Goeke v. Branch, 514 U.S. 115, 3 (1995) (per curiam)

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Cite as: 514 U. S. 115 (1995)

Per Curiam

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 suggested 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 preappeal 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. 383, 388-390 (1994). Although a court need not entertain the defense if the State has not raised it, see Schiro v. Farley, 510 U. S. 222, 229 (1994); Godinez v. Moran, 509 U. S. 389, 397, n. 8 (1993), a court must apply it if it was raised by the State, Caspari, supra, at 389.

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 retroactive. Teague v. Lane." App. to Pet. for Cert. 99 (citation 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 omitted). Con-


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