Reed v. Cockrell (269 F. Supp. 2d 784, 2003)

ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

BUCHMEYER, District Judge.

After making an independent review of the pleadings, files and records in this case, and the findings, conclusions and recommendation of the United States Magistrate Judge, the Court finds that the findings and conclusions of the Magistrate Judge are correct and they are adopted as the findings and conclusions of the Court. Petitioner’s objections to the findings and conclusions of the Magistrate Judge are overruled.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

I. NATURE OF THE CASE

A state prison inmate has filed a petition for writ of habeas corpus pursuant to Title 28, United States Code, Section 2254.

II. PARTIES

Petitioner, Jonathan Bruce Reed, is an inmate in the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent, Janie Cockrell, is the Director of TDCJ-ID.

III. PROCEDURAL HISTORY

A jury convicted Petitioner of capital murder, and his punishment was assessed at death by lethal injection. State v. Reed, Cause No. F81-1988-PL (Crim. Dist. Ct. No. 5, Dallas County, Tex. Mar. 24, 1983). It was the second time that Petitioner had been tried, convicted, and sentenced to death for such offense. The case was appealed to the Texas Court of Criminal Appeals, and the Court of Criminal Appeals affirmed the conviction and death sentence in an unpublished opinion. Reed v. State, No. 69,292 (Tex.Crim.App. Mar. 29, 1995). Petitioner filed a petition for writ of certiorari to the Supreme Court, which was denied on January 8, 1996. Reed v. Texas, 516 U.S. 1050, 116 S.Ct. 715, 133 L.Ed.2d 669, rehearing denied, 516 U.S. 1142, 116 S.Ct. 977, 133 L.Ed.2d 896 (1996). Petitioner subsequently filed a state application for writ of habeas corpus on October 14, 1996. (State Habeas Record, hereinafter “SHR”, pp. 1-134.) The trial court entered findings of fact and conclusions of law and recommended that relief be denied on June 26, 1998. Ex parte Reed, No. W81-01988-PL(a) (Crim. Dist. Ct. No. 5, Dallas County, Tex.); (SHR, pp. 644-727.) The Court of Criminal Appeals adopted those findings of fact and conclusions of law and denied relief in a written order on September 16, 1998. Ex parte Reed, No. 38,174-01 (Tex.Crim. App.). The Supreme Court denied the petition for writ of certiorari on March 22, 1999. Reed v. Texas, 526 U.S. 1021, 119 S.Ct. 1259, 143 L.Ed.2d 355 (1999).

Petitioner filed his original federal petition for writ of habeas corpus on March 23, 1999, and his amended petition for writ of habeas corpus on May 4, 1999. Respondent filed an answer and motion for summary judgment on October 18, 1999, and furnished the state court records. Petitioner filed a response to this answer on December 22,1999.

IV. RULE 5 STATEMENT

In her answer, Respondent states that Petitioner has exhausted all of his state court remedies pursuant to 28 U.S.C. § 2254(b), (c), except for a portion of Petitioner’s evidentiary support for his first claim and a portion of Petitioner’s argument for his seventh claim.

Y. ISSUES

In thirteen grounds for relief, Petitioner complains of (a) perjured testimony of William McLean, (b) racially discriminatory use of peremptory challenges, (c) the use of a general verdict form of jury instructions, (d) the trial court’s denial of a circumstantial evidence charge, (e) the state appellate court’s refusal to apply intervening state decision, (f) an inordinate delay in the state appellate process, and (g) the trial court’s refusal to instruct on lesser included offense. Petitioner also contends that he is entitled to discovery and an evidentiary hearing.

VI. STANDARD OF REVIEW

Applicable Law

The petition for a federal writ of habeas corpus was filed after April 24, 1996. Therefore, this proceeding is governed by the terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the “AED-PA”), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 820, 826, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Nobles v. Johnson, 127 F.3d 409, 413 (5th Cir.1997). This statute significantly affects federal habeas-corpus proceedings, particularly in the deference that must be accorded state-court findings.

Deference Scheme

The AEDPA provides the following deference scheme for review of state determinations of claims that were adjudicated on the merits in state court:

(d) An 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-

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Supreme Court has explained that the “contrary to” and “unreasonable application” clauses of § 2254(d)(1) have independent meaning.

A state court decision will be “contrary to” our clearly established precedent if the state court either “applies a rule that contradicts the governing law set forth in our cases,” or “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” ... A state court decision will be an “unreasonable application of’ our clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.”

(citations omitted) Penry v. Johnson, 532 U.S. 782, 792, 121 S.Ct. 1910, 1918, 150 L.Ed.2d 9 (2001)(hereinafter also “Penry II’’Xquoting [Terry] Williams v. Taylor, 529 U.S. 362, 405-08, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Under the “unreasonable application” analysis, it is not enough that the state court incorrectly applied federal law. To be entitled to relief, Petitioner must show that the “ultimate legal conclusion” reached by the state court was objectively unreasonable. Neal v. Puckett, 286 F.3d 230, 245-46 (5th Cir. 2002); See also Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1850, 1852, 152 L.Ed.2d 914 (2002)(noting difference between “objectively unreasonable” application under AEDPA and one that is merely “incorrect”); Williams, 529 U.S. at 409-11, 120 S.Ct. at 1521-22.

However, this deference scheme applies only to issues that have been adjudicated on the merits in state court. A resolution or “adjudication” on the merits in the habeas-corpus context is a term of art that refers to the state court’s disposition of the case on substantive rather than procedural grounds. See Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.), cert. denied, 531 U.S. 849, 121 S.Ct. 122, 148 L.Ed.2d 77 (2000); Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.1997). All of the claims Petitioner makes here that were either denied by the Texas Court of Criminal Appeals on the merits in his direct appeal, or after explicitly adopting findings of fact and conclusions of law made by the state trial court, denied relief on the merits of the state habeas application, maybe said to have been “adjudicated on the merits” under 28 U.S.C. § 2254(d). See Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.2000), cert. denied, 532 U.S. 1039, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001); Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001). Therefore, each of these claims is subject to this heightened-deference standard. Not only must Petitioner meet this heightened standard in order to obtain relief, but his allegations must also be sufficient to show that such standard can be met before an evidentiary hearing will be warranted.

