## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 3 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT SIMPSON EVANS, JR., Petitioner - Appellant, v. CHARLES RAY, Warden of the Davis Correctional Center, Respondent - Appellee. No. 03-6012

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. CIV-02-501-M)

Steven Michael Presson (Robert W. Jackson with him on the briefs), Jackson & Presson, P.C., Norman, Oklahoma, for Petitioner-App ellant. William R. Holmes, Assistant Attorney General of Ok lahoma (W.A. Drew Edmondson, Attorney General of Oklahoma, with him o n the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.

Before EBEL, HOLLOWAY, and BRISCOE , Circuit Judges.

EBEL , Circuit Judge.

Robert Simpson Evans, Jr. (“Petitioner”) was convic ted and sentenced to life imprisonment for first degree child abuse murd er. On direct appeal to the1 Under the relevant portion of this statute, “[a] pe rson commits murder in

the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonab le force by said person . . . upon the child.” Okla. Stat. tit. 21, § 701.7(C). The mens rea for this crime is met if the person “either willfully tortured or used un reasonable force upon the child or maliciously injured or maimed the child.” Id. - 2 - state court, Petitioner argued that the retroactive application of Fairchild v. State , 998 P.2d 611 (Okla. Crim. App. 1999), which he cont ends changed the mens rea element of Oklahoma’s child abuse murder statute fr om specific to general intent, violates ex post facto principles as incorporated i n the Due Process Clause of the Fourteenth Amendment. The state court disagreed an d affirmed his conviction. Petitioner now makes the same argument on federal h abeas review. Because we conclude that the state court reasonably applied th e Supreme Court’s precedent on ex post facto principles regarding judicial rules, we AFFIRM.

BACKGROUND On November 9, 2000, Petitioner was found guilty of first degree child abuse murder under Okla. Stat. tit. 21, § 701.7(C), 1 and was sentenced to life in prison. The conviction arose out of the death of P etitioner’s two-year-old stepson, Daquinlan McKnight, on November 22, 1996, as a result of complications from burns suffered by the child on N ovember 12, 1996. The jury instructions required only general intent, allowing the jury to convict Petitioner if2 Petitioner does not challenge the language of this instruction if Okla. Stat.

tit. 21, § 701.7(C) can be satisfied by general int ent. His sole challenge is that the Oklahoma Court of Criminal Appeals violated ex post facto principles expressed in the Due Process Clause when it conclud ed after his acts took place that the statute was a general intent statute. - 3 - it found that he had acted with the desire to “vex, annoy or injure” the child, even if he did so without “any intent to violate the law .” 2 On direct appeal to the Oklahoma Court of Criminal Appeals (OCCA), Petitioner argued that the law at the time of his a ctions in 1996 clearly required specific, not general, intent. Although the OCCA i n 1999 construed the child abuse murder statute to require only general intentin Fairchild , 998 P.2d at 622- 23, Petitioner insisted that the retroactive applic ation of that decision to his particular case violated ex post facto principles. The OCCA disagreed and affirmed his conviction. On April 17, 2002, Petitioner filed a petition for habeas corpus in the Western District of Oklahoma, making the same ex po st facto argument that he had made before the state appellate court. On Dece mber 30, 2002, the district court denied habeas relief. Petitioner filed a timely notice of appeal and appl ication for certificate of appealability (COA). On July 22, 2003, we granted COA and directed the parties to address Petitioner’s ex post facto argument on appeal.- 4 - DISCUSSION I. Jurisdiction Although Petitioner claims to bring this action und er both 28 U.S.C. § 2241 and § 2254, we construe his petition as one under § 2254 because he is challenging the fact of his conviction rather than the execution of his sentence.
See Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000). We review th e district court’s denial of a § 2254 habeas petition under 28 U.S.C. § 2253.

II. Standard of Review A petition for habeas corpus brought under § 2254(d ) will only be granted if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or if it “resulted in adecision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2 ). The Supreme Court has clarified that a state court determination is contrary to clearly established Supreme Court precedent wher e “the state court applies a rule that contradicts the governing law set forth i n [the Supreme Court’s] cases” or “the state court confronts a set of facts that a re materially indistinguishable from a decision of [the Supreme] Court and neverthe less arrives at a result- 5 -

