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SUPREME COURT OF THE UNITED STATES
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No. 91-1738
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JERRY D. GILMORE, PETITIONER v. KEVIN
TAYLOR
on writ of certiorari to the united states court
of appeals for the seventh circuit
[June 7, 1993]

  Justice O'Connor, with whom Justice White joins,
concurring in the judgment.
  Kevin Taylor admitted that he had killed Scott
Siniscalchi.  He contended, however, that he had -act[ed]
under a sudden and intense passion resulting from serious
provocation by [Siniscalchi].-  Ill. Rev. Stat., ch. 38, -9-2
(1985).  If Taylor's account is to be believed, then, under
the law of the State of Illinois, he is not guilty of murder
but rather of manslaughter.  Ibid.  At trial, Taylor took
the stand and admitted to the two elements of murder.
He asked only that the jury consider his state of mind
when he acted and convict him of voluntary manslaughter,
acquitting him of murder.  Illinois law is clear that this
put the jury to a choice: Taylor could be convicted only of
manslaughter or murder-not of both.  Indeed, because
Taylor produced sufficient evidence to raise the defense
of sudden passion, Illinois law required the State to
negate Taylor's defense beyond a reasonable doubt.  People
v. Reddick, 123 Ill. 2d 184, 197, 526 N. E. 2d 141, 146
(1988).  As a result, the jury should not have been
permitted to convict Taylor of murder if there was so
much as a reasonable possibility that Taylor's manslaugh-
ter defense had merit.  Ibid.
  In Falconer v. Lane, 905 F. 2d 1129 (1990), the Court
of Appeals for the Seventh Circuit held that instructions
similar to those given at Taylor's trial did not comport
with Illinois law and were ambiguous at best.  In Taylor's
case, according to the Court of Appeals, this ambiguity
resulted in a reasonable likelihood that the jury misunder-
stood those instructions, and that once it found Taylor
guilty of the two elements of murder (to which Taylor had
admitted), the jury simply stopped deliberating without
considering the possibility that Taylor was guilty only of
manslaughter.  954 F. 2d 441, 442 (CA7 1992).  In other
words, the court concluded that there was a reasonable
likelihood that the jury never considered Taylor's defense
of sudden and provoked passion, even though the trial
court thought there was sufficient evidence of the defense
for the issue to reach the jury and even though the State
bore the burden of proving its absence beyond a reason-
able doubt.  This, the court held, violated due process.
Id., at 450.
  The Court of Appeals, however, understood that our
decision in Teague v. Lane, 489 U. S. 288 (1989) (plurality
opinion), bars the announcement of new rules on habeas
corpus.  954 F. 2d, at 451.  Accordingly, it examined our
precedents to determine whether its decision was -dic-
tated- by our prior decisions.  In so doing, the court con-
strued our cases in Boyde v. California, 494 U. S. 370
(1990), and Connecticut v. Johnson, 460 U. S. 73 (1983)
(plurality opinion), as compelling its conclusion that the
instructions used in Taylor's case violated due process.
954 F. 2d, at 452-453.  It therefore held that its rule was
not -new- and ordered that a writ of habeas corpus issue
unless Taylor was retried within 120 days.  Id., at 453.
  I agree with the majority today that the rule the Court
of Appeals announced was at least susceptible to debate
among reasonable jurists.  See Butler v. McKellar, 494
U. S. 407, 415 (1990).  For that reason, I agree that
under Teague a federal court cannot issue a writ of
habeas corpus based on the ambiguous instructions in
dispute here.  In so deciding, however, I would not reach
out to decide the merits of the rule nor would I construe
our cases so narrowly as the Court does.  For that reason,
I write separately.
  Prior to Boyde, we phrased the standard for reviewing
jury instructions in a variety of ways, not all of which
were consistent.  Compare Mills v. Maryland, 486 U. S.
367, 384 (1988) (constitutional error occurs when there is
a -substantial probability- the instructions precluded
consideration of constitutionally relevant evidence) with
Sandstrom v. Montana, 442 U. S. 510, 523 (1979) (consti-
tutional error occurs when jurors -could reasonably have
concluded- that the instructions created a presumption of
guilt on an element of the crime).  In Boyde, we clarified
that when the claim is that a single jury -instruction is
ambiguous and therefore subject to an erroneous interpre-
tation,- the proper inquiry is -whether there is a reason-
able likelihood that the jury has applied the challenged
instruction in a way that prevents the consideration of
constitutionally relevant evidence.-  494 U. S., at 380.  As
the Court notes, we chose the more restrictive standard
in that case, and, as a result, Boyde itself did not state
a new rule.  The Court, however, finds Boyde inapplicable
because it was a capital case.  Ante, at 8.
