IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-7630 _____________________
WILLIE ALBERT SMITH,
Petitioner-Appellee,
v.
EDDIE LUCAS, Commissioner, Mississippi Department of Corrections, ET AL.,
Respondents-Appellants.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Mississippi _________________________________________________________________ (December 6, 1993)
Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.
KING, Circuit Judge:
The Commissioner of the Mississippi Department of
Corrections (Respondent) appeals an order of the district court
granting a writ of habeas corpus in favor of the petitioner,
Willie Albert Smith, based upon the failure of the State of
Mississippi to comply with the district court's order of November
23, 1992. In that order, the district court had declared that it
would grant a writ of habeas corpus "as to Smith's death
sentence" unless the State initiated certain proceedings within
six months to correct the constitutional infirmity in that
sentence. When the deadline expired, the State had failed to commence the required proceedings. The district court granted
the writ, directing Smith's death sentence to be vacated and
ordering the State to impose upon Smith a sentence of life
imprisonment. On appeal from that order, the State contends,
inter alia, that the district court exceeded its authority in
requiring the State to resentence Smith to life imprisonment. We
agree with the State that the district court was without the
power to direct "that the State of Mississippi impose upon
[Smith] a sentence of life imprisonment," and thus we modify the
district court's order to excise the quoted language. We find no
error in the other determinations of the district court and thus
affirm the judgment of the district court as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner Willie Albert Smith was tried for the murder of
Shirley Roberts, a convenience store manager, in the Circuit
Court of the First Judicial Circuit of Hinds County,
Mississippi.1 The prosecution introduced "awesome"
circumstantial evidence of Smith's guilt, as conceded by Smith's
own attorney, as well as the testimony of two "eyewitnesses," who
claimed to have seen Smith forcing a woman into a red Pinto in
the convenience store parking lot around the time of the victim's
abduction. Smith v. Black, 904 F.2d 950, 957-58 (5th Cir. 1990)
("Smith I"). The jury convicted Smith of the murder of Shirley
1 The lengthy factual and procedural history is set forth in Smith v. Black, 904 F.2d 950 (5th Cir. 1990). Only the facts pertinent to the instant appeal are recited in this opinion.
2 Roberts during the course of a robbery, a capital crime in
Mississippi. Id. at 959.
During the sentencing phase2, the prosecution introduced
evidence of rape and of manual strangulation, and the jury found
three aggravating circumstances: (i) that the murder was
committed while Smith was engaged in the commission of robbery,
(ii) that the murder was committed for pecuniary gain, and
(iii) that the murder was "especially heinous, atrocious, or
cruel." Id. The jury also found beyond reasonable doubt that
the aggravating circumstances outweighed the mitigating
circumstances. Id. Consequently, Smith was sentenced to death.
A. This Court's Mandate
Smith pursued several post-conviction remedies in the state
court3 before commencing a habeas proceeding in the District
2 Following a capital murder conviction, the jury in the Mississippi system proceeds to the sentencing phase. For a convicted capital defendant to receive the death sentence, "the jury must find at least one of eight statutory aggravating factors, and it must determine that the aggravating factor or factors are not outweighed by the mitigating circumstances, if any." Stringer v. Black, ___ U.S. ___, 112 S. Ct. 1130, 1134 (1992) (citing Miss. Code Ann. § 99-19-101). 3 After his motion for new trial was denied, Smith pursued an automatic direct appeal to the Mississippi Supreme Court, which affirmed both the conviction and sentence. Although it modified its opinion on rehearing, Smith v. State, 419 So. 2d 563 (Miss. 1982), that court continued to affirm the state district court's judgment. Smith then obtained new counsel and petitioned the United States Supreme Court for a writ of certiorari on the basis of ineffective assistance of counsel and unlawful seizure of evidence, but this petition was denied by the Supreme Court, see Smith v. Mississippi, 460 U.S. 1047 (1983). Smith subsequently filed a petition for writ of error coram nobis, which was denied by the Mississippi Supreme Court almost solely on the basis of procedural bars, and that court subsequently denied Smith's motion for rehearing. Smith v. State, 434 So. 2d
