                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-1997

Johnson v. Rosemeyer
Precedential or Non-Precedential:

Docket 96-1861




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Filed June 13, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1861

CURTIS JOHNSON,

Appellant

v.

FREDERICK ROSEMEYER, WARDEN, OF THE STATE
CORRECTIONAL INSTITUTE - GREENSBURG; THE
DISTRICT ATTORNEY OF PHILADELPHIA COUNTY; THE
ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 95-07365)

Argued May 21, 1997

BEFORE: GREENBERG, ROTH, and WEIS, Circuit Judges

(Filed: June 13, 1997)

Steven N. Yermish (argued)
Caplan & Luber
40 Darby Road
Paoli, PA 19301

Attorneys for Appellant
Donna G. Zucker (argued)
Chief, Federal Litigation
Deborah Fleisher
Ronald Eisenberg
Deputy District Attorney
Arnold H. Gordon
First Assistant District
Attorney
Lynn Abraham
District Attorney
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102

Attorneys for Appellees

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant, Curtis Johnson, appeals from an order entered
on August 29, 1996, in this habeas corpus action following
his conviction for aggravated assault in the Common Pleas
Court of Philadelphia County, Pennsylvania. The district
court denied Johnson's petition in a comprehensive
memorandum opinion accompanying the order. Johnson v.
Rosemeyer, Civ. No. 95-7365 (E.D. Pa. Aug. 27, 1996).
Johnson raises two issues on this appeal. First, he
contends that "the district court erred in failing to grant
habeas relief where the state trial court's jury instruction[s]
on justification [were] erroneous and thus violated [his]
right to due process." Br. at 11. Second, he urges that he
"was denied due process because of the trial court's
incomplete and erroneous jury instruction[s] on aggravated
assault." Br. at 34. After a careful review of the matter, we
have concluded that we should affirm the district court's
order. We confine our discussion to the court's instructions
to the jury on the justification issue, as Johnson's
contention with respect to the aggravated assault

                     2
instructions clearly affords no basis for habeas corpus
relief.

II. FACTS AND PROCEDURAL HISTORY

There is no dispute regarding the basic facts in this case.
On November 27, 1988, Johnson, a Philadelphia police
officer, shot and seriously wounded James Cahill while off
duty. This unfortunate incident arose from a dispute
between Johnson and Cahill's mother, who was a tenant in
an apartment building Johnson owned. At his trial on the
aggravated assault charge in the state court, Johnson
testified that Cahill assaulted him with a shovel, and that
he then shot Cahill after Cahill attempted to escape when
Johnson tried to arrest him.

As Johnson explains in his brief, his "sole defense" at
trial was that he "was justified in shooting Cahill in order
to prevent his escape." Br. at 11. Pennsylvania law sets
forth the circumstances in which a law enforcement officer
may use force in making an arrest in 18 Pa. Cons. Stat.
Ann. § 508 (West 1983) ("section 508"):

Use of force in law enforcement (a) Peace officer's use
of force in making arrest. --

 (1) A peace officer, or any person whom he has
summoned or directed to assist him, need not retreat
or desist from efforts to make a lawful arrest because
of resistance or threatened resistance to the arrest. He
is justified in the use of any force which he believes to
be necessary to effect the arrest and of any force which
he believes to be necessary to defend himself or
another from bodily harm while making the arrest.
However, he is justified in using deadly force only when
he believes that such force is necessary to prevent
death or serious bodily injury to himself or such other
person, or when he believes both that:

(i) such force is necessary to prevent the arrest from
being defeated by resistance or escape; and

 (ii) the person to be arrested has committed or
attempted a forcible felony or is attempting to escape
and possesses a deadly weapon, or otherwise indicates

                    3
that he will endanger human life or inflict serious
bodily injury unless arrested without delay.

In recognition of Johnson's contention that section 508
justified his use of force, the trial court instructed the jury
that a police officer:

is justified using deadly force only when he believes
that such force is necessary to prevent the death or
serious bodily injury to himself or another or when he
believes that both are present, these two factors are
present and such force is necessary to prevent the
arrest from being defeated by resistance or escape, and
the person to be arrested has committed or attempted
to commit a forcible felony under the act.

App. at 323. The court defined aggravated assault as an
attempt to cause serious bodily injury to another or
intentionally causing serious bodily injury to another in
accordance with 18 Pa. Cons. Stat. Ann. § 2702 (West
Supp. 1997). App. at 321.

