                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT

                                 ___________

                                 No. 97-1637
                                 ___________

Stephen K. Johns,                    *
                                     *
            Appellant,               *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * Eastern District of Missouri.
Michael Bowersox, Superintendent of *
Potosi Correctional Center,          *
                                     *
            Appellee.                *
                                ___________

                            Submitted: April 19, 1999

                                Filed: February 8, 2000
                                 ___________

Before RICHARD S. ARNOLD, WOLLMAN,1 and BEAM, Circuit Judges.2
                           ___________

WOLLMAN, Chief Judge.



      1
        Roger L. Wollman became Chief Judge of the United States Court of Appeals
for the Eighth Circuit on April 24, 1999.
      2
       This case was originally argued before Judge Richard S. Arnold, Judge
Wollman, and Judge Kelly on September 22, 1998. Following Judge Kelly’s death on
October 21, 1998, the submission was vacated and the case was restored to the
calendar for reargument pursuant to Eighth Cir. R. 47E.
      Stephen K. Johns was convicted of capital murder and sentenced to death for the
1982 murder of a gas station attendant. He appeals the district court’s3 denial of his 28
U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.

                                           I.

       The evidence adduced at trial established the following sequence of events. In
January of 1982 Johns told David Smith that he wanted to rob the Onyx gas station in
St. Louis, Missouri. Johns told Smith that he “never left any witnesses.” In early
February of 1982, Johns told Linda Klund, an acquaintance of some four and one-half
years’ standing, that he planned to rob the station and asked her to drive the getaway
car. She agreed to do so.

       On the morning of February 18, 1982, Johns called Klund and told her that “he
was going to do it that evening.” Later that day, Johns purchased fifteen .32 caliber
bullets at a sporting goods store. That evening, Klund picked up Johns and his friend
Robert Wishon. Klund noticed that Johns was carrying a small handgun. After
reviewing the getaway route with Johns, Klund parked the car up the street from the
Onyx station and Johns and Wishon went inside. They stole $248 in cash and shot the
attendant, seventeen-year-old Donald Voepel, Jr., in the back of the head three times
at point-blank range. When they returned to the vehicle, Johns told Klund that they
“didn’t get as much money as they thought they were going to get.” As they drove
away, Johns and Wishon threw the money bag onto the highway. When Klund
dropped Johns off, he gave her the gun and told her to keep it for him in case he was
caught.




      3
        The Honorable Edward L. Filippine, United States District Judge for the Eastern
District of Missouri.

                                          -2-
       The police searched Johns’s residence that night and discovered handwritten
surveillance information about the gas station. Johns did not return home, however,
having called Klund and learned that the police were searching for him. He told Klund
to dispose of the gun and went to the home of a friend, Albert Keener. Johns told
Keener that he and Wishon robbed the station and that “he himself shot the kid in the
head three times.” The next day, February 19, Keener told the police where Johns was
and that he had confessed to the robbery and murder. Johns was arrested that evening.
Shortly thereafter, Klund confessed her role in the robbery and turned over the gun,
which forensics experts determined was the .32 caliber revolver used to commit the
murder. Klund also showed police the escape route and led them to the discarded
money bag. Klund pleaded guilty to robbery; Wishon pleaded guilty to second-degree
murder. Johns was charged with robbery and capital murder.

       The jury found Johns guilty of capital murder and sentenced him to death. On
direct appeal, the Missouri Supreme Court affirmed his conviction and sentence. See
State v. Johns, 679 S.W.2d 253 (Mo. 1984) (en banc), cert. denied, 470 U.S. 1034
(1985). His petition for state postconviction relief was denied by the trial court and on
appeal. See 741 S.W.2d 771 (Mo. Ct. App. 1987), cert. denied, 486 U.S. 1046 (1988).
Johns then filed this petition for a writ of habeas corpus in federal district court in June
of 1988. In December of 1993, he filed a motion in the Missouri Supreme Court to
recall the mandate. The motion was summarily denied. The district court denied
Johns’s petition in July of 1996, and this appeal followed.

                                            II.