Evidentiary Hearings

When there is a factual dispute, that, if resolved in the petitioner’s favor, would entitle him to relief and the state has not afforded the petitioner a full and fair evidentiary hearing, a federal habeascorpus petitioner is entitled to discovery and an evidentiary hearing. See Hughes v. Johnson, 191 F.3d 607 (5th Cir,1999)(quoting Goodwin v. Johnson, 132 F.3d 162, 178 (5th Cir.1997)) The AEDPA raised the standards for obtaining relief on claims governed by 28 U.S.C. § 2254(d) so that now the allegations of the petition must be sufficient to demonstrate that this higher standard can be met before an evidentiary hearing will be warranted. Further, the AEDPA eliminated the requirement of a “full and fair hearing” in state court before according deference to state-court findings. Valdez, 274 F.3d at 948. Also, the AEDPA expressly limits the availability of an evidentiary hearing when the habeas petitioner has failed to develop the factual basis of the claim in the state-court proceedings. See 28 U.S.C. § 2254(e)(2). Each of these requirements imposes additional restrictions on the ability of federal courts to grant evidentiary hearings and relief in post-conviction habe-as-corpus proceedings. Therefore, although the full effect of the AEDPA on the initial determination of whether to grant an evidentiary hearing is not certain, the intent of the AEDPA is clearly to limit such federal-court action. Since the allegations of the petition before this Court, even if taken as true, would fail to establish petitioner’s right to federal habeas-corpus relief, no further discovery or evi-dentiary hearing is necessary. Accordingly, all discovery not already completed has expired in accordance with the Order Terminating Discovery granting Respondent Cockrell’s Motion for Reconsideration of Order Authorizing Limited Discovery (filed under seal).

VII. FACTUAL BACKGROUND

The Texas Court of Criminal Appeals recited the following factual background in its opinion on direct appeal:

The victim, her sister Linda Gail Wa-dle, and a friend Kimberly Pursley, shared a two-bedroom apartment at One Way Place in Dallas. All were employed by Braniff International Airlines as flight attendants.

On the morning of Wednesday, November 1,1978, Pursley was alone in the apartment. The previous day she had been assigned to a flight bound for Hawaii and arranged to meet her father at a local restaurant the next morning to borrow $100 for the trip. When she left her apartment at 11:40 a.m. she was already ten minutes late. She arrived at the restaurant at about 11:50 and shared lunch with her father until he had to leave at 12:30 p.m. After receiving five $20 bills from him and placing them inside her checkbook, she returned directly to her apartment.

Upon arriving she noticed the victim’s suitcase near the front door and concluded that her roommate had returned sooner than expected from her last flight. The victim’s purse was on the living room sofa with many of its contents scattered about. Pursley set her own purse down next to it. Almost immediately she heard a male voice from behind a closed bedroom door say, “Don’t come in here. Stay out there.” Assuming that the man was a friend of the victim’s, she replied, “Don’t worry, I won’t come in.”

Pursley stood in front of the television set for a moment, watching an afternoon soap opera. Shortly, the bedroom door opened and she heard a voice behind her say, “Hi.” Turning, she observed a man lean through the doorway with one hand on its molding and snapping closed a knife sheath with the other. Before she could introduce herself, he said, “I’m with maintenance, I came to check and change the air conditioner filters,” and pointed toward the bedroom ceiling.

Pursley stuck her head through the doorway but could see no ductwork (sic) in the vicinity. Then, lowering her gaze, she noticed the nude body of the victim protruding spread eagle from beneath the bed. As she turned toward the man he grabbed her by the throat with both hands and threw her to the living room floor on her stomach, saying, “Don’t move or I’ll break your [expletive deleted] neck.”

Soon she heard him rummaging through the bedroom and then the sound of cloth tearing. In a moment he returned, gagged her with a Braniff uniform sash, tied her hands with a leather belt, and covered her head with an apron. She then heard him sit down in the bedroom and ask, “Do you have any money?” Thinking he was talking to the victim, she made no reply, but when he asked again she shook her head to indicate “No.” Then, remembering a $20 bill in her wallet, she nodded her head affirmatively.

The man next proceeded to the sofa and began searching through the contents of both purses. He made several circuits of the apartment during which he drank water from a glass in the kitchen and looked through the bedroom and living room areas. After a time he returned to Pursley. Straddling her with his legs, he placed both hands at her throat and began strangling her. When the pain became almost more than she could bear, Pursley feigned unconsciousness. The man released and briefly reapplied pressure. Removing the apron from her face, he threw it to the floor, circled the apartment once again and left.

Pursley jumped to her feet, pulled free of her bindings, and locked the front door. She then rushed to check on the victim and found blood oozing from her mouth, gaze fixed, and hands tied tightly behind her back with a telephone cord. Around her neck were a plastic bag and belt pulled taut.

Pursley ran to the front door, opened it, and screamed for help. A neighbor, Rosemary Asencio, appeared and while Pursley used her telephone to call for help, went to investigate the victim’s condition. She found the young woman lying naked on her back, legs spread apart, and breasts exposed. With some difficulty she removed the plastic bag and belt from around the victim’s neck and began cardiopulmonary resuscitation, which she continued until emergency medical technicians arrived about 15 minutes later.

The victim died after nine days in the hospital without ever regaining consciousness. There is no evidence that her assailant sustained any bodily injury during the episode.

Shortly after [Reed’s] arrest on December 16, 1978, Pursley identified [Reed] in a corporeal line-up as the man who attached her in her apartment. Two other residents at Pursley’s apartment complex, Mikki Flanagan and Phil Hardin, identified [Reed] at the same line-up as the person they had seen in the complex shortly before the time of the attacks on the victim and Pursley. Flanagan testified [Reed] came to the door of her apartment shortly after noon on November 1 and told her that he had come to check the air conditioning filters. Hardin testified he saw [Reed] in the complex around noon on November 1 wearing a red shirt and blue jeans similar to the ones Pursley and Flanagan testified [Reed] had worn.

