                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 12a0201p.06

                  UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                    X
                                                     -
 BURT LANCASTER,
                                                     -
                           Petitioner-Appellant,
                                                     -
                                                     -
                                                           No. 10-2112
             v.
                                                     ,
                                                      >
                                                     -
                                                     -
 LINDA METRISH, MICHIGAN DEPARTMENT OF
                                                     -
 CORRECTIONS, and PATRICIA L. CARUSO,
                                                     -
 Director,
                                                     -
                                                    N
                    Respondents-Appellees.


                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
                   No. 2:07-cv-13692—Avern Cohn, District Judge.
                          Decided and Filed: June 29, 2012
    Before: BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.

                                  _________________

                                       COUNSEL
ON BRIEF: Kenneth M. Mogill, MOGILL, POSNER & COHEN, Lake Orion,
Michigan, for Appellant. Laura Moody, OFFICE OF THE ATTORNEY GENERAL,
Lansing, Michigan, for Appellees.
    GILMAN, J., delivered the opinion of the court, in which CLAY, J., joined.
BATCHELDER, C. J. (pp. 21–25), delivered a separate dissenting opinion.
                                  _________________

                                       OPINION
                                  _________________

       RONALD LEE GILMAN, Circuit Judge. Burt Lancaster appeals from the
district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
In 1993, Lancaster was charged by the state of Michigan with first-degree murder and
with possession of a firearm in the commission of a felony. At his 1994 jury trial, he


                                            1
No. 10-2112        Lancaster v. Metrish, et al.                                    Page 2


was convicted on both counts despite his asserted defenses of insanity and diminished
capacity. The judgment was later overturned, however, due to an error by the State
during jury selection (a Batson violation).

       When Lancaster was retried in 2005, he opted to be tried without a jury.
Lancaster had planned to limit his defense in the second trial to that of diminished
capacity. But the trial court prohibited Lancaster from asserting the defense because, in
the interim between his two trials, the Michigan Supreme Court had abolished the
diminished-capacity defense in the case of People v. Carpenter, 627 N.W.2d 276
(Mich. 2001).     Lancaster was once again convicted and sentenced to life plus an
additional two years in prison.

       In his petition for a writ of habeas corpus, Lancaster claims that his right to due
process was violated by the state court’s retroactive application of Carpenter. The
district court denied his petition. For the reasons set forth below, we REVERSE the
decision of the district court and GRANT Lancaster’s petition for a writ of habeas
corpus unless the State commences a new trial within 180 days of this Opinion in which
Lancaster is permitted to assert the defense of diminished capacity.

                                  I. BACKGROUND

       On April 23, 1993, Lancaster, a former Detroit police officer with a long history
of mental illness, shot and killed his girlfriend, Toni King, in the parking lot of a
shopping plaza in Southfield, Michigan. He was charged with first-degree murder, in
violation of M.C.L. § 750.316, and with possessing a firearm in the commission of a
felony, in violation of M.C.L. § 750.227. At his 1994 jury trial in state court, Lancaster
admitted that he had killed his girlfriend, but asserted the defenses of insanity and
diminished capacity. The jury rejected these defenses and convicted him on both counts.

       After exhausting his appeals in state court, Lancaster filed a petition for a writ
of habeas corpus in the United States District Court for the Eastern District of Michigan.
He raised several claims, including a claim under Batson v. Kentucky, 476 U.S. 79
(1986), in which he contended that the State had used one of its peremptory challenges
No. 10-2112         Lancaster v. Metrish, et al.                                      Page 3


to improperly exclude an African-American juror based on the juror’s race. The district
court conditionally granted the writ on the basis of Lancaster’s Batson claim. This court
affirmed. Lancaster v. Adams, 324 F.3d 423, 427 (6th Cir. 2003).

        Lancaster was retried in state court in 2005 on the same charges. This time, he
waived his right to a jury trial. He also limited his defense to that of diminished
capacity, abandoning his alternative defense of insanity. The diminished-capacity
defense

        allows a defendant, even though legally sane, to offer evidence of some
        mental abnormality to negate the specific intent required to commit a
        particular crime. The theory is that if because of mental disease or defect
        a defendant cannot form the specific state of mind required as an
        essential element of a crime, he may be convicted only of a lower grade
        of the offense not requiring that particular mental element.

Carpenter, 627 N.W.2d at 280 (brackets, citation, and internal quotation marks omitted).

        In Carpenter, however, the Michigan Supreme Court held that diminished
capacity was no longer a valid defense under Michigan law as a result of the
1975 enactment by the state legislature of a statutory framework for the insanity defense.
Id. at 285. The Michigan trial court in Lancaster’s case decided that Carpenter applied
retroactively, thus prohibiting Lancaster from asserting the diminished-capacity defense
at his second trial. Lancaster sought an interlocutory appeal from the trial court’s order
that precluded him from pursuing the defense of diminished capacity. But both the
Michigan Court of Appeals and the Michigan Supreme Court declined to consider the
merits of the appeal. Lancaster was subsequently convicted on both charges at the
conclusion of the bench trial. He was sentenced to life imprisonment for the murder
conviction, to be served consecutively to two years’ imprisonment for the felony-firearm
conviction.

        After exhausting his state-court remedies, Lancaster filed a § 2254 habeas
petition in the district court. In his petition, he argues that the Michigan Supreme
Court’s abolition of the diminished-capacity defense was a substantive change in state
law and that, by applying the change retroactively, the trial court violated his right to due
No. 10-2112         Lancaster v. Metrish, et al.                                      Page 4


process under the Fifth and Fourteenth Amendments to the U.S. Constitution. The
district court denied Lancaster’s petition, reasoning that the abolition of the diminished-
capacity defense was foreseeable because the defense was not well-established in
Michigan law. It then granted a certificate of appealability on the issue, and this timely
appeal followed.

                                      II. ANALYSIS

A.      Standard of review

        “We review the district court’s legal conclusions in a habeas proceeding de novo
and its factual findings under the clear-error standard.” Davis v. Lafler, 658 F.3d 525,
530 (6th Cir. 2011). “Because the Petition [in this case] was filed after April 24, 1996,
the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996
(‘AEDPA’), our review of the decisions of the state trial and appellate courts is governed
by AEDPA.” Lancaster v. Adams, 324 F.3d 423, 428 (6th Cir. 2003).