During its deliberations, the jury sent a question to the
court asking whether an arresting police officer was
"obliged to use deadly force to shoot against a fleeing felony
[sic] under all circumstances or can an alternative measure
be taken to secure the arrest." App. at 348-49 (emphasis in
original). The court responded as follows:

 All right, we said that an officer is justified in using
any force which he believes to be necessary to
effectuate an arrest, any force generally, that's the
general rule but he must use only that amount of force
that is necessary to accomplish the arrest. Now, when
it comes to the use of deadly force, deadly force being
force that is likely to cause serious bodily injury or
death, he is justified in using deadly force only when
he believes that such force is necessary to prevent
death or serious bodily injury to himself or such other
person or when he believes both, one, that such force
is necessary to prevent the arrest from being defeated.
An arrest being defeated meaning that, being not
effectuated, that he could not make the arrest
otherwise, and the person to be arrested has
committed or attempted a forcible felony, and is fleeing

                     4
therefrom. That's the only thing I can tell you. It is the
standard. You utilize it. I could answer your question
yes or no but I can't without interfering with your
obligation to make a determination of the facts. Again
the general rule is that a police officer can use force to
effectuate an arrest and that amount that is necessary
to make that arrest. He can use only that force that is
necessary, however when he has to use deadly force,
then he must meet special conditions: that he must
believe that he cannot effectuate the arrest, that is the
arrest becomes defeated unless he can use deadly force
of [sic] a fleeing felon, all right?

App. at 349-50. The jury subsequently convicted Johnson.

After the trial court denied Johnson's post-trial motions
and sentenced him, Johnson appealed to the Superior
Court, a Pennsylvania intermediate appellate court.
Johnson contended on appeal, as he has in these habeas
corpus proceedings, that section 508 establishes three
separate and distinct circumstances in which a police
officer may use force to effectuate an arrest: (1) when the
police officer believes that such force is necessary to
prevent death or serious bodily injury to himself or another
person; (2) when necessary to prevent the arrest from being
defeated by resistance or escape and the person to be
arrested has committed or attempted a forcible felony; or (3)
when necessary to prevent the arrest from being defeated
by resistance or escape and the person attempting to
escape possesses a deadly weapon or otherwise indicates
that he will endanger human life or inflict serious bodily
injury unless arrested without delay. Johnson further
contended in the Superior Court that the trial court's
instructions to the jury, even as the court amplified the
instructions in response to the jury's question, did not
conform with the above law.

In an unpublished opinion the Superior Court rejected
Johnson's contention, as well as other issues he raised,
and thus affirmed his conviction. Commonwealth v.
Johnson, 588 A.2d 561 (Pa. Super. Ct. 1990) (table). That
court held that the instructions, though ambiguous, did not
require that it grant Johnson a new trial because Johnson
was not entitled to a jury charge on justification, and

                    5
because the trial court in any event cleared up any
confusion with its supplemental instructions.
Commonwealth v. Johnson, slip op. at 5. In explaining why
Johnson was not entitled to a justification charge, the court
held that section 508 allows a police officer to use deadly
force in effectuating an arrest only if the person to be
arrested has committed a forcible felony and possesses a
dangerous weapon, or otherwise indicates that he will
endanger human life or inflict serious bodily injury unless
arrested immediately. Id.

The Superior Court made particular reference to
Johnson's argument indicating:

 Johnson would have us read § 508 disjunctively,
thereby negating the element of endangerment where a
`forcible felon' is pursued. This we cannot do. The
phrase `committed or attempted a forcible felony or is
attempting to escape' has, as a necessary condition,
the requirement of `[possession of] a deadly weapon, or
[other indication] that he will endanger human life or
inflict serious bodily injury unless arrested without
delay.' The statute is not to be read to allow deadly
force to be used against a person who poses no threat
to human life or safety. . . .

Id. Johnson unsuccessfully sought allocatur from the
Supreme Court of Pennsylvania and thereafter he
unsuccessfully sought post-conviction relief in the state
courts.

Johnson, who had exhausted his state remedies,
subsequently instituted these proceedings in the district
court under 28 U.S.C. § 2254. The district court referred
the matter to a magistrate judge who filed a report and
recommendation that the district court grant the petition
on the ground that the trial court's instructions to the jury
on justification were erroneous and deprived Johnson of
due process of law. The magistrate judge, however,
recommended that, to the extent that Johnson based the
petition on a claim that erroneous jury instructions on
aggravated assault denied him due process of law, the
district court should deny the petition. The magistrate
judge also recommended that the district court deny the

                     6
petition insofar as Johnson sought relief on grounds which
he does not raise on this appeal and which we therefore
need not detail. Both Johnson and the respondents filed
objections to the report and recommendation.