3 Court for the Southern District of Mississippi on August 1, 1983.
This court entered a stay of execution and a stay of proceedings
in the district court until Smith's state court remedies were
exhausted. After Smith had exhausted his state remedies,4 he
amended his habeas petition, arguing, inter alia, that
Mississippi's use of the "especially heinous" aggravating
circumstance in the jury's deliberations as to his death sentence
was unconstitutional. The federal district court denied Smith's
habeas petition, as well as his motion to alter or amend the
judgment, Smith v. Thigpen, 689 F. Supp. 644 (S.D. Miss. 1988),
and this court affirmed. Smith I, 904 F.2d at 988. With respect
to the "especially heinous" aggravating circumstance, this court
noted that the Supreme Court had recently held the factor to be
unconstitutional in a context similar to the one presented in
Maynard v. Cartwright, 486 U.S. 356 (1988). In Maynard, the
Supreme Court invalidated an "indistinguishable" Oklahoma
212 (1983). 4 Smith then filed an application for writ of error coram nobis in the Mississippi Supreme Court on the basis that the two "eyewitnesses" had perjured themselves at trial. The Mississippi Supreme Court ordered an evidentiary hearing in the circuit court on the issue, In re Smith, 457 So. 2d 911 (Miss. 1984), but that court denied relief, and the Mississippi Supreme Court affirmed the denial of relief. Smith v. State, 492 So. 2d 260 (Miss. 1986).
While the second state post-conviction action was pending, Smith filed a third post-conviction motion in state court seeking collateral relief on the basis that the prosecutor had unconstitutionally excluded blacks from the jury and had failed to disclose certain evidence. This motion was also denied by the Mississippi Supreme Court, as well as Smith's motion for rehearing. Smith v. State, 500 So. 2d 973 (Miss. 1986).
4 statute, finding that the term "especially heinous, atrocious or
cruel" when used to define an aggravating factor for purposes of
capital sentencing was unconstitutionally vague absent an
appropriate limiting instruction. Id. at 363-64. In a related
decision styled Clemons v. Mississippi, the Court prohibited the
automatic affirmance of a death sentence where at least one valid
aggravating factor remained after another factor had been held to
be impermissible in those states, like Mississippi, which weigh
aggravating against mitigating factors for sentencing purposes.
494 U.S. 738, 752 (1990). Instead, the Court required either
that the appellate court reweigh the aggravating and mitigating
circumstances or find that the error of including the
unconstitutional aggravating factor was harmless beyond a
reasonable doubt. Id. at 750-52. Maynard and Clemons were both
relevant to Smith's claim for relief since the sentencing jury in
his case found the existence of two other valid aggravating
factors. This court considered itself to be precluded from
reaching the issue in the case presented, however, because
Smith's conviction had become final in 1983, several years before
the relevant Supreme Court decisions were rendered. Thus, it
determined that Smith could not take advantage of the "new
rules"5 announced in Maynard and Clemons. See Smith I, 904 F.2d
at 986.
5 See, e.g., Teague v. Lane, 489 U.S. 288 (1989) (prohibiting the retroactive application of "new rules" of constitutional procedure except in specific, limited situations which are not applicable in the case at bar).
5 Before the decision in Smith I was announced, Smith filed a
fourth petition for post-conviction relief in the Mississippi
Supreme Court on July 27, 1990, requesting that court to vacate
or set aside his death sentence on the basis of Maynard and
Clemons. The State responded on November 21, 1990, raising
various procedural bars to the determination of the Maynard and
Clemons claim and arguing that, even if the merits were reached,
the Mississippi Supreme Court itself could reweigh or perform a
harmless error examination without remanding for a new sentencing
proceeding. Smith's application is still pending before the
Mississippi Supreme Court.
Subsequently, the Supreme Court vacated the judgment
rendered by this court in Smith I and remanded for further
consideration in light of its contemporaneous decision in
Stringer v. Black, ___ U.S. ___, 112 S. Ct. 1130 (1992). See
Smith v. Black, ___ U.S. ___, 112 S. Ct. 1463 (1992) ("Smith
II"). Stringer involved an almost identical fact-setting in that
the death sentence of the petitioner in that case had also become
final prior to Maynard and Clemons. 112 S. Ct. at 1134-35. The
Court concluded that "the precedents even before Maynard and
Clemons yield[ed] a well-settled principle," and thus, the
decisions in tandem did not constitute a "new rule" for purposes
of Teague. Id. at 1140.