        AEDPA provides in pertinent part that

        [a]n application for a writ of habeas corpus on behalf of a person in
        custody pursuant to the judgment of a State court shall not be granted
        with respect to any claim that was adjudicated on the merits in State
        court proceedings unless the adjudication of the claim . . . resulted in a
        decision that was contrary to, or involved an unreasonable application of,
        clearly established Federal law, as determined by the Supreme Court of
        the United States . . . .

28 U.S.C. § 2254(d)(1). “A state court decision may be an ‘unreasonable application’
of clearly established Supreme Court precedent ‘if the state court identifies the correct
governing legal rule from the Supreme Court’s cases but unreasonably applies it to the
facts of the particular case’ or ‘if the state court . . . unreasonably refuses to extend that
principle to a new context where it should apply.’” Lancaster, 324 F.3d at 429
(alterations omitted) (quoting Williams v. Taylor, 529 U.S. 362, 407 (2000)).
No. 10-2112          Lancaster v. Metrish, et al.                                    Page 5


B.        The retroactive application of Carpenter violated Lancaster’s right to due
          process

          Lancaster claims that his right to due process was violated by the state trial
court’s retroactive application of the Michigan Supreme Court’s 2001 decision in
Carpenter. The United States Supreme Court “has often recognized the basic [due
process] principle that a criminal statute must give fair warning of the conduct that it
makes a crime.” Rogers v. Tennessee, 532 U.S. 451, 457 (2001) (internal quotation
marks omitted). This “federal right turns upon . . . the appearance to the individual of
the status of state law as of that moment [when the crime was allegedly committed].”
Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (internal quotation marks omitted).

          “[A] judicial alteration of a common law doctrine of criminal law violates the
principle of fair warning, and hence must not be given retroactive effect, only where it
is ‘unexpected and indefensible by reference to the law which had been expressed prior
to the conduct in issue.’” Rogers, 532 U.S. at 462 (quoting Bouie, 378 U.S. at 354). Put
another way, “[w]hen a state court overrules a consistent line” of decisions interpreting
a criminal statute or common law and applies that decision “retroactively to subject a
person to criminal liability for past conduct, the effect is to deprive him of due process
of law.” Bouie, 378 U.S. at 354-55. This tenet of due process is the judicial counterpart
to the Ex Post Facto Clause found in Article I of the U.S. Constitution, which applies
only to legislatures. Rogers, 532 U.S. at 456 (“[L]imitations on ex post facto judicial
decisionmaking are inherent in the notion of due process.”). “Indeed, an unforeseeable
judicial enlargement of a criminal statute, applied retroactively, operates precisely like
an ex post facto law, such as Art. I, s[.] 10, of the Constitution forbids.” Bouie, 378 U.S.
at 353.

          Here, Lancaster was deprived of the defense of diminished capacity by the
retroactive application of Carpenter. The Ex Post Facto Clause prohibits a state
legislature from making certain changes in criminal statutes retroactive, including
changes that “deprive[] one charged with crime of any defense available according to
law at the time when the act was committed.” Collins v. Youngblood, 497 U.S. 37, 42
No. 10-2112         Lancaster v. Metrish, et al.                                    Page 6


(1990) (internal quotation marks omitted). Because in this case the Michigan Supreme
Court, not the state legislature, eliminated the defense of diminished capacity, Lancaster
must show that the Court’s abolition of the defense was unforeseeable in order to
succeed on his due process claim. See Bouie, 378 U.S. at 353-54. That is, he must
demonstrate that Carpenter unexpectedly abrogated a consistent line of decisions
recognizing the defense.

       The district court concluded that the demise of the diminished-capacity defense
was foreseeable because

       the Michigan Supreme Court acknowledged in passing the concept of the
       diminished capacity defense, but it never specifically authorized its use
       in the Michigan courts. Thus, although diminished capacity has been
       utilized as a defense since 1973, it has never been codified by the
       legislature as a viable defense or formally adopted by the state’s highest
       court. As such, the defense has never enjoyed a solid foothold in
       Michigan’s criminal law.

Lancaster v. Metrish, 735 F. Supp. 2d 750, 757 (E.D. Mich. 2010) (citations omitted).
But the district court materially understated the “foothold” that the diminished-capacity
defense had established in Michigan law and failed to recognize the plethora of state
appellate court cases recognizing the validity of the defense.

       1.      The defense of diminished capacity was well-established under
               Michigan law prior to Carpenter
               a.        Michigan Court of Appeals

       Diminished capacity was first recognized as a defense in People v. Lynch,
208 N.W.2d 656 (Mich. Ct. App. 1973), 28 years before Carpenter was decided. The
court in Lynch held that the trial court erred in prohibiting the defendant charged with
first-degree murder from presenting medical evidence “of diminished or partial
responsibility.” Id. at 662; see also Carpenter, 627 N.W.2d at 281 (recognizing that
Lynch “introduced to Michigan the diminished capacity defense” as a “defense separate
from legal insanity”).
No. 10-2112           Lancaster v. Metrish, et al.                                   Page 7


        Then, in 1975, the Michigan legislature enacted a statutory framework for the
defense of insanity. See People v. Mangiapane, 271 N.W.2d 240, 246-49 (Mich. Ct.
App. 1978) (holding that 1975 Public Act Nos. 179 and 180 modified the rule
established in Lynch). One of the newly enacted statutes codified the insanity defense
for the first time:

        768.21a          Persons deemed legally insane. [M.S.A. 28.1044(1)]

        Sec. 21a. (1) A person is legally insane if, as a result of mental illness
        . . . , that person lacks substantial capacity either to appreciate the
        wrongfulness of his conduct or to conform his conduct to the
        requirements of law.
        (2) A person who is under the influence of voluntarily consumed or
        injected alcohol or controlled substances at the time of his alleged
        offense shall not thereby be deemed to have been legally insane.

1975 Mich. Pub. Acts 386-87.

        Diminished capacity was not specifically addressed in this statute, but in 1978,
the Michigan Court of Appeals held “that the defense known as diminished capacity
comes within th[e] codified definition of legal insanity” and that, in asserting the
diminished-capacity defense, the defendant must follow the same procedures as outlined
for the insanity defense in the statute. Mangiapane, 271 N.W.2d at 249. Thus, despite
the new statutory framework, the court continued to recognize diminished capacity as
a legitimate defense. See People v. Mette, 621 N.W.2d 713, 719 (Mich. App. Ct. 2000)
(observing that “[t]his court has consistently held that the defense of diminished capacity
comes within the codified definition of legal insanity and is subject to the same
procedural requirements” (collecting cases)).