A witness placed [Reed] at the scene of the instant offense immediately after [Reed] left the victim and Pursley’s apartment. At the time of the instant offense, Ken Ezelle worked as a maintenance man at the apartment complex. Ezelle identified [Reed] at trial as the man he saw running away from the area of the victim’s and Pursley’s apartment at the same time he heard Pursley screaming for help.

At trial, William McLean testified that he and [Reed] were in custody together at the Dallas County Jail during May of 1982. McLean stated that on May 18, [Reed] admitted that he robbed, attempted to sexually assault and killed a woman in her apartment.

Reed, No. 69,292, slip op. at 1-4. This Court accords a presumption of correctness to these state court findings. 28 U.S.C. § 2254(d).

VIII. EXAMINATION OF THE ISSUES

A. Claims related to testimony of William McLean.

In his first ground for federal habeas corpus relief, Petitioner alleges that the prosecutors at his trial knowingly presented and failed to correct perjured testimony by witness William McLean in violation of Petitioner’s rights to Due Process and a Fair Trial under the Fifth and Fourteenth Amendments to the Constitution. The amended petition for writ of habeas corpus filed herein alleges that the testimony of William Samuel McLean, Jr. at Petitioner’s trial was false in two respects. First, the petition alleges that McLean testified falsely at Petitioner’s trial that Petitioner confessed to committing an offense matching the facts of this case, as shown by the fact that McLean later recanted his testimony, stating that no such confession occurred. (Am.Pet. pp. 17-18.) Second, the petition alleges that McLean testified falsely at trial that he had been promised nothing by the prosecution in exchange for his testimony, as shown by the fact that McLean’s subsequent counsel indicated that there were “some promises” that had not been kept. (Am.Pet., pp. 17-18, 20.)

It is settled that the prosecution may not knowingly use perjured testimony or allow perjured testimony to go uncorrected. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). To prove a due process violation in such a case, a petitioner must demonstrate that (1) the testimony was actually false, (2) the state knew it was false, and (3) the testimony was material. See Hill v. Johnson, 210 F.3d 481, 488 (5th Cir. 2000) cert. denied, 532 U.S. 1039, 121 S.Ct. 2001, 149 L.Ed.2d 1004 (2001) (citing Pyles v. Johnson, 136 F.3d 986, 996 (5th Cir. 1998)).

The inherent nature of any agreements with the prosecution is of a nature that if the allegation of such perjury is true, the prosecution would have known of the alleged falsity. However, the petitions for habeas corpus relief filed here and in the state court contain no allegation that agents of the state knew of any falsity in McLean’s testimony concerning Petitioner’s confession. Therefore, such petitions failed to state the required element of knowledge by the prosecution of this portion of McLean’s testimony. Petitioner later presented a declaration from Martin Luff, a law school student assisting Petitioner’s counsel. In this declaration, Luff states that McLean told him not only that he informed the prosecutors before Petitioner’s trial that no confession had occurred, but also that the prosecutors assisted McLean in fabricating testimony against Petitioner. (Luff Deck, pp. 2-3.) Assuming that these material new factual allegations could be incorporated into the amended habeas petition in this Court, this Court granted Petitioner leave to conduct the deposition of McLean in order to develop and present this testimony in lieu of an evidentiary hearing. “Order Authorizing Limited Discovery,” Nov. 30, 2001.

Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court. 28 U.S.C. § 2254(b) and (c) require that state prisoners give state courts a fair opportunity to act on their claims before he presents those claims to a federal court in a habeas petition. See O'Sullivan v. Boerckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). Therefore, a habeas petitioner fails to exhaust state remedies when he presents material additional evidentiary support to the federal court that was not presented to the state court. See Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir.2000), citing Graham v. Johnson, 94 F.3d 958, 968 (5th Cir.1996); 28 U.S.C. § 2254(b)(3). Since Petitioner did not allege or present anything to the state court to suggest that the prosecutors knew that this testimony of a jailhouse confession was false, he has failed to give the state courts a fair opportunity to act on this claim. He has, therefore, failed to exhaust his remedies in state court and the provisions of § 2254(b) apply-

Accordingly, this Court can only grant relief if there is an absence of available State corrective process, or circumstances exist that render such process ineffective to protect the rights of Petitioner. 28 U.S.C. § 2254(b)(1)(B) (2001). Article 11.071 of the Texas Code of Criminal Procedure provides a method upon application for writ of habeas corpus to raise such a complaint and to present such evidence in order to obtain relief on state habeas corpus. Therefore, the state has provided a corrective process fully capable of adjudicating these claims that has not otherwise been shown ineffective to protect the rights of Petitioner. However, the Texas court to which Petitioner would present this claim would now find it barred under the Texas abuse-of-writ doctrine. TEX. CRIM. PROC. CODE ANN., ART. 11.071, § 5 (Vernon 2000).

Therefore, Petitioner’s claim must now be considered procedurally defaulted for purposes of federal habeas review, and this Court cannot grant relief on this unexhausted claim absent a showing of cause and prejudice or a fundamental miscarriage of justice. See Jones v. Jones, 163 F.3d 285, 296 (5th Cir.1998), cert.denied, 528 U.S. 895, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999). The fundamental miscarriage of justice exception is available only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence. See Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862-63, 122 L.Ed.2d 203 (1993). In an effort to satisfy this exception to the imposition of a procedural bar, Petitioner requested and was granted discovery to compare unidentified fingerprint evidence obtained from the scene of the underlying offense with unidentified fingerprint evidence recovered from the scenes of three other faetually-similar offenses, in order to develop the evidence that may be available to avoid such bar. “Order Authorizing Limited Discovery,” Nov. 30, 2001. After further clarification of this discovery order, “Order Clarifying the Court’s Prior Order Authorizing Limited Discovery,” Apr. 9, 2002, and safeguards granted to protect the rights of the witness, Petitioner conducted the deposition of McLean on July 9, 2002.

