783 (May 19, 1992) (No. 91-1738), did the Seventh Circuit finally clarify why it be- lieved that using these instructions violated the Constitu- tion. The court held that constitutional error occurred because (a) a reasonable likelihood existed that the jury applied the challenged instruction in ‘“‘an invalid manner,” and (b) the jury might not have “weigh[ed] evidence that may have led to an acquittal on the charge of conviction.” 954 F.2d at 452-53. This novel holding went far beyond the earlier, irrecon- cilable efforts to resolve this issue by the Seventh Cir- cuit, the Illinois Supreme Court, the Illinois Appellate Court, and the federal district courts in Illinois. Indeed, Judge Easterbrook below charged the Taylor court with “abandon[ing]” Falconer’s holding and substituting a new one, with which he also disagreed. 962 F.2d at 709-12 (Easterbrook, J., concurring) (App. 11-17). Because many reasonable jurists had addressed this issue but had ar- rived at divergent results, neither Falconer nor Taylor, - which modified Falconer’s holding, were “dictated” by existing precedent. Judge Easterbrook concurred below specifically because he thought that the Seventh Circuit erred in Falconer and Taylor by finding a Due Process violation. 962 F.2d at 707-12 (App. 7-17) (Easterbrook, J., concurring). He ex- plained: “{I}f a state could choose to do something—choose, for example, to make self-defense an affirmative defense to murder . . .—then the federal inquiry is over; whether the state has indeed so chosen is a question of its domes- tic law.”’ Id. at 711 (App. 15) (citing Patterson and Mar- tin). Although some panels of the Seventh Circuit believe that Reddick errors violate the Due Process clause, Judge Easterbrook does not. As a “reasonable jurist[ },” Judge Easterbrook’s concurrence below necessarily means that Falconer and Taylor established a new rule. Sawyer, 110 S. Ct. at 2827. In holding that Falconer did not announce a new rule under Teague, the Seventh Circuit has effectively declared that Judge Easterbrook’s concurrence, as well as earlier opinions of the Seventh Circuit, the Illinois Supreme Court, the Illinois Appellate Court and the federal district court, were products of unreasonable jurists. Sawyer, 110 S. Ct. at 2827; Butler v. McKellar, 494 U.S. 407, 415 (1990). This holding cannot stand. These judges did not reach divergent opinions because they were ‘‘unreason- able’; to the contrary, the opinions differ because the courts were simply grappling with how best to apply exist- ing precedent, which does not squarely resolve the consti- tutional question presented by these pattern instructions. Accordingly, Falconer and Taylor present a quintessen- tially new rule under Teaque. This Court should issue a writ of certiorari to correct the Seventh Circuit’s error and to preclude the federal courts from applying Falconer’s ~~. novel holding to potentially hundreds of long-final murder convictions in Illinois. C. Falconer and Taylor Radically Extend Criminal Defendants’ Due Process Rights by Effectively Requiring Correct Jury Instructions on Affirmative Defenses Provided by State Law. Falconer and Taylor held that use of these instructions violated a defendant’s right to Due Process despite Patter- son v. New York, 432 U.S. 197 (1977), Engle v. Isaac, 456 U.S. 107 (1982), and Martin v. Ohio, 480 U.S. 228 (1987), all of which strongly suggest that a defendant has no such Due Process right. Indeed, two circuits have rejected ar- guments that the Seventh Circuit applied in Falconer and Taylor specifically because of Patterson and later cases. See infra §1.D., pp. 17-19. Even if the Seventh Circuit correctly decided Falconer and Taylor, therefore, they an- nounced a new rule because they went far beyond earlier pronouncements of this Court on the scope of a criminal defendant’s Due Process right to an affirmative defense jury instruction. Since Patterson v. New York, this Court has held, ap- parently uniformly, that in noncapital cases the Due Proc- ess Clause requires proof beyond a reasonable doubt of the elements of a charged offense, but affirmative defenses are matters of state law. In Patterson, for example, the Court held that a state could legitimately, under the Due Process Clause, place the burden of proof of an affirmative defense upon a defendant. 432 U.S. at 205-11. Similarly, in Engle v. Isaac, the Court held that jury instructions that violated state law by placing the burden of proof of an affirmative defense upon a defendant did not violate the Due Process Clause. 456 U.S. at 119-21. Lastly, in Martin v. Ohio, the Court held that a state may place = the burden of proof of an affirmative defense on a defen- dant even if evidence that supports the affirmative defense would negate one of the elements of the charged offense. 480 U.S. at 233-36. Falconer and Taylor contradict the rationale of these cases. If the Due Process Clause allows states to convict defendants with jury instructions that misallocate the burden of proof of an affirmative defense (Engle v. Isaac, 456 U.S. at 119-21), then the Due Process Clause should also allow states to convict defendants with instructions that effectively deprive a defendant of an affirmative de- fense. Falconer and Taylor announce holdings directly contrary to this reasoning. Even if Falconer and Taylor are correct, therefore, Engle, Patterson and Martin dispel any possibility that existing precedent “dictated” their constitutional holdings. Indeed the Illinois Supreme Court reached this very result. See Flowers II, 561 N.E.2d at 683 (holding that Reddick will not apply retroactively, in part, because Reddick’s constitutional holding ‘did not necessarily flow” from its statutory analysis given Patterson). The Taylor court, addressing the retroactivity of Falconer, relied on Connecticut v. Johnson, 460 U.S. 73 (1983), to hold that “permitting a jury to reach a murder verdict without considering evidence that would warrant mitiga- tion to voluntary manslaughter . . . violates due process.”’ 954 F.2d at 453. As the court itself recognized, however, Johnson involved instructions on an element of a crime, not an affirmative defense. Jd. The court considered this distinction from Johnson “insignificant,” however, stating: What ultimately mattered in Johnson was that the jury could not weigh evidence that may have led to an acquittal on the charge of conviction—regardless of whether the evidence related to an element of the ~~ crime or an affirmative defense. In a state that de- fines manslaughter and murder as separate crimes, and at a trial where a defendant is constitutionally entitled to voluntary manslaughter instructions, a homicide committed under a sudden and intense pas- sion is no more a murder than a homicide committed without the intent to kill. Id. This passage misapplies the law for at least three reasons. First, to the extent that the pattern instructions might prevent the jury from acquitting the defendant of murder even though he presented evidence of an affirmative de- fense, the instructions only violated state law. The Due Process Clause does not place on a state the burden of proving the absence of an affirmative defense, even if the existence of the affirmative defense might negate an ele- ment of the charged crime. Martin v. Ohio, 480 U.S. at 233-36. It necessarily follows that a defendant has no Due Process right to have a jury consider evidence that is only relevant to an affirmative defense. Second, the Taylor court cited no authority for the proposition that a defendant is ‘constitutionally entitled to voluntary manslaughter instructions.” 954 F.2d at 453. This Court has apparently never held that criminal defen- dants have such a right in noncapital cases. See Beck v. Alabama, 447 U.S. 625, 637 (1980) (noting that the Court has “never held that a defendant is entitled to a lesser included offense instruction as a matter of due process’’). Third, although the court correctly stated that a homi- cide committed “‘under a sudden and intense passion is no more a murder than a homicide committed without the intent to kill’ (954 F.2d at 453), the issue in a habeas corpus case is not whether the habeas petitioner com- mitted murder; the issue is whether the conviction violates =~ = the Constitution. Whether evidence establishes murder under state law is a fundamentally different question from whether the Constitution requires that the jury instruc- tions permit the jury to consider that evidence. As Judge Easterbrook concluded below, “Jf Illinois wishes to use these instructions, it may; whether it wishes to do so is none of our business.’’ 962 F.2d at 712 (App. 17) (Easter- brook, J., concurring). The Taylor court also justified its holding on another line of cases from this Court which control the scope of habeas review of improper jury instructions. The court never acknowledged, however, that this Court has ap- parently never applied this second line of cases to instruc- tions that effectively deprive a defendant of only an af- firmative defense. The Due Process Clause requires a new trial when ‘an ailing instruction by itself so infected the entire trial tha: the resulting conviction violates due process.’’ Cupp v. Naughten, 414 U.S. 141, 147 (1973). In reviewing jury in- structions, a collateral court must assess “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consid- eration of constitutionally relevant evidence.” Boyde v. California, 494 U.S. 370, 380 (1990). The Seventh Circuit purported to apply this rule in Taylor, but restated the Boyde test in a novel and expansive way. Rather than asking whether the jury was likely to have applied the instruction in a way “that prevents its consideration of constitutionally relevant evidence,”’ as the Court stated in Boyde, the court inquired whether the jury was likely to have applied the instruction “in an invalid manner,” by which it meant in a manner that deprived the defen- dant of an affirmative defense permitted by state law. 954 F.2d at 452-53. a This slight difference in wording makes the Falconer and Taylor holdings radical indeed. A Reddick error prej- udices a defendant because the instructions effectively pre- vent a jury from considering, as required by state law, the lesser crime of voluntary manslaughter as an alter- native to murder. Falconer, 905 F.2d at 1136. But, as this Court’s reasoning in Patterson and later cases suggests, defendants have no Due Process rights to jury instruc- tions on affirmative defenses in noncapital cases. Engle v. Isaac, 456 U.S. at 119-21; Patterson v. New York, 432 U.S. at 210; Martin v. Ohio, 480 U.S. at 233. It may have been “invalid” under state law for the pattern instruc- tions to prevent Flowers’s jury from considering evidence of voluntary manslaughter; such evidence is plainly not, how- ever, “constitutionally relevant evidence” under Patterson. D. Other