        The Michigan Supreme Court acknowledged this history in Carpenter:

        The [Michigan] Court of Appeals[’] decision in Mangiapane was then
        followed by a series of decisions continuing to address diminished
        capacity defense as a form of the statutory insanity defense. See, e.g.,
        People v. Denton, 138 Mich. App. 568, 360 N.W.2d 245 (1984); People
        v. Anderson, 166 Mich. App. 455, 421 N.W.2d 200 (1988).
No. 10-2112        Lancaster v. Metrish, et al.                                    Page 8


Carpenter, 627 N.W.2d at 282; see also People v. Lipps, 421 N.W.2d 586, 589-90
(Mich. App. Ct. 1988) (“Conditions which are recognized as defenses to [a specific
intent] crime include intoxication, insanity and diminished capacity”); People v. Paris,
420 N.W.2d 184, 186 (Mich. App. Ct. 1988) (holding that the prosecutor does not have
general discovery rights because Michigan law requires a defendant “to disclose [only]
a defense of insanity or diminished capacity” (citing M.C.L. § 768.20a)); People v.
Kvam, 408 N.W.2d 71, 74 (Mich. App. Ct. 1987) (explaining that “[t]he diminished
capacity defense is merely one aspect of whether a defendant has the requisite intent”);
People v. Jones, 390 N.W.2d 189, 191 (Mich. App. Ct. 1986) (holding that “once
evidence of diminished capacity is introduced by a defendant, the prosecution bears the
burden of establishing the defendant’s ‘normal capacity’”). When Lancaster committed
his crimes in 1993, therefore, the Michigan Court of Appeals had consistently upheld the
use of the diminished-capacity defense.

       Absent from the 1975 statutory framework, however, was any indication of
which party had the burden of proof required to demonstrate insanity. See People v.
McRunels, 603 N.W.2d 95, 98 (Mich. Ct. App. 1999) (remarking that “the [1975]
insanity statute made no reference to the burden of proof,” so the burden of proof was
“governed by common law”). The Michigan Supreme Court thus continued the
common-law method of shifting the burden of proof that was established well before the
insanity defense was codified. See People v. Savoie, 349 N.W.2d 139, 143 (Mich. 1984)
(citing cases as early as 1868 for the burden-shifting framework of the insanity defense).

       Under this burden-shifting framework, “[a] criminal defendant is presumptively
sane. However, once there is any evidence introduced of insanity, the burden of proof
is on the prosecution to establish defendant’s sanity beyond a reasonable doubt.” Id. at
143. This caused the Michigan Court of Appeals to hold that the same burden-shifting
framework should be applied to both the insanity and diminished-capacity defenses. See
Denton, 360 N.W.2d at 247 (reasoning that because all other procedures for the two
defenses were the same, the allocation of the burden of proof should follow suit).
No. 10-2112        Lancaster v. Metrish, et al.                                    Page 9


       In 1994, however, the legislature amended the statutory definition of the insanity
defense and shifted the burden of proof entirely to the defendant. Insanity was declared
an affirmative defense that the defendant must prove “by a preponderance of the
evidence.” Mich. Comp. Laws § 768.21a(3); see 1994 Mich. Pub. Acts 251-52
(containing the 1994 amendments); see also McRunels, 603 N.W.2d at 99-100 (holding
that the 1994 amendments changed the burden of proof for the defense of insanity).
Consistent with its earlier decisions, the Michigan Court of Appeals held in 2000 that
the insanity-defense statute as amended continued to apply to the diminished-capacity
defense. Mette, 621 N.W.2d at 719 (holding that the trial court correctly instructed the
jury that the “defendant had to establish by evidence that outweighed the evidence
against him that he lacked the capacity to form specific intent”); see also Carpenter, 627
N.W.2d at 282 (“[T]he Court of Appeals held that a defendant seeking to present a
diminished capacity defense bears the burden of establishing such a defense by a
preponderance of the evidence.”).

                       b.      Michigan Supreme Court

       Unlike the Michigan Court of Appeals, the Michigan Supreme Court never
directly addressed the validity of a defense of diminished capacity based on mental
illness or disability before Carpenter, but the Court conceded in that case that it had
“several times acknowledged in passing the concept of the diminished capacity defense.”
Id. at 281. The Court first did so in People v. Ramsey, 375 N.W.2d 297 (Mich. 1985).

       Ramsey was a consolidated appeal of two defendants who challenged the
constitutionality of Michigan’s “guilty but mentally ill” verdict. One of the defendants,
Ramsey, was convicted of second-degree murder following a bench trial. As an
alternative to his constitutional challenge, he argued that by being “guilty but mentally
ill,” he lacked the requisite intent for second-degree murder as a matter of law. The
Court rejected Ramsey’s contention with the following explanation:

           “A defendant in a criminal case, at the time he engaged in the
       conduct giving rise to the charges against him, may have been suffering
       from an abnormal mental condition which was not of a kind or character
       to afford him a successful insanity defense . . . . But, while this
No. 10-2112        Lancaster v. Metrish, et al.                                  Page 10


       defendant is therefore ineligible for a finding of not guilty by reason of
       insanity, his mental abnormality may nonetheless be a most relevant
       consideration in the determination of whether he is guilty of the crime
       charged. Under the doctrine referred to as partial responsibility,
       diminished responsibility, or (somewhat less accurately) partial insanity,
       evidence concerning the defendant’s mental condition is admissible on
       the question of whether the defendant had the mental state which is an
       element of the offense with which he is charged.”
           Thus, while his mental illness may be a consideration in evaluating
       the requisite state of mind for the crime charged, we decline to accept
       Ramsey’s invitation to hold that a finding of mental illness negates
       malice aforethought as a matter of law.
                       ....
           Had the trial judge indicated a refusal to consider the defendant’s
       mental illness as a diminishing factor in his decision of whether
       defendant possessed the requisite malice aforethought, we would find it
       necessary to address the question of the extent to which mental illness
       could diminish the intent requirement for second-degree murder. But he
       did not.