  It is true that we clarified the standard for reviewing
jury instructions in a capital case, but Boyde did not
purport to limit application of that standard to capital
cases, nor have we so limited it.  In Estelle v. McGuire,
502 U. S. ___ (1991), for example, the Court reviewed an
ambiguous state law instruction in a noncapital case.
Although I disagreed with the Court's conclusion regarding
the effect of that ambiguous instruction, see id., at ___
(O'Connor, J., concurring in part and dissenting in part),
I agreed with the standard it used in reaching its conclu-
sion: -`whether there is a reasonable likelihood that the
jury has applied the challenged instruction in a way' that
violates the Constitution.-  Id., at ___ (quoting Boyde v.
California, supra).  It is clear that the -reasonable likeli-
hood- standard of Boyde applies to noncapital cases.
  Although the Court's opinion today might be read as
implying that erroneous jury instructions may never give
rise to constitutional error outside of capital cases, ante,
at 8, such an implication would misconstrue our prece-
dent.  When the Court states that -instructions that
contain errors of state law may not form the basis for
federal habeas relief,- ibid. (citing Estelle v. McGuire,
supra), it must mean that a mere error of state law, one
that does not rise to the level of a constitutional violation,
may not be corrected on federal habeas.  Some erroneous
state-law instructions, however, may violate due process
and hence form the basis for relief, even in a noncapital
case.  In McGuire, a majority of the Court found that the
particular erroneous instruction at issue did not give rise
to a constitutional violation, but the very fact that the
Court scrutinized the instruction belies any assertion that
erroneous instructions can violate due process only in
capital cases.
  We have not held that the Eighth Amendment's require-
ment that the jury be allowed to consider and give effect
to all relevant mitigating evidence in capital cases, see,
e.g., Boyde, supra, applies to noncapital cases.  Neverthe-
less, we have held that other constitutional amendments
create -constitutionally relevant evidence- that the jury
must be able to consider.  See, e.g., Rock v. Arkansas, 483
U. S. 44, 51 (1987) (-[t]he right to testify on one's own
behalf at a criminal trial has sources in several provisions
of the Constitution-); Delaware v. Van Arsdall, 475 U. S.
673, 678-679 (1986) (Rehnquist, J.) (-the Confrontation
Clause guarantees an opportunity for effective cross-
examination- (internal quotation marks omitted)).  The
category of -constitutionally relevant evidence- is not
limited to capital cases.
  In this case, the question is not whether application of
the -reasonable likelihood- standard of Boyde is a new
rule.  It is not.  See ante, at 8; supra, at 3.  Nor is the
question whether jury instructions may be so erroneous
under state law as to rise to the level of a constitutional
violation.  It is clear to me that they may.  See, e.g.,
McGuire, 502 U. S., at ___; id., at ___ (O'Connor, J.,
concurring in part and dissenting in part).  The question
is whether reasonable jurists could disagree over whether
the particular erroneous instruction at issue here-which
we assume created a reasonable likelihood that the jury
did not consider Taylor's affirmative defense once it
determined the two elements of murder were
established-violated the Constitution.
  Our cases do not provide a clear answer to that ques-
tion.  Due process, of course, requires that the State prove
every element of a criminal offense beyond a reasonable
doubt.  In re Winship, 397 U. S. 358 (1970).  This
straightforward proposition has spawned a number of
corollary rules, among them the rule that the State may
not -us[e] evidentiary presumptions in a jury charge that
have the effect of relieving the State of its burden of
persuasion beyond a reasonable doubt of every essential
element of a crime.-  Francis v. Franklin, 471 U. S. 307,
313 (1985).  Accord, Rose v. Clark, 478 U. S. 570, 580
(1986); Connecticut v. Johnson, 460 U. S. 73, 84-85 (1983)
(plurality opinion); Sandstrom, supra, at 521-523.  The
Court of Appeals extended these cases-which themselves
are the -logical extension- of Winship, see Rose, supra, at
580-one step further.  It read them as standing for the
proposition that any instruction that leads -the jury to
ignore exculpatory evidence in finding the defendant guilty
of murder beyond a reasonable doubt- violates due proc-
ess; it disregarded as meaningless the distinction between
elements of the offense and affirmative defenses.  954 F.