On remand of Smith II, and in accordance with the Supreme
Court's directive, this court applied the rules of Maynard and
Clemons and determined that the use of the "especially heinous"
6 aggravating circumstance without a limiting instruction rendered
Smith's death sentence constitutionally infirm -- specifically
holding that the claim had not been procedurally defaulted.
Smith v. Black, 970 F.2d 1383, 1388 (5th Cir. 1992) ("Smith
III"). However, this court permitted the death sentence in
Smith's case to
be salvaged if the state appellate court eliminated the invalid aggravating factor and reweighed the remaining valid factors against the mitigating factors, or if it determined that the use of the invalid factor was harmless beyond a reasonable doubt. . . . Should the State elect to initiate further proceedings in the Mississippi Supreme Court, that court still has the option of reweighing or performing a harmless error analysis as those procedures have been defined in Clemons and Wiley [v. Puckett, 969 F.2d 86 (5th Cir. 1992)].
Id. Accordingly, we directed the district court "to issue the
writ of habeas corpus unless the State of Mississippi initiates
appropriate proceedings in state court within a reasonable time
after the issuance of our mandate." Id. at 1389.
B. District Court Action on Remand
On remand from this court, the district court issued an
order in pertinent part as follows:
IT IS HEREBY ORDERED that the Court shall issue a writ of habeas corpus as to the Petitioner Willie Albert Smith's death sentence unless the State of Mississippi initiates proceedings to have the state court reweigh any aggravating and mitigating circumstances or conduct a harmless error analysis . . . by no later than May 23, 1993.
Ordered entered November 23, 1992 (the "November 23 Order").
This order gave the State six months to take appropriate action
as defined therein.
7 After the time-period had expired and the State had failed
to take the requisite action, Smith moved for entry of the writ
of habeas corpus. The State opposed the writ, claiming that it
had not received notice of the November 23 Order. Consequently,
it argued, the State was unaware of the deadline until after its
expiration. Alternatively, the State argued that it had complied
with the spirit of the district court's order since proceedings
were pending before the Mississippi Supreme Court -- proceedings
initiated by Smith more than two years before the November 23
Order -- to resolve the same issues contemplated in the November
23 Order.
The district court held that the State had received adequate
notice and that the pendency of Smith's two-year-old application
before the Mississippi Supreme Court was not sufficient to
constitute an initiation by the State of proceedings "to reweigh
any aggravating and mitigation circumstances or conduct a
harmless error analysis" as required by the November 23 Order.
Consequently, the lower court entered an order directing the
clerk of court to issue a writ of habeas corpus "directing
[Smith's] sentence of death to be vacated, and that the State of
Mississippi impose upon [Smith] a sentence of life imprisonment."
Order, entered July 9, 1993 (the "July 9 Order"). A writ of
habeas corpus was issued in accordance with the July 9 Order.
The State then moved, pursuant to Federal Rule of Civil
Procedure 59, to alter or amend the order granting the writ,
asserting the same grounds as before, and adding a claim that the
8 July 9 Order exceeded the district court's authority. The State
claimed that the writ amounted to impermissible revision of the
state court's sentence. The State argued that, even if the
district court had the authority to vacate the death sentence,
the court exceeded its authority in requiring Mississippi to
resentence Smith to life imprisonment. This motion was denied by
the district court, and a notice of appeal was immediately filed
by the State.
The State additionally sought a stay of the order granting
the writ pending its appeal, which motion was denied by the
district court. This court granted a stay and ordered an
expedited briefing schedule and oral argument.
