Tyrone Jenkins v. RONALD HUTCHINSON, Warden of No. 99-6345 Maryland House of Correction

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TYRONE JENKINS,
Petitioner-Appellee,
v.
RONALD HUTCHINSON, Warden of
No. 99-6345
Maryland House of Correction;
ATTORNEY GENERALFORTHE STATE
OF MARYLAND,
Respondents-Appellants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Walter E. Black, Jr., Senior District Judge.
(CA-93-3644-B)
Argued: June 7, 2000
Decided: July 31, 2000
Before WIDENER, WILKINS, and WILLIAMS, Circuit Judges.
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Affirmed by published opinion. Judge Wilkins wrote the opinion, in
which Judge Widener and Judge Williams joined.
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COUNSEL
ARGUED: Mary Ann Rapp Ince, Assistant Attorney General, Crimi-
nal Appeals Division, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellants. Mark Lawrence Gitomer, THE
LAW OFFICE OF MARK GITOMER, Baltimore, Maryland, for

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Appellee. ON BRIEF: J. Joseph Curran, Jr., Attorney General of
Maryland, Criminal Appeals Division, OFFICE OF THE ATTOR-
NEY GENERAL, Baltimore, Maryland, for Appellants.
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OPINION
WILKINS, Circuit Judge:
Tyrone Jenkins filed this petition for habeas corpus relief from his
Maryland convictions for robbery with a deadly weapon, assault with
intent to murder, and related weapons offenses. See 28 U.S.C.A.
§ 2254 (West 1994).1 The district court, having found that advisory
instructions given at Jenkins' trial violated his right to due process,
granted the writ, and the State2 appeals. Because we conclude that
there is no bar to our consideration of the merits of Jenkins' claim and
that the jury instructions were unconstitutional, we affirm.
I.
Jenkins was convicted by a jury in the Circuit Court for Prince
George's County, Maryland on August 14, 1975 and was sentenced
to a term of 35 years, to be served consecutive to a prior sentence for
a 1972 conviction. In accordance with a provision of the Maryland
Constitution, the trial court had instructed the jury that in a criminal
trial, the jury was the judge of the law as well as the facts.3 Before
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1 Jenkins filed his habeas petition prior to the April 24, 1996 effective
date of the Antiterrorism and Effective Death Penalty Act (AEDPA) of
1996, Pub. L. No. 104-132, 110 Stat. 1214. Therefore, the amendments
to 28 U.S.C.A. § 2254 affected by § 104 of the AEDPA do not govern
our resolution of this appeal. See Lindh v. Murphy, 521 U.S. 320, 336
(1997).
2 Jenkins named William L. Smith, then Warden of the Maryland
House of Correction, and J. Joseph Curran, Jr., the Attorney General for
the State of Maryland, as Respondents. Smith has since been replaced by
Ronald Hutchinson. For ease of reference, we refer to Respondents col-
lectively as "the State."
3 Article 23 of the Maryland Declaration of Rights currently provides
that "[i]n the trial of all criminal cases, the Jury shall be the Judges of
2

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giving specific instructions, the trial court began by explaining to the
jury that it is
the Court's function to give to you certain advisory instruc-
tions with reference to this matter. You will note that I use
the word "advisory" and I do so intentionally in that in this
case, as is true in all criminal cases in Maryland, it is the
function of the jury to be the sole judges of both the facts
and the law. That is to say, it is up to you, the jury, solely,
to determine what the factual situation was and then to apply
to that factual situation what you find the law to be.
Accordingly, anything the Court says to you with refer-
ence both to the facts and the law is done so in an advisory
capacity only.
J.A. 28 (emphasis added). After this preliminary explanation regard-
ing the advisory nature of its instructions, the court then prefaced
every instruction by reminding the jury that its instructions on the law
were advisory only. In particular, with respect to the burden of proof,
the court stated:
Further, the Court says to you, in an advisory capacity,
that the burden of proof, which rests on the State, . . . is that
the Defendants must be found guilty at your hands only after
you are satisfied beyond a reasonable doubt and to a moral
certainty of the guilt of the Defendants, or either of them, of
any or all of the charges brought against the Defendants.