Circuit Courts Have Expressly Rejected the Falconer and Taylor Courts’ Reasoning. At least two circuits have properly rejected the reason- ing contained in Taylor’s restatement of the Falconer holding specifically because of Patterson and its progeny. This circuit split illustrates the national dilemma posed by the decision below, which found Taylor controlling. In at least two circuits, criminal defendants have no right to correct jury instructions relating to an affirmative de- fense in any circumstance because affirmative defenses are the subject of state law under Patterson. The Seventh Circuit’s decision below, however, confirms that criminal defendants not only have such a right despite Patterson, but that the existence of this Due Process right was dic- tated by this Court’s precedent. This Court should grant certiorari to correct the Seventh Circuit’s error and re- solve the split in the circuits over this fundamental rule of criminal procedure. wltie Both the Sixth and the Ninth Circuits have rejected the reasoning underlying the court’s décision below. In Allen v. Redman, 858 F.2d 1194 (6th Cir. 1988), for example, the habeas petitioner argued that his state jury instruc- tion on the affirmative defense of insanity was incorrect in that it permitted the jury to convict him of the charged crime without considering his sanity. He argued that the instruction completely “infected”’ the trial so as to deprive him of Due Process under Cupp. The court rejected his argument, holding that “the language from Cupp, stating that the ‘resulting conviction violates due process,’ brings the analysis . . . back to whether sanity is an element of the crimes involved.” 858 F.2d at 1200. Because sani- ty was not an element of the charged crime, the Cupp- Boyde rule did not apply in the petitioner’s case. Id. See also Wood v. Marshall, 790 F.2d 548, 551-52 (6th Cir. 1986), cert. denied, 479 U.S. 1036 (1987) (confusing jury instructions on an affirmative defense to murder could not violate Due Process). Similarly, in Walker v. Endell, 850 F.2d 470 (9th Cir.), cert. denied, 488 U.S. 926 & 981 (1988), the petitioner argued that Due Process required correct instructions on “criminal recklessness.”’ Jd. at 475-76. Criminal reckless- ness only negated the defense of duress, however, and therefore was not an element of the charged crime. /d. at 476. Accordingly, the court held that “the failure to give an instruction defining recklessness is at most an error of state law.” Id. Walker, Wood and Allen all reach the opposite conclu- sion of Falconer, Taylor and the decision below, 1.e., that confusing or incorrect jury instructions that at most deprive a defendant of an affirmative defense can still violate the Due Process Clause. Given this dispute among = reasonable jurists as to the scope of Due Process limita- tions on incorrect affirmative defense jury instructions, Falconer’s holding (as clarified in Taylor) constitutes a new rule under Teague. This Court’s grant of certiorari would allow it to resolve this circuit conflict over the scope of the Due Process Clause. Il. THE MERE GIVING OF AN INSTRUCTION CANNOT CONSTITUTE REVERSIBLE ERROR WHEN STATE LAW REQUIRED THE TRIAL JUDGE TO GIVE THE INSTRUC- TION EVEN IF ONLY “VERY SLIGHT EVIDENCE” SUP- PORTED IT. The lower court stated that the Illinois trial judge had an “‘apparent belief . . . that the evidence presented at trial could support either a voluntary manslaughter ver- dict or a murder verdict”’ simply because “‘he tendered a voluntary manslaughter instruction to the jury.” 962 F.2d at 708 (App. 4). The Seventh Circuit has applied similar reasoning in all its Reddick cases. Taylor, 954 F.2d at 454 (finding the pattern instructions “inherently preju- dicial’’); United States ex rel. Fleming v. Huch, 924 F.2d at 683 (same); Rose v. Lane, 910 F.2d 400, 403 (7th Cir.), cert. denied, 111 S. Ct. 515 (1990) (same); Falconer, 905 F.2d at 1136-37 (“({T]Jhe trial court determined that the jury should have the opportunity to return a verdict of voluntary manslaughter’’). In doing so, it has fundamen- tally misapplied Illinois law. At Flowers’s trial, the judge had to tender the volun- tary manslaughter instruction if even “very slight evi- dence”’ supported the charge. People v. Williams, 205 Ill. App. 3d 751, 765, 563 N.E.2d 762, 770 (1st Dist. 1989); People v. Arnold, 139 Ill. App. 3d 429, 434, 487 N.E.2d 997, 1000 (1st Dist. 1985); People v. Garcia, 169 Ill. App. —~20— 3d 618, 620, 523 N.E.2d 992, 994 (1st Dist.), appeal denied, 122 Ill. 2d 584, 5380 N.E.2d 255 (1988). By the case below and its predecessors, however, whenever only “very slight evidence” supports voluntary manslaughter, a Reddick error cannot be harmless simply because the trial judge decided to tender the instruction to the jury. The exist- ence of “‘very slight evidence”’ of voluntary manslaughter, however, plainly does not preclude a jury from finding that the defendant actually committed murder. The Seventh Circuit’s declared method of harmless error analysis for Reddick errors, therefore, presumes prejudice; it does not even address the only relevant question, 1.e., whether ‘“‘it can be said beyond a reasonable doubt that the jury’s ver- dict . . . was not affected by the erroneous instruction.”’ Pope v. Illinois, 481 U.S. 497, 502 (1987). The harmless error doctrine “‘preserve[s] the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Arizona v. Fulminante, 111 S. Ct. 1246, 1264 (1991) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). The Seventh Circuit has thwarted this policy by summarily dismissing the very real chance that a jury would have found a defendant guilty of murder even though the law technically required a marslaighter instruction. The Court should grant certiorari to reverse the Seventh Circuit’s decision. — CONCLUSION The Seventh Circuit’s decision contravenes this Court’s precedent, solidifies a circuit split on a fundamental rule of criminal procedure, and wrongly gives a colorable habeas corpus claim to potentially hundreds of convicted murderers. Moreover, it fundamentally misapplies the harmless error standard required by numerous decisions of this Court. Accordingly, the Court should issue a writ of certiorari. Respectfully submitted, ROLAND W. BURRIS Attorney General, State of Illinois ROSALYN B. KAPLAN Solicitor General, State of Illinois TERENCE M. MADSEN Assistant Attorney General MARK E. WILSON Assistant Attorney General STEVEN J. ZICK Assistant Attorney General Counsel of Record 100 West Randolph Street, 12th Floor Chicago, Illinois 60601 (312) 814-2139 Counsel for Petitioner APPENDICES App. 1 APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 91-2330 and 91-2415 MARVIN FLOWERS, Petitioner-Appellant Cross-Appellee, v. ILLINOIS DEPARTMENT OF CORRECTIONS, Respondent-Appellee Cross-Appellant. Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 90 C 6505—William T. Hart, Judge ARGUED JANUARY 7, 1992—DecipED May 7, 1992 Before POSNER and EASTERBROOK, Circuit Judges, and ESCHBACH, Senior Circuit Judge. ESCHBACH, Senior Circuit Judge. An Illinois jury con- victed Marvin Flowers of murder under a version of mur- der and voluntary manslaughter instructions found con- Sstitutionally deficient by this court in Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), and earlier found statutor- ily deficient by the Illinois Supreme Court in People v. Reddick, 123 I1l.2d 184, 526 N.E.2d 141 (1988). After ex- hausting his state remedies, Flowers petitioned for federal habeas corpus relief, claiming that his Fourteenth Amend- ment due process rights were violated by the written and App. 2 oral instructions tendered to the jury and that his rights against double jeopardy, as guaranteed to him by the Fifth and Fourteenth Amendments, were violated in the state proceedings. The district court granted Flowers re- lief on the due process grounds, vacating his murder con- viction, but denied relief on the double jeopardy ground, thereby allowing Illinois to retry Flowers within ninety days. Both Flowers and Iilinois appealed, and their ap- peals were consolidated for our review. For the reasons that follow, we affirm. & The facts of this case have been detailed extensively in several reported opinions including Judge Hart’s com- prehensive order below, see United States ex rel. Marvin Flowers v. Illinois Department of Corrections, 767 F. Supp. 880 (N.D. Ill. 1991); consequently, we will not repeat them here except as necessary for our discussion. See also People v. Flowers, 192 Ill.App.3d 292, 548 N.E.2d 766 (1989) (ordering new murder trial) [Flowers I]; People v. Flowers, 138 Ill.2d 218, 561 N.E.2d 674 (1990) (reinstating murder conviction) [Flowers IJ]. In short, Marvin Flowers admitted that he killed his employer, Robert Murray, with a baseball bat, but maintained that the killing was either in self defense or constituted voluntary manslaughter rather than murder. The trial court determined that the evidence required jury instructions on both murder and voluntary manslaughter. R. 22-23; S.R. 1181-84. The instructions given to Flowers’ jury, however, allowed the jury to con- vict Flowers of murder without regard to the presence or absence of those mitigating circumstances that distin- guish voluntary manslaughter from murder, which has been held to violate the federal due process clause, see Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), and IIli- nois law, see People v. Reddick, 123 Il.2d 184, 526 N.E.2d 141 (1988). Flowers’ case demonstrates the jury confusion to which Falconer and its progeny is addressed: initially Flowers’ App. 3 jury returned verdicts finding him guilty of both murder and voluntary manslaughter. S.R. 24. A judge, who had stepped in to receive the verdicts in the absence of the trial judge, ordered the jury to deliberate further, in- structing them to return either the murder or the volun- tary manslaughter verdict form, but not both. R. 24-27. The judge twice attempted to clarify the written instruc- tions with little success (as we discuss post). Eventually, the jury returned a murder verdict and Flowers was sen- tenced to forty years for the offense of murder. R. 31-32. After exhausting his state remedies, Flowers petitioned for federal habeas relief. See Flowers, 767 F. Supp. at 884-85 (detailing Flowers’ state court history). Il. Flowers asserts that he is entitled to federal habeas relief because the written and supplemental oral jury in- structions violated his due process rights under the Four- teenth Amendment. First, Flowers correctly asserts that his written jury instructions violate federal due process. Taylor v. Gilmore, 954 F.2d 441 (7th Cir. 1992); United States ex rel. Fleming v. Huch, 924 F.2d 679 (7th Cir. 1991); Rose v. Lane, 910 F.2d 400 (7th Cir. 1990); Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990). Illinois concedes this point, see Brief of Respondent-Appellee, Cross