Petitioner was also able to explore his claim that the prosecution had made “some promises” to McLean in exchange for his testimony at the deposition as authorized by the Order Clarifying the Court’s Prior Order Authorizing Limited Discovery, even though such allegations were insufficient to independently authorize discovery. Id. After considering this deposition, a copy of which has been filed under seal with this Court, and the arguments of counsel presented in briefs and motions before this Court, it is the opinion of this Court that the evidence does not support either of Petitioner’s claims that the prosecution knowingly used perjured testimony at his trial. Since Petitioner’s claims are without merit, there is no further need to develop any exception to the imposition of any procedural bar, and the prior orders of this Court have now been modified to deny such additional discovery as moot. See Bledsue v. Johnson, 188 F.3d 250 (5th Cir.1999) (finding that even though claims were not barred, they lacked merit and therefore habeas relief was not warranted). Petitioner’s first claim for relief should be denied.

B. Claimed discriminatory use of peremptory challenges.

In his second, third, fourth, fifth, sixth and seventh claims for federal habeas corpus relief, Petitioner claims that his rights under the Sixth and Fourteenth Amendments to the Constitution have been violated by the prosecutor’s use of peremptory challenges to remove African-American members of the venire. His argument is based entirely on the Fourteenth Amendment Equal Protection guarantees expressed in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). (Am.Pet., pp. 25-55). Therefore, these claims will be analyzed under the standards applicable to such Equal Protection grounds.

Evaluating Batson claims

The Supreme Court has provided a three-step process to determine whether a prosecutor has exercised peremptory challenges in a manner that violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. See Batson, 476 U.S. at 96-98, 106 S.Ct. 1712 (1986); Hernandez v. New York, 500 U.S. 352, 358-59, 111 S.Ct. 1859, 1865-66, 114 L.Ed.2d 395 (1991). First, the defendant at voir dire must make a prima facie showing that the prosecutor exercised it on the basis of a juror’s cognizable racial background. See Batson, 476 U.S. at 96-97, 106 S.Ct. 1712; Hernandez, 500 U.S. at 358, 111 S.Ct. 1859; Soria v. Johnson, 207 F.3d 232, 237 (5th Cir.2000), cert. denied, 530 U.S. 1286, 121 S.Ct. 2, 147 L.Ed.2d 1027 (2000). Second, the burden then shifts to the proponent of the strike to articulate a race-neutral explanation for removing the potential juror in question. See Batson, 476 U.S. at 97-98, 106 S.Ct. 1712; Hernandez, 500 U.S. at 358-59, 111 S.Ct. 1859; Soria, 207 F.3d at 237, 239. Finally, the trial court must determine whether the opponent of the strike has carried his burden of proving purposeful discrimination. See Batson, 476 U.S. at 98, 106 S.Ct. 1712; Hernandez, 500 U.S. at 359, 111 S.Ct. 1859; Soria, 207 F.3d at 239.

Even though this process involves a shifting of the burden of proof, the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. See Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995); Soria, 207 F.3d at 239. Once the trial court makes a determination of this ultimate question of discriminatory intent, such decision constitutes a finding of fact entitled to great deference. See Hernandez v. New York, 500 U.S. at 364, 111 S.Ct. 1859. This is due in large part to the importance of the findings on credibility. Id. at 365, 111 S.Ct. 1859. Such deference standard existed prior to the AEDPA, and therefore remains an applicable standard independent of the AEDPA. However, since Petitioner has questioned the applicability of the AEDPA’s deference standard, this Court will conduct an analysis of the appropriate standard of review to apply specifically to his Batson claims.

Standard of Review

Petitioner argues that the deference standards contained in 28 U.S.C. § 2254(d) are inapplicable to his Batson claims because such claims were not “adjudicated on the merits” in state court. Accordingly, he argues that his Batson claims should now be reviewed de novo, including a new evidentiary hearing in this forum, because the Texas Court of Criminal Appeals did not consider his comparative analysis argument. This Court disagrees.

In Mercadel v. Cain, 179 F.3d 271, (5th Cir.1999) the Court of Appeals stated,

In this circuit, the question of whether a state court’s decision is an adjudication on the merits turns on “the court’s disposition of the case—whether substantive or procedural.” Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir.l997)(dis-cussing whether state court’s decision constituted a resolution on the merits, the pre-AEDPA equivalent of an adjudication on the merits); see Fisher v. Texas 169 F.Sd 295, 299-300 (5th Cir.l999)(applying Green to adjudication on the merits analysis). Under the test outlined in Green, we determine whether a state court’s disposition of a petitioner’s claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts’ opinions suggest reliance upon procedural grounds rather than a determination on the merits.

See also, Miller, 200 F.3d at 281; Fisher v. Texas, 169 F.3d 295, 300 (5th Cir.1999) (Batson issue found not “adjudicated on the merits” in state court under 28 U.S.C. § 2254(d)). Applying this to the record of this case convinces this Court that both Reed’s direct criminal appeal and state habeas application were denied based upon the merits of his Batson claims.

Under the first part of the inquiry, this Court considers what the state courts have done in similar cases. Petitioner has directed this Court to three Texas cases in which the issue of comparison analysis arguments were presented for the first time on appeal: Tompkins v. State, 774 S.W.2d 195 (Tex.Cr.App.1987); Young v. State, 826 S.W.2d 141 (Tex.Cr.App.1992); and Cornish v. State, 848 S.W.2d 144 (Tex.Cr. App.1993). The first of these cases, Tompkins v. State, bears the most similarity with Reed’s case. Both are capital murder case wherein the death penalty was sought. In both cases, the voir dire occurred before the Supreme Court’s pronouncement in Batson v. Kentucky, which was announced during the pendency of the appeals. In both cases, the Texas Court of Criminal Appeals remanded the cases to the trial courts for a Batson hearing some time after the original trial. In both cases, there was nothing in the record of the Batson hearing to suggest that the trial court either independently recalled the voir dire proceedings conducted over a year earlier, admitted the transcript of such voir dire proceedings, or was requested by the appellant’s attorney to even consider any comparative analysis between the state’s reasons given at the Batson hearing and the record of such voir dire proceedings. Finally, in both cases the opinion of the Texas Court of Criminal Appeals purports to deny the Batson complaints on their merits while deciding to not apply the comparison analysis requested by the appellants.