Id. at 29 (emphasis added). Jenkins did not object to the advisory
nature of the instructions at trial or on appeal.
The Maryland Court of Special Appeals affirmed Jenkins' convic-
tions, and the Maryland Court of Appeals denied Jenkins' petition for
a writ of certiorari on July 25, 1976. Thereafter, Jenkins filed numer-
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Law, as well as of fact." At the time of Jenkins' trial, this provision was
in article XV, section 5 of the Maryland Constitution, from which it was
transferred in 1978. See Ennis v. State, 510 A.2d 573, 580 & n.11 (Md.
1986).
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ous petitions in state court seeking habeas corpus and post-conviction
relief, all of which were denied.
Jenkins claims that he raised a challenge to the advisory jury
instructions in his fifth petition for post-conviction relief. Although
state court docket entries do not reflect the filing of a fifth post-
conviction petition, and the State did not receive a copy of such a
petition when it requested documents from the clerk of court, the state
court, in its order denying Jenkins' fifth habeas petition, indicated that
it was also addressing a "fifth petition for post conviction relief." Id.
at 237. Responding to an issue it identified as"The trial Judge errone-
ously instructed the jury in an advisory capacity," id. at 239, the rul-
ing by the state court on the claim, in its entirety, was as follows:
Under the almost unique Maryland Constitutional provi-
sion, Article 23 of the Declaration of Rights, any instruc-
tions in criminal cases on the law which the court may give
are purely advisory and the court must so inform the jury.
Schanker v. State, 208 Md. 15, 116 A.2d 363 (1955); Dillon
v. State, 277 Md. 571, 357 A.2d 360 (1976). Therefore this
contention is without merit.
Id. at 239-40.
Jenkins subsequently filed this habeas action in federal court. Jen-
kins argued, inter alia, that the advisory nature of the reasonable
doubt instruction relieved the State of its burden to prove every ele-
ment of the charged offenses beyond a reasonable doubt, thereby vio-
lating his right to due process.4See In re Winship, 397 U.S. 358, 364
(1970). The district court denied relief as to all claims except the
advisory jury instructions issue. The State now appeals,5 arguing that
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4 The trial court in Jenkins' case told the jury that all of its instructions
were advisory, including the instructions regarding the presumption of
innocence and the right to remain silent. We address only Jenkins' chal-
lenge to the reasonable doubt instruction, since the error with regard to
this instruction alone is sufficient to grant the writ.
5 Jenkins asserted six grounds in support of habeas relief in addition to
claiming that the advisory jury instructions deprived him of due process.
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Jenkins' claim is procedurally defaulted; that if not defaulted, Jen-
kins' claim is subject to the "new rule" doctrine of Teague v. Lane,
489 U.S. 288 (1989); and that even if Jenkins' claim is not defaulted
or Teague-barred, controlling precedent of this circuit mandates
reversal.
II.
A.
The State argues that Jenkins defaulted this claim by failing to
object to the advisory nature of the jury instructions at trial or on
direct appeal. See State v. Rose, 691 A.2d 1314, 1316-20 (Md. 1997)
(holding that failure to object to reasonable doubt instruction at trial
and failure to raise issue on appeal resulted in waiver of issue in col-
lateral proceedings). Absent cause and prejudice or a miscarriage of
justice, a federal habeas court may not review constitutional claims
when a state court has declined to consider their merits on the basis
of an adequate and independent state procedural rule. See Harris v.
Reed, 489 U.S. 255, 262 (1989). In its response to Jenkins' fifth peti-
tion for post-conviction review, however, the state court did not rule
that Jenkins' challenge to the jury instructions was waived, but rather
addressed the claim on the merits. Jenkins' claim is therefore not
defaulted. See Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)
(explaining that in order to preclude federal review, "the state court
must actually have relied on the procedural bar as an independent
basis for its disposition of the case").
B.
The State also argues that a holding that the advisory reasonable
doubt instruction violated the Due Process Clause would constitute a
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The district court denied Jenkins' petition in part and ordered supplemen-
tal briefing with respect to the advisory jury instructions issue. The court
then granted the writ. See Jenkins v. Smith, 38 F. Supp. 2d 417, 423 (D.
