352
Blackmun, J., dissenting
lieve 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 (quoting Mackey v. United States, 401 U. S. 667, 675 (1971) (Harlan, J., concurring in judgments in part and dissenting 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 suggesting 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.
Justice Blackmun, with whom Justice Stevens joins, dissenting.
The Court today holds that it cannot decide whether Kevin Taylor has suffered a denial of due process, because Teague v. Lane, 489 U. S. 288 (1989), and its progeny preclude the announcement or application of a new rule on federal habeas corpus. The Court further concludes, as it must in order to avoid reaching the merits, that neither exception to Teague's proscription of a new rule applies in this case. See ante, at
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