The district court decided the case in the comprehensive
memorandum opinion to which we referred at the outset of
this opinion. The district court set forth the background of
the matter and then indicated, citing Kontakis v. Beyer, 19
F.3d 110, 114 (3d Cir. 1994), that it could grant a petition
for a writ of habeas corpus only when there has been a
violation of the Constitution, laws, or treaties of the United
States. Johnson, slip op. at 4. The court stated that it
would make a de novo review of the magistrate judge's
findings and recommendation insofar as the parties
objected to them. Id.

The court then set forth Johnson's contentions with
respect to the meaning of section 508 and further noted the
magistrate judge's conclusion that Johnson's contentions
with respect to its meaning were correct. The court said
that it is "axiomatic that federal habeas courts do not sit to
re-examine state court determinations of state law," citing
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480
(1991). Johnson, slip op. at 8. While the court recognized,
quoting Mullaney v. Wilbur, 421 U.S. 684, 691 n.11, 95
S.Ct. 1881, 1886 n.11 (1975), that a federal court "may re-
examine a state court's interpretation of its law if that
interpretation appears to be an `obvious subterfuge to evade
consideration of a federal issue,' " it pointed out that
Johnson did not allege that there had been such an
evasion. Johnson, slip op. at 8.

The district court stated that the case was unusual
"because the opinion in question was issued by
Pennsylvania's intermediate appellate court and speaks to
a matter that the Pennsylvania Supreme Court has not
addressed directly." Johnson, slip op. at 8-9. The district
court then pointed out that the magistrate judge cited West
v. American Tel. and Tel. Co., 311 U.S. 223, 61 S.Ct. 179
(1940), and certain courts of appeals opinions for the
proposition that a "federal habeas court may, in rare cases,
disregard the decision of a state's intermediate appellate
court where the federal court is convinced that the highest

                    7
court of the state would rule to the contrary." Johnson, slip
op. at 9. See Watson v. Dugger, 945 F.2d 367, 369 (11th
Cir. 1991); Olsen v. McFaul, 843 F.2d 918, 928-29 (6th Cir.
1988); Sanderson v. Rice, 777 F.2d 902, 905 (4th Cir.
1985).

The district court said that in Barry v. Brower, 864 F.2d
294 (3d Cir. 1988), we faced a situation not unlike that
here. The court explained, quoting Barry, 864 F.2d at 298,
that we held there that "a federal habeas court is bound by
a state court's determination of state substantive law and
`may not substitute its interpretation of state law for that of
the state court whose action it is reviewing.' " Johnson, slip
op. at 9-10. The district court then quoted Barry, 864 F.2d
at 298 n.5, with respect to the distinction we drew there
between a federal court's power to determine state law in a
habeas corpus case and its power to determine state law in
a diversity case, the court being freer to determine state law
in the latter situation.

The court then acknowledged that there is support for
Johnson's interpretation of section 508 in Dolan v. Golla,
481 F. Supp. 475, 480 (M.D. Pa. 1979), aff'd , 633 F.2d 209
(3d Cir. 1980) (table), and Phillips v. Ward, 415 F. Supp.
976, 979 (E.D. Pa. 1975), as well as in the legislative
history of section 508 which is based on section 3.07 of the
Model Penal Code. See Model Penal Code § 3.07 comment
3(c). Johnson, slip op. at 10. Nevertheless, the district court
indicated that it did not sit as a "super court of appeals" to
pass judgment on matters of state law and that "[g]iven an
authoritative decision of Pennsylvania's intermediate
appellate court [it] decline[d] to speculate about the
direction Pennsylvania law will take in the future." Johnson,
slip op. at 11.

Overall, the district court regarded itself as bound by the
Superior Court opinion on Johnson's direct appeal and
thus it rejected his argument to the extent he predicated it
on his contention that the trial court's jury instructions on
justification were erroneous. The district court also rejected
Johnson's argument predicated on his contention that the
trial court's jury instructions on aggravated assault were
incomplete and erroneous as well as the other arguments
he advanced. We, however, will not describe its opinion in

                     8
detail on these points because we summarily reject
Johnson's argument based on the aggravated assault
instructions and he does not pursue the other points on
this appeal.

