                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 19a0021p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 YAQOB TAFAN THOMAS,                                     ┐
                                 Petitioner-Appellant,   │
                                                         │
                                                          >      No. 17-5824
        v.                                               │
                                                         │
                                                         │
 JOSEPH P. MEKO, Warden,                                 │
                                Respondent-Appellee.     │
                                                         ┘

                          Appeal from the United States District Court
                        for the Eastern District of Kentucky at Lexington.
                   No. 5:11-cv-00148—William O. Bertelsman, District Judge.

                                  Argued: December 6, 2018

                             Decided and Filed: February 14, 2019

             Before: COLE, Chief Judge; GRIFFIN and KETHLEDGE, Circuit Judges.

                                      _________________

                                          COUNSEL

ARGUED: Kevin M. Lamb, WILMER CUTLER PICKERING HALE AND DORR LLP,
Washington, D.C., for Appellant. James C. Shackelford, OFFICE OF THE ATTORNEY
GENERAL OF KENTUCKY, Frankfort, Kentucky, for Appellee. ON BRIEF: Kevin M.
Lamb, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for
Appellant.  James C. Shackelford, OFFICE OF THE ATTORNEY GENERAL OF
KENTUCKY, Frankfort, Kentucky, for Appellee.
                                      _________________

                                           OPINION
                                      _________________

       KETHLEDGE, Circuit Judge. Yaqob Thomas was convicted of murder in Kentucky
state court. He now seeks federal habeas relief, arguing that the Kentucky definition of murder
 No. 17-5824                             Thomas v. Meko                                     Page 2


violates due process because it prescribes two mental states—intent to kill and extreme
indifference to human life—as alternative means for the mens rea element of that offense. The
district court rejected that argument, and so do we.

                                                 I.

       In 2002, Thomas and Gregory Baltimore arranged to buy cocaine from Dionte Burdette at
a Waffle House in Lexington, Kentucky. The three men ate a meal and then got into Burdette’s
car, with Thomas in the back seat and the others up front. Soon Thomas grabbed Burdette from
behind, held a gun to his head, and demanded the cocaine. When Burdette refused, Thomas shot
him in the leg. Burdette then said the cocaine was across the street with his partner. Thomas
shot Burdette three more times, after which both Thomas and Baltimore fled from the scene.
Burdette died soon afterward.

       Thomas was thereafter charged with murder, and a jury found him guilty. The trial court
sentenced him to 40 years’ imprisonment. The Kentucky Court of Appeals affirmed, and the
Kentucky courts otherwise denied post-conviction relief.

       Thomas later filed a petition for a writ of habeas corpus in the district court. Among his
claims was that his appellate counsel had been ineffective for failing to challenge the trial court’s
instruction to the jury on the murder charge. The district court found the petition untimely, but
we reversed. On remand, the district court rejected Thomas’s claims on the merits. This appeal
followed.

                                                 II.

       Thomas’s only claim here is that his appellate counsel was ineffective for failing to argue
that one of the trial court’s jury instructions had violated due process. We review the district
court’s denial of relief on that claim de novo. See Babick v. Berghuis, 620 F.3d 571, 576 (6th
Cir. 2010). The State argues that Thomas’s claim is procedurally defaulted, but we cut to the
merits because an analysis of cause and prejudice would only complicate this case. See Storey v.
Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011).
 No. 17-5824                             Thomas v. Meko                                    Page 3


       The instruction at issue concerned the mental state required to commit murder. Kentucky
law recites two mental states—intent to kill and extreme indifference to human life—as
alternative means that satisfy the element of mens rea for murder. See Craft v. Commonwealth,
483 S.W.3d 837, 841-42 (Ky. 2016); KRS § 507.020.               That recitation is unremarkable:
“legislatures frequently enumerate alternate means of committing a crime.” Schad v. Arizona,
501 U.S. 624, 636 (1991) (plurality opinion). Accordingly, the trial court instructed the jury that
it could convict Thomas of murder if it found that Thomas had possessed either of the alternative
mental states (intent to kill or extreme indifference to human life) that satisfied the element of
mens rea for murder.

       When a statute specifies alternative means for satisfying a single element of an offense,
the jury need not agree upon or even specify which of those means the defendant employed. See
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). Thus, if a statute required use of a
“deadly weapon” as an element of a crime, and further provided that “use of a ‘knife, gun, bat, or
similar weapon’” would qualify, then a “jury could convict even if some jurors ‘concluded that
the defendant used a knife while others concluded he used a gun’”—so long as they all agreed
that the element was met. Id. (brackets omitted). Accordingly, the trial court here did not
instruct the jury that it needed to agree unanimously as to which of the two alternative mental
states Thomas had possessed.