Md. 1999). The State subsequently moved to alter or amend the judg-
ment, and the court denied the motion. See Jenkins v. Smith, 43 F. Supp.
2d 556, 559 (D. Md. 1999). The State appeals the order of the district
court granting the writ. Jenkins does not cross-appeal the rejection of his
other claims.
5

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"new rule" that cannot be applied retroactively to cases pending on
collateral review. See Teague, 489 U.S. at 299-310 (plurality opin-
ion); see also Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (stating
that the Teague inquiry is a "threshold question in every habeas case"
in which it is argued by the State). The Teague inquiry involves three
steps. See O'Dell v. Netherland, 521 U.S. 151, 156-57 (1997). First,
we must determine the date on which Jenkins' convictions became
final. Second, we must determine whether "a state court considering
[Jenkins'] claim at the time his conviction[s] became final would have
felt compelled by existing precedent" to conclude that the Constitu-
tion mandates a holding in his favor; if not, then the rule he seeks is
a new one. Id. at 156 (internal quotation marks omitted); see Gilmore
v. Taylor, 508 U.S. 333, 340 (1993) (stating that "put meaningfully
for the majority of cases, a decision announces a new rule if the result
was not dictated by precedent existing at the time the defendant's
conviction became final" (internal quotation marks omitted)); Butler
v. McKellar, 494 U.S. 407, 415 (1990) (characterizing a new rule as
one that is "susceptible to debate among reasonable minds"). If we
determine that the rule is new, the final step is to determine if the rule
"falls within one of the two narrow exceptions to the Teague doc-
trine." O'Dell, 521 U.S. at 156-57.
Jenkins' convictions became final in October 1976. 6 Thus, the rele-
vant inquiry for Teague purposes is whether a holding in favor of Jen-
kins was dictated by precedent existing in October 1976. Jenkins
would have us hold that by informing the jury that its reasonable
doubt instruction was advisory, the trial court effectively relieved the
State of its burden to prove all of the elements of the charged offenses
beyond a reasonable doubt. Accordingly, the question for purposes of
the Teague analysis is whether such a holding was dictated by exist-
ing precedent in October 1976. We conclude that it was.
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6 It does not appear that Jenkins ever filed a petition for writ of certio-
rari with the United States Supreme Court after the Maryland Court of
Appeals denied his petition for writ of certiorari on direct appeal. Thus,
Jenkins' convictions and sentence became final for purposes of Teague
after the period for petitioning the Supreme Court for a writ of certiorari
--90 days after the denial of Jenkins' petition for writ of certiorari to the
Maryland Court of Appeals--had elapsed. See Caspari, 510 U.S. at 390-
91.
6

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Six years before Jenkins' convictions became final, the Supreme
Court announced in In re Winship, 397 U.S. 358 (1970), that due pro-
cess requires that the government prove each element of a crime
beyond a reasonable doubt. See Winship, 397 U.S. at 364 ("Lest there
remain any doubt about the constitutional stature of the reasonable-
doubt standard, we explicitly hold that the Due Process Clause pro-
tects the accused against conviction except upon proof beyond a rea-
sonable doubt of every fact necessary to constitute the crime with
which he is charged."); see also Cool v. United States, 409 U.S. 100,
103-04 (1972) (per curiam) (holding that an instruction which "allow-
[ed] the jury to convict despite its failure to find guilt beyond a rea-
sonable doubt" mandates reversal of the conviction). In light of this
precedent, we conclude that the rule Jenkins seeks is not a new one.7
Accordingly, the rule of Teague v. Lane does not bar our consider-
ation of the merits of Jenkins' claim.8
We note that our conclusion here is not inconsistent with that in
Adams v. Aiken, 965 F.2d 1306 (4th Cir. 1992), vacated sub nom.
Adams v. Evatt, 511 U.S. 1001 (1994),9 in which we held that the rule
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7 The entirety of the State's argument that Teague bars our consider-
ation of the merits of Jenkins' claim is that Wyley v. Warden, 372 F.2d
742 (4th Cir. 1967), "is dispositive of the conclusion that Jenkins's state
conviction complied with federal law." Brief of Appellants at 29 n.4.