       We issued a certificate of appealability on four issues: (1) whether the jury
instruction on deliberation constituted reversible error, (2) whether the government
deprived Johns of due process by suppressing material evidence, (3) whether Johns
received ineffective assistance of counsel at the penalty phase, and (4) whether an
execution more than fifteen years after conviction constitutes cruel and unusual

                                            -3-
punishment. Because Johns filed his petition for habeas corpus well before the
effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214, we apply the pre-AEDPA standard of review to his
claims. See Pruett v. Norris, 153 F.3d 579, 584 n.6 (8th Cir. 1998).

                                           A.

       The State submitted the case to the jury on the basis of accomplice liability. Jury
instruction number five at trial provided:

      If you find and believe from the evidence beyond a reasonable doubt:
      first, that on or about February 18, 1982, in the City of St. Louis, State of
      Missouri, the defendant or Robert Wishon caused the death of Donald
      Voepel, Jr., by shooting him; and second, that the defendant or Robert
      Wishon intended to take the life of Donald Voepel, Jr.; and third, that the
      defendant or Robert Wishon knew that he was practically certain to cause
      the death of Donald Voepel, Jr.; and fourth, that the defendant or Robert
      Wishon considered taking the life of Donald Voepel, Jr., and reflected
      upon this matter coolly and fully before doing so, then you are instructed
      that the offense of capital murder has occurred, and if you further find and
      believe from the evidence beyond a reasonable doubt: fifth, that with the
      purpose of promoting or furthering the commission of capital murder, the
      defendant acted together with or aided or encouraged Robert Wishon in
      committing that offense, then you will find the defendant guilty of capital
      murder.



Jury Instr. No. 5, Appellant’s Br. at Add. 102. Johns claims that the instruction
violated the Eighth, Sixth, and Fourteenth Amendments because it did not require the
jury to find that he personally deliberated on the murder.

      Under the Eighth Amendment, states may impose the death penalty only on
defendants who “kill, attempt to kill, or intend that a killing take place.” Enmund v.

                                           -4-
Florida, 458 U.S. 782, 797 (1982). The Supreme Court has held that under Enmund
a federal habeas court “must examine the entire course of the state-court proceedings
against the defendant in order to determine whether, at some point in the process, the
requisite factual finding as to the defendant’s culpability has been made.” Cabana v.
Bullock, 474 U.S. 376, 387 (1986) (footnote omitted).

        Here, the jury found that even if Johns did not pull the trigger, he “acted together
with or aided or encouraged” Wishon “with the purpose of promoting or furthering the
commission of capital murder.” Jury Instr. No. 5, Appellant’s Br. at Add. 102. At a
minimum, this showed that Johns intended that a killing would take place. See
Fairchild v. Norris, 21 F.3d 799, 803-04 (8th Cir. 1994) (finding that Enmund was
satisfied because the defendant was a major participant in the underlying felony, was
aware that the co-defendant was carrying a gun, and made no attempt to assist the
victim after she was shot). Accordingly, the instruction did not violate the Eighth
Amendment.

        The Sixth Amendment requires that criminal convictions “rest upon a jury
determination that the defendant is guilty of every element of the crime with which he
is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510
(1995) (citing Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993)). Johns argues that
the instruction violated the Sixth Amendment because it did not explicitly require the
jury to find that he deliberated on capital murder. The State argues that by requiring
the jury to find that Johns assisted Wishon in the killing “with the purpose of promoting
or furthering the commission of capital murder” the instruction effectively required the
jury to find that Johns deliberated on the killing.

       Deliberation was an element of capital murder under Missouri law when Johns
was tried and convicted. See Mo. Rev. Stat. § 565.001 (1978). The Missouri case law
and model jury instructions, however, did not require an explicit instruction on
deliberation at that time. See State v. White, 622 S.W.2d 939, 945-46 (Mo. 1981) (en

                                            -5-
banc) (holding that finding that the defendant provided assistance “with the purpose of”
promoting capital murder was the same as finding that the defendant had the requisite
mental state for capital murder); MAI-CR2d 2.12, Note 7 on Use (1983) (suggesting,
but not requiring, explicit deliberation language).