Id. at 304 (quoting Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 42, at 326
(1972)). The Court thus acknowledged the substantive components of the diminished-
capacity defense (albeit under a different name), but left open the questions of whether,
and to what degree, the defense would apply to a general-intent crime like second-degree
murder. See also People v. Langworthy, 331 N.W.2d 171, 180 (Mich. 1982) (holding
that, unlike the specific-intent crime of first-degree murder, second-degree murder is a
general-intent crime for which the defense of voluntary intoxication is not available).

       A year after Ramsey, the Michigan Supreme Court revisited the use of the
diminished-capacity defense in People v. Fernandez, 398 N.W.2d 311 (Mich. 1986).
Fernandez challenged his conviction of conspiracy to commit first-degree murder on the
basis that the trial court erred by refusing to instruct the jury on the lesser-included
offense of conspiracy to commit second-degree murder. But the Michigan courts had
never before determined whether such a charge was recognized under Michigan law.
Holding that a conspiracy to commit second-degree murder was a “logical
No. 10-2112        Lancaster v. Metrish, et al.                                  Page 11


impossibility,” the Michigan Court of Appeals affirmed Fernandez’s conviction. People
v. Fernandez, 372 N.W.2d 567, 571 (Mich. App. Ct. 1985). It explained:

       A conspiracy is a combination or agreement with others to do something
       unlawful. Second-degree murder is an unlawful killing and a purpose to
       kill without that deliberation and premeditation which characterize
       murder in the first degree. For a conspiracy conviction to lie, there must
       be proof of two specific intents: (1) the intent to agree (conspire) and
       (2) the intent to accomplish the substantive offense. However,
       second-degree murder is not a “specific intent” crime.

Id. at 569-70.

       In reviewing the Michigan Court of Appeals’ decision in Fernandez, the
Michigan Supreme Court examined California caselaw because California was the only
state to have “expressly discussed whether such a crime can logically exist.”
398 N.W.2d at 319-20. “[T]he California Supreme Court held that evidence of
diminished capacity could negate the specific intent required for conspiracy to commit
first-degree murder, reducing the crime to conspiracy to commit second-degree murder
or manslaughter, in the appropriate case.” Id. at 320.

       “[B]ecause no allegations of diminished capacity were made in this case,” the
Michigan Supreme Court declined to rule on whether it would adopt the California
holding on the issue. Id. But the Court acknowledged that,

       [w]hile the California rule of the effect of diminished capacity on degrees
       of homicides varies significantly from the Michigan rule, the possibility
       exists under Michigan law that diminished capacity might possibly
       militate for the existence of the charge of conspiracy to commit
       second-degree murder.

Id. (citation omitted). Importantly, the phrase “the California rule of the effect of
diminished capacity . . . varies significantly from the Michigan rule” suggests that the
Court recognized an extant diminished-capacity defense in Michigan.

       The Michigan Supreme Court next mentioned the diminished-capacity defense
in the context of an ineffective-assistance-of-counsel claim in People v. Griffin,
444 N.W.2d 139 (Mich. 1989). Griffin asserted that his “trial counsel was ineffective for
No. 10-2112        Lancaster v. Metrish, et al.                                   Page 12


failing to . . . explore the defenses of diminished capacity and insanity.” Id. at 140. The
Court found that he had “identified an issue . . . for which a testimonial record must be
developed” and remanded the case for an evidentiary hearing on the issue. Id. Although
the Court did not rule directly on the validity of the diminished-capacity defense, its
decision to remand for an evidentiary hearing suggests that it believed, at least in its
cursory review, that counsel could have been found ineffective for failing to assert the
defense. If diminished capacity had been deemed an illegitimate defense, then counsel
could not be faulted for failing to assert it, and no hearing on that issue would have been
necessary.

       The Michigan Supreme Court caselaw in the years following Griffin supports this
reading of the case. In 1994, the Court held that “a necessary component of the
diminished capacity defense is that the defendant was mentally ill.” People v. Pickens,
521 N.W.2d 797, 812 (Mich. 1994). More recently, in People v. Lloyd, 590 N.W.2d 738
(Mich. 1999), the Court concluded that defense counsel’s strategy to “present[] to the
jury a merged defense of no premeditation and diminished capacity” instead of the
defense of insanity “was entirely reasonable.” Id. at 745. Indeed, the Michigan Court
of Appeals held that Lloyd affirmatively “recognized the propriety of a diminished
capacity defense to a charge of first-degree premeditated murder.” People v. Mette,
621 N.W.2d 713, 718-19 (Mich. App. Ct. 2000).

       Even in Carpenter itself, the Michigan Supreme Court suggested that diminished
capacity was previously a valid defense, titling a section of its opinion “The Continued
Viability of the Diminished Capacity Defense in Michigan.” 627 N.W.2d at 282
(emphasis added). Lancaster had indeed utilized this well-recognized defense at his first
trial in 1994, a defense that had been developed by over 20 years of Michigan court
precedent at the time and that continued to be recognized right up to Carpenter in 2001.

                       c.      Michigan’s standard jury instructions

       The belief that diminished capacity was a legitimate defense was so widely held
by the Michigan legal community that, before Carpenter, the Michigan State Bar’s
Criminal Jury Instructions included an instruction on the defense.           Commentary
No. 10-2112         Lancaster v. Metrish, et al.                                   Page 13


accompanying the instruction noted that “[t]he defense of diminished capacity is
available when the defendant’s mental impairment leaves him or her unable to form the
specific intent needed to commit the crime.” Standing Comm. on Std. Crim. Jury
Instructions, Mich. State Bar, 1 Mich. Crim. Jury Instructions 6.3, at 6-11 (2d ed. 1994)
(This instruction was removed only after Carpenter was decided.).

        The district court below discounted the importance of the standard instruction on
diminished capacity because the Michigan Criminal Jury Instructions are not officially
sanctioned by the Michigan Supreme Court. But the use of these Standard Criminal Jury
Instructions “is urged by the [Michigan] Supreme Court, according to Administrative
Order 1977-1, 399 Mich 1xxii.” News & Notices: From the Committee on Standard
Criminal Jury Instructions, 78 Mich. B.J. 214, 214 (1999).