This argument fails to address whether a holding for Jenkins was dictated
by Winship, a case that was decided after Wyley. We explain infra why
Wyley is not dispositive of the merits of Jenkins' claim.
8 Because we conclude that granting relief to Jenkins would not create
a new rule, we need not conduct the final step in the Teague analysis.
9 In Adams, the defendant challenged a reasonable doubt instruction on
the basis that the Supreme Court had held unconstitutional a similar
instruction in Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam). We
held that the rule announced in Cage was a new rule that did not satisfy
either of the exceptions to the Teague doctrine, and accordingly, we
refused to consider the merits of Adams' claim. The Supreme Court
vacated our judgment and remanded the case for further consideration in
light of Sullivan v. Louisiana, 508 U.S. 275 (1993). See Adams, 511 U.S.
at 1001. As we explained on remand, Sullivan--in which the Court held
that a constitutionally deficient reasonable doubt instruction can never be
harmless error--did not call into question our determination that the rule
announced in Cage was new; rather, Sullivan required that we reconsider
whether Adams' case satisfied an exception to the Teague doctrine. See
Adams v. Aiken, 41 F.3d 175, 178 (4th Cir. 1994).
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announced by the Supreme Court in Cage v. Louisiana, 498 U.S. 39
(1990) (per curiam), was a new rule. See Adams , 965 F.2d at 1311-12.
At issue in Cage was the substance of a reasonable doubt instruction:
The defendant argued that the definition of "reasonable doubt" given
by the trial court was incorrect and consequently had the effect of
reducing the State's burden of proof. The Court agreed, holding that
the state trial court had incorrectly "equated a reasonable doubt with
a `grave uncertainty' and an `actual substantial doubt.'" Cage, 498
U.S. at 41. Before Cage, the Court had never held that a definition of
"reasonable doubt" violated due process, and we therefore concluded
that "[w]hether a trial court's unconstitutional misdescription of the
burden of proof in a criminal case violates the Due Process Clause
was certainly an open question." Adams v. Aiken, 41 F.3d 175, 178
(4th Cir. 1994).
The issue here, in contrast, is whether the jury was effectively
given any reasonable doubt instruction at all; for if the jury under-
stood the advisory nature of the instructions as permitting it to ignore
the reasonable doubt instruction, then the jury could fashion any stan-
dard of proof that it liked. That the jury must be instructed that the
Government is required to prove the defendant's guilt "beyond a rea-
sonable doubt" was not an open question after Winship.10
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10 The Seventh Circuit was presented with a due process challenge to
an advisory jury instruction in Willis v. Aiken , 8 F.3d 556 (7th Cir. 1993).
As an alternative holding, the court concluded that providing relief to
Willis would result in the announcement of a new rule. See Willis, 8 F.3d
at 567-68. It is not clear from the opinion whether Willis claimed that an
advisory reasonable doubt instruction violated his due process rights
under Winship. If in fact that is the holding that Willis sought, then we
disagree with the analysis used by the Seventh Circuit.
The Seventh Circuit based its conclusion that Willis sought a new rule
on its determination that the case before it was similar to Gilmore. See
id. at 568. At issue in Gilmore were Illinois pattern jury instructions,
under which the jury was informed first of the elements of murder and
then of the elements of voluntary manslaughter. The jury was not told
that it could not return a murder conviction if it found that the defendant
possessed a mitigating mental state; thus, it was possible for a jury to
find that a defendant was guilty of murder without ever considering
whether he was entitled to a conviction of voluntary manslaughter. In
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III.
Having concluded that providing the relief that Jenkins seeks
would not result in the announcement of a new rule, we proceed to
address the merits of his claim. When we address a challenge to the
constitutionality of a reasonable doubt instruction, we inquire
"whether there is a reasonable likelihood" that the jury applied the
challenged instruction in an unconstitutional manner. Victor v.
Nebraska, 511 U.S. 1, 6 (1994).