       The Missouri Supreme Court found on direct appeal that instruction number five
effectively required the jury to find deliberation. See Johns, 679 S.W.2d at 259-60.
We agree, and accordingly we hold that the instruction did not violate the Sixth
Amendment. See Roberts v. Bowersox, 137 F.3d 1062, 1068 (8th Cir. 1998), cert.
denied, 119 S. Ct. 808 (1999) (upholding a first-degree murder instruction based on
accomplice liability because it was consistent with existing model jury instructions);
Thompson v. Missouri Bd. of Probation & Parole, 39 F.3d 186, 190 (8th Cir. 1994)
(upholding a first-degree murder instruction based on accomplice liability because it
required the jury to find that the defendant “knowingly or purposefully” aided in the
killing).

       Even if held to be constitutionally deficient, the instruction does not lead to
automatic reversal of the conviction, for it is subject to harmless-error analysis. See
Neder v. United States, 119 S. Ct. 1827, 1833-34 (1999) (holding that the omission of
an element from a jury instruction is not structural error and thus is subject to harmless-
error analysis); California v. Roy, 117 S. Ct. 337, 338-39 (1996) (per curiam) (applying
harmless-error analysis to an erroneous state first-degree murder instruction). Because
the state court did not apply harmless-error analysis, we apply the stricter harmless-
error standard of Chapman v. California, 386 U.S. 18 (1967). See Orndorff v.
Lockhart, 998 F.2d 1426, 1430 (8th Cir. 1993). Under Chapman, “before a federal
constitutional error can be held harmless, the court must be able to declare a belief that
it was harmless beyond a reasonable doubt.” 386 U.S. at 24.

      The jury heard abundant evidence that Johns deliberated on the murder. While
planning the robbery, he told Smith that he “never left any witnesses.” He purchased

                                           -6-
ammunition for the gun the day of the murder and had possession of the gun
immediately before the killing. He was present when the murder occurred and gave the
gun to Klund for safekeeping immediately thereafter. He told his friend Keener that he
himself had shot young Voepol in the head three times. We conclude that such
overwhelming evidence rendered any instructional error harmless beyond a reasonable
doubt.

       There remains the issue presented by the fact that while Johns’s habeas petition
was pending in the district court the Missouri Supreme Court held that although a
homicidal act may be imputed to an accomplice, the mental state of deliberation may
not be. See State v. O’Brien, 857 S.W.2d 212, 218 (Mo. 1993) (en banc) (citing State
v. Ervin, 835 S.W.2d 905, 923 (Mo. 1992) (en banc)). The court stated that its
decision in Ervin had overruled cases, including Johns itself, that had employed jury
instructions similar to that used in Johns’s case. Id. at 218 (citing White, 622 S.W.2d
939; Johns, 679 S.W.2d 253; and State v. Hunter, 782 S.W.2d 95 (Mo. Ct. App.
1989)).

        The Due Process Clause of the Fourteenth Amendment requires states to apply
their laws “in a manner that avoids the arbitrary and capricious infliction of the death
penalty.” Godfrey v. Georgia, 446 U.S. 420, 428 (1980). Johns argues that the
Missouri Supreme Court’s denial of his motion to recall the mandate after declaring in
O’Brien that Johns had been overruled by Ervin was so arbitrary and capricious as to
shock the judicial conscience and violate substantive due process. The State argues
that Johns is not entitled to retroactive application of the new case law, and that he is
not entitled to relief under the new standards in any event.

       The Constitution does not require states to give retroactive effect to state court
decisions announcing new rules of law. See Wainwright v. Stone, 414 U.S. 21, 23-24
(1973); Fiore v. White, 149 F.3d 221, 224 (3d Cir. 1998), cert. granted, 119 S. Ct.
1332 (1999), question certified, 120 S. Ct. 469 (1999); Houston v. Dutton, 50 F.3d

                                          -7-
381, 384-85 (6th Cir. 1995); Robinson v. Ponte, 933 F.2d 101, 103-04 (1st Cir. 1991);
La Rue v. McCarthy, 833 F.2d 140, 142-43 (9th Cir. 1987). On the other hand, states
must give retroactive effect to decisions that are not “new law” but rather are dictated
by precedent. See Yates v. Aiken, 484 U.S. 211, 216-17 (1988).

      We need not decide whether the subsequent decisions of the Missouri Supreme
Court announced a new rule of law or whether they reflected a result dictated by
precedent, because Johns is not entitled to relief under the standards enunciated in
Ervin and O’Brien.