II. ANALYSIS OF ARGUMENTS AND AUTHORITIES
The State requests a reversal of the district court's order
granting the habeas writ, upon the following bases: (i) the
proceedings currently pending before the Mississippi Supreme
Court were sufficient to comply with the mandate, and thus, the
lower court had no basis to issue the writ; and (ii) the district
court exceeded its authority in directing the Mississippi state
courts to commute Smith's sentence to life imprisonment.6
6 In its motion to stay the order granting the writ, the State had also complained that the district court improperly determined that the State had received notice of the November 23 Order. The district court noted several circumstances in support of this finding, including the facts that: (i) the docket sheet reflected proper service of the order upon the State, and (ii) the November 23 Order was referred to numerous times in a similar proceeding at which the State's same attorney was present. Moreover, the State was forewarned of the district court's order when it received this court's August 20, 1992, opinion in Smith III mandating that result. Consequently, and presumably because
9 Smith responds that the state court proceeding which he
initiated did not suffice to show compliance by the State with
the November 23 Order, especially where the State had filed a
response arguing for the application of various procedural bars,
which, if decided against Smith, would preclude the Mississippi
court from even reaching the constitutional reweighing or
harmless error analysis ordered to be performed by this court.
Moreover, Smith contends, the State's failure either to withdraw
or amend its response to reflect the ruling of this court negates
any claim of compliance. With respect to the extent of the
district court's authority, Smith advocates an estoppel-type
analysis, claiming that the writ may be used to preclude the
State from resentencing Smith to death.
A. Sufficiency of the State Court Proceedings
The State's first argument for reversing the district court
involves its claimed prior compliance with the November 23 Order.
The district court, however, held that the fortuitous
circumstance that Smith had previously filed a petition with the
Mississippi Supreme Court addressed to the issues raised in the
November 23 Order did not amount to compliance by the State with
the order. Consequently, the district court dismissed this
argument as being "without merit," but did not make specific
findings in this regard. The district court's finding that the
of the deference which this court must accord to part of the district court's finding in this regard under the clearly erroneous standard, the State has relegated this "lack of notice" argument to a footnote in its appellate brief.
10 proceedings before the Mississippi Supreme Court were
insufficient to comply with the November 23 Order is a legal
conclusion, reviewed de novo. Halferty v. Pulse Drug Co., Inc.,
864 F.2d 1185, 1188 (5th Cir. 1989). The decision is correct.
This court directed the State (through the district court) to
remedy the constitutional problem identified, and the State's
failure to take steps in a Mississippi court to do so clearly
does not comply with our mandate or the district court's order.
Even if we were to concede arguendo that the State could
avail itself of Smith's fourth post-conviction filing in the
Mississippi Supreme Court -- a difficult concession in view of
the requirement of exact compliance with our mandate7 -- the
State's failure to amend its response already on file with the
Mississippi Supreme Court to reflect this court's mandate and the
district court's order falls short of compliance. As Smith
points out, the State's response to his fourth Mississippi
petition includes a "myriad of threshold issues," which were
raised by the State in opposition to the petition and,
significantly, were never withdrawn by the State in response to
the District Court's November 23 Order.8 If these "threshold"
7 See, e.g., Gegenheimer v. Galan, 920 F.2d 307 (5th Cir. 1991) (On remand, the district court must comply with the mandate of the court of appeals and may not revisit any issues that the appellate court expressly or impliedly disposed of in its decision.); Newball v. Offshore Logistics, Int'l, 803 F.2d 821 (5th Cir. 1986) (The appellate mandate controls on all matters within its scope.). 8 For example, the State has raised in its response at least two procedural bars, either of which could prevent the Mississippi court from ever reaching the constitutionally
11 issues were resolved against Smith, they would prevent the
Mississippi Supreme Court from considering the pertinent issues
on the merits. The State's failure to withdraw or excise these
arguments from its response before the Mississippi Supreme Court
creates problems for the relief Smith requested that literal
compliance by the State with this court's mandate and the
district court's order would have obviated. See, e.g., Wiley v.
State, No. 03-DP-0057, 1993 WL 39685 at *3 (Miss. October 7,
1993) ("As this case has been returned to our Court pursuant to
orders of the Fifth Circuit Court of Appeals and the United
States District Court, no procedural bar may be applied.
Therefore, Wiley's claim is viable.").
Moreover, the Maynard-Clemons-Stringer trilogy produced
several cases in a procedural posture identical to this case.
E.g., Wilcher v. State, No. 03-DP-0032 & 03-DP-0037, 1993 WL
398680 (Miss. October 7, 1993); Wiley, 1993 WL 39685 at * 2-3.