Appel- lant at 5-6, but argues that the judge’s supplemental oral instructions cured any deficiency. After a thorough discus- sion of the judge’s supplemental oral instructions, the district court concluded that the oral instructions “were not sufficient to cure the inherent confusion” in the writ- ten instructions. Flowers, 767 F. Supp. at 892. Our own view of the record reinforces the district court’s conclu- sion: the judge’s oral instructions further muddled an al- ready confused jury through a series of misstatements and the use of undefined legal terminology such as “lesser in- cluded offense.” R. 1078-81. Neither did the oral instruc- tions correct the erroneous written instructions because the jury was not told that it could not convict Flowers of murder if it found that Flowers believed that he was App. 4 justified in killing Murray, even if this belief was unrea- sonable. Illinois next argues that even if the jury instructions violate federal due process, Flowers is nevertheless not entitled to collateral relief. Illinois contends that granting Flowers relief on his due process claim would constitute retroactive application of a new rule of criminal procedure in violation of Teague v. Lane, 489 U.S. 288 (1989). The district court held that Falconer did not announce a “new rule” under Teague and that Flowers was accordingly en- titled to its application. Our recent decision in Taylor makes clear that the district court was correct. Taylor, 954 F.2d at 453 (holding that “Falconer is not a new rule’). Flowers is entitled to the benefit of Falconer. Finally, we consider Illinois’ argument that the errors in Flowers’ jury instructions were harmless beyond a rea- sonable doubt. See Rose v. Clark, 478 U.S. 570 (1986); Chap- man v. California, 386 U.S. 18 (1967). Considering that the Flowers’ [sic] jury initially returned verdicts for both murder and voluntary manslaughter, Illinois’ argument here seems particularly barren—although we note that IIli- nois itself does not spend much time pursuing this point.! Moreover, we have rejected similar contentions in the past in this context, see Fleming, 924 F.2d at 688; Rose, 910 F.2d at 403; Falconer, 905 F.2d at 1137, particularly where a defendant stakes his entire defense on a miti- gating mental state rather than innocence. Taylor, 954 F.2d at 454. Our review of the record confirms the state trial judge’s apparent belief, given that he tendered a voluntary manslaughter instruction to the jury, that the evidence presented at trial could support either a volun- 1 Flowers’ motion to strike portions of Illinois’ reply brief was carried with this case. We grant that motion only as to the portion seeking to strike Argument I from Illinois’ reply brief as improper surrebuttal. We deny the remaining two counts of that motion (pertaining to arguments III and IV of Illinois’ reply brief). We deem it unnecessary for Illinois to file a new brief with Argument I stricken. App. 5 tary manslaughter verdict or a murder verdict. Conse- quently, we conclude that the error at Flowers’ trial was not harmless beyond a reasonable doubt; he is entitled to federal habeas relief on his due process claim. Ii. Flowers also seeks habeas corpus relief on the basis of an alleged violation of the Double Jeopardy Clause dur- ing his state proceedings. Flowers asserts that the jury’s initial return of a voluntary manslaughter verdict consti- tuted a murder acquittal because it reflected a finding, beyond a reasonable doubt, of the presence of those miti- gating circumstances that reduce murder to voluntary manslaughter. The jury’s simultaneous return of a murder verdict did not negate or contradict that finding, argues Flowers, because the faulty murder instruction did not require the jury to make a determination as to the pres- ence or absence of the mitigating circumstances. Thus, Flowers insists, the Double Jeopardy Clause prohibits re- jection of the jury’s finding and resubmission of the mur- der issue to the jury.? But Flowers was not expressly acquitted of murder; he cannot prevail unless the jury’s alleged finding as to his mental state impliedly acquitted him of murder. See Ohio v. Johnson, 467 U.S. 493, 497-99 (1984) (citations omitted). 2 The district court declined to accept Flowers’ double jeopardy argument, reasoning that it should defer to the Illinois Supreme Court’s resolution of this issue in Flowers IJ, 561 N.E.2d at 678. See Flowers, 767 F. Supp. at 892. The Illinois Supreme Court de- termined that what Flowers’ jury intended was speculative and that its initial verdicts were legally inconsistent so as to permit further deliberations, see Flowers ir, 561 N.E.2d at 678, a deter- mination that the district court characterized as one of “fact and procedure.” Flowers, 767 F. Supp. at 892. We need not decide whether the district court properly characterized tne Illinois Su- preme Court’s determination as a factual one entitled to deference, see 28 U.S.C. § 2254, because we agree with its conclusion even if it is one of law or a mixed question of fact and law. App. 6 Flowers cannot meet his burden of demonstrating an im- plied acquittal because the confusing and ambiguous jury instructions in this case make it impossible to know what the jury intended when it returned both verdicts. See ante at 3-5; Falconer, 905 F.2d at 1136. Although Flowers was being tried for both murder and voluntary manslaughter, the judge never explained to the jury that voluntary man- slaughter is not a lesser included offense of murder and that Flowers could not be guilty of both crimes simulta- neously.? The jury may have believed that a murder con- viction required or included a voluntary manslaughter con- viction as well. Had the judge made clear to the jury the relationship between murder and voluntary manslaughter, then the potential for jury confusion that drives Falconer and its progeny may not have been present in this case. See Falconer, 905 F.2d at 1136 (instructions are faulty precisely because the murder instruction “read[s] as though voluntary manslaughter did not exist as a crime” although both murder and manslaughter are at issue); Taylor, 954 F.2d at 450 (noting while discussing Falconer that the in- structions “({w]hen read together [are] susceptible to more than one reasonable interpretation”’). Accordingly, while it is theoretically possible that the jury wanted to acquit Flowers of murder but felt com- pelled not to by the faulty instructions, it is also possi- ble that the jury found Flowers guilty of murder and be- lieved that that finding compelled them to find him guilty of voluntary manslaughter as well. Flowers’ petition gives us no reason to favor his speculation. Consequently, we hold that Flowers has not met his burden on federal ha- 3 Indeed, Flowers does not dispute that a court may reject legally inconsistent verdicts without running afoul of the Double Jeopar- dy Clause, see Hoffer v. Morrow, 797 F.2d 348, 352 (7th Cir. 1986); lowers, 767 F. Supp. at 24 (and cases cited therein), or that these verdicts were inconsistent with the substantive law of Illinois. See People v. Almo, 90 Tll.Dec. 885, 889, 483 N.E.2d 203, 207 (Ill. 19835). App. 7 beas review of demonstrating that he has been denied his rights guaranteed by the Double Jeopardy Clause. * * * We AFFIRM the district court’s grant of Flowers’ peti- tion for a writ of habeas corpus. The writ shall issue, thereby releasing Flowers from custody, unless the State of Illinois elects to retry him within ninety (90) days from the issuance of this Court’s final mandate. AFFIRMED EASTERBROOK, Circuit Judge, concurring. We are at loggerheads with the Supreme Court of Illinois, which held in this very case (People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674 (1990)), that People v. Reddick, 123 IIl.2d 184, 526 N.E.2d 141 (1988), would not be applied to per- sons whose convictions became final before its rendition on June 20, 1988. Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), and Taylor v. Gilmore, 954 F.2d 441 (7th Cir. 1992), create this conflict and support our decision today. Although I join the court’s opinion (except for Part II), I write separately to explain why I would not have de- cided Falconer and Taylor in the same way. At oral argu- ment counsel for Illinois informed us that these decisions undercut hundreds of convictions for murders that predate 1987 (when the state enacted a new murder statute), and that petitions for writs of habeas corpus seeking the bene- fit of these cases are being filed at the rate of two per week. Most trial judges in Illinois use pattern jury instructions prepared by the Committee on Pattern Jury Instructions appointed by the Supreme Court of Illinois. The /llinois Pattern Jury Instructions §27.01 (2d ed. 1981), recom- mended that when the accused in a murder prosecution raises self-defense, the jury should be instructed as follows: App. 8 To sustain the charge of murder, the State must prove the following propositions: First: That the defendant performed the acts which caused the death of [the victim]; and Second: That when the defendant did so, he in- tended to kill or do great bodily harm to [the vic- tim]; or he knew that his acts would cause death or great bodily harm to [the victim]; or he knew that his acts created a strong probability of death or great bodily harm to [the victim]; and Third: That the defendant was not justified in us- ing the foree which he used. If you find from your consideration of all the evi- dence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty. To sustain the charge of voluntary manslaughter, the State must prove the following propositions: First: That the defendant performed the acts which caused the death of [the victim]; and Second: That when the defendant did so, he in- tended to kill or do great bodily harm to [the vic- tim]; or he knew that his acts would cause death or great bodily harm to [the victim]; or he knew that his acts created a strong probability of death or great bodily harm to [the victim]; and Third: That when the defendant did so he believed that circumstances existed which would have justified kalling [the victim]; and Fourth: That the defendant’s belief that such cir- cumstances existed was unreasonable. If you find from your consideration of all the evi- dence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty. eS App. 9 Flowers’ jury received a charge of this kind. (He was tried in 1980, but many judges used such instructions be- fore the formula was enshrined in the pattern book.) The first and second “propositions” of murder and man- slaughter are identical. The third element of murder is similar to the fourth element of voluntary manslaughter. The third element of manslaughter is unique to that of- fense. Despite the overlap, these instructions do not in- clude a rule of preference. They do not say, for example, that if the jury finds that the defendant had an actual, but unreasonable, belief in the need to apply deadly force, it should convict of voluntary manslaughter and stop. Reddick considered whether this pair of instructions is appropriate. The court concluded that it is not. First, the court held, once the defendant satisfies a burden of pro- duction on the subject of justification, a conviction for murder is proper only if the prosecution shows beyond a reasonable doubt that the accused lacked a belief in the justification for his deeds. Second, the court deleted the belief in justification as an element of manslaughter, so that a person who has either no belief in justification, or an objectively unreasonable one, will be convicted of man- slaughter if the prosecution fails to carry its burden on the murder charge. To obtain an acquittal on voluntary manslaughter, the defendant must carry the burden of showing an actual, and objectively reasonable, belief in justification. These adjustments ended the overlap be- tween murder and voluntary manslaughter. The court did not reach its conclusion in Reddick under compulsion of the statute. The law that governed between 1961 and 1987 defined murder this way: ‘“‘A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death: (1) He either intends to kill or do great bodily harm to that individual or another. . .; or (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or (3) He is attempt- ing or committing a forcible felony other than voluntary App. 10 manslaughter.”’ Ill. Rev. Stat. ch. 38 49-1(a). The pattern jury instructions track the statutory elements. Reddick added the fourth, negation-of-belief, requirement, and allo- cated the burdens of persuasion, to distinguish murder from voluntary manslaughter in self-defense cases. Reddick reads like a statutory decision. It discusses state law and when specifying the burdens of persuasion says that “this issue is controlled by section 3-2 of the Criminal Code of 1961’, 526 N.E.2d at 145. The court wraps up, id. at 146: “Thus, under the 1961 Code... .”. Our opinion in Falconer came two years later. We noted that Illinois interpreted its law so that an actual, but ob- jectively unreasonable, belief in the need to use deadly force calls for a manslaughter rather than a murder con- viction. Yet ‘(t]he murder instruction . . . read as though voluntary manslaughter did not exist as a crime. No mat- ter how clearly either the State or the defense proved the existence of the mitigating ‘manslaughter defenses,’ the jury could nevertheless return a murder verdict in line with the murder instruction as given. Far from set- ting aside an interpretation of state law by state courts, the district court’s decision [issuing a writ of habeas cor- pus] effectuated the holding of Reddick through the vehi- cle of the Due Process Clause.” 905 F.2d at 1136. The constitutional problem, in other words, was that the pat- tern instruction did not represent the authentic state law. See also Rose v. Lane, 910 F.2d 400 (7th Cir. 1990); Flem- ing v. Huch, 924 F.2d 679 (7th Cir. 1991). The panel did not explain why 28 U.S.C. §2254, which surely does not allow a federal court to ‘‘set{ ] aside an interpretation of state law by state courts’’, does authorize it to “effectu- ate[ }” an interpretation of state law by the state courts. The writ may issue only when the custody violates federal law (including the Constitution). E.g., Estelle v. McGuire, 112 S. Ct. 475, 479-80 (1991); Lewis v. Jeffers, 110 S. Ct. 3092, 3102 (1990); Pulley v. Harris, 465 U.S. 37, 41 (1984); Smith v. Phillips, 455 U.S. 209, 221 (1982); Rose v. Hodges, 423 U.S. 19, 21-22 (1975); Brecht v. Abrahamson, 944 F.2d 1363, 1366 (7th Cir. 1991); Bates v. McCaughtry, 934 F.2d App. 11 99, 102 (7th Cir. 1991); Bell v. Duckworth, 861 F.2d 169 (7th Cir. 1988); Jones v. Thieret, 846 F.2d 457, 459 (7th Cir. 1988). That a state court violated state law “‘is no part of a federal court’s habeas review of a state convic- tion.” Estelle, 112 S. Ct. at 480. Next the Supreme Court of Illinois had to decide whether to apply Reddick retroactively. It accepted our view that Reddick must have been a constitutional decision (although it did not say why, any more than we had). Treating the decision as constitutional summoned up Teague v. Lane, 489 U.S. 288 (1989), which holds that new constitutional decisions do not apply retroactively on collateral review unless they place conduct beyond the power of the state to penalize or establish rules fundamental to a free soci- ety. Reddick did not do either of these things; rather it specified the dividing line between murder and voluntary manslaughter in Illinois. So the court had to decide whether Reddick created a new rule. It answered yes: ‘Though Reddick was doctrinally consistent with existing laws re- garding affirmative defenses and burdens of proof, it was the first time this court applied these legal principles to the specific situation of the murder and voluntary man- slaughter instructions. ... [Llong-standing practice in the trial courts was to instruct the jury on murder and volun- tary manslaughter consistent with the Illinois Pattern Jury Instructions. This court also did not invalidate these instructions in other cases it reviewed prior to Reddick.”’ 561 N.E.2d at 683. Two turns for Illinois, and then a second turn for this court when Taylor considered the retroactive application of Reddick. The first step in applying Teague is to characterize the rule. This produced something of an em- barrassment, for characterizing the rule as “effectuat[ing] the holding of Reddick through the vehicle of the Due Process Clause” shows that we do not have a constitu- tional rule at all. Taylor therefore abandoned the rationale of Falconer and substituted a new one: the defendant is entitled to be free of instructions so vague and confusing that the jury cannot make a rational decision. 954 F.2d App. 12 at 448-50. That is an old rule, long predating Reddick. So, we concluded, the parties had been mistaken in ask- ing us to decide whether Reddick applied retroactively. Id. at 450. The only question was whether the instruc- tions satisfied the established requirement of clarity. Con- cluding that they did not, we directed the district court to issue a writ of habeas corpus. Taylor avoids confounding a violation of state law with a violation of the Constitution. But in rescuing Falconer from a charge of usurpation of power, we turned that case and Reddick on their heads. For their objection to the pattern instructions was not their vagueness but their clarity. These instructions tell the jury that a person who slays another, having an objectively unreasonable belief in justification, is guilty of both murder and voluntary manslaughter. If-however the defendant lacks any belief in the justification of his acts, the jury is to convict of murder but not voluntary manslaughter (for the instruc- tions say that such a belief is an element of manslaughter but not of murder). The instructions tell a jury precisely what to do. According to Reddick, they tell the jury the wrong thing to do, for Illinois wants a rule in which an actual, but unreasonable, belief in justification reduces the crime to voluntary manslaughter. It was the substance of the instructions, and not any lack of clarity, that un- derlay both Reddick and Falconer. Flowers’ jury did just as instructed if it found that he had an actual, but objec- tively unreasonable, belief in justification: first it returned guilty verdicts on both offenses, and then when told to choose one it picked the more serious. Where is the con- fusion? The perspective I have offered—that the pattern instruc- tion is clear but unfortunate—follows scholarly commentary on these instructions. See James B. Haddad, Allocation of Burdens in Murder-Voluntary Manslaughter Cases: An Affirmative Defense Approach, 59 Chi.-Kent L. Rev. 23 (1982); Haddad, Second Degree Murder Replaces Volun- tary Manslaughter in Illinois: Problems Solved, Problems Created, 19 Loyola U. L.J. 995 (1988); Timothy P. O’Neill, App. 13 “With Malice Toward None”: A Solution to an Illinois Homicide Quandary, 32 DePaul L. Rev. 107 (1982). Pro- fessor Haddad, who represents Flowers, implored the Su- preme Court of [Illinois to deal with the problem by re- quiring the prosecutor to prove the absence of a belief in justification in order to obtain a conviction for murder, while making justification an affirmative defense to man- slaughter charges. This is what the Court did. And Pro- fessor Haddad’s principal argument to us is that Flowers’ murder conviction violates the double jeopardy clause pre- cisely because the instructions are clear. A jury that finds the accused guilty of both murder and voluntary man- slaughter must have concluded that he possessed an ac- tual, but unreasonable, belief in justification. Reddick then calls for judgment on the manslaughter verdict rather than the murder verdict. This is a solid argument—al- though I think under state law rather than the double jeopardy clause—but it is inconsistent with the rationale Taylor constructs for applying Falconer retroactively. One can of course treat any substantive error as scrambled communication. The communicative failure is that the in- structions did not convey the correct substance. They were confusing not by an internal benchmark, but by ref- erence to the authentic state law established in Reddick. Repackaging the substantive argument in this way adds nothing, however. Every substantive defect may be thus recast, with the result that every error of state law in a jury instruction violates the Constitution as weil—an out- come that §2254 does not tolerate. Falconer and Taylor jointly show the ease with which an error of state law becomes a violation of the Constitu- tion. They show as well the allure of the process. Con- victing a man of murder, when his real crime is man- slaughter, does not sit easily. Judges strain to provide redress. Holding the line between state and federal prob- lems is difficult given the reluctance of every judge to see a person convicted of the wrong crime. Cases pro- vide many models for transmuting errors of state law in- to violations of the Constitution. Falconer and Taylor il- App. 14 lustrate two of the methods. There are many others. The Constitution requires the prosecution to prove its case beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). If the state court does not frame the instructions accurately under state law, how can the jury have found every element beyond a reasonable doubt? See Cole v. Young, 817 F.2d 412 (7th Cir. 1987); but see id. at 435-40 (dissenting opinion). Winship implies that the state must bring forth evidence from which a sane factfinder could conclude, beyond a reasonable doubt, that the accused committed the offense. Jackson v. Virg’ ria, 443 U.S. 307 (1979). Does