III. DISCUSSION

a. The standard of review

On this appeal, Johnson reiterates the position he took in
the district court that the trial court's jury instructions with
respect to justification were erroneous and that the
Superior Court opinion is not conclusive in the federal
courts on the meaning of section 508. In view of the
procedural posture of the case in which the district court
based its decision on the record of the state court
proceedings, rather than on facts found after an evidentiary
hearing, we make a plenary review of the district court's
order. See Kontakis v. Beyer, 19 F.3d at 113. We note that
the parties have briefed this appeal without reference to the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996), even though the
district court decided the case after April 24, 1996, the
effective date of that Act, and we further note that the
district court did not mention that Act. In these
circumstances, we, too, will decide the case without
considering that Act, as we conclude that under prior law
we should affirm the order of the district court and we can
conceive of no basis for a conclusion that the Act enhanced
Johnson's position.

b. The instructions on justification raise only a state law
issue.

At the outset of our discussion, we point out that there
is an answer, based on a point on which the parties have
not centered their briefs, to Johnson's contention that he is
entitled to relief because of the allegedly erroneous jury
instructions pertaining to his justification defense. In
Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480, the
Supreme Court, after indicating that it is not the province
of a federal habeas corpus court to re-examine state court
determinations on state law questions, set forth that "a
federal court is limited to deciding whether a conviction

                    9
violated the Constitution, laws, or treaties of the United
States." Thus, we have stated that "it is well established
that a state court's misapplication of its own law does not
generally raise a constitutional claim. The federal courts
have no supervisory authority over state judicial
proceedings and may intervene only to correct wrongs of
constitutional dimension." Geschwendt v. Ryan, 967 F.2d
877, 888-89 (3d Cir. 1992).

Accordingly, it is not surprising that Johnson recognizes
that he cannot obtain relief simply by demonstrating that
the state trial court and the Superior Court made a mistake
of state law with respect to the jury instructions on the
justification issue. Therefore, he attempts to predicate his
argument on the Constitution by contending that the
allegedly erroneous instructions to the jury on the
justification issue denied him due process of law because it
deprived him of an opportunity to present his defense. He
explains that "the trial court's instructions
unconstitutionally altered the Commonwealth's burden to
disprove all elements of [his] justification defense beyond a
reasonable doubt. By adding elements to the defense, the
trial court made it easier for the Commonwealth to disprove
Johnson's sole defense at trial." Br. at 32.

In considering Johnson's contention, we realize that
under Pennsylvania law a conviction for aggravated assault
requires a showing that the defendant acted with malice,
Commonwealth v. Hickson, 586 A.2d 393, 396 (Pa. Super.
Ct. 1990), and that if the defendant acts with justification
he will not have acted with malice. Commonwealth v. Rife,
312 A.2d 406, 410 (Pa. 1973). We further recognize that if
there was a mistake of state law in this case, the mistake,
as Johnson urges, arguably relieved the state of the burden
of proving an element of the offense, i.e., malice. We also
recognize that even though the parties refer to justification
as a defense it is something more, as by demonstrating the
absence of malice the justification may negate an element
of the offense. See Engle v. Isaac, 456 U.S. 107, 122, 107
S.Ct. 1558, 1569 (1982).

Yet the difficulty with Johnson's argument is that, even
if the state courts made a mistake of state law which
prejudiced Johnson by altering the proofs necessary to

                    10
support a conviction, to obtain habeas corpus relief he
must demonstrate that the mistake deprived him of a right
which he enjoyed under the Constitution, laws, or treaties
of the United States. Thus, errors of state law cannot be
repackaged as federal errors simply by citing the Due
Process Clause.

In considering whether this case involves a claim of error
under the Constitution, laws, or treaties of the United
States, it is critical to remember that the Supreme Court
has made it clear that the states define the elements of
state offenses. Accordingly, while there may be
constitutionally required minimum criteria which must be
met for conduct to constitute a state criminal offense, in
general there is no constitutional reason why a state
offense must include particular elements. See McMillan v.
Pennsylvania, 477 U.S. 79, 84-86, 106 S.Ct. 2411, 2515-16
(1986).

It thus follows that for the error of state law in the
justification instructions, assuming that there was an error,
to be meaningful in this federal habeas corpus action, there
would have to be a body of federal law justifying the use of
deadly force which is applicable in a state criminal action
charging an offense based on the defendant's use of that
force. Then the error in the jury instructions would be
significant if the instructions did not satisfy that body of
law. Put in a different way, the jury instructions on
justification, even if correct under state law, would need to
have relieved the state of the necessity of proving an
element of the offense as required by federal law or to have
deprived the petitioner of a defense the state had to afford
him under federal law in order to be significant in a federal
habeas corpus action. If we concluded that a petitioner
could obtain habeas corpus relief without making such a
showing, then district courts in habeas corpus cases would
sit as super state supreme courts for the purpose of
determining whether jury instructions were correct under
state law with respect to the elements of an offense and
defenses to it.