In those cases, the State affirmatively filed pleadings in the
defective jury instructions -- contrary to this court's mandate. In its pleadings currently on file before the Mississippi Supreme Court, the State argues that:
(i) Smith's challenge to the "especially heinous" sentencing factor was previously adjudicated by the Mississippi Supreme Court in his initial application for collateral relief; accordingly, Smith was barred under the Mississippi doctrine of successive petitions from raising the claim, Miss. Code Ann. § 99-39-27(9); and
(ii) Smith's failure to raise the constitutional error at trial or on direct appeal operates as a waiver of the claim which is res judicata in subsequent proceedings under Miss. Code Ann. § 99-39-21.
12 state supreme court in response to virtually identical,
conditional habeas mandates from this court -- evidencing that
the State itself recognized the proper response to such an order.
In Wilcher, to review but one example, the case was decided by
the Mississippi Supreme Court and was remanded for a new
sentencing hearing within nine and one-half months after the
issuance of our mandate. In this case, by contrast, Smith has
continued on death row for fifteen months after the issuance of
our mandate, under a constitutionally infirm sentence, and the
State has done absolutely nothing to remedy that situation. It
is difficult to understand how the State can even argue that it
has complied with our mandate or the district court's order. For
all of these reasons, we hold that the district court committed
no reversible error in finding the Mississippi proceedings to be
inadequate.
B. The Legal Effect of the Fifth Circuit Mandate Upon the District Court
Although the State and Smith focus their arguments upon the
extent of the district court's authority under federal law to
issue the disputed writ (as discussed infra), neither party
addresses the fact that the district court's July 9 Order
exceeded this court's mandate.9 The attempt of the district
9 As noted above, this court ordered the district court:
to issue the writ of habeas corpus unless the State of Mississippi initiates appropriate proceedings in state court within a reasonable time after the issuance of our mandate.
13 court to require the Mississippi courts to resentence Smith to
life imprisonment was not prescribed in this court's mandate.
As discussed below, we doubt that the district court had the
authority under federal law to order the Mississippi trial court
to sentence Smith to life imprisonment. But even if the district
court theoretically possessed such power, the district court was
bound by our mandate, and the July 9 Order must be modified to
conform to that mandate.10
C. Extent of a Federal Court's Authority to Enter a Writ of Habeas Corpus
The State also claims that the district court was without
the power to use the writ to compel a state court to modify its
sentence, citing to Duhamel v. Collins, 955 F.2d 962 (5th Cir.
1992), in support of this contention.11 In Duhamel, this court
vacated a similar order from the District Court for the Southern
District of Texas which attempted to commute a death sentence
into life imprisonment, holding that this action was beyond the
Smith III, 970 F.2d at 1389. The July 9 Order deviated from our mandate as follows:
IT IS THEREFORE ORDERED AND ADJUDGED that . . . the said writ [of habeas corpus] shall issue forthwith from the Clerk of this Court directing the Petitioner's sentence of death to be vacated, and that the State of Mississippi impose upon Petitioner a sentence of life.
July 9 Order (emphasis added). 10 See supra note 7. 11 As a preliminary matter, we note that the district court's conclusions about the extent of its authority in issuing the writ under both our mandate and federal law are also issues of law reviewable de novo by this court. Halferty v. Pulse Drug Co., Inc., 864 F.2d 1185, 1188 (5th Cir. 1989).
14 authority of a federal court. 955 F.2d at 968. The State also
cites to Fay v. Noia, 372 U.S. 391, 430-431 (1963) -- quoted in
Duhamel -- for the proposition that a federal court "cannot
revise the state court judgment; it can only act on the body of
the petitioner."
Smith responds that our opinion in Welch v. Beto, 355 F.2d
1016, 1020 (5th Cir.), cert. denied, 385 U.S. 839 (1966), and the
district court's opinion in Jones v. Smith, 685 F. Supp. 604
(S.D. Miss. 1988), control this outcome and that a federal court
may use the habeas writ to prohibit the State permanently from
executing a prisoner. In Welch, this court, upon finding a
violation of the petitioner's federal rights, remanded the case
and ordered the district court to take such action as necessary
to allow the state an "opportunity" to accord the petitioner a
post-conviction hearing in accordance with the opinion within "a
reasonable time." 355 F.2d at 1020. This court further mandated
that "[i]n default thereof, the petitioner shall not be
executed." Id. In Jones, another judge in the Southern District
of Mississippi issued an order virtually identical to the one
issued in the instant case. See 685 F. Supp. at 606-07. The
Jones court relied upon a line of authority allowing a federal
court to employ its "broad discretionary powers to grant various
forms of equitable relief (without which it is obvious that
similar orders would be issued in vain)." Id. at 606. On the
basis of the foregoing authorities, Smith concludes that it is
appropriate for a federal court to use its habeas powers to
15 impose conditionally "[a] prohibition against the re-imposition
of the death penalty" unless the State avails itself of the
opportunity to correct the constitutional error.
