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-Appellant.

William R. Holmes, Assistant Attorney General of Oklahoma (W.A. Drew

Edmondson, Attorney General of Oklahoma, with him on the brief), Oklahoma

City, Oklahoma, for Respondent-Appellee.

Before EBEL, HOLLOWAY, and BRISCOE, Circuit Judges.

EBEL, Circuit Judge.

Robert Simpson Evans, Jr. (“Petitioner”) was convicted and sentenced to

life imprisonment for first degree child abuse murder. On direct appeal to the
1Under the relevant portion of this statute, “[a] person commits murder in

the first degree when the death of a child results from the willful or malicious

injuring, torturing, maiming or using of unreasonable 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 unreasonable force upon the child

or maliciously injured or maimed the child.” Id.

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state court, Petitioner argued that the retroactive application of Fairchild v. State,

998 P.2d 611 (Okla. Crim. App. 1999), which he contends changed the mens rea

element of Oklahoma’s child abuse murder statute from specific to general intent,

violates ex post facto principles as incorporated in the Due Process Clause of the

Fourteenth Amendment. The state court disagreed and affirmed his conviction. 

Petitioner now makes the same argument on federal habeas review. Because we

conclude that the state court reasonably applied the 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 Petitioner’s two-year-old

stepson, Daquinlan McKnight, on November 22, 1996, as a result of

complications from burns suffered by the child on November 12, 1996. The jury

instructions required only general intent, allowing the jury to convict Petitioner if
2Petitioner does not challenge the language of this instruction if Okla. Stat.

tit. 21, § 701.7(C) can be satisfied by general intent. His sole challenge is that

the Oklahoma Court of Criminal Appeals violated ex post facto principles

expressed in the Due Process Clause when it concluded after his acts took place

that the statute was a general intent statute.

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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 actions in 1996 clearly required

specific, not general, intent. Although the OCCA in 1999 construed the child

abuse murder statute to require only general intent in Fairchild, 998 P.2d at 622-

23, Petitioner insisted that the retroactive application 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 post facto argument that he

had made before the state appellate court. On December 30, 2002, the district

court denied habeas relief.

Petitioner filed a timely notice of appeal and application 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.
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DISCUSSION

I. Jurisdiction

Although Petitioner claims to bring this action under 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 the

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 a decision 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 where “the state court applies a

rule that contradicts the governing law set forth in [the Supreme Court’s] cases”

or “the state court confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme] Court and nevertheless arrives at a result
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different from” the result reached by the Supreme Court. 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 involved an unreasonable

application of clearly established federal law as determined by the Supreme

Court, it is not enough that the state court applied clearly established federal law

erroneously or incorrectly. Rather, the application must be unreasonable. 

Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir. 2001) (“The Supreme Court

has cautioned ‘that an unreasonable application of federal law is different from

an incorrect or erroneous application of federal law.’”) (quoting Williams, 529

U.S. at 412).

We review the district court’s factual findings for clear 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 retroactive

application of judicial decisions

Article I, § 10 of the U.S. Constitution provides that “[n]o State shall . . .

pass any . . . ex post facto Law.” U.S. Const. art I, § 10, cl. 1. To fall within the

Ex Post Facto Clause, “a law must be retrospective – that is, ‘it must apply to
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events occurring before its enactment’ – and it ‘must 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 Post 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 vindictive 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 Rubino 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 defendants is inherent in the notion

of due process. Bouie v. City of Columbia, 378 U.S. 347, 354-55 (1964). 
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Although ex post facto principles are thus relevant to the retroactive

application of judicial decisions through the due process clause of either the Fifth

or the Fourteenth Amendment, the Ex Post Facto Clause 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 . . . would circumvent the clear

constitutional text” and “would evince too little regard for the important

institutional and contextual differences between legislating, 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 more 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 part)).

Therefore, the prohibition of the ex post facto application 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 application 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 common law
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doctrine requiring a murder victim to have died within 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 because the rule itself was not

well-established prior to the judicial decision, and thus the abolition of this

“common law relic” was not unexpected or indefensible. 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 the trespass statute only

prohibited “entry” after notice. 378 U.S. at 349, 351-52. Because such narrow

and precise language “lulls the potential defendant into a false sense of security,

giving him no reason even to suspect that conduct clearly outside the scope of the

statute as written will be retroactively brought within it by an act of judicial

construction,” the Supreme Court held that judicial expansion beyond the plain

language violated due process principles of fair warning 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 precise, judicial creation of new

standards governing obscenity was unexpected and violated the fair warning

principle of due process when applied retroactively). 
3Because 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 look for guidance in the Tenth

Circuit’s interpretation of Supreme Court cases. See e.g., Hawkins v. Mullin, 291

F.3d 658, 665 (10th Cir. 2002).