2d, at 453.
  Our opinions in Martin v. Ohio, 480 U. S. 228 (1987),
and Patterson v. New York, 432 U. S. 197 (1977), however,
make clear that at least in some circumstances the
distinction is not meaningless.  In Patterson, we held that
the Due Process Clause did not require the State to prove
the absence of the affirmative defense of extreme emo-
tional disturbance beyond a reasonable doubt; the State
instead could place the burden of proving the defense on
the defendant.  Id., at 210.  We reaffirmed this holding
in Martin, supra, and rejected petitioner's claim that
requiring her to prove self-defense by a preponderance of
the evidence shifted to petitioner the burden of disproving
the elements of the crime.  Id., at 233-234.  (Although
Martin was decided after Taylor's conviction became final,
it, like Boyde, was not a new rule.)
  This case differs from Martin and Patterson in at least
two ways.  First, Taylor had only the burden of produc-
tion and not the burden of persuasion; once he produced
sufficient evidence for the issue to go to the jury, the
State was required to prove the absence of his defense
beyond a reasonable doubt.  See Reddick, 123 Ill. 2d, at
197, 526 N. E. 2d, at 146.  Second, Taylor's contention
does not concern the allocation of burdens of proof; he
argues that the jury did not consider his defense at all.
Nevertheless, I cannot say that our prior cases compel the
rule articulated by the Court of Appeals.  At the very
least, Martin and Patterson confirm that the rule the
Court of Appeals promulgated here goes beyond what we
hitherto have said the Constitution requires.
  The purpose of Teague is to promote the finality of state
court judgments.  When a state court makes a -reason-
able, good-faith interpretatio[n]- of our precedents as they
exist at the time of decision, that decision should not be
overturned on federal habeas review.  Butler, 494 U. S.,
at 413-414.  Whatever the merits of the Court of Appeals'
constitutional holding, an issue that is not before us, the
Illinois courts were not unreasonable in concluding that
the error in Taylor's instructions was not constitutional
error.  The State is not required to allow the defense of
sudden and provoked passion at all, and the State is free
to allow it while requiring the defendant to prove it.
Martin, supra; Patterson, supra.  It is not a begrudging
or unreasonable application of these principles to hold that
jury instructions that create a reasonable likelihood the
jury will not consider the defense do not violate the
Constitution.
  Because our cases do not resolve conclusively the
question whether it violates due process to give an
instruction that is reasonably likely to prevent the jury
from considering an affirmative defense, or a hybrid
defense such as the State of Illinois permits, resolution of
the issue on habeas would require us to promulgate a new
rule.  Like the Court, I believe that this rule does not fall
within either of Teague's exceptions to nonretroactive
application of new rules on habeas.  The rule does not
place any conduct, much less -`primary, private individual
conduct[,] beyond the power of the criminal law-making
authority to proscribe.'-  Teague, 489 U. S., at 311 (quot-
ing Mackey v. United States, 401 U. S. 667, 675 (1971)
(Harlan, J., concurring in judgments in part and dissent-
ing in part)).  Nor does the rule embody a -procedur[e]
without which the likelihood of an accurate conviction is
seriously diminished.-  489 U. S., at 313.  As noted above,
the Constitution does not require the State to provide an
affirmative defense to murder; a rule that, once such a
defense is provided, the instructions must not prevent the
jury from considering it is -a far cry from the kind of
absolute prerequisite to fundamental fairness that is
implicit in the concept of ordered liberty.-  Id., at 314
(internal quotation marks omitted).
  The rule the Court of Appeals promulgated is not
compelled by precedent, nor does it fall within one of the
two Teague exceptions.  I therefore agree with the Court
that the Court of Appeals erred in applying that rule in
this case.  I do not join the Court's opinion, however,
because it could be read (wrongly, in my view) as suggest-
ing that the Court of Appeals' decision in this case applied
not only a new rule, but also an incorrect one.  I would
reserve that question until we address it on direct review.