it not then follow that any important error violates the Constitution? If the trial judge misunder- stands state law, how can the jury have made the neces- sary findings? See Fagan v. Washington, 942 F.2d 1155 (7th Cir. 1991); but see Bates v. McCaughtry, 934 F.2d 99 (7th Cir. 1991). All of these methods come to the same thing: disparity between the “real’’ state law and the rules applied in a particular case violates the Constitu- tion. Yet if these and cognate methods are indeed appro- priate, then the many cases telling federal courts to dis- tinguish between violations of state and federal law are nothing but hot air. The distinction is vital but trivial, governing only when, as in Estelle v. McGuire, the judge is so careless as to say that the writ must issue to redress an error of state law. Section 2254 calls on courts to distinguish state from federal law, and it must suppose that distinction is possi- ble. Federal courts promote justice by ensuring that states respect constitutional rules to which they may be hostile; there is no comparable role in helping states to enforce those rules they have adopted on their own. Courts have come to recognize that an extended review, through a cascade of courts, carries high costs, and that it is bet- ter to tolerate the occasional error than to pursue the im- possible dream of correcting them all. E.g., Coleman v. Thompson, 111 S. Ct. 2546, 2565 (1991); McCleskey v. Zant, 111 S. Ct. 1454 (1991). Pursuing that mirage en- tails great costs. See generally Paul M. Bator, Finality App. 15 in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963). Our case illus- trates these costs, some obvious and some subtle. The ob- vious costs stem from delay and multiple litigation. We order new trials for a large class of litigants who did not object to the instructions at trial or on direct appeal. Many of these trials will be less accurate, given the pas- sage of time, than were the original ones with defective instructions. Sometimes retrial will be impossible. The subtle costs are also more insidious. The Supreme Court of Illinois decided to improve the mesh between murder and manslaughter, thinking that prospective ap- plication meant bearable costs. We reply, in effect, that whenever a state court holds that a jury instruction mis- states the elements of an offense or the burden of per- suasion, it must afford new trials to everyone affected by the old instruction. Judges of a state’s highest court must now think thrice before they find a flaw in a pattern jury instruction! From now on, prudence lies in perpetuating dubious instructions rather than improving them. I doubt that defendants gain when federal judges impel their state cousins to pusillanimous passivity. Available tools are too numerous, and the urge to use them too strong, for judges at our level to bring order. Still, I offer a suggestion: why not distin;uish state from federal law by ignoring state law? Assume, for example, that the instructions given the jury are accurate and ask: Does the Constitution prevent a state from convicting a person on such instructions? Cases such as Sandstrom v. Montana, 442 U.S. 510 (1979), and Mullaney v. Wilbur, 421 U.S. 684 (1975), illustrate situations in which the an- swer is yes. But if a state could choose to do something— choose, for example, to make self-defense an affirmative defense to murder, see Patterson v. New York, 432 U.S. 197 (1977); Martin v. Ohio, 480 U.S. 228 (1987)—then the federal inquiry is over; whether the state has indeed so chosen is a question of its domestic law. To put this differ- ently, we should assume that the judgment under exam- ination was rendered by the state’s highest court, which App. 16 declared: ‘Yes, these events are exactly what our law requires.’ Here we should assume that Reddick came out the other way, that the Supreme Court of Illinois ordered trial judges to keep using the pattern jury instructions. Would there then be a constitutional flaw? Start with murder, for that is the crime of which Flowers was convicted. The instructions told the jury to convict Flowers of murder if it found that the prosecution had established beyond a reasonable doubt (1) that Flowers killed Murray with the baseball bat, (2) that Flowers in- tended to slay Murray or do him serious harm, and (3) that Flowers lacked justification for this use of deadly force. This is a standard definition, in use before the United States became a nation. It required the prosecu- tion to show more than the constitutional minimum. (Ele- ment 3 could be an affirmative defense.) Now add the voluntary manslaughter instruction. This does not alter any of these elements or relieve the state of its burden. Quite the contrary, the voluntary manslaughter instruc- tion tracked the elements of murder and added a fourth. Overlapping elements are common. Even identical crimes carrying different penalties do not create constitutional problems. United States v. Batchelder, 442 U.S. 114 (1979). Does the Constitution forbid charging the jury on overlap- ping or even identical offenses? Surely not. But that is all that happened to Flowers, if we delete all state-law issues by assuming that Reddick came out the other way. Natural law does not compel states to make “‘manslaugh- ter’ a lesser included offense of ‘“‘murder,” rather than the other way around. Lexicographers’ preference for the ranking of “murder” and “manslaughter” is not binding on the states in the name of the Constitution, which al- lows words no talismanic quality. Flowers received a trial at which the jury found him guilty of elements consti- tuting murder and received a sentence (40 years’ imprison- ment) that may be meted out to one who commits such acts. Perhaps in light of Reddick the Governor of Illinois should commute this conviction to manslaughter; such questions are for the officials charged with deciding issues App. 17 of state law, as we are not. /f Illinois wishes to use these instructions, it may; whether it wishes to do so is none of our business. A true Copy: Teste: Clerk of the United States Court of Appeals for the Seventh Circuit App. 18 UNITED STATES COURT OF APPEALS For the Seventh Circuit Chicago, Illinois 60604 JUDGMENT — WITH ORAL ARGUMENT Date: May 7, 1992 BEFORE: Honorable Richard A. Posner, Circuit Judge Honorable Frank H. Easterbrook, Circuit Judge Honorable Jesse E. Eschbach, Senior Circuit Judge Nos. 91-2330 and 91-2415 MARVIN FLOWERS, Petitioner-Appellant, Cross-Appellee, V. ILLINOIS DEPARTMENT OF CORRECTIONS, Respondent-Appellee, Cross-Appellant. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 90 C 6505, Judge William T. Hart This cause was heard on the record from the above mentioned District Court, and was argued by counsel. On consideration whereof, IT IS ORDERED AND AD.- JUDGED by this court that the judgment of the District Court granting Flowers’ petition for a writ of habeas corpus is AFFIRMED, the writ shall issue, thereby releas- ing Flowers from custody, unless the State of Illinois elects to retry him within ninety (90) days from the issu- ance of this court’s final mandate, in accordance with the decision of this court entered this date. App. 19 APPENDIX B 138 Ill. 2d 218 561 N.E.2d 674 The PEOPLE of the State of Illinois, Appellant, Vv. Marvin FLOWERS, Appellee. No. 69777. Supreme Court of Illinois. Sept. 26, 1990. * * * * X Justice RYAN delivered the opinion of the court: Following a jury trial in the circuit court of Cook Coun- ty, defendant, Marvin Flowers, was convicted of murder, armed robbery and armed violence, and sentenced to con- current prison terms of 40 years for murder and 15 years for armed robbery. The appellate court affirmed the con- victions in an unpublished Rule 23 order (107 Ill.2d R. 23). (109 Ill.App.3d 1211.) Defendant then filed a petition under the Post-Conviction Hearing Act (Ill.Rev.Stat. 1987, ch. 38, par. 122-1 et seq.) and, without an evidentiary hear- ing, the circuit court granted the State’s motion to dismiss the petition. The appellate court, however, applied Peo- ple v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141, retroactively and held that the instructions given to the jury on the offenses of murder and volun- tary manslaughter were erroneous. (192 Ill.App.3d 292, 139 Ill.Dec. 381, 548 N.E.2d 766.) Therefore, the court reversed the murder conviction and remanded for a new trial. We granted the State’s petition for leave to appea: (107 Ill.2d R. 31&(a)) to address, inter alia, the retroactiv- ity of People v. Reddick to a case on collateral review. We reverse the appellate court. App. 20 The facts in this case are essentially undisputed. Robert Murray was found in his store dead as a resuit of several blows to his head from a baseball bat. At the time of the murder, defendant was working for Murray and evidence at the store made him a suspect. Near defendant’s apart- ment police officers found Murray’s car and in it were a baseball bat, a revolver, a coin bank and two power saws, all of which had been taken from the store. Defen- dant already was in custody in connection with another incident that had occurred earlier that day. When ques- tioned about the murder, defendant first told police that he was in the store when two men killed Murray and that the two men forced him to put the items in the car and to put his fingerprints on the gun and bat. The men also told defendant that they would kill him and his girlfriend if he did not help them. Defendant claims to have taken the car under duress. After an officer told him of the un- likelihood of his alibi, defendant changed his story. Defen- dant stated instead that he and Murray had an argument about money that was allegedly owed to defendant. He claimed that Murray attacked him, initiating a fight. Mur- ray then reached for a gun and defendant grabbed a near- by baseball bat and struck him several times in the head. Realizing that he would not get the money owed him, defendant took cash and property from the store, placed the items into Murray’s car and drove back to his apart- ment, leaving his own car parked in front of the store. At trial, defendant presented no evidence although coun- sel argued that defendant had acted under the unreason- able belief that facts existed which justified his conduct and was thus only guilty of voluntary manslaughter. The jury was given pattern jury instructions on the offenses of murder and voluntary manslaughter. (Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.06 (2d ed. 1981).) App. 21 The murder instruction stated that the State must prove that: (1) defendant performed the acts which caused the death of Robert Murray; (2) when defendant did so, he intended to kill or do great bodily harm to Robert Murray; or he knew that his act would cause death or great bodily harm to Robert Murray; or he knew that his acts created a strong probability of death or