       As discussed above, there was overwhelming evidence that Johns planned to use
deadly force by means of the weapon for which he had purchased ammunition earlier
in the day. His admission to Keener that he had shot Voepel in the head three times
established beyond even the most metaphysical doubt the fact that Johns had
deliberated before killing the young man. Accordingly, the Missouri Supreme Court’s
refusal to apply in his case the rules announced in Ervin and O’Brien, however
desirable it would have been for the court to have explicated the reasons for that
refusal, did not violate Johns’s rights to substantive due process, for even under the
instructions required by Ervin and O’Brien there is no doubt that the jury would have
reached the same conclusion regarding Johns’s guilt. See, e.g., Jones v. United States,
119 S. Ct. 2090, 2109-10 (1999).

                                          B.

       Johns also argues that the State deprived him of due process under Brady v.
Maryland, 373 U.S. 83 (1963), by failing to disclose before trial that Albert Keener
received a monetary reward from the gas station owner for testifying against Johns. To
establish a Brady violation, a defendant must show that “(1) the prosecution suppressed
evidence, (2) the evidence was favorable to the accused, and (3) the evidence was
material.” Cornell v. Nix, 921 F.2d 769, 770 (8th Cir. 1990). It is undisputed that

                                          -8-
evidence of the reward would have been impeachment evidence favorable to Johns at
trial, satisfying the second element of Brady. The State claims, however, that it did not
suppress the evidence and that even if it did, the evidence was not material.

      There is no suppression of evidence if the defendant could have learned of the
information through “reasonable diligence.” United States v. Jones, 160 F.3d 473, 479
(8th Cir. 1998) (citing Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996)). Nor can
there be suppression when the defendant and the State have equal access to the
information. See United States v. Jones, 34 F.3d 596, 600 (8th Cir. 1994). The State
argues that it did not suppress information about the reward because Johns could have
discovered it in a St. Louis area newspaper.

       That the reward was published in an unidentified St. Louis newspaper does not
mean that Johns had equal access to the information. The State learned of the reward,
and of Keener’s interest in it, from Keener himself. Even if Johns had managed to learn
from a newspaper that the reward existed, he had no way of learning that Keener had
repeatedly inquired about the reward. Thus, the State’s nondisclosure of the evidence
regarding the reward satisfied the first element of Brady.

       The State argues that the third Brady element was not met because evidence of
the reward, and Keener’s interest therein, was not material. “[E]vidence is material ‘if
there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.’” Strickler v. Greene, 119 S.
Ct. 1936, 1948 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
We have repeatedly held that “materiality is not established by the mere possibility that
the withheld evidence may have influenced the jury.” Jones, 160 F.3d at 479.

      Keener implicated Johns in the murder when he contacted Sergeant Timothy
Cunningham on February 19. The record shows that he did not inquire about the
reward at that time and that Sergeant Cunningham had no knowledge of any reward.

                                          -9-
 Keener first inquired about the reward during an interview with police on February 20.
 In addition, Keener’s credibility was impeached at trial when defense counsel elicited
testimony on cross-examination that he had recently engaged in illegal drug use, had
been convicted of grand larceny, and had agreed to testify against Johns in exchange
for a reduced sentence in a pending armed robbery charge. Thus, the suppressed
evidence had limited impeachment value. In light of the abundant evidence showing
Johns’s involvement in the murder, we conclude that the result of the proceeding would
not have been different had the State disclosed the evidence. See Strickler, 119 S. Ct.
at 1952-54 (holding that although a Brady inquiry is not based on the sufficiency of the
evidence, other evidence implicating the defendant is relevant to materiality); Jones,
160 F.3d at 479 (same). Thus, Johns has not shown a Brady violation.

                                          C.

        Johns contends that his penalty-phase counsel was ineffective for failing to
introduce mitigating evidence at the penalty phase of his trial. Ineffective assistance
of counsel claims are governed by the standards of Strickland v. Washington, 466 U.S.
668 (1984). See Sherron v. Norris, 69 F.3d 285, 290 (8th Cir. 1995). To show
ineffective assistance under Strickland, Johns must demonstrate that “counsel’s
performance was deficient and that he was prejudiced by that deficient performance.”
Id. (citing Strickland, 466 U.S. at 687).

