Appeal from the United States District Court for the Eastern District of Missouri.

Prior Report: 203 F.3d 538.

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

RICHARD S. ARNOLD, Circuit Judge, concurring.

I agree that the petition for rehearing en banc should be denied. Because I dissented from the panel opinion, this conclusion needs to be explained.

My dissent focused on the action of the Missouri Supreme Court in denying Mr. Johns's motion for recall of mandate without explanation. On its face, the action appeared to be an unexplained, and possibly arbitrary, refusal to give Mr. Johns the benefit of State v. O'Brien, 857 S.W.2d 212 (Mo. 1993) (en banc), which overruled the Supreme Court of Missouri's decision in the Johns case itself. In the course of my dissent, I stated that I was not aware of any authority that would justify denying to Mr. Johns the beneficial effect of O'Brien.

Precisely such authority has come to my attention (as it happens, in connection with another case) after the filing of the panel opinion and the dissent in this case. In Ferguson v. State, 887 S.W.2d 585 (Mo. 1994) (en banc), the Supreme Court of Missouri explained that O'Brien is not fully retroactive. In particular, Ferguson holds that O'Brien applies retroactively only to those cases still pending on direct appeal at the time O'Brien was handed down. This category does not include Johns. According to Ferguson, O'Brien does not apply retroactively to cases pending on collateral review. In these circumstances, I believe I now understand why the Missouri Supreme Court denied Mr. Johns's motion to recall the mandate. His conviction had already become final on direct appeal, and he was therefore not entitled, under Ferguson, to the benefit of the O'Brien decision.1

There are still uncertainties about this case. As I attempted to show in my dissenting opinion, the O'Brien opinion indicates that Johns was incorrect when decided, and O'Brien does not seem to announce a new principle of Missouri law. In general, a state court may decide the extent to which its own decisions are to be given retroactive effect. Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-66, 77 L. Ed. 360, 53 S. Ct. 145 (1932). If a state court decides that a decision is to be applied retroactively only to cases still pending on direct appeal, and not to those on collateral review, the federal Constitution does not stand as an obstacle, at least as I presently understand the law. This, or something like it, is the rule in the federal courts, see, e.g., Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), and the Due Process Clause of the Fourteenth Amendment presumably would impose no more stringent requirements on a state. Further proceedings in Fiore v. White, 528 U.S. 23, 145 L. Ed. 2d 353, 120 S. Ct. 469 (1999), may explain or modify these principles, but for now they seem fairly well established.

All this being so, I am no longer confident of the basis for my dissenting opinion, and I vote to deny the petition for rehearing en banc.