different from” the result reached by the Supreme C ourt. Williams v. Taylor , 529 U.S. 362, 405-06 (2000); see also Cannon v. Gibson , 259 F.3d 1253, 1260 (10th Cir. 2001), cert. denied , 535 U.S. 1080 (2002) (same). In examining whether the state court’s decision inv olved an unreasonable application of clearly established federal law as d etermined by the Supreme Court, it is not enough that the state court applie d clearly established federal law erroneously or incorrectly. Rather, the applicatio n must be unreasonable. Mitchell v. Gibson , 262 F.3d 1036, 1045 (10th Cir. 2001) (“The Suprem e Court has cautioned ‘that an unreasonable application of federal law is different from

an incorrect orerroneous application of federal law.’”) (quoting Williams , 529 U.S. at 412). We review the district court’s factual findings forclear error and its legal basis for dismissal of a habeas petition de novo . Fisher v. Gibson , 262 F.3d 1135, 1142 (10th Cir. 2001), cert. denied , 535 U.S. 1034 (2002).

III. Analysis A. Ex post facto principles as implicated in the ret roactive application of judicial decisions Article I, § 10 of the U.S. Constitution provides t hat “[n]o State shall . . . pass any . . . ex post facto Law.” U.S. Const. artI, § 10, cl. 1. To fall within the Ex Post Facto Clause, “a law must be retrospective – that is, ‘it must apply to- 6 -

events occurring before its enactment’ – and it ‘mu st disadvantage the offender affected by it.’” Lynce v. Mathis , 519 U.S. 433, 441 (1997) (quoting Weaver v. Graham , 450 U.S. 24, 29 (1981)). The Supreme Court long ago described categories of laws that were prohibited by the Ex P ost Facto Clause, including laws that criminalize innocent action taken before the passage of the law, as well as laws that inflict a greater punishment than was provided for when the crime was committed. Calder v. Bull , 3 U.S. (3 Dall.) 386, 388-90 (1798). “‘The purposes behind the prohibition on ex post facto laws are twofold: to restrain legislatures and courts from arbitrary and vindicti ve action and to prevent prosecution and punishment without fair warning.’” Devine v. New Mexico Dep’t of Corrections , 866 F.2d 339, 344 (10th Cir. 1989) (quoting Rubin o v. Lynaugh , 845 F.2d 1266, 1272 (5th Cir. 1988)). “The Ex Post Facto Clause is a limitation upon the powers of the Legislature, and does not of its own force apply to the Judicial Branch of government.” Marks v. United States , 430 U.S. 188, 191 (1977) (citation omitted); see also Rogers v. Tennessee , 532 U.S. 451, 460 (2001) (“The Ex Post
Facto Clause, by its own terms, does not apply to courts .”). However, the rationale of providing fair warning to criminal def endants is inherent in the notion of due process. Bouie v. City of Columbia , 378 U.S. 347, 354-55 (1964).- 7 -

Although ex post facto principles are thus relevantto the retroactive application of judicial decisions through the due p rocess clause of either the Fifth or the Fourteenth Amendment, the Ex Post Facto Clau se is not incorporated wholesale or “jot-for-jot.” Rogers , 532 U.S. at 459. “Extending the Clause to courts through the rubric of due process . . . woul d circumvent the clear constitutional text” and “would evince too little r egard for the important institutional and contextual differences between le gislating, on the one hand, and common law decisionmaking, on the other.” Id. at 460. The Court explained that a court’s “‘opportunity for discrimination’” is mor e limited than a legislature’s. Id. at 460-61 (quoting James v. United States , 366 U.S. 213, 247 n.3 (1961) (Harlan, J., concurring in part and dissenting in p art)). Therefore, the prohibition of the ex post facto app lication of judicial decisions is less extensive than the prohibition of ex post facto statutes. See Wayne R. LaFave, Substantive Criminal Law § 2.4(c) (2d ed. 2003). The Rogers Court distilled the ex post facto test for judicial opinions into the following: “[D]ue process limitations on the retroactive appli cation of judicial interpretations of criminal statutes” only apply to those decisions “that are ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’” 532 U.S. at 461 (quoting Bouie , 378 U.S. at 354). For example, in Rogers , the Tennessee supreme court had abolished the com mon law- 8 -