       In determining whether counsel’s performance was deficient we “must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Strategic decisions made after
diligent investigation are “virtually unchallengeable.” Id. at 690. Furthermore, “the
reasonableness of counsel’s actions may be determined or substantially influenced by
the defendant’s own statements or actions.” Id. at 691.




                                         -10-
        Counsel interviewed Johns’s mother and father and planned to call them as
character witnesses during the penalty phase. Counsel was also prepared to call legal
experts to testify that the death penalty is not an effective deterrent to crime. Johns
instructed counsel not to present any mitigation evidence, however. He was, in
counsel’s words, particularly “vehement in his insistence” that his mother not be called
to testify.

        Counsel did not blindly follow Johns’s wishes in deciding not to present
mitigation evidence. Rather, he conducted extensive interviews with Johns about
penalty-phase strategy, investigated potential witnesses to determine how favorable
their testimony would be, and concluded that presenting mitigation evidence would be
more detrimental than helpful. This decision was reasonable under Strickland. See
Hayes v. Lockhart, 852 F.2d 339, 351-52 (8th Cir. 1988), vacated on other grounds,
491 U.S. 902 (1989) (finding it a “reasonable trial tactic” for counsel not to present
mitigation evidence after thoroughly investigating the possible evidence and
considering defendant’s wishes not to have family members called as witnesses).
Although in hindsight it may appear that Johns had little to lose by presenting mitigation
evidence, we consider ineffective assistance of counsel claims based on what counsel
knew at trial. See Strickland, 466 U.S. at 689. Accordingly, Johns is not entitled to
relief on this basis.

                                           D.

       Johns contends that executing him more than fifteen years after his conviction
would constitute a violation of the Eighth Amendment’s proscription of cruel and
unusual punishments, citing Justice Stevens’s memorandum respecting the denial of
certiorari in Lackey v. Texas, 514 U.S. 1045 (1995), which stated that this argument
presents an important and undecided issue. He also cites a decision of the British Privy
Council that found a similar argument persuasive. See Pratt v. Attorney Gen. of
Jamaica, [1994] 2 App. Cas. 1, 4 All E.R. 769 (P.C. 1993) (en banc).

                                          -11-
       Because Johns did not raise this argument in the state courts or in the district
court, it is procedurally barred and constitutes an abuse of the writ. See Chambers v.
Bowersox, 157 F.3d 560, 568-69 (8th Cir. 1998), cert. denied, 119 S. Ct. 2383 (1999)
(finding that a Lackey claim was procedurally barred because it was not raised in state
court); Kennedy v. Delo, 959 F.2d 112, 117 (8th Cir. 1992) (finding it an abuse of the
writ to raise an issue on appeal that was not raised in the original habeas petition).
Johns has not shown cause and prejudice for failing to raise this argument or that our
refusal to consider it will result in a miscarriage of justice. See McCleskey v. Zant, 499
U.S. 467, 493-95 (1991).

       Even if we were to consider the merits of the claim, our recent decision in
Chambers would foreclose the possibility of granting Johns relief. In that case, the
defendant had spent fifteen years on death row by the time of his most recent appeal
and had succeeded in having his conviction overturned twice. See 157 F.3d at 568-70.
We acknowledged that “delay in capital cases is too long,” but held that the delay “is
a function of the desire of our courts, state and federal, to get it right, to explore
exhaustively, or at least sufficiently, any argument that might save someone’s life.” Id.
at 570. Absent evidence that the delay was caused intentionally to prolong the
defendant’s time on death row, we held that it did not “even begin[] to approach a
constitutional violation.” Id.

       Johns does not claim that the delay in this case was caused intentionally by the
State. Indeed, he acknowledges that the State repeatedly requested that the district
court proceed with more dispatch in its adjudication of the case. Furthermore, Johns
cannot dispute that some of the delay was due to his motion to recall the mandate in the
Missouri Supreme Court and his amendment of his federal habeas petition to reflect the
denial of the motion. Although Johns was entitled to make the motion and amend his
federal petition, he cannot now claim that the delay caused by his actions constitutes
cruel and unusual punishment. See Chambers, 157 F.3d at 570.