Our opinion in Humanik v. Beyer, 871 F.2d 432 (3d Cir.
1989), a habeas corpus case involving a prisoner in state
custody following a New Jersey state conviction,

                    11
demonstrates this point well. In Humanik we were
concerned with New Jersey's diminished capacity statute,
which provides that evidence that the defendant suffered
from a mental disease or defect is admissible whenever it is
relevant to the issue of whether the defendant had a state
of mind which is an element of the offense. The New Jersey
diminished capacity statute at the time of Humanik's trial
provided that "[m]ental disease or defect is an affirmative
defense which must be proved by a preponderance of the
evidence." N.J. Stat. Ann. § 2C:4-2 (West 1995) (note)
(section "2C:4-2"); see Humanik, 871 F.2d at 434. After
Humanik's trial, the Supreme Court of New Jersey in other
cases construed section 2C:4-2 to require a defendant
relying on a diminished capacity argument to prove by a
preponderance of the evidence that he suffers from a
mental disease or defect. The Supreme Court of New Jersey
held that if the defendant did so, the state was required to
prove beyond a reasonable doubt that the disease or defect
did not negate the state of mind which is an element of the
crime, i.e., that the defendant acted purposely or knowingly
despite his mental disease. Humanik, 871 F.2d at 439.

In Humanik, we held that the instructions to the jury
were erroneous under New Jersey law because they did not
anticipate accurately the New Jersey Supreme Court's later
explanation of the contrasting burdens of proof on the
diminished capacity issue. Id. at 442. We then held that
even if we had concluded that the jury instructions
complied with New Jersey law, we nevertheless would grant
the writ because the instructions placed a burden of proof
of an element of the offense, that the defendant acted
purposefully or knowingly, on the defendant. Id. at 442-43.
We reached our conclusion because in In re Winship, 397
U.S. 358, 90 S.Ct. 1068 (1970), the Supreme Court held
that the Due Process Clause of the Fourteenth Amendment
required proof beyond a reasonable doubt of every fact
necessary to constitute the crime charged.

Humanik, then, was a case in which, whether the jury
instructions were correct or not under state law, the
petitioner, Humanik, was entitled to relief because the
instructions violated his constitutional rights which were
derived from a federal source. Yet in Humanik we did not

                   12
undertake to determine whether the New Jersey courts
properly identified the elements of the offense charged in
the state indictment, in particular the need for proof of the
defendant's intent. Rather, we concerned ourselves with an
issue under the Constitution, the allocation of the burden
of proof on the elements of the offense as defined by the
Supreme Court of New Jersey.

Accordingly, in Humanik, even though we found that the
state trial court's instructions to the jury did not correctly
reflect New Jersey law, we did not, without more, find that
the petitioner was entitled to habeas corpus relief. We
reached the conclusion that Humanik was entitled to such
relief only when we applied a federal source of law, namely,
In re Winship, and then determined that the jury
instructions did not satisfy federal law.1

Johnson's problem is that he cannot point to a federal
requirement that jury instructions on the elements of an
offense when justification is in issue include particular
provisions, nor can he demonstrate that the jury
instructions deprived him of a defense which federal law
provided to him. In short, he cites no authority for the
proposition that federal law entitled him to the jury
instructions on justification that he contends should have
been given. The closest he comes is to contend that his
interpretation of section 508 is consistent with Tennessee v.
Garner, 471 U.S. 1, 105 S.Ct. 1694 (1985), which
determined when a police officer constitutionally could use
force to effectuate an arrest. Br. at 26. But the Supreme
Court opinion in Garner did not establish a federal right to
particular jury instructions to a jury in a state criminal
case when justification is in issue. Rather, the case
established the circumstances in which a state may
authorize a police officer to use deadly force to effectuate an
arrest. Therefore, Johnson's petition differs from Humanik's
whose petition successfully identified an error of federal law
at his state trial, i.e., the unconstitutional placing of a
burden of proof of an element of the offense on him. But
this case, unlike Humanik, does not include a Winship
_________________________________________________________________

1. The New Jersey legislature has amended section 2C:4-2 to comply
with our holding in Humanik.

                    13
issue, inasmuch as the trial court charged the jury that the
state had to disprove the justification defense beyond a
reasonable doubt. Accordingly, the district court correctly
denied Johnson's petition because the error that he asserts
existed in the jury instructions on the justification issue
implicates only state law issues.