doctrine requiring a murder victim to have died wit hin one year and a day after the defendant’s actions before the defendant could be convicted of murder. The Supreme Court held that the retroactive application of the judicial abolition of the “year and a day” rule did not violate due process b ecause the rule itself was not well-established prior to the judicial decision, an d thus the abolition of this “common law relic” was not unexpected or indefensib le. Rogers , 532 U.S. at
462-64. In Bouie , the South Carolina supreme court had construed a trespassing statute to include remaining on the premises after having been asked to leave, even though the “narrow and precise” language of th e trespass statute only prohibited “entry” after notice. 378 U.S. at 349, 351-52. Because such narrow and precise language “lulls the potential defendantinto a false sense of security, giving him no reason even to suspect that conduct c learly outside the scope of the statute as written will be retroactively brought wi thin it by an act of judicial construction,” the Supreme Court held that judicial expansion beyond the plain language violated due process principles of fair wa rning when retroactively applied. Id. at 352-55, 363; see also Marks , 430 U.S. at 196 (holding that although statutory language was not narrow or preci se, judicial creation of new standards governing obscenity was unexpected and vi olated the fair warning principle of due process when applied retroactively ).3 Because we are reviewing a § 2254 habeas petition, we are only bound to

investigate federal law as expressed by the Supreme Court and ascertain whether such law was reasonably applied by the state court. See 28 U.S.C. § 2254 (d)(1). However, in reviewing habeas petitions, we often lo ok for guidance in the Tenth Circuit’s interpretation of Supreme Court cases. S ee e.g. , Hawkins v. Mullin , 291 F.3d 658, 665 (10th Cir. 2002). - 9 - The Tenth Circuit has provided guidance 3 in applying the ex post facto principles of Marks , Bouie , and Rogers by formulating a two-pronged inquiry. First, we discern whether the statute is “narrow an d precise” on its face. Hawkins v. Mullin , 291 F.3d 658, 665 (10th Cir. 2002), cert. denied , 537 U.S. 1173 (2003) (citing McDonald v. Champion , 962 F.2d 1455, 1458-59 (10th Cir. 1992) (quotation omitted)). If so, “any judicial expansi on of that statute beyond its own terms will be considered unforeseeable.” Id. (quotation omitted). Second, if the statute is not so clearly drawn on its face, we ask“‘whether the [state court’s] construction is so unexpected and indefensible by r eference to the law which had been expressed prior to the conduct at issue as to prevent its application retroactively.’” Id. at 666 (quoting McDonald , 962 F.2d at 1458) (alteration in original). With these ex post facto principles in mind, we tur n now to Petitioner’s argument against retroactively applying the Fairchi ldcourt’s construction of the child abuse murder statute as requiring only genera l intent.- 10 -

B. The Fairchild decision was not unexpected and indefensible against the backdrop of prior Oklahoma law regardin g the mens rea required by the child abuse murder statute. Petitioner argues that Oklahoma law at the time of his actions in 1996 clearly required specific intent for a conviction u nder the child abuse murder statute. Therefore, he contends, when the OCCA lat er construed the statute to require only general intent in Fairchild , 998 P.2d at 622-23, this was an unexpected and indefensible change in the law. He argues that requiring only a general intent mens rea in his particular case viol ated ex post facto principles as incorporated by the Due Process Clause of the Fourt eenth Amendment. As described below, we disagree with Petitioner’s argu ment and AFFIRM the district court’s denial of habeas. The state appellate court correctly found that the Fairchildcase was not unexpected and indefensible, and even if the court had erred, its application of Supreme Court case law in this analysis was not unreasonable. See Williams , 529 U.S. at 410-11. Petitioner was convicted under Okla. Stat. tit. 21, § 701.7(C), which makes child abuse murder a crime of murder in the first d egree. The statute provides: A person commits murder in the first degree when th e death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall w illfully cause, procure or permit any of said acts to be done upon the chil d pursuant to Section 7115 of Title 10 of the Oklahoma Statutes. It is s ufficient for the crime of murder in the first degree that the person either w illfully tortured or used unreasonable force upon the child or maliciously in jured or maimed the child.- 11 -

Okla. Stat. tit. 21, § 701.7(C). This language is not “narrow and precise” with regard to whether the required mens rea is one of g eneral or specific intent. The mens rea elements of criminal statutes are rarely c lear from the statutory language itself. LaFave, Substantive Criminal Law § 5.1(b) (describing ambiguity of the terms “wilfully” and “maliciously”). In fact, it w ould be reasonable to read this particular statute as requiring only general intent . As the Fairchildcourt explained, the mens rea of “willful or malicious,” which is required by the plain language of § 701.7(c), normally does notindicate a crime of specific intent. Fairchild , 998 P.2d at 620 (citing as examples arson, assaul t, and aggravated assault and battery, among other things). Because the statute is not narrow and precise on th e mens rea element, we next examine whether the Fairchild decision was “unexpected and indefensible” by reference to prior Oklahoma law. See Hawkins , 291 F.3d at 666 (citing Rogers , 532 U.S. at 461) (quotations omitted). Petitione r cites several cases for the proposition that Oklahoma law prior to his acti ons in November 1996 clearly required specific intent. However, as the Fairchil dcourt itself correctly recognized, only one of these cases, Hockersmith v. State , 926 P.2d 793, 795 (Okla. Crim. App. 1996), actually used the term “sp ecific intent” and it did so only in one sentence and with no discussion of exis ting Oklahoma law to the contrary. Fairchild , 998 P.2d at 621-22. All of the other cases requi red only4As the magistrate judge pointed out below, even the Oklahoma Uniform