In Young v. State, a non-capital case, the Texas Court of Criminal Appeals distinguished Tompkins as a death penalty case wherein different factors applied to jury selection. In declining to adopt certain statements from footnote 6A in Tompkins as a holding of the court applicable to non-capital cases, the state court stated,

Moreover, Tompkins, was a capital murder case, to which the pronouncement in footnote 6A may be more appropriately applicable. Voir dire for a capital murder trial generally runs for weeks, with hundreds of questions and thousands of pages of transcription, making it extremely difficult for the trial judge, as well as the parties, to remember discrepancies in the voir dire of the various veniremembers who are questioned individually. In contrast, voir dire in a trial for a non-capital offense is done before the full jury panel rather than individually, usually lasts less than a day, and all peremptory challenges are made at its conclusion. Discrepancies in the voir dire of the various veniremembers can be readily determined by the trial judge during the procedure, and comparisons of the challenged prospective jurors with those not struck can be made contemporaneously with the use of the peremptory strikes.

Each of these distinguishing factors also distinguish Young from Reed’s case, and are even more applicable to Batson hearings conducted long after the capital voir dire and when the trial court is less likely to remember and is not otherwise directed to the comparison evidence. Further, in Young the Texas Court of Criminal Appeals was careful to confine its consideration of new arguments made for the first time on appeal to evidence admitted before the fact finder, and it expressly disallowed arguments from evidence not presented to the trial court. Young, 826 S.W.2d at 146. Finally, the state court in Young was careful to identify the comparison analysis argument as merely one tool that a court might use to analyze a Batson claim, and is not itself an independent claim. Young, 826 S.W.2d at 150-51 (opinion denying rehearing). Clearly, determining that the use of such an analytical tool would be inappropriate in a given case is not the same as refusing to consider the merits of a claim.

The third case Petitioner cited actually emphasized the importance of directing the trial court to the information necessary for the comparison analysis. In Cornish v. State, 848 S.W.2d at 145, the Texas Court of Criminal Appeals allowed a non-capital defendant to present his comparison analysis argument from juror information cards not formally introduced into evidence. This was because the appellant’s attorney had specifically directed the trial court to the juror information cards for the purposes of a comparison analysis.

From these cases, and this Court’s own review of similar state cases, it is apparent that the comparison analysis argument has been used in the Texas state courts as an analytical tool to make or review Batson findings and has not itself been used as a procedural obstacle to bar consideration of such claims. Further, the use of this analytical tool has been confined to the information actually in evidence or otherwise brought to the attention of the state fact finder at a Batson hearing. Finally, by the time the state court decided Reed’s direct appeal, the state court had distinguished its usefulness to exclude the voir dire of capital cases wherein the death penalty is sought.

Under the second and third parts of this inquiry, the history of Reed’s appeal suggests that the state courts on direct appeal were not aware of any ground for not adjudicating Reed’s Batson claims on the merits and, in fact, made a concerted effort to address the merits of Petitioner’s Bat-son claims. Also, in the state post-conviction habeas-corpus proceeding, the state courts reconsidered such issues and especially the use of comparative analysis in death penalty cases. The state court refused to apply Reed’s comparison analysis to the Batson findings for several reasons, including Reed’s failure to present evidence before the trial court upon which to make such arguments and the logical inapplicability of such analysis to the voir dire of a death penalty case. Therefore, even though the state courts did not use Reed’s comparison analysis argument, the state court disposition of the case was based on a careful analysis of the merits of Reed’s Batson claims as available from the record of the Batson hearing. Reed, No. 69,292, slip op. at 15-84. Further, an examination of the state court’s treatment of Reed’s Batson claims reveals that the state court went to considerable effort to consider such claims.

Even though Reed’s voir dire and trial occurred before the Supreme Court’s pronouncement in Batson v. Kentucky, and before the trial court had any obligation to conduct a hearing on Petitioner’s claims, the state court’s care in dealing with such claims resulted in an extraordinary opportunity for just such a hearing. One week after Petitioner’s direct appeal was submitted to the state’s highest court, the Supreme Court announced its decision in Batson. Reed, No. 69,292, slip op. at 15. Thereafter, the Texas Court of Criminal Appeals did not dispose of the appeal until such time as Petitioner, a Caucasian male, acquired a right to the application of Batson in his appeal. It then remanded the case to the trial court in order to conduct an evidentiary hearing (the “Bat-son hearing”) on Reed’s Batson claims, explaining that Reed had been denied an opportunity to cross-examine the prosecuting attorneys regarding the nature of their race-neutral explanations. Reed, No. 69,-292, slip op. at 17, (quoting Reed v. State, No. 69,292 (Tex.Cr.App. November 18, 1992)).

In its opinion affirming the conviction, the Texas Court of Criminal Appeals dedicated nineteen pages to the discussion of Reed’s Batson claims, discussing each of Reed’s points of error, separately analyzing the evidence to support each finding, and concluding in each case that the trial court’s findings were not clearly erroneous. Likewise, the state habeas court dedicated twenty pages to the analysis of Reed’s Batson issues raised in his post-conviction application in determining that such issues were not only fully addressed on direct appeal, but also in concluding alternatively that such issues lacked merit. (SHR, pp. 681-701.)