Under the foregoing analysis, it does not matter whether
we are bound by the Superior Court opinion because even
if we rejected that opinion and agreed with Johnson that
the trial court and the Superior Court made a mistake in
construing state law, we would deny his petition inasmuch
as the jury instructions did not violate any federal right
which he possessed. Furthermore, even if we found that the
trial court and the Superior Court were correct under state
law, we would grant Johnson relief if we found that the jury
instructions violated his federal rights. Thus, it does not
matter whether we re-examine the state law issue because,
regardless of the result of the re-examination, we cannot
grant Johnson relief.

In reaching our result, we have not lost sight of Hicks v.
Oklahoma, 447 U.S. 343, 100 S.Ct. 2227 (1980), in which
a defendant based a due process claim on an error in jury
instructions. In Hicks, the Oklahoma state trial court
instructed the jury that if it found the defendant guilty of
distributing heroin, it must sentence him to a 40-year term
of imprisonment as an habitual offender. Id. at 345, 100
S.Ct. at 2228-29. The problem with the instructions in
Hicks was that after the trial, the Oklahoma Court of
Criminal Appeals declared the mandatory sentencing
statute unconstitutional in another case so that under the
applicable valid law the jury could have sentenced the
defendant to a term of not less than ten years in prison.
See Thigpen v. State, 571 P.2d 467 (Okla. Crim. App. 1977).
Thus, the erroneous instruction forced the jury to sentence
the defendant in Hicks to a term four times longer than it
was required to impose. Yet on the defendant's direct
appeal, the Oklahoma Court of Criminal Appeals affirmed
his sentence, finding that he was not prejudiced by the
impact of the invalid statute, as his sentence was within
the range that the jury could have imposed in any event.
The Supreme Court granted the defendant's petition for

                    14
certiorari and vacated the judgment on due process
grounds.

In Hicks, the state court declared that the statute in
question was unconstitutional and thus the federal courts
did not make a determination of state law. Rather, in Hicks
the Supreme Court held that the error was not harmless
and that due process of law required that the case not be
viewed as involving only state law concerns. Accordingly,
Hicks differs fundamentally from this case, as here
Johnson has invited the federal courts to make state law
determinations. Furthermore, even though the error in the
jury instructions in Hicks can be seen as an error of state
law in one sense, the instructions may be viewed as having
in themselves violated federal law, as the Oklahoma Court
of Criminal Appeals in Thigpen invalidated the mandatory
sentencing statute for vagueness without clearly indicating
whether it was doing so based on federal or state
constitutional grounds.2

Of course, Hicks involved an unusual situation which the
Supreme Court concluded required due process treatment.
But the Court has not applied Hicks to mean that every
error of state law affecting the outcome of a state criminal
proceeding would be cognizable as a due process claim. If
the Court did so hold, then the district courts in habeas
cases effectively would become state appellate courts one
rung above the state courts of last resort. The Court has
made it clear that the district courts do not have that
function. Furthermore, in Hicks the jury was the sentencing
authority and thus was in the same position as a judge
who sentenced a defendant to a mandatory term of
imprisonment without recognizing that the law did not
require the imposition of that term. We think that a judicial
error of that kind would violate a defendant's due process
protections and we see no reason why a different result
would be reached merely because the jury imposes the
sentence.
_________________________________________________________________

2. The Oklahoma court probably intended to void the statute on
Fourteenth Amendment grounds, as it annexed an advisory opinion to
its opinion which found the sentencing statute invalid under that
amendment.

                   15
c. The Superior Court opinion is conclusive.

We do not base our opinion exclusively on the foregoing
analysis, as the parties have not focused their arguments
on the question of whether Johnson's challenge to the jury
instructions involves state law issues not cognizable in
these proceedings. Indeed, the appellees contend only in a
conclusory fashion within a footnote in their brief that
Johnson raises only issues of state law not entitling him to
federal relief. Br. at 20 n.7. Thus, we affirm the order of the
district court for the additional reason that we agree with it
that the Superior Court opinion on Johnson's direct appeal
is binding, the result being that we cannot find that the
trial court made an error of law in the jury instructions
under section 508. In reaching this conclusion, we discuss
three of our opinions that we list in the order in which we
decided them, Barry, 864 F.2d 294, Humanik, 871 F.2d
432, and Vance v. Lehman, 64 F.3d 119 (3d Cir. 1995), cert.
denied, 116 S.Ct. 736 (1996).