Jury Instructions, which were adopted by the OCCA p rior to this offense, approved an instruction for child abuse murder thatfollowed the language of a general intent statute rather than a specific inten t statute. See Oklahoma Uniform Jury Instructions - Criminal, 2d 4-65A, at 156A (Ap r. 4, 1996). - 12 - “intent to injure,” and the Fairchild court explained that this “intent” merely meant the intent encompassed by the term “willful,” and did not require specific intent. Id. at 622 (citing Grady v. State , 947 P.2d 1069 (Okla. Crim. App. 1997), Bannister v. State , 930 P.2d 1176, 1178 (Okla. Crim. App. 1996), Revi lla v. State , 877 P.2d 1143, 1148, 1152 (Okla. Crim. App. 1994), and Watkins v. State , 744 P.2d 967, 970 (Okla. Crim. App. 1987)). Additionally, the Fairchild court pointed out that an earlier case, Workman
v. State , 824 P.2d 378, 383 (Okla. Crim. App. 1992), held t hat the intent for first degree child abuse murder was “general intent.” Fa irchild , 998 P.2d at 618-19. Because Hockersmithdid not overrule Workman , the state of the law at the time prior to Petitioner’s actions in 1996 was confusing and unclear with regard to the mens rea element of this statute. The OCCA viewed its Fairchildopinion as simply “clarifying” the correct rule, consistent wi th a long string of earlier Oklahoma cases interpreting the “willful” requireme nt as a requirement of general intent rather than specific intent, id . at 620-22, and overturning the “aberration” that was Hockersmith . Id. at 619, 622. 45 At oral argument, Petitioner insisted that Fairchil dwas “indefensible”

because its interpretation of the statute constitut ed bad policy. However, because our responsibility is not to second-guess state pol icy decisions, but only to ascertain whether defendants would have had fair wa rning of the judicial ruling, we reject this argument. - 13 - There were thus two conflicting, valid cases on the books at the time of Petitioner’s actions in 1996 – one that required on ly general intent (Workman ) and one that required specific intent (Hockersmith ). There were also several cases that used the phrase “intent to injure,” with out discussion of either specific or general intent (Grady , Bannister , Revilla , and Watkins ). This confusion is similar to the situation we faced in Sallahdin v. Gibson , 275 F.3d 1211 (10th Cir. 2002), in which the petiti oner launched an ex post facto attack on a new judicial decision that attempted to reconcile earlier confusion in the law. Id. at 1228-29. In Sallahdin , we held that the later judicial decision was “foreseeable and defensible” because it was simply attempting to reconcile its earlier “diametric opposing lines of caselaw author ity” on the issue. Id. (citation and quotation omitted). Therefore, the retroactive application of the new decision did not violate ex post facto principles. Id. Similarly, we do not find the Fairchilddecision to be unexpected and indefensible. 5 In sum, Fairchildwas not unexpected and indefensible in light of th e plain language of the statute and Oklahoma case law in fo rce as of the time the crime was committed. To the contrary, an opinion resolvi ng the conflict between- 14 -

Workmanand Hockersmithwas eminently predictable. That the Fairchild court chose to go with Workmanwas certainly defensible in light of the statutory language of Okla. Stat. tit. 21, § 701.7(C) and Okl ahoma’s long history of interpreting the statutory requirement of “willful” as a general intent requirement rather than as a specific intent requirement. So, Fairchildwas neither unexpected nor indefensible, let alone unexpected and indefens ible. The OCCA correctly identified the controlling Supreme Court precedent of Rogers and we cannot say that OCCA’s application of the Rogers principles was unreasonable, even if that application was wrong. See Williams , 529 U.S. at 412. Accordingly, we AFFIRM the district court’s refusal to grant habeas under § 2254.