We agree with the State that the district court did not have
the authority under federal law to compel Mississippi to "impose
upon [Smith] a sentence of life imprisonment." In Fay v. Noia,
the Supreme Court recounted the historical use of the writ of
habeas corpus and the federal reluctance to extend the writ to
interfere with state court proceedings. 372 U.S. 403.12 The
Court recognized that the "root principle" of the habeas writ is
"that in a civilized society, government must always be
accountable to the judiciary for a man's imprisonment: if the
imprisonment cannot be shown to conform with the fundamental
requirements of law, the individual is entitled to his immediate
release." 372 U.S. at 402 (emphasis added). Thus, the focus of
the writ is an inquiry "into the legality of the prisoner's
detention." Id. at 418.13
12 Fay v. Noia was recently overruled on other grounds. See Coleman v. Thompson, ___ U.S. ___, 111 S. Ct. 2546 (1991) (specifically rejecting the "deliberate bypass" approach used in Fay v. Noia for determining whether an issue that has been procedurally defaulted in the state courts may be reached on federal collateral review). 13 As the Court instructed:
[T]he writ of habeas corpus is a new suit brought by a petitioner to enforce a civil right, which he claims as against those who are holding him in custody. The proceeding is one instituted by himself for his liberty, and not by the government to punish for his crime. The judicial proceeding under it is not to inquire into the criminal act which is complained of, but into the right to liberty notwithstanding the act.
16 We have found no indication that the Supreme Court has
somehow changed its position and extended the use of habeas
corpus in the context presented -- i.e., to revise a state
criminal defendant's sentence without requiring his release. It
would thus appear that the writ has but one remedy -- to direct
the liberation of a state prisoner whose confinement violates
federal law. "Habeas lies to enforce the right of personal
liberty; when that right is denied and a person confined, the
federal court has the power to release him. Indeed, it has no
other power . . . ." Fay v. Noia, 372 U.S. at 430-31. It would
be a serious departure from prior precedent to hold that the writ
can vacate the defective sentence only to allow the federal court
to resentence the state defendant on its own accord.
The Supreme Court has recognized the conditional use of the
writ to require constitutional compliance. See, e.g., Richmond
v. Lewis, ___ U.S. ___, 113 S. Ct. 528, 537 (1992). In Richmond,
the Court issued the following mandate:
We reverse the judgment of the Court of Appeals and remand with instructions to return the case to the District Court to enter an order granting the petition for a writ of habeas corpus unless the State of Arizona within a reasonable period of time either corrects the constitutional error in petitioner's death sentence or vacates the sentence and imposes a lesser sentence consistent with law.
Id. As with our mandate in the instant case, the Court's
direction to the district court is to grant the writ unless the
Fay v. Noia, 372 U.S. at 423 n.34 (quoting 1 BAILEY, HABEAS CORPUS AND SPECIAL REMEDIES § 4 (1913)) (emphasis added).
17 State takes action to remedy the infirmity in the death
sentence.14 See, e.g., Smith, 970 F.2d at 1389; Wiley v.