        Furthermore, the instruction demonstrates that the Michigan State Bar, the author
of the instructions, recognized diminished capacity as a viable defense under Michigan
criminal law prior to Carpenter. The instructions “are intended to accurately reflect the
law in a format which is understandable to jurors.” Id. In addition, the instructions
indicate acceptance of the defense by Michigan’s legal community. They are “used
extensively by Michigan judges, prosecutors, and defense attorneys to instruct juries in
criminal cases fairly and accurately.” Standing Comm. on Std. Crim. Jury Instructions,
Mich. State Bar, 1 Mich. Criminal Jury Instructions, at ix (2d ed. 1989). Even state
prosecutors assumed that the diminished-capacity defense was a legitimate one, as
indicated by the following comment made during closing argument by a prosecutor in
People v. Garfield, 420 N.W.2d 124 (Mich. App. Ct. 1988): “[T]here are other defenses
such as insanity or diminished capacity which are not before this Court . . . .” Id. at 128.
Thus, contrary to the district court’s conclusion, the status of diminished capacity as a
defense in Michigan was quite well-established when Lancaster committed his offenses
in 1993.
No. 10-2112          Lancaster v. Metrish, et al.                                   Page 14


       2.      The holding in Rogers v. Tennessee is inapposite

       As a result of the district court undervaluing the “foothold” that the diminished-
capacity defense had established in Michigan law, it incorrectly concluded that this case
is “strikingly similar to” Rogers v. Tennessee, 532 U.S. 451 (2001), in which the United
States Supreme Court held that the abolition of a Tennessee common-law defense was
foreseeable. But Rogers is readily distinguishable.

       Rogers was convicted of second-degree murder for stabbing someone who died
15 months later as a result of medical complications caused by the attack. He appealed,
contending that the common-law year-and-a-day rule precluded his conviction. This
historic rule required that “no defendant could be convicted of murder unless his victim
had died by the defendant’s act within a year and a day.” Rogers, 532 U.S. at 453. On
appeal, the Tennessee Supreme Court “found that the original reasons for recognizing
the rule no longer exist[ed],” formally abolished it, and denied Rogers’s appeal on the
ground that the rule no longer existed. Id. at 455.

       The United States Supreme Court affirmed, holding that the retroactive
application of the abolition of the year-and-the-day rule to Rogers’s case did not violate
his right to due process. Id. In so doing, the Court reasoned that “the Tennessee court’s
abolition of the year and a day rule was not unexpected and indefensible,” id. at 462, and
further explained:

       The year and a day rule is widely viewed as an outdated relic of the
       common law. Petitioner does not even so much as hint that good reasons
       exist for retaining the rule[.] . . . [A]s practically every court recently to
       have considered the rule has noted, advances in medical and related
       science have so undermined the usefulness of the rule as to render it
       without question obsolete.
            ....
           Finally, and perhaps most importantly, at the time of [Rogers]’s
       crime the year and a day rule had only the most tenuous foothold as part
       of the criminal law of the State of Tennessee. The rule did not exist as
       part of Tennessee’s statutory criminal code. And while the Supreme
       Court of Tennessee concluded that the rule persisted at common law, it
       also pointedly observed that the rule had never once served as a ground
No. 10-2112        Lancaster v. Metrish, et al.                                   Page 15


       of decision in any prosecution for murder in the State. Indeed, in all the
       reported Tennessee cases, the rule has been mentioned only three times,
       and each time in dicta.

Id. at 462-64 (citations omitted).

       Applying Rogers to this case, the district court concluded that, just like the year-
and-a-day rule, the diminished-capacity defense was ripe for abolition. But none of the
United States Supreme Court’s reasons for concluding that the elimination of the year-
and-a-day rule was foreseeable pertain to Michigan’s diminished-capacity defense.

       First, unlike the year-and-a-day rule, the diminished-capacity defense had been
in existence only since 1973. It was anything but an “outdated relic” rendered
“obsolete” by advances in medical and related sciences at the time of Lancaster’s
offenses in 1993. The rationale behind the diminished-capacity defense is that mental
illnesses and disabilities can cause a person, though legally sane, to lack the specific
intent necessary to commit certain crimes. Carpenter, 627 N.W.2d at 280. In recent
decades, the scientific community’s knowledge and understanding of mental illnesses
has greatly increased. See Surgeon General David Satcher, U.S. Dep’t of Health &
Human Servs., Mental Health: A Report of the Surgeon General 3 (1999),
http://www.surgeongeneral.gov/library/mentalhealth/pdfs/c1.pdf (“This first Surgeon
General’s Report on Mental Health is issued at the culmination of a half-century that has
witnessed remarkable advances in the understanding of mental disorders and the brain
. . . .”). And these scientific advancements have worked to provide greater support for
the diminished-capacity defense, not lesser. See, e.g., Thomas L. Hafemeister & Nicole
A. Stockey, Last Stand? The Criminal Responsibility of War Veterans Returning from
Iraq and Afganistan with Posttraumatic Stress Disorder, 85 Ind. L.J. 87, 126-28 (2010)
(explaining that, as the understanding of Posttraumatic Stress Disorder (PTSD) has
increased, “[r]ecent cases illustrate that some courts are willing to consider PTSD
evidence . . . to rebut the prosecution’s claim that the defendant had the requisite mens
rea for a charged crime”).
No. 10-2112        Lancaster v. Metrish, et al.                                   Page 16


       Moreover, as discussed above, the status of the diminished-capacity defense in
1993 cannot fairly be described as having “only the most tenuous foothold” in Michigan
law. It had been recognized by the Michigan Court of Appeals many times, both before
and after the 1975 codification of the insanity defense, and both before and after the
1994 amendments to that statute. Although the Michigan Supreme Court did not
squarely address the validity of the defense until 2001, the Court had clearly
acknowledged the defense in several of its previous rulings. Diminished capacity was
also a recognized defense in the Michigan State Bar’s Standard Criminal Jury
Instructions. And, most importantly, it was widely used by defendants in the years prior
to 2001. So widely used and accepted, in fact, that Lancaster himself was allowed to
pursue the defense during his first trial in 1994. Accordingly, the holding in Rogers is
inapposite to this case.

       3.      The abolition of the diminished-capacity defense was
               unforeseeable
       Lancaster could not have reasonably foreseen in 1993—when his crime was
committed—that the consistent line of Michigan Court of Appeals’ decisions upholding
the diminished-capacity defense would have been overturned before his retrial in 2005.
See Bouie v. City of Columbia, 378 U.S. 347, 354 (1964) (“When a state court overrules
a consistent line of procedural decisions with the retroactive effect of denying a litigant
a hearing in a pending case, it thereby deprives him of due process of law in its primary
sense of an opportunity to be heard and to defend (his) substantive right.” (internal
quotation marks omitted)). The fact that the precedent is from Michigan’s intermediate
appellate court rather than the state’s highest court does not diminish its significance.
This point was recognized by the United States Supreme Court in United States v.
Lanier, 520 U.S. 259 (1997), where the Court held “that decisions of the Courts of
Appeals and other courts” could provide “fair warning” of what is proscribed by a
criminal statute. Id. at 268-69.

