Henry Arthur Drake v. Ralph Kemp, Warden

JAMES C. HILL, Circuit Judge,

specially concurring:

I concur in the judgment of the court because the instruction in this case violated the rule articulated by this circuit in Davis v. Kemp, 752 F.2d 1515 (11th Cir.1985) (en banc), and by the Supreme Court in Francis v. Franklin, — U.S. -, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). I reiterate my view that Davis, and now Franklin, represent new rules of law extending the case of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) to a set of facts with which that case was unconcerned. See Davis, 752 F.2d at 1522 (Hill, J.,…