In Barry, the petitioner sought federal habeas corpus
relief following his New Jersey conviction on charges
involving the distribution of dangerous controlled
substances. The petitioner had sought to appeal from his
conviction to the Appellate Division of the New Jersey
Superior Court, but he was unable to afford counsel to
represent him even though he did have certain assets.
Thus, he did not perfect his appeal. Eventually, however,
the public defender found that the petitioner was eligible for
representation by its office so it entered an appearance for
him and moved to reinstate his appeal. The Appellate
Division denied the motion, as it held that under state law
the petitioner's property holdings rendered him ineligible for
the services of the public defender. After the Supreme
Court of New Jersey declined to review the Appellate
Division's order, the petitioner sought federal habeas
corpus relief. The district court granted relief on the ground
that the Appellate Division's order was an interference with
the public defender's determination that the petitioner was
eligible for representation and was unauthorized by state
law. Barry, 864 F.2d at 298.

On the appeal from the district court's order granting the
writ, we held that the petitioner was entitled to habeas

                    16
corpus relief on a different basis from that on which the
district court granted it. In reaching our decision, we
expressly disapproved the district court's action in
concluding that the Appellate Division had erred under
state law, though we recognized that the district court's
holding was based "on a plausible interpretation of state
law." Id. We held that "the district court is bound by the
state court's determination of state substantive law" and
that a "district court may not substitute its interpretation of
state law for that of the state court whose action it is
reviewing." Id. We gave the following explanation of the
powers of a federal habeas corpus court with respect to
state law issues:

We have found no decision of the New Jersey Supreme
Court compelling the rationale we attribute to the
Appellate Division or the rationale the district court
believes state law requires. We do not believe that this
uncertainty leaves the district court free to predict
what the New Jersey Supreme Court would do. In a
diversity case, for example, federal courts act on cases
which have not been before the state court for decision
and must determine, and often predict, what
substantive law to apply. In habeas cases, by contrast,
district courts act after the state court has decided the
state law and applied it to the same record that is
before the habeas court. To permit federal courts to
speculate about the direction state law may take in the
face of an authoritative final decision of a state court in
the same case would directly interfere with the state's
ability to decide the meaning of its own law.

Id. at 298 n.5. In view of Barry's holding with respect to the
binding effect of state court opinions on state law, there can
be no doubt that, if standing alone, Barry would have
compelled the district court in this case to treat the
Superior Court decision as an authoritative and binding
determination of state law with the result to deny
Johnson's petition to the extent that he predicated it on the
justification instructions.3
_________________________________________________________________

3. Of course, even if Barry had adopted the district court's
understanding of state law, in our view that adoption would not have
been the basis for habeas relief as the mistake of state law by a state
court would not have implicated a federal issue.

                     17
But Barry does not stand alone, for Humanik followed
shortly thereafter. In that case, Humanik, in addition to
making the constitutional argument we described above,
contended that section 2C:4-2 was being applied
unconstitutionally to him, as its provision placing the
burden of proof on a defendant to establish that he had a
mental disease or defect by a preponderance of the evidence
was added after he committed his offense, though before
his trial. Humanik regarded this application of the statute
as a violation of the ex post facto clause. We rejected this
argument on the ground that the Appellate Division found
that the amendment did not change "existing law relative to
the defendant's burden of proving mental disease or defect."
Humanik, 871 F.2d at 436.

In Humanik we quoted Mullaney v. Wilbur, 421 U.S. at
691, 95 S.Ct. at 1886, for the point that in federal habeas
corpus cases "state courts are the ultimate expositors of
state law [and federal courts are] bound by their
constructions except in rare circumstances." Humanik, 871
F.2d at 436. We then went on and analyzed state law and
concluded that the Appellate Division had made a
"reasonable" interpretation of New Jersey law before the
amendment of section 2C:4-2. Thus, Johnson suggests that
we should determine whether the Superior Court's decision
with respect to the instructions to the jury on justification
was reasonable.

More recently in Vance, 64 F.3d 119, we once again dealt
with the effect of a decision of an intermediate state court
of appeals in a federal habeas corpus case, the court being,
as here, the Superior Court of Pennsylvania. In Vance, the
petitioner claimed that he had been denied effective
representation of counsel when he was convicted in a
Pennsylvania trial court because his attorney had procured
his admission to the state bar through material
misrepresentations so that his admission was void ab initio.
Thus, in the petitioner's view, he was not represented by
counsel at the trial.