       In Rathert v. Galaza, 203 F. App’x 97 (9th Cir. 2006), the Ninth Circuit applied
Lanier to the California Supreme Court’s interpretation of a criminal statute. Rathert,
convicted of burglary in a California state court, petitioned for federal habeas relief
No. 10-2112        Lancaster v. Metrish, et al.                                   Page 17


under 28 U.S.C. § 2254 because “the California Supreme Court [had] retroactively
abrogated a specific intent requirement established by a decade old, uncontradicted, and
controlling [intermediate] appellate court case.” Id. at 99. The Ninth Circuit granted the
petition, holding that “the California Supreme Court unreasonably applied clearly
established United States precedent” that prohibited the retroactive application of an
“unforeseeable judicial enlargement of a criminal statute.” Id. at 98-99.

       Here, the intermediate-appellate-court precedent was much more robust than in
Rathert. Indeed, numerous uncontradicted Michigan Court of Appeals’ rulings
recognized diminished capacity as a defense over the course of 28 years—almost triple
the 10-year span that existed in Rathert. And the Michigan Court of Appeals, unlike
California’s courts of appeals, serves the state as a whole. See Mich. Const. art. VI, § 1
(“The judicial power of the state is vested exclusively in one court of justice which shall
be divided into one supreme court, [and] one court of appeals . . . .”).

       Furthermore, the question at the heart of the foreseeability analysis is whether
Lancaster had been deprived of the “due process of law in its primary sense of an
opportunity to be heard and to defend (his) substantive right.” Bouie, 78 U.S. at 354.
The Michigan Court of Appeals’ decision in People v. McRunels, 603 N.W.2d 95 (Mich.
Ct. App. 1999), provides strong support for how retroactively applying Carpenter
adversely affected the fundamental fairness of Lancaster’s trial.

       In McRunels, the defendant was charged with assault with intent to commit
murder for acts that occurred in 1993. McRunels asserted the insanity defense at his jury
trial. The trial court, however, retroactively applied the 1994 amendments to the
codified insanity defense and required McRunels to prove his insanity by a
preponderance of the evidence. At the time that McRunels committed the alleged acts,
however, the insanity defense was still governed by the common-law burden of proof,
which required the government to prove beyond a reasonable doubt that McRunels was
not insane once he presented evidence in support of the argument that he was.

       Under the new and more stringent evidentiary standard, the jury rejected
McRunels’s defense of insanity and found him guilty. McRunels appealed, arguing that
No. 10-2112        Lancaster v. Metrish, et al.                                  Page 18


the trial court had erred in instructing the jury to apply the newly enacted burden of
proof. His appeal was reviewed under the plain-error standard because he had failed to
object to the jury instruction at the time that it was given. For an error to warrant
reversal under the Michigan (and federal) plain-error standard of review, the error must
have “seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 97; accord United States v. Young, 470 U.S. 1, 15 (1985).

       The Michigan Court of Appeals concluded that altering the burden of proof was
a substantive change to the law, and that its retroactive application violated the Ex Post
Facto Clause. It also determined that the Ex Post Facto Clause violation seriously
affected the fairness, integrity, or public reputation of the judicial proceedings. The
court therefore reversed the judgment and remanded the case for a new trial using the
old common-law burden of proof. We believe that the 2001 judicial elimination of the
diminished-capacity defense here was just as unforeseeable to Lancaster in 1993 as was
the statutory alteration in the burden of proof for insanity in McRunels, and at least as
substantive.

C.     The retroactive application of Carpenter was an unreasonable application
       of clearly established Supreme Court precedent

       Having determined that Carpenter’s abolition of the diminished-capacity defense
was unforeseeable, we must next decide whether the Michigan courts’ retroactive
application of Carpenter to Lancaster’s retrial in 2005 was an unreasonable application
of clearly established United States Supreme Court precedent.            See 28 U.S.C.
§ 2254(d)(1). “[A] federal habeas court making the ‘unreasonable application’ inquiry
should ask whether the state court’s application of clearly established federal law was
objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000).

       Without question, the Supreme Court has clearly established that the
unforeseeable judicial enlargement of criminal statutes, if applied retroactively, would
violate a defendant’s right to due process. See, e.g., Rogers v. Tennessee, 532 U.S. 451,
462 (2001); Bouie v. City of Columbia, 378 U.S. 347, 354 (1964). The Michigan Court
No. 10-2112        Lancaster v. Metrish, et al.                                   Page 19


of Appeals acknowledged as much in the last substantive opinion that it issued in this
case:

        In criminal cases, . . . due process concerns prevent retroactive
        application [of court decisions] in some cases. This is especially true
        where the decision is unforeseeable and has the effect of changing
        existing law. But retroactive application does not implicate due process
        or ex post facto concerns where the decision does not change the law and
        is not unforeseeable.

People v. Lancaster, No. 263483, 2006 WL 3751420, at *1 (Mich. Ct. App. Dec. 21,
2006) (per curiam) (unpublished opinion)(citations omitted). Following these principles,
the court then held that Carpenter “did not involve a change in the law because it
concerned an unambiguous statute that was interpreted by the Supreme Court [of
Michigan] for the first time.” Id.

        We find this application of Bouie and Rogers objectively unreasonable. It
ignores Michigan’s codified court rules that regard published opinions of the Michigan
Court of Appeals as binding precedent unless overturned by the Michigan Supreme
Court. See Mich. Ct. R. 7.215(C)(2) (explaining that published Michigan Court of
Appeals’ opinions “ha[ve] precedential effect under the rule of stare decisis”). The
Michigan Court of Appeals’ assertion that the reversal of several decades of its own
precedent was not a “change in the law” thus belies the Michigan Supreme Court’s own
rules. Moreover, the Michigan Court of Appeals’ determination that the 1975 insanity-
defense statute unambiguously abolished the diminished-capacity defense similarly
disregards all of its own cases upholding the diminished-capacity defense even after the
enactment of that statute. The Michigan Court of Appeals’ decision in this case,
therefore, was an objectively unreasonable application of clearly established United
States Supreme Court precedent.