Therefore, it appears that the state court has adjudicated Reed’s Batson claims on the merits in accordance with the AEDPA. 28 U.S.C. § 2254(d)(2) prohibits this Court from granting a writ of habeas corpus with respect to Petitioner’s Batson claims unless the state court adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” (Emphasis added.) This suggests that the scope of such review is limited to certain evidence before the state fact finder. See, e.g., Abur-Jamal v. Horn, — F.Supp.2d —, 2001 WL 1609690 (E.D.Pa.)(holding that the plain meaning of the term confines federal analysis to state court record). In order to determine what is meant by “evidence presented in the State court proceeding” as it applies to the instant case, it is helpful to review the procedural history of this case in state court in order to determine the precise manner in which evidence was received for consideration by the state courts on Petitioner’s Batson claims.

As stated above, the Supreme Court in Batson, set forth a procedure to determine whether a prosecutor has exercised peremptory challenges in a manner that violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Even so, the rule announced in Batson was “an explicit and substantial break with prior precedent,” Allen v. Hardy, 478 U.S. 255, 258, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986), and was not available to the state trial court at the time of Petitioner’s voir dire in 1988. Therefore, when Petitioner’s attorneys complained of the prosecutor’s use of peremptory challenges to remove African-Americans from the venire, the trial court ruled in accordance with the law and customary practice as it existed at that time when it did not order the prosecutors to justify their use of peremptory strikes. It was only upon remand to the state trial court for a retrospective Batson hearing during Petitioner’s direct appeal, that the prosecutor’s reasons for exercising his peremptory challenges could be heard and properly considered in light of the Supreme Court’s pronouncements in Batson, and Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). At this retrospective Batson hearing, the trial court received evidence and found based upon the evidence presented that the prosecution tendered credible, race-neutral explanations for its strikes and that Reed had failed to sustain his burden of proof on these issues. Afterwards, the Texas Court of Criminal Appeals allowed further amendment and arguments concerning the evidence presented at such retrospective Batson hearing, and after hearing such additional arguments concluded that no violation of the Supreme Court’s pronouncement in Batson, had occurred. On post-conviction review, the same state district court found that these issues had been litigated in the prior appeal and again found that the prosecutor’s explanations were credible and that Petitioner failed to carry his ultimate burden of proof on these issues. From all of this, it appears that the state court proceeding specifically created to receive evidence and make fact findings on this issue was the retrospective Batson hearing conducted in the trial court on remand during the pendency of Reed’s direct appeal. Therefore, this Court must determine whether the state court’s decision denying Petitioner relief on his Batson claims is unreasonable in light of the “evidence presented” at such Batson hearing.

Petitioner’s complaint centers on the decision by the Texas Court of Criminal Appeals to not use the “comparison analysis” argued by Reed in his supplemental appellate brief to show that the race-neutral reasons articulated by the prosecutors at the Batson hearing were inconsistent with their treatment of similarly situated venireperson’s of different races. In support of his claim, Petitioner relies upon portions of the transcript of the voir dire proceedings purporting to show such inconsistencies in their exercise of peremptory strikes. Therefore, it is necessary to determine whether these portions of the transcript of the voir dire constitute “evidence presented” to the fact finder at the retrospective Batson hearing in accordance with the AEDPA so that the proper evidence is considered by this Court in determining whether the state court’s Batson findings were “unreasonable”.

On remand for the Batson hearing, Reed’s attorneys subpoenaed many documents, including jury questionnaires, computer printouts from juror information cards, and prosecutor training manuals from the Dallas County District Attorney’s office, which became part of the record. On March 5, 1993, the Batson hearing was conducted during which attorneys for the State and Reed questioned the prosecutors at the trial, the defense attorney at trial, the appellate attorney for the State and the trial judge. At this hearing, the attorney for the State specifically questioned the trial prosecutors regarding the testimony of the veniremembers in question, reading from such transcript of voir dire proceedings and pointing out the places in such record where the veniremember’s testimony could be found. Reed’s attorney objected to such testimony and cross examined the prosecutors primarily regarding their lack of independent memory of jury selection. However, Reed’s attorney made no attempt to cross-examine the trial prosecutors regarding the race-neutral reasons tendered to the trial court at the Batson hearing, nor did Reed’s attorney direct the trial court to any places in the record where comparisons could be made to similar responses from non-African-Ameriean veniremembers. The transcript of the voir dire proceedings was not admitted into evidence at the Batson hearing, nor. was any part of it considered by the trial judge other than those portions specifically read into the record by the State. On appeal, the Court of Criminal Appeals held that those portions of the transcript were not part of the evidence presented to the fact finder when it refused to consider Reed’s comparison argument.

The “state court proceedings” under 28 U.S.C. § 2254(d)(2) are those regarding Petitioner’s Batson issues, and hearing wherein the evidence was “presented” was the retrospective Batson hearing, and the state finder of fact was the trial court conducting such hearing. In determining whether the trial court’s findings were unreasonable in light of the evidence presented at the Batson evidentiary hearing, those portions of the voir dire transcript not presented to the state court at such hearing are outside of the scope of the evidence contemplated by the AEDPA in determining that such finding could be unreasonable. Whereas it is not always necessary to introduce a transcript of the voir dire proceedings before a trial court, this Court is persuaded that the portions of the transcript relied upon by Petitioner cannot be said to have been part of the “evidence presented” to the trial court where, as here, (1) the actual voir dire was conducted at a time when the procedure set forth in Batson was unavailable to the state court, (2) the state court Batson hearing is separated by significant time and circumstance from the actual voir dire, (3) the trial court expresses on the record to Reed’s attorney that he does not independently recall the voir dire and had not reviewed the voluminous transcript of voir dire proceedings, and (4) there is no indication in the record that the portions of the transcript of the voir dire proceedings relied upon by Reed in his comparison analysis were ever presented to the trial court before it made its findings of fact and conclusions of law. Therefore, this Court also declines to engage in a comparison analysis with the evidence not presented to the trial court.