                                          -12-
                                           III.

        Johns raises an additional claim that was not included in the certificate of
appealability. He argues that issuance of a certificate of appealability rather than a
certificate of probable cause was incorrect in light of the Supreme Court’s decision in
Lindh v. Murphy, 521 U.S. 320 (1997). This argument is foreclosed by our decision
in Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir. 1997) (distinguishing Lindh and
holding that when a notice of appeal from the denial of a habeas petition is filed on or
after April 24, 1996, the effective date of the Antiterrorism & Effective Death Penalty
Act (AEDPA), the certificate of appealability provisions of AEDPA apply even if the
habeas petition was filed prior to the effective date of the act). See Chambers, 157
F.3d at 570 (finding this argument foreclosed by Tiedeman).

      The judgment dismissing the petition is affirmed.

RICHARD S. ARNOLD, Circuit Judge, dissenting.

       State v. Johns, 679 S.W.2d 253 (Mo. 1984) (en banc), cert. denied, 470 U.S.
1034 (1985), the case in which petitioner's conviction and death sentence were
affirmed, has been overruled by name. See State v. O'Brien, 857 S.W.2d 212, 218
(Mo. 1993) (en banc); State v. Ervin, 835 S.W.2d 905, 923 (Mo. 1992) (en banc). This
fact has been brought directly to the attention of the Supreme Court of Missouri. Yet,
that Court has denied Johns any relief, and has given no reason for its action. To send
Johns to his death in these circumstances, when other defendants, similarly situated in
all respects save for the timing of the Missouri Supreme Court's review of their cases,
would be allowed to live, seems to me arbitrary and unjust. I therefore respectfully
dissent.4



      4
          I have no quarrel with the other points covered by the Court's opinion.

                                           -13-
       One of petitioner's major points on appeal was that the trial court had failed to
instruct the jury that, in order to find him guilty of capital murder, it would have to find
that Johns himself deliberated on the crime. The case was submitted to the jury on the
theory that the actual shooting was done by an associate, Wishon, and that Johns was
guilty as an accomplice. Instruction No. 5, which the Court quotes, ante at 4, required
the jury to find that the defendant, "with the purpose of promoting or furthering the
commission of capital murder, . . . aided or encouraged Robert Wishon in committing
that offense . . .." The instruction did not require that the defendant himself have
deliberated or reflected upon the matter coolly and fully, even though deliberation is an
element, under Missouri law, of both capital murder and murder in the first degree.
Notwithstanding this omission, the Supreme Court of Missouri said the element of
deliberation was sufficiently submitted to the jury. In so holding the Court relied
entirely on State v. White, 622 S.W.2d 939, 945 (Mo. 1981) (en banc), cert. denied,
456 U.S. 963 (1982).5 According to the White opinion, anyone who purposely aids in
the commission of a capital murder necessarily has the same intention, absent special
circumstances, as the active participant.

       So far, so good. I would have no trouble accepting such an interpretation of state
law as consistent with the federal Constitution. Indeed, I believe our Court has
accepted it, as against a contention that the Sixth Amendment is violated by failure to
instruct on an essential element of the offense. See Thompson v. Missouri Bd. of
Probation & Parole, 39 F.3d 186, 190 (8th Cir. 1994). But there is another wrinkle in
the present case. The view of state law on which the Johns opinion was based has been
disavowed by the final word on state law, the Supreme Court of Missouri. In State v.
O'Brien, supra, decided nine years after Johns's case, that Court squarely stated that " 'a
first-degree murder instruction premised on accessory liability must ascribe deliberation
to the defendant.' " 857 S.W.2d at 217, quoting Ervin, supra, 835 S.W.2d at 923


       5
       Like Johns, White has now been disapproved by name by the Supreme Court
of Missouri. O'Brien, supra, 857 S.W.2d at 218.

                                           -14-
(emphasis in O'Brien; citations omitted). The Court added, in order to make the point
inescapably clear:

             Proof that the defendant merely aided another with the
             purpose of facilitating an intentional killing cannot be
             sufficient to prove first degree murder and, therefore, Ervin
             clearly overruled Johns . . .. Additionally, to the extent that
             White has been read to require less than proof of the
             defendant's own premeditation in every case, it too was
             overruled.