Here, the trial court clearly explained at the beginning of its charge
to the jury that the jury was the sole judge of the law and that the
instructions given by the court were advisory only. With each individ-
ual instruction, the court reminded the jury of the advisory nature of
the instructions. We conclude that there is a reasonable likelihood that
the jury interpreted these instructions as allowing it to ignore the "ad-
vice" of the court that the jury should find proof beyond a reasonable
doubt. Accordingly, we conclude that the advisory instructions vio-
lated Jenkins' right to due process.
The State argues11 that the issue of whether an advisory reasonable
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Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), the Seventh Circuit
held that these instructions were unconstitutional. The Supreme Court
subsequently held in Gilmore that the rule announced in Falconer--that
instructions which allow the jury to ignore an affirmative defense are
unconstitutional--was a new rule. See Gilmore , 508 U.S. at 340, 344; id.
at 349 (O'Connor, J., concurring in the judgment).
The rule that Jenkins seeks here, in contrast, is that instructions which
reduce the State's burden of proof are unconstitutional. In determining
that Falconer had announced a new rule, the Court explained in Gilmore
that the "actual flaw found by the Falconer court in the challenged jury
instructions . . . was not that they somehow lessened the State's burden
of proof below that constitutionally required by cases such as In re Win-
ship." Id. at 340 (emphasis added). Thus, Gilmore does not support the
conclusion that the holding Jenkins seeks is a new rule.
11 The State devotes much of its brief to arguing that the instructions
given at Jenkins' trial comported with Maryland law at the time and that
subsequently decided Maryland cases suggesting that the instructions
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doubt instruction violates the federal Constitution was decided against
Jenkins in Wyley v. Warden, 372 F.2d 742 (4th Cir. 1967), and that
Wyley "is dispositive of the conclusion that Jenkins's state conviction
complied with federal law." Brief of Appellants at 29 n.4. This asser-
tion is incorrect for two reasons.
First, Wyley was decided before Winship . Thus, when we decided
Wyley, we did not yet have the benefit of the Supreme Court's hold-
ing that a jury must find the defendant guilty beyond a reasonable
doubt in order to comply with the federal Constitution. Cf. Etheridge
v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th Cir. 1993) (stating
that "[a] decision of a panel of this court becomes the law of the cir-
cuit and is binding on other panels unless it is overruled by a subse-
quent en banc opinion of this court or a superseding contrary
decision of the Supreme Court" (emphasis added) (internal quotation
marks omitted)).
Second, in Wyley we primarily addressed the issue of whether the
provision of the Maryland Constitution was constitutional on its face.
Only at the end of our Wyley opinion did we state: "Moreover, our
reluctance to intervene on the present record is heightened by the
absence of any suggestion that this particular defendant was preju-
diced by the court's advising the jury of its right to determine the law
for itself." Wyley, 372 F.2d at 747. However, the Supreme Court has
subsequently held that an error in an instruction that relieves the State
of its burden of proof beyond a reasonable doubt can never be harm-
less. See Sullivan v. Louisiana, 508 U.S. 275, 278-82 (1993).12
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violated Maryland law cannot be retroactively applied. The correctness
of the advisory instructions as a matter of state law, however, is irrele-
vant to the due process claim raised by Jenkins. Essentially, Jenkins
argues that giving an advisory reasonable doubt instruction, even if
proper as a matter of state law, violates the Due Process Clause of the
federal Constitution.
12 The State also relies on Wilkins v. Maryland, 402 F. Supp. 76 (D.
Md. 1975), aff'd, 538 F.2d 327 (4th Cir. 1976) (table). The challenge in
that case, however, was a generalized challenge to advisory instructions,
and the district court rejected the challenge by relying on Wyley. See Wil-
kins, 402 F. Supp. at 82. As we have explained, to the extent Wyley
addressed an as-applied challenge comparable to the one we address
here, Wyley was superseded by Winship and Sullivan. Thus, although
Wilkins was decided after Winship, it is not dispositive here, due to its
reliance on Wyley.
10

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IV.
In summary, Jenkins' claim was not procedurally defaulted, and his
claim is not Teague-barred. Having considered the merits, we hold
that Jenkins' due process rights were violated by the advisory jury
instructions given at his trial. Accordingly, we affirm the order of the
district court granting the writ of habeas corpus.
AFFIRMED
11

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