D.      Lancaster was prejudiced by the retroactive application of Carpenter

        Finally, the State argues that even if the retroactive application Carpenter
violated Lancaster’s right to due process, the violation was harmless. But the State
failed to raise this issue in the district court and has therefore waived it on appeal. See
No. 10-2112        Lancaster v. Metrish, et al.                                   Page 20


Keith v. Bobby, 618 F.3d 594, 599 n.4 (6th Cir. 2010) (ruling that a party in a habeas
case waives an argument on appeal by failing to raise the same argument before the
district court).

        And even assuming arguendo that the State has not waived this argument, it
would still fail. Preventing a defendant from presenting his only viable defense at trial
is so prejudicial that holding the violation harmless would suggest that almost no
constitutional violation would warrant reversal. See, e.g., Crane v. Kentucky, 476 U.S.
683, 687 (1986) (explaining that a defendant has a “fundamental constitutional right to
a fair opportunity to present a defense”); Rockwell v. Yukins, 341 F.3d 507, 517 (6th Cir.
2003) (“The [Supreme] Court has long held that an accused’s right to establish a defense
is a fundamental element of due process.” (internal quotation marks omitted)).

        The district court briefly addressed the issue of harmlessness, even though the
issue was not raised by either party, and concluded that, because the jury in Lancaster’s
first trial convicted him despite his defense of diminished capacity, the later bench trial
would have yielded the same result even if the defense had been allowed. This
reasoning, however, ignores the fact that the jury trial was impermissibly tainted by a
Batson violation and, as a result, the jury’s verdict had to be vacated. To rely upon the
conclusion that the jury reached, despite the discriminatory means used to select the jury,
would negate the very reason for vacating the first conviction and would allow the
Batson violation to once again affect the outcome of Lancaster’s case. We are therefore
not persuaded by the district court’s analysis on this issue.

                                  III. CONCLUSION

        For all of the reasons set forth above, we REVERSE the decision of the district
court and GRANT Lancaster’s petition for a writ of habeas corpus unless the State
commences a new trial within 180 days of this Opinion in which Lancaster is permitted
to assert the defense of diminished capacity.
No. 10-2112        Lancaster v. Metrish, et al.                                  Page 21


                                     ____________

                                       DISSENT
                                     ____________

       ALICE M. BATCHELDER, Chief Judge, dissenting. I respectfully dissent from
the majority’s decision because Lancaster has not overcome AEDPA’s very high
standard to establish that the Michigan Court of Appeals’s determination was an
unreasonable application of or contrary to Supreme Court precedent. Before obtaining
habeas relief from a federal court, “a state prisoner must show that the state court’s
ruling on the claim being presented in federal court was so lacking in justification that
there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87
(2011). Lancaster challenges the Michigan Court of Appeals’s denial of his due process
claim, arguing that it unreasonably applied or issued a decision contrary to Rogers v.
Tennessee, 532 U.S. 451 (2001). Rogers holds that “a judicial alteration of a common
law doctrine of criminal law violates the principle of fair warning, and hence must not
be given retroactive effect, only where it is ‘unexpected and indefensible by reference
to the law which had been expressed prior to the conduct in issue.’” 532 U.S. at 462
(quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)). Although the Michigan
Court of Appeals did not expressly apply this rule, the court rejected Lancaster’s due
process claim, finding that the application of Carpenter’s abolishing of the diminished-
capacity defense to Lancaster’s second trial did not violate his due process rights.
Giving the Michigan Court of Appeals’s determination the benefit of the doubt required
under AEDPA’s highly deferential standard, Slagle v. Bagley, 457 F.3d 501, 514 (6th
Cir. 2006) (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)), I cannot
agree that it was objectively unreasonable.

       The majority concludes that the Michigan Court of Appeals unreasonably applied
Rogers and Bouie when it held that Carpenter did not involve a change in the law that
was susceptible to a due process challenge. However, the majority’s concern rests not
on the Michigan Court of Appeals’s application of Rogers and Bouie, but on that court’s
No. 10-2112         Lancaster v. Metrish, et al.                                    Page 22


application of Michigan law. In concluding that Carpenter did not constitute a change
in Michigan law, the court of appeals applied Michigan state law; it did not apply Bouie,
Rogers, or any other Supreme Court precedent. See Michigan v. Lancaster, No. 263483,
2006 WL 3751420, at *1 (Mich. Ct. App. Dec. 21, 2006) (citing Michigan v. Doyle, 545
N.W.2d 627, 636 (Mich. 1996), as holding that under Michigan law, the first
interpretation of an unambiguous statute is not a change in law for the purposes of ex
post facto and due process concerns). Although it seems illogical for the Michigan
Court of Appeals to ignore the practical consequences of Carpenter and conclude that
abolishing the diminished-capacity defense was not a change in law, that conclusion is
not relevant to our review because it was based on state, not federal, law. Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law questions.”). Instead, we must
determine if the Michigan Court of Appeals’s adjudication of Lancaster’s due process
claim contradicts clearly established Supreme Court precedent. See Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam); Murphy v. Ohio, 551 F.3d 485, 505 (6th Cir. 2009)
(“[A] state-court decision can be found reasonable as long as neither the reasoning nor
the result of the decision contradicts United States Supreme Court precedent.” (internal
quotation marks omitted)). Because the court’s conclusion is consistent with Rogers and
Bouie, it was not “so lacking in justification” as to entitle Lancaster to habeas relief. See
Harrington, 131 S. Ct. at 786–87.

        The Michigan Court of Appeals’s denial of Lancaster’s due process claim was
reasonable primarily because the diminished-capacity defense was not well-established
in Michigan and its elimination was, therefore, foreseeable.           Under Rogers, the
retroactive application of a judicial alteration of common law violates due process only
when the alteration was unexpected and indefensible. Rogers, 532 U.S. at 462 (quoting
Bouie, 378 U.S. at 354). In Lancaster’s case, Carpenter’s abolishing of the diminished-
capacity defense was foreseeable. As the majority notes, diminished capacity arose in
1973, but Michigan courts chose to discuss diminished capacity not as a separate
defense, but rather as an aspect of insanity. When the legislature codified insanity as a
defense in 1975, it omitted any reference to a lower-capacity standard, and Michigan
No. 10-2112           Lancaster v. Metrish, et al.                                             Page 23


courts issued “a series of decisions continuing to address [the] diminished capacity
defense as a form of the statutory insanity defense.” Michigan v. Carpenter, 627
N.W.2d 276, 282 (Mich. 2001). And when the legislature amended the insanity statute
in 1994, it still did not include any reference to diminished capacity. Surely the
legislature’s choice not to codify diminished capacity is more significant than the state
bar association’s choice to include it in its publication of standard jury instructions.
Simply put, prior to Carpenter’s official elimination of the defense, neither the Michigan
legislature nor the Michigan courts gave diminished capacity standing as a separate
defense. Instead, the courts discussed diminished capacity as an aspect of insanity, and
they applied the concept through the parameters of the insanity statute.