O'Brien, supra, at 218.

      The question is whether this new decision helps Johns. This question contains
two parts: (1) is Johns entitled to have O'Brien's holding applied to his case; and (2)
does the O'Brien holding do Johns any good? The Court avoids the first part by
answering the second in the negative. It maintains it need not decide whether O'Brien
announced a new rule of law, or was dictated by precedent. According to the Court,
Johns would not be entitled to any relief even under the standards announced in Ervin
and O'Brien.

       I start with the question our Court avoids: whether O'Brien announced a new
rule of law, or was dictated by precedent. I recognize that the federal Constitution does
not prevent state courts from making decisions that announce "new law" prospective,
but for two reasons I cannot agree that this general proposition solves the present case.

      First, the Missouri Supreme Court's opinion in O'Brien is not phrased in terms
of "new law." As previously discussed, Johns relied entirely on White. The O'Brien
Court says that Johns misconstrued White: "The key to White, and that which Johns
and Hunter overlooked, is that the Court, in White, went on to state that the instruction
was proper only insofar as it meant 'acting with the conscious object of causing


                                          -15-
premeditated murder, defendant aided in causing capital murder.' " O'Brien, 857
S.W.2d at 217 [emphasis added]. Thus, it appears that the O'Brien Court believed that
Johns was wrong when decided. Certainly nothing in the O'Brien opinion indicates that
the Court was announcing a new rule to be applied prospectively only. O'Brien
himself, the litigant before the Court, got the benefit of the ruling.

       Second, the Missouri Supreme Court has not even now indicated that O'Brien
was "new law." When it denied Johns's motion to recall the mandate, the Court gave
no reason. If the Court had explained that it regarded O'Brien as "new law," and that
it was, therefore, not applying it to Johns's case, we would have a different situation.
Given that the text of O'Brien suggests that it is not "new law," I would require a
statement of reasonable clarity from the Missouri Supreme Court to convince me
otherwise. Compare Fiore v. White, __U.S. __, 120 S. Ct. 469 (1999) (to determine
whether Pennsylvania prisoner should receive benefit of recent Pennsylvania decision,
United States Supreme Court certified to Pennsylvania Supreme Court question of
whether recent decision explained or changed Pennsylvania law). No such certification
procedure is available in Missouri.

        I therefore proceed on the assumption that O'Brien is not "new law," and that
Johns gets the benefit of its holding. According to the Court, Johns is still not entitled
to relief under O'Brien. This is because, given the evidence in his case, even if Johns
had received the proper jury instructions, there is no doubt the jury would have reached
the same conclusion regarding Johns's guilt.

       The Court's holding assumes that had the Missouri Supreme Court correctly
decided Johns, it would have applied some type of harmless-error analysis to the trial
court's error. I am not so certain that this is true. The State has not argued that position
before this Court. Nor do I find an unequivocal statement in Missouri law indicating
that harmless-error analysis would be applied to erroneous jury instructions which omit
or drastically misdescribe an element of the offense. Given that the right of an accused

                                           -16-
to a trial by jury, not by appellate judges, is one of the most fundamental common law
and constitutional rights, it may well be that Missouri would not allow its appellate
judges to speculate on what a jury "might have found" regarding an element of the
crime. See Neder v. United States, 119 S. Ct. 1827, 1843 (1999) (Scalia, J. concurring
in part and dissenting in part).

        To summarize: O'Brien appears on its face to indicate that Johns's case was
wrongly decided under the law that should have been applied at the time. In denying
Johns's motion to recall the mandate, the Missouri Supreme Court offered nothing to
support an alternative view, nor did it say that the error, though fundamental, was
harmless. So there is uncertainty as to Missouri law. I recognize that courts often
summarily deny post-judgment motions. We do this ourselves every day. But this is
a death case, and death is different. The Eighth Amendment, made applicable to the
states through the Due Process Clause of the Fourteenth Amendment, requires a higher
degree of reasoned certainty in capital cases than in ordinary criminal proceedings. In
these unusual circumstances, I believe that putting Johns to death falls short of federal
constitutional requirements. I respectfully dissent.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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