great bodily harm to Robert Murray; and (3) defendant was not justified in using the force which he used. This instruction did not include the so-called ‘fourth prop- osition,”’ that the State must prove that the defendant did not believe circumstances existed which justified the use of the force that he used. The voluntary manslaughter instruction required the State to prove that: (1) defendant intentionally or knowingly performed the acts which caused the death of Robert Murray: (2) when defendant did so he believed that circum- stances existed which would have justified killing Robert Murray; (3) defendant’s belief that such circumstances ex- isted was unreasonable; and (4) defendant was not justified using the force which he used. After deliberations, the jury signed verdict forms find- ing defendant guilty of both murder and voluntary man- slaughter. The trial judge informed the jurors that they could not return both verdicts; it had to be one or the other. The jury resumed deliberations but later sought further instructions. The judge then explained that volun- tary manslaughter was a lesser included offense of murder, and that he would not accept a verdict on both App. 22 charges. He informed the jurors that they should iden- tify which of the verdict forms actually reflected their determination of guilt and then cross out the other guilty verdict form. After further deliberations, the jury re- turned with the murder verdict intact and the voluntary manslaughter verdict crossed out. Defendant was sen- tenced to concurrent terms of 40 years for murder and 15 years for armed robbery. No sentence was imposed on the armed violence count. On appeal from his conviction, in a Rule 23 order, the appellate court held that the trial court did not err when it required the jury to continue deliberations and deter- mine whether defendant was guilty of murder or volun- tary manslaughter. Also, the court held adversely to the defendant on his contention that the trial judge’s oral in- structions to the jurors constituted reversible error. De- fendant did not prevail on his contention that he was not properly proven guilty of armed robbery, felony murder and murder. Last, defendant’s challenge to his arrest was unsuccessful. Defendant subsequently filed a petition pursuant to the Post-Conviction Hearing Act (Ill.Rev.Stat. 1987, ch. 38, par. 122-1 et seq.), which the trial court dismissed without an evidentiary hearing. As noted, the appellate court re- versed. The court applied People v. Reddick retroactive- ly and held that the instructions in defendant’s case er- roneously stated the law and required that defendant be given a new trial. In a petition for rehearing the State argued that any error as to the murder and voluntary manslaughter instructions was rendered harmless because of the felony-murder count of the indictment. The court rejected this contention because the State had not sub- mitted a felony-murder verdict form and the evidence was not so overwhelming that the jury could not have found App. 23 anything but that the victim’s death was caused during the course of the armed robbery. We granted the State’s petition for leave to appeal (107 Ill.2d R. 315). Defendant in his response brief also argued for cross-relief, and the State has filed a reply to the arguments raised (107 IIl.2d R. 315(g)). We granted leave to file an amicus curiae brief to the public defender of Cook County (107 IIll.2d R. 345(a)). The first argument we address is defendant’s conten- tion that the trial court violated double jeopardy protec- tions when it ordered further deliberations instead of ac- cepting the jury’s verdict of voluntary manslaughter. De- fendant contends that the initial verdicts finding him guilty of voluntary manslaughter and murder were con- sistent with the jury instructions. Therefore, the jury found the presence of the statutory mitigating circum- stances which distinguish voluntary manslaughter from murder and it impliedly acquitted defendant of murder. He argues that unless the verdicts are hopelessly incon- sistent with the instructions the double jeopardy clauses of the State and Federal Constitutions prohibit a court from rejecting those verdicts and in this case the court should have entered the verdict of voluntary manslaughter. The State contends that the appellate court on direct re- view rejected defendant’s argument that the trial judge should have entered the voluntary manslaughter verdict and not the murder verdict. Therefore, he is barred by the principle of res judicata from raising again this issue as a double jeopardy claim. Regardless, the State contends that in People v. Almo (1985), 108 Ill.2d 54, 90 Ill.Dec. 885, 483 N.E.2d 203, this court approved of the trial court’s decision to require the jury to deliberate further. Ordinarily res judicata and waiver bar consideration of an issue which was raised or could have been raised on App. 24 direct review (People v. Gaines (1984), 105 Ill.2d 79, 87-88, 85 Ill.Dee. 269, 473 N.E.2d 868), but under certain circum- stances, fundamental fairness dictates that we consider the issue (People v. Hamby (1968), 39 Ill.2d 290, 291, 235 N.E.2d 572). Defendant argues that Almo, which was issued after his direct review, was improperly decided and that in that case no issue of double jeopardy was raised. He contends that if the constitutional doctrine applies in this situation a reversal of his conviction is mandated. Al- though we ultimately do not accept defendant’s argument, we believe that this issue should be addressed. People v. Almo is nearly indistinguishable. In Almo the jury was given the same instruction for murder as in this case. This instruction also did not include the fourth prop- osition, that the State must prove the defendant did not believe circumstances existed which justified the use of the force that he used. The Almo jury initially asked if it must find the defendant guilty of all three charges or whether two guilty verdicts were sufficient. The judge sent it a note explaining the possible verdicts which it could return. The jury’s initial verdict forms, however, found defendant guilty of murder, voluntary manslaughter and armed violence. The judge reinstructed the jury that it must find the defendant guilty either of murder or vol- untary manslaughter but not both. It then returned a murder verdict. On review, we noted that when the trial judge received the initial verdict forms he could not enter judgment on one and vacate the other. The judge “‘had no way of knowing which of the two verdicts was intended by the jury and which was a result of some misconcep- tion.”’ (Almo, 108 IIl.2d at 63-64, 235 N.E.2d 572.) We stated further: “In this case, it was clear that the jury had mis- understood the trial judge’s written answer to the App. 25 jury’s question. By its two verdicts the jury indicated its belief that it was legally possible to convict the defendant simultaneously of murder and voluntary manslaughter based upon the same acts. The obvious way to correct this misapprehension was for the trial judge to do precisely what he did, i.e., change the instruction to read that an individual convicted of one crime ‘must’ not also be convicted of the other. We find the court’s action in this case to be both sensi- ble and practical and clearly not an error.” 108 IIl.2d at 64, 235 N.E.2d 572. Likewise, in this case, the jury exhibited confusion re- garding what verdicts it must return. The trial judge could not enter the two verdicts, and he explained to the jury that it could not return guilty verdicts on both counts. (See People v. Hoffer (1985), 106 Ill.2d 186, 88 III. Dec. 20, 478 N.E.2d 335 (case reversed after judge en- tered the jury verdicts of guilty of murder, voluntary manslaughter and involuntary manslaughter).) The judge told the jury to continue deliberations and return the ver- dict which it believed most appropriately encompassed defendant’s acts. The jury then returned the murder con- viction. Defendant argues that the jury was not confused, rather it intended to convict defendant of volumtary manslaughter only and that, because the initial verdict forms returned were consistent with the instructions, double jeopardy pro- tection was violated. First, we do not agree that the jury exhibited any such intent. (See Hoffer, 106 IIl.2d at 198, 88 Ill.Dec. 20, 478 N.E.2d 335 (rejecting argument that the jury impliedly acquitted defendant of murder after it returned multiple verdicts).) The jurors were confused, but the judge rectified the problem with his statements re- garding their duty, the meaning of the verdict instruc- tions, and the possible verdicts, and with his admonition App. 26 to cross out the form they did not want and to enter the one best fitting the circumstances. As the court stated in Almo, “{aJlthough the jury may have initially been con- fused, the trial judge’s additional instruction alleviated the problem before any verdicts were entered.” (Almo, 108 Ill.2d at 65, 235 N.E.2d 572.) Second, the verdicts were legally inconsistent and, therefore, the judge could not enter them both. (See Hoffer, 106 Il].2d at 194-96, 88 III. Dec. 20, 478 N.E.2d 335 (the mental states involved in the two offenses were mutually inconsistent and a jury could not find that both existed in the same case).) De- fendant points out that the instructions in this case failed to include the fourth proposition, unlike the instructions in Hoffer, and therefore the two instructions were not in- consistent. However, the trial judge understood that the two convictions could not be entered and explained to the jury that they were incompatible. This admonition com- pensated for any error in failing to instruct on the fourth proposition. Additionally, as pointed out in Almo it is speculative that the fourth proposition would have pre- vented the jury from reaching its initial verdict. Almo, 108 Il.2d at 65, 235 N.E.2d 572 (noting that the jury in Hoffer received the fourth-proposition instruction and still returned a guilty verdict on both murder and voluntary manslaughter). We find that double jeopardy rights were not violated. “The constitutional prohibition of double jeopardy protects a defendant from prosecution of an offense after acquit- tal or conviction of the same offense and prohibits multi- ple punishments for the same offense.” (Hoffer, 106 IIl.2d at 197, 88 Ill.Dec. 20, 478 N.E.2d 335.) We have held that the judge acted properly in returning the initial verdict forms to the jury. As a result, there was only one ver- dict entered in this case and therefore the constitutional principle urged is not implicated. (See Almo, 108 IIl.2d App. 27 at 63, 235 N.E.2d 572 (“ ‘The finding of a jury does not become a verdict until it has been received, accepted by the court and entered of record’ ’’), quoting People v. Wilson (1972), 51 Ill.2d 302, 309, 281 N.E.2d 