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The Tenth Circuit has provided guidance3 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 and 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 expansion 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 reference 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 turn now to Petitioner’s

argument against retroactively applying the Fairchild court’s construction of the

child abuse murder statute as requiring only general intent.
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B. The Fairchild decision was not unexpected and indefensible

against the backdrop of prior Oklahoma law regarding 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 under the child abuse murder

statute. Therefore, he contends, when the OCCA later 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 violated ex post facto principles as

incorporated by the Due Process Clause of the Fourteenth Amendment. As

described below, we disagree with Petitioner’s argument and AFFIRM the district

court’s denial of habeas. The state appellate court correctly found that the

Fairchild case 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 degree. The statute provides:

A person commits murder in the first degree when the death of a child 

results from the willful or malicious injuring, torturing, maiming or using 

of unreasonable force by said person or who shall willfully cause, procure 

or permit any of said acts to be done upon the child pursuant to Section 

7115 of Title 10 of the Oklahoma Statutes. It is sufficient for the crime of 

murder in the first degree that the person either willfully tortured or used

unreasonable force upon the child or maliciously injured or maimed the 

child.
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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 general or specific intent. The

mens rea elements of criminal statutes are rarely clear from the statutory language

itself. LaFave, Substantive Criminal Law § 5.1(b) (describing ambiguity of the

terms “wilfully” and “maliciously”). In fact, it would be reasonable to read this

particular statute as requiring only general intent. As the Fairchild court

explained, the mens rea of “willful or malicious,” which is required by the plain

language of § 701.7(c), normally does not indicate a crime of specific intent. 

Fairchild, 998 P.2d at 620 (citing as examples arson, assault, and aggravated

assault and battery, among other things). 

Because the statute is not narrow and precise on the 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). Petitioner cites several cases for

the proposition that Oklahoma law prior to his actions in November 1996 clearly

required specific intent. However, as the Fairchild court itself correctly

recognized, only one of these cases, Hockersmith v. State, 926 P.2d 793, 795

(Okla. Crim. App. 1996), actually used the term “specific intent” and it did so

only in one sentence and with no discussion of existing Oklahoma law to the

contrary. Fairchild, 998 P.2d at 621-22. All of the other cases required only
4As the magistrate judge pointed out below, even the Oklahoma Uniform

Jury Instructions, which were adopted by the OCCA prior to this offense,

approved an instruction for child abuse murder that followed the language of a

general intent statute rather than a specific intent statute. See Oklahoma Uniform

Jury Instructions - Criminal, 2d 4-65A, at 156A (Apr. 4, 1996).

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“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), Revilla 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 that the intent for first

degree child abuse murder was “general intent.” Fairchild, 998 P.2d at 618-19. 

Because Hockersmith did 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 Fairchild opinion as

simply “clarifying” the correct rule, consistent with a long string of earlier

Oklahoma cases interpreting the “willful” requirement as a requirement of general

intent rather than specific intent, id. at 620-22, and overturning the “aberration”

that was Hockersmith. Id. at 619, 622.4
5At oral argument, Petitioner insisted that Fairchild was “indefensible”

because its interpretation of the statute constituted bad policy. However, because

our responsibility is not to second-guess state policy decisions, but only to

ascertain whether defendants would have had fair warning of the judicial ruling,

we reject this argument.

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There were thus two conflicting, valid cases on the books at the time of

Petitioner’s actions in 1996 – one that required only general intent (Workman)

and one that required specific intent (Hockersmith). There were also several

cases that used the phrase “intent to injure,” without 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 petitioner 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 authority” 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

Fairchild decision to be unexpected and indefensible.5

In sum, Fairchild was not unexpected and indefensible in light of the plain

language of the statute and Oklahoma case law in force as of the time the crime

was committed. To the contrary, an opinion resolving the conflict between
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Workman and Hockersmith was eminently predictable. That the Fairchild court

chose to go with Workman was certainly defensible in light of the statutory

language of Okla. Stat. tit. 21, § 701.7(C) and Oklahoma’s long history of

interpreting the statutory requirement of “willful” as a general intent requirement

rather than as a specific intent requirement. So, Fairchild was neither unexpected

nor indefensible, let alone unexpected and indefensible. 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.