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SUPREME COURT OF THE UNITED STATES
BRYAN GOEKE, SUPERINTENDENT, RENZ COR-
RECTIONAL CENTER v. LYNDA RUTH BRANCH
on petition for writ of certiorari to the united
states court of appeals for the eighth circuit
No. 94-898.  Decided March 20, 1995

  Per Curiam.
  In this case, the Eighth Circuit granted habeas relief
on the ground that it is a violation of Fourteenth
Amendment due process for a state appellate court to
dismiss the appeal of a recaptured fugitive where there
is no demonstrated adverse effect on the appellate
process.  The court declined to consider whether applica-
tion of its ruling in respondent's case would violate the
principle of Teague v. Lane, 489 U. S. 288 (1989)
(plurality opinion), concluding the State had waived that
argument.  The State raised the Teague bar, and
application of the Eighth Circuit's novel rule violates
Teague's holding.  For this reason, certiorari is granted
and the judgment is reversed.
  In 1986, a Missouri jury convicted Lynda Branch of
the first-degree murder of her husband.  On retrial after
the Missouri Court of Appeals reversed her conviction
because of an error in the admission of evidence, the
jury again convicted her.  Branch moved for a new trial,
and the trial court scheduled a hearing for April 3,
1989, to consider this motion and to sentence her.
Before the hearing, however, Branch, who was free on
bail, took flight to a neighboring county.  She was re-
captured on April 6, 1989, and sentenced to life impris-
onment without possibility of parole.
  Branch filed a timely notice of appeal on direct review
and an appeal of the trial court's denial of her motion
for post-conviction relief.  In 1991, the Missouri Court of
Appeals consolidated and dismissed the appeals under
Missouri's well-established fugitive dismissal rule which
provides that a defendant who attempts to escape justice
after conviction forfeits her right to appeal.  State v.
Branch, 811 S. W. 2d 11, 12 (Mo. App. 1991) (citing
State v. Carter, 98 Mo. 431, 11 S. W. 979 (1889)).
-[E]ven in the absence of prejudice to the state,- the
court explained, -the dismissal was justified by a more
fundamental principle: preservation of public respect for
our system of law.-  811 S. W. 2d at 12.  Branch did
not seek review in this Court.
  On petition for federal habeas relief under 28 U. S. C.
2254, Branch alleged that the dismissal of her consoli-
dated appeal violated due process.  The District Court
undertook what it termed a procedural due process
analysis under the framework set forth in Mathews v.
Eldridge, 424 U. S. 319, 335 (1976), and denied relief.
App. to Pet. for Cert. 17, 22-24.  Branch appealed to the
Court of Appeals for the Eighth Circuit, arguing she had
stated a procedural due process violation.  For the first
time, at oral argument, the Eighth Circuit panel sug-
gested the claim was a substantive, not a procedural due
process claim.  Id., at 137.  Branch's counsel, of course,
welcomed the suggestion.  On that ground, a divided
panel held that dismissal of an appeal where pre-appeal
flight had no adverse effect on the appellate process
violated the defendant's substantive rights under the
Fourteenth Amendment.  After the Eighth Circuit denied
the State's motion for rehearing en banc, the majority
modified its opinion to explain that it would not confront
the applicability of Teague because the State had waived
the point.  Branch v. Turner, 37 F. 3d 371, 374-375
(1994).
  The application of Teague is a threshold question in a
federal habeas case.  Caspari v. Bohlen, 510 U. S. ___,
___ (1994) (slip op., at 4-5).  Although a court need not
entertain the defense if the State has not raised it, see
Schiro v. Farley, 510 U. S. ___, ___ (1994) (slip op., at
6-8); Godinez v. Moran, 509 U. S. ___, ___, (1993) (slip
op., at 7-8, n. 8), a court must apply it if it was raised
by the State, Caspari, supra, at ___ (slip op., at 5).
  The State's Teague argument was preserved on this
record and in the record before the Court of Appeals.  In
the District Court, the State argued that respondent's
due process claim -is barred from litigation in federal
habeas corpus unless the Court could say, as a threshold
matter, that it would make its new rule of law retroac-
tive.  Teague v. Lane.-  App. to Pet. for Cert. 99 (cita-
tion omitted).  In its brief on appeal, the State pointed
out that it had raised the Teague issue before the
District Court, see Branch, supra, at 374, and argued
that if the court were to decide that a constitutional rule
prohibited dismissal, -such a conclusion could not be
enforced in this collateral-attack proceeding consistently
with the principles set forth in Teague v. Lane, and its
progeny,- App. to Pet. for Cert. 129, n. 5 (citation omit-
ted).  Confronted for the first time at oral argument
with a substantive due process claim, the State reas-
serted that -the prohibition of Teague against Lane on
the enforcement of new rules of constitutional law for
the first time in a collateral attack proceeding in federal
court applies with full force to this case.-  Id., at 152.
The next five pages of the record are devoted to the
court's questions and the State's responses regarding the
Teague issue.  Id., at 153-157.
  This record supports the State's position that it raised
the Teague claim.  The State's efforts to alert the Eighth
Circuit to the Teague problem provided that court with
ample opportunity to make a reasoned judgment on the
issue.  Cf. Webb v. Webb, 451 U. S. 493, 501 (1981)
(federal claim properly raised where there is -no doubt
from the record that [the claim] was presented in the
state courts and that those courts were apprised of the
nature or substance of the federal claim-).  The State
did not waive the Teague issue; it must be considered
now; and it is dispositive.  See Caspari, supra, at ___
(slip op., at 2-4); Gilmore v. Taylor, 508 U. S. ___, ___
(1993) (slip op., at 4-6).
