We granted a habeas corpus application filed by the appellant, Marcus Luke, to consider whether the habeas court erred 1 in ruling that Brewer v. State1 announced a new rule of criminal procedure, as opposed to a new rule of substantive criminal law, and 2 in applying the so-called “pipeline” rule2 to conclude that Luke could not rely on Brewer to support his claim that the State convicted him without proving an element of the crime beyond a reasonable doubt. Under the pipeline rule, a new rule of criminal procedure generally applies only to those cases on direct review or not yet final, and would not apply to cases on collateral review, such as Luke’s habeas petition. For the following reasons, we conclude that our decision in Brewer announced a new rule of substantive criminal law, as it placed certain conduct beyond the reach of the aggravated sodomy statute that before that decision could have led to criminal liability, and that the habeas court erred by applying the pipeline rule to Luke’s claim regarding Brewer. Accordingly, we reverse the habeas court’s judgment and remand the case to it for proceedings consistent with this opinion.
1. Luke was convicted of aggravated sodomy involving a victim under the age of fourteen, and on appeal, Luke contended that the evidence was insufficient to support his conviction because the State had failed to prove the element of force necessary to convict him of aggravated sodomy. The Court of Appeals disagreed, holding that the element of force was presumed by a showing that the defendant committed an act of sodomy on an underage victim and that a showing of actual force was unnecessary to support the conviction.3 In Brewer,4 however, we overruled Luke and numerous other cases, and held that “force is a separate essential element which the State is required to prove to obtain a conviction for aggravated sodomy against a victim under the age of consent;”5 that the State could no longer prove force by showing only an act of sodomy on an underage victim;6 but that instead the State had to prove force by acts of force, which could include acts of intimidation and mental coercion, against the victim.7