In the course of our opinion we pointed out that the
Superior Court held that when the attorney represented the
petitioner at the trial he was authorized to practice law in
Pennsylvania and that the Supreme Court of Pennsylvania

                    18
"declined to review that decision and [the petitioner] has
pointed to nothing suggesting that that court would reach
a different result were it to consider the issue." Vance, 64
F.3d at 123. We indicated that in these circumstances, "we
accept the holding of the Superior Court as the law of
Pennsylvania," id., citing West v. American Tel. & Tel. Co.,
311 U.S. at 236-37, 61 S.Ct. at 183, as support for our
holding. Johnson sees Vance as giving us authority to
review the decision of the Superior Court because West
held that:

Where an intermediate appellate state court rests its
considered judgment upon the rule of law which it
announces, that is a datum for ascertaining state law
which is not to be disregarded by a federal court unless
it is convinced by other persuasive data that the
highest court of the state would decide otherwise. This
is the more so where, as in this case, the highest court
has refused to review the lower court's decision
rendered in one phase of the very litigation which is
now prosecuted by the same parties before the federal
court.

West, 311 U.S. at 237, 61 S.Ct. at 183 (citations omitted).

Barry, Humanik, and Vance, of course, are not
incompatible because in all three cases we followed the
opinion of the state intermediate appellate court with
respect to its determination of state law. Yet there is no
denying that the language and reasoning of the three cases
is not completely consistent and certainly Vance would
suggest that the federal courts in habeas corpus cases have
broader authority to decline to follow opinions of a state
intermediate appellate court than Barry recognized.

We could determine the binding effect of a decision of an
intermediate state court of appeals in a habeas corpus case
by holding that Barry, as the earliest of the three germane
opinions, is determinative under our Internal Operating
Procedures. See Third Circuit I.O.P. 9.1. But we prefer,
instead, to analyze the cases so as to clarify the law on the
point. We think that the implications of Vance are too broad
because Vance relied on West, which was a civil diversity of
citizenship case. A federal court in a diversity case takes

                    19
the place of a state court in an original proceeding only
because of the citizenship of the parties and the amount in
controversy. On the other hand, in a habeas corpus case a
federal court has a role secondary to a state court and, only
after state proceedings, determines whether a petitioner "is
in custody in violation of the Constitution or laws or
treaties of the United States." 28 U.S.C. § 2254(a).

Thus, in a habeas corpus case, a federal court, unlike a
federal court in a diversity of citizenship case, does not
substitute for a state court. Accordingly, it is appropriate
and consistent with Mullaney v. Wilbur that a federal court
in a habeas corpus case be most circumspect in re-
examining state court decisions. We also point out that
while we are well aware that a federal habeas corpus
proceeding is not an appeal from the underlying state
proceeding, see, e.g., Rimmer v. Fayetteville Police Dep't,
567 F.2d 273, 276-77 (4th Cir. 1977), it is consistent with
the Rooker-Feldman doctrine, which limits the scope of
federal review of state court proceedings, to confine
narrowly the scope of federal review in habeas corpus cases
of state court determinations of law. See Blake v.
Papadakos, 953 F.2d 68, 71-72 (3d Cir. 1992).

On the other hand, we would be reluctant to hold that a
federal district court, no matter what the circumstances,
always must follow an intermediate appellate state court
opinion announcing the state law in earlier proceedings
involving the petitioner. After all, it is possible that a state
supreme court might hold that the intermediate appellate
court had been wrong in an earlier case. In such a
situation, it hardly would do violence to federal-state
relations if a district court declined to apply the overruled
decision of the intermediate appellate court even if it had
not been reversed. Indeed, quite the opposite would be true,
for considerations of comity would suggest that the district
court should follow the supreme court opinion.

In the end, then, we conclude that only in extraordinary
and compelling circumstances should a federal district
court in a habeas corpus case decline to follow the opinions
of a state intermediate court of appeal with respect to state
law rendered in earlier proceedings involving the petitioner.
This case does not even approach that exacting standard,

                     20
as we have here nothing more than an argument over the
meaning of section 508. We acknowledge that Johnson
makes a plausible, indeed even a strong case, that the
Superior Court erred in construing section 508, although it
is also evident that on the facts as developed at trial the
trial court's supplemental instructions to the jury may have
cured any error it originally may have made in the jury
instructions. Nevertheless, even if the Superior Court erred
and even if we would have granted a new trial had we been
entertaining Johnson's direct appeal, Johnson's showing
does not satisfy the criteria justifying a federal court to
depart from that Superior Court decision. Consequently,
the district court properly denied Johnson's petition for a
writ of habeas corpus.

IV. CONCLUSION

For the foregoing reasons, we will affirm the order of
August 29, 1996.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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