626.) Defen- dant, however, cites four appellate court opinions which allegedly support his contention that the trial judge should have entered the voluntary manslaughter verdict. (See People v. Washington (1984), 127 Ill.App.3d 365, 82 IIl. Dec. 505, 468 N.E.2d 1285; People v. Kendricks (1984), 121 I[ll.App.3d 442, 77 Ill.Dec. 41, 459 N.E.2d 1137; Peo- ple v. Fox (1982), 111 Ill.App.3d 248, 67 Ill.Dec. 55, 443 N.E.2d 1179; People v. Stuller (1979), 71 Ill.App.3d 118, 27 Ill.Dec. 529, 389 N.E.2d 593.) We distinguished Stuller in Almo on the grounds that in Stuller the trial judge entered one of the two verdicts returned and vacated the other verdict. The same factual distinction exists in the other cases. In this case and in Almo, however, the jury was allowed to resume deliberations after further instruc- tions were given and thus it was allowed to clarify its intent rather than having a judge invade its province. Therefore, we do not find those cases persuasive. Defendant next argues that his right to due process and right to a trial by jury were violated by the “inherently contradictory” instructions given at his trial. He claims that the written murder and voluntary manslaughter in- structions required the jury to return verdicts for both murder and voluntary manslaughter if it found him guilty of voluntary manslaughter. Nevertheless, the judge told the jury that it could not return guilty verdicts for both offenses, and he provided no explanation for reconciling the contradiction. Defendant argues that together these instructions created an irreconcilable conflict on the volun- tary manslaughter issue. The State argues that the rul- ing on this issue on direct appeal is res judicata and that App. 28 the trial judge’s statements properly instructed the jury and that these statements were similar to those sanc- tioned in Almo. Preliminarily, we note that defendant did not object to this instruction at trial and therefore this argument nor- mally would be waived. Pursuant to Supreme Court Rule 451(c) (107 Ill.2d R. 451(c)), if an instruction is substan- tially defective and the interests of justice require, the objection is not considered waived. In cases subsequent to defendant’s trial we recognized flaws in the murder and voluntary manslaughter instructions, and we do not believe that in this instance the failure to object should preclude our addressing the issue. Also, the appellate court did not address the due process issue and we do not believe that the principle of res judicata should pre- clude our consideration of this constitutional issue. Defendant finds the conflict in his case to exist between the required result of the two written instructions, i.e., guilty verdicts on both counts, and the oral instructions, i.e., not guilty on at least one count. However, the cases he cites involved two written instructions on a single ele- ment or offense which were inconsistent and contradic- tory. (See People v. Jenkins (1977), 69 Ill.2d 61, 12 III. Dec. 728, 370 N.E.2d 532 (two instructions on an essen- tial element of the crime charged were in direct conflict and one was erroneous); Thomas v. Leeke (4th Cir. 1984), 725 F.2d 246 (unequivocally contradictory instructions on the burden of proof for self-defense); Harless v. Anderson (6th Cir. 1981), 664 F.2d 610 (garbled and confusing in- structions on an element of the offense), rev’d on other grounds (1982), 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3; see also People v. Miller (1949), 403 Ill. 561, 87 N.E.2d 649 (erroneous and contradictory instructions on self-de- fense).) Therefore, in these cases the jury was unable to App. 29 perform its constitutional function. However, the two writ- ten instructions for murder and voluntary manslaughter in this case are not in direct conflict and each involves a different mental state. The failure to include the fourth proposition in the murder instruction may have misled the jurors to believe that they had to return guilty verdicts on each charge. We have held, though, that if the lan- guage of an instruction is inaccurate, and, standing alone, may mislead the jury, other instructions may explain the inaccuracy, remove the error or render it harmless. (Miller, 403 Ill. at 565, 87 N.E.2d 649, quoting Enright v. People (1895), 155 Ill. 32, 36, 39 N.E. 561; see also Almo, 108 Ill.2d at 65, 235 N.E.2d 572.) The trial judge in defen- dant’s case attempted to explain the jury’s necessary out- come in light of the written instructions. He explained that the jurors’ role required a verdict and that verdict could not be guilty as to both counts. Although the jurors may have been confused by the written instructions, they were properly told that they could only enter one ver- dict and they should choose the one best fitting the facts. The judge also explained, albeit not in the clearest man- ner that voluntary manslaughter was a lesser included of- fense of murder. In Almo, the court held that the verbal instructions sufficiently alleviated the confusion, and in this instance we believe whatever confusion may have oc- curred from these written instructions did not rise to a due process violation, in view of the way in which the situation was handled by the trial judge. The next issue concerns the retroactivity of People v. Reddick (1988), 123 Ili.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141, in a post-conviction appeal. First, however, the State claims that we should not address this issue. The State contends that defendant requested the voluntary man- slaughter instruction at trial; he did not complain about App. 30 the wording of the jury instructions in his motion for a new trial; on direct review defendant made no claim that the jury instruction failed to allocate the burden of proof properly; and the post-conviction petition did not raise the issue decided in Reddick. Therefore, the issue has been waived and the principle of res judicata should prevent consideration of it. Defendant responds that the State waived any objection to the retroactive application of Red- dick because it failed to present any such argument to the appellate court after defendant filed a supplemental brief in that court which cited the Reddick opinion. Defendant’s position is untenable. The State did not have a duty to object to his motion for leave to file a memorandum of law which was based on the newly de- cided Reddick opinion and was filed after the briefs had been submitted to the appellate court. After the appellate court reversed defendant’s conviction based on our hold- ing in Reddick, the State was entitled to contest on ap- peal the rationale on which the appellate court relied. We also believe that in this instance the principles of waiver and res judicata should not prevent analysis of whether Reddick applies. Part of the effect of the error here and in Reddick is that the instructions confused the jury. Defendant has at each level of this case complained about the instructions and the confusion they caused, although he did not argue that there was an impermissible burden- shifting. Likewise, one of the defendants in Reddick also did not raise the issue at trial, in a post-trial motion or in the direct appeal; nevertheless, this court held that the error was grave and waiver should not preclude the rule from applying to him. There is an important principle in- volved and the failure of defendant to raise the issue prior to the court’s resolution of it in Reddick should not bar consideration of it now. App. 31 The State next argues that the holding in Reddick that the State should have the burden of proof to disprove a voluntary manslaughter “defense” in order to obtain a murder conviction was based on statutory interpretation. The State contends that constitutionally the burden of proof as to voluntary manslaughter in a case involving murder and voluntary manslaughter instructions may be placed on either party. (See Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 58 L.Ed.2d 281 (requiring the defendant to bear the burden of proof for manslaughter does not violate due process); Engle v. Isaac (1982), 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783.) The Post-Con- viction Hearing Act, however, may only be used to re- dress the denial of a constitutional right. (Ill.Rev.Stat. 1987, ch. 38, par. 122-1; People v. Shaw (1971), 49 IIl.2d 309, 311, 273 N.E.2d 816.) According to the State, there- fore, the violation at defendant’s trial of the principle an- nounced in Reddick may not be raised in a post-conviction action. We believe that the jury instructions used in this case sufficiently raised a constitutional issue for us to address the retroactivity of Reddick in a post-conviction case. In Reddick this court held that the State does not have the burden to raise the two mitigating mental states required in a voluntary manslaughter conviction but that it had the burden to disprove those mental states beyond a reason- able doubt if they are properly raised by the defense and the State seeks to convict defendant of murder. This determination of who has the burden was reached after a statutory construction analysis. The Reddick court, though, also addressed the jury instructions. These were found erroneous in that they failed to appropriately state the burdens of proof and that they were misleading and confusing. The court noted that the voluntary manslaughter App. 32 instruction appeared to place the initial burden to raise the mitigating mental states on the State and that the murder instruction failed to apprise the jury on the miti- gating conditions. Therefore, in Reddick this court stated that the two instructions, viewed alone, essentially assured that, if the jury followed them, it could not convict a defendant of voluntary manslaughter. (Reddick, 123 Ill.2d at 194-95, 122 Ill.Dec. 1, 526 N.E.2d 141.) The court later characterized the error in the instructions as “grave.” First, we note that these instructions did not assure only a verdict of murder would be returned. The State points out that other verdicts have been reached in simi- lar cases. Second, much emphasis appears to be placed on the court’s characterization of the error as “grave.” A grave error, though, is not necessarily a constitutional error; it may just signify that the error should not be considered waived if the defendant failed to object to it. The instructions in this case, however, standing alone, do potentially violate the constitutional right to have the jury adequately apprised of the appropriate law. (People v. Jenkins (1977), 69 Ill.2d 61, 66-67, 12 Ill.Dec. 728, 370 N.E.2d 532 (erroneous instructions may prohibit the jury from performing its constitutional function); see also Fal- coner v. Lane (7th Cir. 1990), 905 F.2d 1129, 1134 (a Fed- eral habeas corpus action in which the court held that Reddick “‘obviously considered the errors resulting from the invalid