       Thomas’s claim therefore is not really an instructional one; instead his real complaint lies
with the Kentucky legislature’s definition of murder. Specifically, Thomas says the definition
violated due process to the extent it treated intent to kill and extreme indifference to human life
as alternative means for the mens rea element of murder. That complaint faces significant
constitutional headwinds: a legislature’s decision to treat certain facts (here, certain states of
mind) as alternative means to satisfy a single element—as opposed to separate elements for
separate crimes—is a “value choice[] more appropriately made in the first instance by a
legislature than by a court.” Schad, 501 U.S. at 638 (plurality opinion). Yet those value choices
are subject to “the constitutional bounds of fundamental fairness and rationality.” Id. at 645. To
determine whether the Kentucky legislature passed those bounds here, we consider history, the
practice of other states, and whether the means are reasonably similar in moral culpability.
 No. 17-5824                             Thomas v. Meko                                    Page 4


See id. at 637 (plurality). In doing so, however, we recognize “a threshold presumption of
legislative competence to determine the appropriate relationship between means and ends in
defining the elements of a crime.” Id. at 637-38.

       The Kentucky legislature acted well within constitutional bounds here. The traditional
common-law definition of murder included—as alternatives for the element of mens rea—the
equivalents of intent to kill and extreme indifference to human life. See id. at 648 (Scalia, J.,
concurring); see also LaFave, 2 Subst. Crim. L. § 14.1 (3d ed.). And many reasonable minds—
including Blackstone and the drafters of the Model Penal Code—have viewed intent to kill and
extreme indifference to human life as equally culpable mental states.            4 W. Blackstone,
Commentaries 198-200; Model Penal Code § 210.2 (“criminal homicide constitutes murder
when . . . it is committed purposely or knowingly . . . [or] it is committed recklessly under
circumstances manifesting extreme indifference to the value of human life”). Indeed the reason
that the plurality in Schad recognized felony murder as reasonably equivalent to premeditated
murder is that the felony murderer may be “utterly indifferent to the fact that the desire to rob
may have the unintended consequence of killing the victim[.]” Schad, 501 U.S. at 644 (internal
quotation marks omitted); see also Tison v. Arizona, 481 U.S. 137, 157 (1987) (same). What
matters for purposes of culpability, then, is the indifference, not the concomitant felony. The
alternative means of “extreme indifference” was therefore constitutional here.

       Thomas contends the Kentucky definition of murder is irrational nonetheless, because
most other states treat extreme indifference to human life as grounds for second-degree murder,
not first. But the Constitution does not mandate adoption of a Uniform Penal Code. See Martin
v. Ohio, 480 U.S. 228, 236 (1987) (the constitutionality of a state’s criminal law is not
determined “by cataloging the practices of other states”); Patterson v. New York, 432 U.S. 197,
210-11 (1977) (same). And here, for the reasons stated above, the Kentucky definition of murder
stands on solid historical and moral ground.

       Thomas’s remaining arguments are insubstantial.           Thomas says that Kentucky’s
definition of murder is irrational because, he says, intent to kill and extreme indifference to
human life are mutually exclusive mental states. But that hardly matters; due process does not
require the jurors’ findings as to alternative means for an element to be factually consistent with
 No. 17-5824                             Thomas v. Meko                                    Page 5


each other. See Mathis, 136 S. Ct. at 2249; Schad, 501 U.S. at 649-50 (Scalia, J., concurring).
Thomas also says that Kentucky’s definition made the prosecution’s burden of proof at trial too
easy, by allowing the jury to choose between two mental states rather than one. But the same
was true in Schad—or (more generally) in any case where a criminal statute prescribes
alternative means for a single element. See, e.g., Mathis, 136 S. Ct. at 2249. Thomas further
contends that, if the jury had been forced to agree upon a single mental state, the jury might have
deliberated longer than it did—in which case, he says, it might have convicted him only of some
lesser offense. But due process ensures minimum “procedural safeguards,” not maximum jury
deliberation. See Patterson, 432 U.S. at 210.

       Finally, Thomas argues that Kentucky’s definition of murder violates the rule that “any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” See Apprendi v. New Jersey, 530
U.S. 466, 490 (2000). But the fact that the jury needed to find here was that Thomas either
intended to kill his victim or possessed extreme indifference as to whether he killed him. See,
e.g., Gribbins v. Commonwealth, 483 S.W.3d 370, 376-77 (Ky. 2016). The jury made that
finding, and hence there was no Apprendi violation.

       The district court’s judgment is affirmed.