In making this determination, the Court realizes that Petitioner also did not have the benefit of Batson at the voir dire proceedings. However, Reed was given an ample opportunity to present his comparison analysis argument and evidence to the trial court before it made the fact findings that Reed now asks the Court to disregard. As early as January 15, 1986, the State’s appellate attorney provided race-neutral reasons for these strikes that were apparent from the record of the voir dire proceedings. Before, the hearing, Reed’s attorneys had full knowledge of the transcript of the voir dire proceedings when they obtained subpoenas for the information that they determined was appropriate to prove their case. During the hearing, Reed’s attorneys were allowed to question the trial prosecutors and could have cross-examined them concerning the reasons stated for their use of strikes and concerning any discrepancies apparent from a comparison analysis, pointing out, as did the state at such hearing, the portions of the voir dire transcript supporting their case. However, they chose to not put such evidence before the trial court. Even so, after the hearing Reed’s attorneys could have attempted to present to the trial court their comparison analysis of the race-neutral reasons, when the trial court requested and received additional time to make its findings of fact and conclusions of law. Despite all of these opportunities, there is no indication that Reed’s attorney ever presented any evidence or argument to the trial court pertaining to such comparison analysis.

The state court was particularly thorough in its findings concerning the circumstances surrounding the exercise of the peremptory challenges and of the retrospective Batson hearing that were conducted by the state habeas court. While frankly acknowledging the difficulties posed by the delay in conducting the retrospective Batson hearing, the analysis provided by the state trial court supports its conclusions that prosecutors did not violate Batson in the exercise of their peremptory challenges. Of particular interest to both parties is the state court’s finding that Petitioner made no attempt to cross-examine the prosecutors or present any evidence regarding the prosecutors reasons for exercising such challenges or their alleged discriminatory intent. Even if the record did not support the state habeas findings, this finding reveals additional obstacles to Petitioner’s Batson claims.

First, Petitioner must have fairly presented his claims to the highest state court before he will be considered to have exhausted his state remedies. As shown above, Petitioner failed to present the evidence necessary to consider his comparison analysis argument to the trial court. If this is essential to the proper consideration of Petitioner’s Batson claim, then he has failed to exhaust his state remedies in this respect, and this Court cannot grant him relief on such grounds. 28 U.S.C. § 2254(b). Further, if Petitioner is correct that the Texas Court of Criminal Appeals refused to consider his Batson claims upon a procedural bar, then such claims would be subject to a bar in this court on that basis as well. However, this Court finds that the comparison analysis argument is not essential to the consideration of Petitioner’s Batson claims, and that the state court’s determination is not unreasonable in light of the evidence presented at the Batson hearing. Accordingly, relief should be denied on each of Petitioner’s Batson claims.

C. Inclusion of alternate theories in general jury instruction.

In his eighth ground for federal habeas corpus relief, Petitioner claims that his rights under the Sixth, Eighth and Fourteenth Amendments to the Constitution have been violated when the jury was instructed that it could convict Reed of capital murder if it found that the murder of Wanda Jean Wadle occurred in the course of either robbery or attempted aggravated rape. He relies upon Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), which set forth the Fourteenth Amendment Due Process requirements in such cases as applied to the states and U.S. v. Holley, 942 F.2d 916 (5th Cir.1991) that sets forth the standards under the 6th Amendment as applied to federal criminal trials. (Am.Pet., pp. 56-62).

In U.S. v. Holley, 942 F.2d at 926, the Court of Appeals discussed the Supreme Court’s opinion in Schad on the subject of alternative legal theories presented in state jury instructions.

The defendant in Schad was found guilty in an Arizona court of first-degree murder by a unanimous jury verdict and was sentenced to death. The trial court had instructed the jury that it must reach a unanimous verdict that the appellant committed first degree murder, which was defined as premeditated murder or felony murder. The jury was not required to reach a separate verdict with respect to either premeditated murder or felony murder. Appellant challenged his conviction on the grounds of the Sixth, Eighth and Fourteenth Amendments, claiming a constitutional right to a unanimous jury in state capital cases as distinct from cases in which lesser penalties are imposed.

Justice Souter, writing for four justices including himself, authored the Court’s opinion. He rejected appellant’s Sixth and Eighth Amendment claims on the ground that “petitioner’s real challenge is to Arizona’s characterization of first-degree murder as a single crime as to which a verdict need not be limited to any one statutory alternative, as against which he argues that premeditated murder and felony murder are separate crimes as to which the jury must return separate verdicts.” [Schad,] 111 S.Ct. at 2496. Justice Souter stated the central issue as being whether it was constitutionally permissible to allow a “general verdict predicated on the possibility of combining findings of what can best be described as alternative mental states, the one being premeditation, the other the intent required for murder combined with the commission of an independently culpable felony.” Id.

This is the precise question in the case before us.

In Holley, the Court of Appeals overturned the federal perjury conviction when it determined that different offenses had been combined into a single charge of perjury in the jury instructions. However, the Court of Appeals distinguished Holley from Schad.

Holley’s case, however, is somewhat different from Schad. In Schad, there was a single killing of one individual, and Justice Souter, stressing that under Arizona law first degree murder was “a single crime,” concluded that there was no more need for jury unanimity as to alternative mental states each satisfying the mens rea element of the offense than there was for the jurors to all agree on the precise means employed to cause death. Id. Ill S.Ct. at 2495-97.

Holley, 942 F.2d at 927. (footnote omitted). Holley is similarly distinct from the instant case. The same factors set forth in Justice Souter’s opinion in Schad upholding the state jury instructions as using alternative methods to charge the single offense of murder, when applied to the instant case lead this Court to the conclusion that Petitioner was charged with alternative means of commission of a single murder offense. The Court comes to this conclusion by determining whether Texas state courts have treated the two alternatives alleged in these jury instructions are merely means of commission of the same offense or independent elements charging inherently separate offenses.

In Schad, the plurality opinion refused to set forth a single test or analytical model for determining when two means charged are so disparate as to exemplify different offenses. Instead, Justice Souter looked first to the state’s own treatment of the alternatives. “If a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” Schad, 501 U.S. at 636, 111 S.Ct. 2491. Then, the Supreme Court looked to history and current practice in other states in determining whether a state has exceeded its discretion in defining offenses. Id. at 640, 111 S.Ct. 2491.