instructions to be of constitutional magnitude’’).) The court stated in Reddick “that certain instructions, such as the burden of proof and elements of the offense, are essential to a fair trial and that the failure to give such instructions constitutes grave error when, viewing the record as a whole, it appears that the jury was not apprised of the People’s burden of proof.” (Reddick, 123 Tll.2d at 198, 122 Ill.Dec. 1, 526 N.E.2d 141; see also Mar- App. 33 tin v. Ohio (1987), 480 U.S. 228, 107 S.Ct. 1098, 94 L.Ed. 2d 267 (instructions misstated the burden of proving self- defense; however, other instructions sufficiently stated the burdens of proof so as not to confuse the jury).) As noted, in our case part of the error was mitigated by the in- structions the trial judge gave; nevertheless, the error is of a constitutional dimension and the issue may be ad- dressed in a post-conviction proceeding. The main issue before us, therefore, is whether the Red- dick decision will retroactively apply to a post-conviction proceeding. The United States Supreme Court in Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, held that decisions establishing new constitutional rules of criminal procedure are not to be applied retro- actively to cases pending on collateral review unless the new rule either (1) piaces certain kinds of primary, pri- vate individual conduct beyond the power of the criminal law making authority to proscribe, or (2) requires the ob- servance of those procedures that are implicit in the con- cept of ordered liberty. (Teague, 489 U.S. at 307, 109 S.Ct. at 1073, 103 L.Ed.2d at 353.) Defendant and amicus point out that the rule adopted in Teague was applied to bar application of a new constitutional rule in habeas corpus actions pending in the Federal courts and that the col- lateral review we are addressing involves an action in State court brought pursuant to our Post-Conviction Hear- ing Act. They argue that these two collateral reviews are distinguishable and that we should not adopt Teague’s standard and holding. We, believe, however, that the Teague rule should be applied in this case. The Teague test is helpful and con- cise and in it we have the pronouncement of the Supreme Court on an issue nearly identical to the one before us. (See also Brewer v. State (Iowa 1989), 444 N.W.2d 77 App. 34 (adopting the Teague test); State v. Lark (1989), 117 N.J. 331, 567 A.2d 197 (discussing Teague and noting that, al- though the analogy between Federal habeas proceedings and State post-conviction relief proceedings was imperfect, they were sufficiently similar to support the court’s con- clusion of nonretroactive application of a new constitu- tional rule).) Even prior to Teague, when determining whether a case dealing with a constitutional right should receive retroactive application under our Post-Conviction Hearing Act, we have ruled in accord with the Supreme Court’s determination of whether to give the case retro- active application in a Federal habeas proceeding. In Peo- ple v. James (1986), 111 IIl.2d 283, 95 Ill.Dec. 486, 489 N.E.2d 1350, we held that Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, which dealt with the right to counsel during questioning in criminal cases, should not receive retroactive application in a post-convic- tion proceeding. This decision was reached after observing that the Supreme Court had denied application of Edwards in a collateral attack pursuant to the Federal habeas corpus act. See Solem v. Stumes (1984), 465 U.S. 688, 104 S.Ct. 1338, 79 L.Ed.2d 579. Moreover, although the analogy is not perfect, the col- lateral proceeding involved in this case is similar to that involved in Teague. A habeas corpus proceeding and an action to our Post-Conviction Hearing Act are both col- lateral attacks that are not meant to be a substitute for direct review. Their primary goal is to ensure that defen- dants are not denied constitutional protections. (Ill.Rev. Stat. 1987, ch. 38, par. 122-1 (corrects the substantial denial of constitutional rights); Teague, 489 U.S. at 307, 109 S.Ct. at 1073, 103 L.Ed.2d at 353 (writs are not intended to ensure a trial free of constitutional error, but they serve as an incentive to courts throughout the country to con- App. 35 duct their proceedings consistent with constitutional prin- ciples prevailing at the time the proceedings take place).) The scope of a habeas proceeding is also defined by in- terests of comity and finality. The Teagwe Court stated: ‘“(Ujnderlying considerations of finality find signifi- cant and compelling parallels in the criminal context. Application of constitutional rules not in existence at the time a conviction became final seriously under- mines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect.” (489 U.S. at 309, 109 S.Ct. at 1074, 103 L.Ed.2d at 355.) Certainly, Illinois has an interest in finality of its criminal trials, so long as the defendant was accorded a trial con- sistent with constitutional principles. In fact, our post-con- viction statute provides a 10-year window during which the action may be brought. Although our statute is un- clear, we do not believe that a constitutional principle es- - tablished after the trial necessarily must be retroactively applied. Application of the Teague rule indicates that Reddick should not be applied retroactively. In general, according to Teague, a new rule should not apply retroactively to cases On collateral review. The defendant, however, con- tends that no new rule was established in Reddick. He argues that the holding in Reddick was reached after re- viewing the affirmative defense provision of the Criminal Code of 1961 and its predecessor in the Criminal Code of 1874. From this review, the court determined that the defendant had the burden to initially raise the mitigating mental states and then the State had the burden to dis- prove their existence by proof beyond a reasonable doubt. Therefore, he concludes that Reddick did not establish a new rule but merely interpreted existing laws. a App. 36 In discussing the meaning of a new rule, the Court in Teayue stated that “‘a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. [Citations.] To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defen- dant’s conviction became final.’”’ (Emphasis in original.) (Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349.) In Butler v. McKellar (1990), 494 U.S. ___., 110 S.Ct. 1212, 108 L.Ed.2d 347, the Court said that if prior to the rule’s being established there was a significant dif- ference of opinion on the issue in the lower courts, this would indicate that a decision is a new rule and not mere- ly an application of an earlier decision to a different set of facts. Butler, 494 U.S. at ___, 110 S.Ct. at 1217-18, 108 L.Ed.2d at 356-57. We conclude that Reddick did constitute a new rule. Though Reddick was doctrinally consistent with existing laws regarding affirmative defenses and burdens of proof, it was the first time this court applied these legal prin- ciples to the specific situation of the murder and volun- tary manslaughter instructions. In applying these prin- ciples, not only did the court determine that the instruc- tions were erroneous, it also ruled that, as written, they implicated constitutional rights. This conclusion did not necessarily flow from the statutory analysis. (See Patter- son v. New York (1977), 482 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281.) Also, this “result was not dictated by prece- dent existing at the time.” (Emphasis in original.) (Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349.) Instead, the long-standing practice in the trial courts was to instruct the jury on murder and voluntary manslaughter consistent with the Illinois Pattern Jury Instructions. This court also did not invalidate these instructions in other App. 37 cases it reviewed prior to Reddick. (See People v. Almo (1985), 108 Ill.2d 54, 90 Ill.Dec. 885, 483 N.E.2d 203; Peo- ple v. Hoffer (1985), 106 Ill.2d 186, 88 Ill.Dec. 20, 478 N.E.2d 335 (although court noted that instructions should be amended).) Moreover, prior to this court’s ruling that the State has the burden to negate the voluntary man- slaughter mitigating mental states, at least one panel of the appellate court had ruled that the State did not bear this burden. (People v. March (1981), 95 Ill.App.3d 46, 50 Ill.Dec. 763, 419 N.E.2d 1212; see Butler, 494 U.S. at ___, 110 S.Ct. at 1217-18, 108 L.Ed.2d at 356-57 (difference of opinion in lower courts indicates that rule is new).) There- fore, under the Teague analysis, unless this new rule falls within one of the two exceptions, it will not be applied retroactively. The first exception states that the new rule should be given retroactive application if it places certain kinds of primary, private individual conduct beyond the power of the criminal law making authority to proscribe. (Teague, 489 U.S. at 307, 109 S.Ct. at 1073, 103 L.Ed.2d at 353.) This exception does not apply. The conduct proscribed in this case is murder, the prosecution of which is not pro- hibited by Reddick. Nor does the Reddick rule involve a categorical guarantee accorded by the Constitution such as a prohibition on the imposition of death on a certain class of offenders. See Penry v. Lynaugh (1989), 492 U.S. ___., 109 S.Ct. 2934, 106 L.Ed.2d 256. Under the second exception, a new rule may be applied on collateral review if it requires the observance of those procedures that are implicit in the concept of ordered liberty. (Teague, 489 U.S. at 307, 109 S.Ct. at 1073, 103 L.Ed.2d at 353.) In Teague, the Court stated: “(Wie believe that Justice Harlan’s concerns about the difficulty in identifying both the existence and App. 38 the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second ex- ception to those new procedures without which the likelihood of an accurate conviction is seriously dimin- ished. Because we operate from the premise that such procedures would be so central to an accurate deter- mination of innocence or guilt, we believe it unlike- ly that many such components of basic due process have yet to emerge.” (489 U.S. at 313, 109 S.Ct. at 1076-77, 103 L.Ed.2d at 358.) This exception must be narrowly construed and we do not believe that the Reddick rule established such a compo- nent of basic due process so as to fall within it. For the above-stated reasons, we conclude that the Red- dick rule should not be applied retroactively. This hold- ing makes it unnecessary to address the State’s argument that the error was harmless because defendant’s conviction should be affirmed based on the felony-murder doctrine. Therefore, we reverse the appellate court and affirm the trial court’s dismissal of defendant’s post-conviction peti- tion. Appellate court reversed; circuit court affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1112%3A1. Public record. Not legal advice.