  A new rule for Teague purposes is one where -the
result was not dictated by precedent existing at the time
the defendant's conviction became final.-  Caspari, supra,
at ___ (slip op., at 5-6) (quoting Teague, 489 U. S., at
301) (emphasis deleted); Gilmore, supra, at ___ (slip op.,
at 2-4); Graham v. Collins, 506 U. S. ___, ___ (1993)
(slip op., at 4-6).  The question is -`whether a state
court considering [the defendant's] claim at the time his
conviction became final would have felt compelled by
existing precedent to conclude that the rule [he] seeks
was required by the Constitution.'-  Caspari, supra, at
___ (slip op., at 6) (quoting Saffle v. Parks, 494 U. S.
484, 488 (1990)).
  Neither respondent nor the Eighth Circuit identifies
existing precedent for the proposition that there is no
substantial basis for appellate dismissal when a defend-
ant fails to appear at sentencing, becomes a fugitive,
demonstrates contempt for the legal system, and imposes
significant cost and expense on the State to secure her
recapture.  The Eighth Circuit opined that a substantive
due process violation arose from conduct that was
-arbitrary,- -conscience-shocking,- -oppressive in a
constitutional sense,- or -interferes with fundamental
rights,- and that dismissal of Branch's appeal fell within
that category.  Branch, supra, at 375.  These arguments
are not based upon existing or well-settled authority.
  Respondent and the Court of Appeals rely for the most
part on Ortega-Rodriguez v. United States, 507 U. S.
___, ___ (1993).  There, the Court held, as a matter of
its supervisory power to administer the federal court
system, that absent some adverse effect of pre-appeal
flight on the appellate process, -the defendant's former
fugitive status may well lack the kind of connection to
the appellate process that would justify an appellate
sanction of dismissal.-  Id., at ___ (slip op., at 18).  The
case was decided almost two years after Branch's convic-
tion became final.  The rationale of the opinion, more-
over, was limited to supervisory powers; it did not sug-
gest that dismissal of a fugitive's appeal implicated con-
stitutional principles.  Nor was that suggestion made in
any of our earlier cases discussing the fugitive dismissal
rule in the federal or state courts.  See Estelle v. Dor-
rough, 420 U. S. 534 (1975); Molinaro v. New Jersey,
396 U. S. 365 (1970); Allen v. Georgia, 166 U. S. 138
(1897); Bohanan v. Nebraska, 125 U. S. 692 (1887);
Smith v. United States, 94 U. S. 97 (1876).  The Ortega-
Rodriguez dissent reinforced this point: -There can be no
argument that the fugitive dismissal rule . . . violates
the Constitution because a convicted criminal has no
constitutional right to an appeal.-  507 U. S., at ___
(slip op., at 2) (Rehnquist, C. J., dissenting) (citation
omitted).
  The Eighth Circuit did rely on Evitts v. Lucey, 469
U. S. 387 (1985), where the Court held that the Due
Process Clause, guaranteeing a defendant effective
assistance of counsel on his first appeal as of right, did
not permit the dismissal of an appeal where the failure
to comply with appellate procedure was the result of
ineffective assistance of counsel.  The Court did not
hold, as respondent argues and the Eighth Circuit
seemed to conclude, that due process requires state
courts to provide for appellate review where the would-
be appellant has not satisfied reasonable preconditions
on her right to appeal as a result of her own conduct.
Evitts turned on the right to effective assistance of
counsel; it left intact -the States' ability to conduct
appeals in accordance with reasonable procedural rules.-
Id., at 398-399.
  Branch argues that even if Teague does apply, the rule
announced by the Eighth Circuit falls into Teague's
exception for -`watershed rules of criminal procedure'
implicating the fundamental fairness and accuracy of the
criminal proceeding.-  Saffle v. Parks, supra, at 495
(citing Teague, supra, at 311).  The new rule here is not
among the -small core of rules requiring observance of
those procedures that . . . are `implicit in the concept of
ordered liberty.'-  Graham, supra, at ___ (slip op., at
16-17) (some internal quotation marks omitted and
citations omitted).  Because due process does not require
a State to provide appellate process at all, Evitts, supra,
at 393; McKane v. Durston, 153 U. S. 684, 687 (1894),
a former fugitive's right to appeal cannot be said to -`be
so central to an accurate determination of innocence or
guilt,'- Graham, supra, at ___ (slip op., at 17) (quoting
Teague, supra, at 313), as to fall within this exception
to the Teague bar.
  As we explained in Allen v. Georgia, supra, at 140,
where the Court upheld against constitutional attack the
dismissal of the petition of a fugitive whose appeal was
pending, -if the Supreme Court of a State has acted in
consonance with the constitutional laws of a State and
its own procedure, it could only be in very exceptional
circumstances that this court would feel justified in
saying that there had been a failure of due legal
process.  We might ourselves have pursued a different
course in this case, but that is not the test.-  The
Eighth Circuit converted a rule for the administration of
the federal courts into a constitutional one.  We do not
(and we may not, in the face of the State's invocation of
Teague) reach the merits of that contention.  The result
reached by the Court of Appeals was neither dictated
nor compelled by existing precedent when Branch's
conviction became final, and Teague prevents its applica-
tion to her case.  The petition for certiorari is granted
and the judgment of the Court of Appeals is reversed.

                            It is so ordered.