Texas courts have historically treated the charging of the underlying felonies in such capital murder cases as alternate theories of committing the same offense. In Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991), the Texas Court of Criminal Appeals upheld jury instructions charging a charge of murder in the course of aggravated sexual assault or in the course of robbery as two alternate theories of committing the same offense. Citing Schad, the Texas Court of Criminal Appeals described such alternatives as preliminary factual issues which underlie the verdict. Id. This interpretation by the Texas court is consistent with the history and current practice of other states, as noted in the plurality opinion in Schad.

In Schad, Justice Souter noted that

At common law, murder was defined as the unlawful killing of another human being with “malice aforethought.” The intent to kill and the intent to commit a felony were alternative aspects of the single concept of “malice aforethought.”

See 3 J. Stephen, History of the Criminal Law of England 21-22 (1883).

Although American jurisdictions have modified the common law by legislation classifying murder by degrees, the resulting statutes have in most cases retained premeditated murder and some form of felony murder (invariably including murder committed in perpetrating or attempting to perpetrate a robbery) as alternative means of satisfying the mental state that first-degree murder presupposes.

Id. at 640-41, 111 S.Ct. 2491. Murder in the course of an underlying felony was considered an alternative means of satisfying the mental state that capital murder presupposed in Schad alongside the other alternative of premeditated murder. Clearly then, murder in the course of one felony is just such an alternative alongside the same murder in the course of another felony. Even though the Texas statute enhances this aggravating factor by an additional specific intent requirement, the same underlying mens rea element is being proved in both instances to aggravate a murder to capital murder. The same significant indicators of what Justice Souter explained that we as a people regard as “fundamentally fair and rational ways of defining criminal offenses” draw us to the same conclusion in the instant case. Id. at 643, 111 S.Ct. 2491. Therefore, this Court denies Petitioner’s eighth ground of habe-as corpus relief.

D. Claimed Ex Post Facto Application denying Circumstantial Evidence instruction.

In his ninth ground for federal habeas corpus relief, Petitioner claims that his rights guaranteed by the principles included within the federal constitutional Ex Post Facto Clause, U.S. Const, art. I, section 10, were violated by the refusal of the state courts to require a jury charge on circumstantial evidence. (Am.Pet., p. 63). This claim is without merit.

At the trial, Reed’s attorneys objected “to the charge failing to include an instruction on circumstantial evidence and the law of circumstantial evidence standard that the Jury should apply with regard to a circumstantial evidence case.” (SOF XXII, p. 137.) The trial court denied this objection. (SOF XXII, pp. 139-40.) Reed again presented this objection in his direct appeal, arguing that the state appellate court should not interpret the law to hold that such an instruction was no longer required, as that would then constitute a violation of the prohibition on ex post facto laws. (Brief for Appellant, pp. 87-88.) However, the Texas Court of Criminal Appeals simply denied relief, stating that “[j]ury instructions on circumstantial evidence are no longer required under Texas law.” Reed v. State, No. 69,292, slip op. at 73 (citing Hankins v. State, 646 S.W.2d 191, 197 (Tex.Cr.App.l983)(opinion on reh’g)).

In both his state and federal applications for writ of habeas corpus, Reed argues that the type of instruction he received in his first trial should have also been given in his second trial, and that the failure of the state courts to do so constituted a violation of the constitutional prohibition of ex post facto laws. (State habeas record “SHR”, pp. 84-89; Am. Pet., pp. 62-66.) This argument relies upon the fourth Colder category of prohibited ex post facto laws, which Reed claims was violated by the intervening opinion of the Texas Court of Criminal Appeals in Hankins, which eliminated an instruction and thereby “worked a change substantially reducing the prosecution’s burden” of proof. (Am. Pet., p. 65.) In her answer, Respondent countered that the fourth category of ex post facto violations listed by the Supreme Court in Colder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), was no longer a valid prohibition, but that, even if it was, the intervening state decision did not diminish the prosecution’s burden of proof; “It simply abolished a jury instruction which was confusing and incorrect while leaving unchanged the State’s ultimate burden of proof.” (Ans., p. 31.) None of these arguments accurately present the correct standard of review for the retroactive application of judicial, as opposed to legislative, action.

The express prohibitions of the Ex Post Facto Clause apply to legislative action. In Frank v. Mangum, the Supreme Court held that “the constitutional prohibition: ‘No state shall ... pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts,’ as its terms indicate, is directed against legislative action only, and does not reach erroneous or inconsistent decisions by the courts.” 237 U.S. 309, 344, 35 S.Ct. 582, 594, 59 L.Ed. 969 (1915). In borrowing principles from the Ex Post Facto Clause to hold that the Due Process Clause of the Fourteenth Amendment prohibits the “unforeseeable judicial enlargement of a criminal statute, applied retroactively,” the Supreme Court in Bouie v. City of Columbia, 378 U.S. 347, 353-54, 84 S.Ct. 1697, 1702-03, 12 L.Ed.2d 894 (1964), stated

An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’ Calder v. Bull, 3 Dall. 386, 390, 1 L.Ed. 648. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, 283 U.S. 553, 565, 51 S.Ct. 582, 586, 75 L.Ed. 1264 (1931). The fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred,’ Hall, General Principles of Criminal Law (2d ed.1960), at 58 — 59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect. Id., at 61.

(Footnote omitted.) This case recognized that the Due Process Clause prohibited courts from interpreting criminal statutes in such a way that they fail to give “fair warning” of the conduct that the statute makes a crime. Id. at 350-51, 84 S.Ct. 1697. In doing so, the Supreme Court incorporated into the protections of the Due Process Clause three of the four Calder categories of prohibited ex post facto laws.

In Calder, Justice Chase stated that “[t]he prohibition, ‘that no state shall pass any ex post facto law,’ necessarily requires some explanation; for, naked and without explanation, it is unintelligible, and means nothing.” Calder, 3 U.S. at 3