         It is indisputable that defendants were able to raise the defense prior to
Carpenter, but the availability of the defense alone does not make its elimination
unexpected. Indeed, in Rogers, the year-and-a-day rule had been available to defendants
for nearly one hundred years, but the Supreme Court nevertheless concluded that its
elimination was foreseeable because the rule never served as the basis for a decision in
the state and many other states had abolished the rule. In Michigan, diminished capacity
likewise never served as the basis for any court’s decision. Even in Michigan v. Griffin,
444 N.W.2d 139 (Mich. 1989), the Michigan Supreme Court’s remand for an evidentiary
hearing to determine if counsel was ineffective for failing to raise diminished capacity
as a defense reemphasizes only the point that the defense was available. It does not
indicate that the defense was so well established that its elimination was unexpected.

         The majority attempts to distinguish Rogers’s holding by arguing that “none of
the United States Supreme Court’s reasons for concluding that the elimination of the
year-and-a-day rule was foreseeable pertain to Michigan’s diminished capacity defense.”
In reaching this conclusion, however, the majority overlooks the fact that several states
have expressly abolished the use of the diminished-capacity defense in many
contexts1—a factor the Court looked to in Rogers to determine whether a rule’s

         1
          See, e.g., Cal. Penal Code § 25(a) (2011); Mincey v. Head, 206 F.3d 1106, 1139 (11th Cir. 2000)
(applying Georgia law and recognizing that no state court has adopted the defense); Barnett v. Alabama,
540 So. 2d 810, 812 (Ala. Crim. App. 1988); Arizona v. Laffoon, 610 P.2d 1045, 1047 (Ariz. 1980);
No. 10-2112           Lancaster v. Metrish, et al.                                          Page 24


elimination was foreseeable. Although due process does not require that a defendant be
aware of the law of other states, the Supreme Court stated that “the fact that a vast
number of jurisdictions have abolished a rule that has so clearly outlived its purpose is
surely relevant to whether the abolition of the rule in a particular case can be said to be
unexpected and indefensible by reference to the law as it then existed.” Rogers, 532
U.S. at 464.

        Moreover, the majority ignores the Supreme Court’s main concern in
Rogers—whether the retroactive application of the change in law was “an exercise of
the sort of unfair and arbitrary judicial action against which the Due Process Clause aims
to protect.” Id. at 467. Carpenter abolished the diminished-capacity defense nearly five
years before Lancaster’s second trial. In my view, applying Carpenter to Lancaster
several years after it was handed down was neither unfair nor arbitrary, especially when
Lancaster was able to argue insanity under the still-available insanity statute. The
majority’s reliance on Michigan v. McRunels, 173 N.W.2d 95 (Mich. Ct. App. 1999), to
argue the contrary is misplaced because McRunels is not instructive on the issue of
foreseeability. In McRunels, the court considered the retroactive application of a
statutory, rather than a judicial, change in the law; therefore, the court never considered
whether the change was foreseeable. See McRunels, 603 N.W.2d at 99–102; see also
Rogers, 532 U.S. at 459–62 (explaining that retroactive applications of statutory changes
in law are analyzed under ex post facto principles while judicial changes are analyzed
“in accordance with the more basic and general principle of fair warning”).
Accordingly, McRunels is materially distinguishable, and the majority’s reliance on it
to illustrate forseeability is incorrect. Considering other jurisdictions’ elimination of the


O’Brien v. United States, 962 A.2d 282, 300–01 (D.C. 2008); Hodges v. Florida, 885 So. 2d 338, 352 n.8
(Fla. 2003); Hawaii v. Klafta, 831 P.2d 512, 73 Haw. 109, 117 (Haw. 1992); Cardine v. Indiana, 475
N.E.2d 696, 698 (Ind. 1985); Iowa v. Plowman, 386 N.W.2d 546, 548 (Iowa Ct. App. 1986) (stating that
the defense is not available for general intent crimes); Kansas v. Pennington, 132 P.3d 902, 908 (Kan.
2006); Louisiana v. Thompson, 665 So. 2d 643, 647 (La. Ct. App. 1995); Maryland v. Greco, 24 A.3d 135,
144 (Md. Ct. Spec. App. 2011); Massachusetts v. Finstein, 687 N.E.2d 638, 640 (Mass. 1997); Cuypers
v. Minnesota, 711 N.W.2d 100, 105 (Minn. 2006); Stevens v. Mississippi, 806 So. 2d 1031, 1051 (Miss.
2001); North Carolina v. Adams, 354 S.E.2d 338, 343 (N.C. Ct. App. 1987); Ohio v. Wilcox, 436 N.E.2d
523, 533 (Ohio 1981); South Carolina v. Santiago, 634 S.E.2d 23, 163 (S.C. Ct. App. 2006); Tennessee
v. Grose, 982 S.W.2d 349, 353 (Tenn. Crim. App. 1997); Davis v. Texas, 313 S.W.3d 317, 328 (Tex. Crim.
App. 2010); Keats v. Wyoming, 115 P.3d 1110, 1119 (Wyo. 2005).
No. 10-2112         Lancaster v. Metrish, et al.                                   Page 25


diminished-capacity defense, the length of time between Carpenter and Lancaster’s
second trial, and the lack of independent standing that the defense had in
Michigan—each of which were considerations of the Court in Rogers—the principles
of Rogers indicate that Carpenter’s abolishing of the defense was not unexpected.

        Because the elimination of the diminished-capacity defense in Michigan was
neither unexpected nor indefensible, the Michigan Court of Appeals’s adjudication of
Lancaster’s due process claim was consistent with Supreme Court precedent.
Accordingly, it was not so lacking in justification as to entitle Lancaster to habeas relief
under AEDPA’s strict standard, and, therefore, I must respectfully dissent.