Puckett, 969 F.2d 86, 94, 106 (5th Cir. 1992). However, the
conditional issuance of a habeas writ is decidedly different from
a "conditional resentencing," such as in Jones or the instant
case.15 In the conditional writ cases, the federal court has
determined that it has the authority to order immediate release
of the prisoner as a result of the federal law violation; the
court chooses, however, to delay the writ to allow the state to
correct the problem as best it can. Although the federal court,
in doing so, may certainly suggest a corrective procedure in
broad terms, the real thrust of the order is to alert the state
court to the constitutional problem and notify it that the
14 It is notable that the Richmond case also involved an infirmity in the sentence alone, yet the Court mandated the issuance of the writ for release of the prisoner unless the error in sentencing were corrected by the state. See Richmond v. Lewis, ___ U.S. ___, 113 S. Ct. 528, 537 (1992). 15 In Jones v. Smith, 685 F. Supp. 604, 606 (S.D. Miss. 1988), the federal district court vacated the petitioner's death sentence and conditionally granted a writ of habeas corpus "thereby resulting in the imposition of a life sentence under Mississippi Law" unless the state resentenced the petitioner within thirty days. In a curious footnote, the federal district court in Jones v. Smith implied that this court might sanction such an approach, citing to our opinion in Jones v. Thigpen, 741 F.2d 805, 816 (5th Cir. 1984), in which we affirmed the district court's order vacating a state petitioner's defective sentence and determined that the state was precluded on Double Jeopardy grounds from holding another sentencing hearing in which it could seek the death penalty. See Jones v. Smith, 685 F. Supp. at 606 n.3. As the district court acknowledges, however, this court's holding in Jones v. Thigpen, was implicitly overruled by the Supreme Court in Thigpen v. Jones, 475 U.S. 1003 (1986), and Cabana v. Bullock, 474 U.S. 376, 392 (1986). In light of this precedent, the holding in Jones that habeas may be used to effect a conditional resentencing does not rest on solid ground.
18 infirmity must be remedied. By contrast, a "conditional
resentencing" -- in which the federal court threatens to alter
the state court's sentence or impose its own sentence if the
State fails to take action -- crosses the line into impermissible
interference with the state court's autonomy in applying its own
criminal procedures. See Dixon v. Beto, 472 F.2d 598, 599 (5th
Cir. 1973) ("The federal courts are not empowered to order the
state courts to make remedies available nor are they authorized
to dictate the type of hearing which is to be conducted by the
state courts."). Thus, both Richmond and our directive in Smith
are consistent with the analysis in Fay v. Noia.
Smith's interpretation of Welch, however, does not comport
with Fay v. Noia or with this court's opinion in Duhamel. Smith
understands Welch to allow a federal court indirectly to commute
a death sentence into life imprisonment by prohibiting execution
of the death sentence. Thus, he concludes, it is proper for a
federal court to grant habeas relief to a state defendant
sentenced to death in the form of a life sentence. As noted
previously, in Welch, this court ordered relief in a habeas
proceeding conditioned upon the state's affording the petitioner
an appropriate post-conviction proceeding. This court further
mandated that "[i]n default thereof, the petitioner shall not be
executed." 355 F.2d at 1020.
Smith misreads our opinion in Welch. In that case, we held
only that the state's default in compliance with our mandate
would result in its inability to execute upon the defective
19 sentence. Nothing in our opinion in that case can be read to
have precluded the state from subsequently seeking a
constitutionally valid death sentence.
In summary, we find that the portion of the July 9 Order
directing Smith to be resentenced to life imprisonment amounts to
an impermissible alteration of Smith's sentence.
V. CONCLUSION
The district court's July 9 direction to the Mississippi
courts to "impose upon [Smith] a sentence of life imprisonment"
did not comply either with our mandate in Smith III or with
federal law. There is no authority for a holding that the writ
of habeas corpus may be employed to revise Smith's
constitutionally infirm sentence in this manner. Our mandate in
Smith III stated that the writ would be issued upon the State's
failure to take the requisite action during the defined period.
The directive from this court allowed but one consequence if the
State failed to comply with the November 23 Order -- to issue the
writ for Smith's immediate and unconditional release from his
unconstitutional sentence.16 Consequently, this court must
modify the order of the district court to conform to our mandate
16 At oral argument, the Respondent contended for the first time that the State would be able to continue to hold Smith under Mississippi law pending resentencing even if the district court's decision to vacate Smith's death sentence were to be affirmed. We express no opinion on that contention, as we do not address unbriefed arguments raised for the first time at oral argument. Najarro v. First Fed. Sav. & Loan Ass'n of Nacogdoches, 918 F.2d 513, 516 (5th Cir. 1990) ("In the absence of manifest injustice, this court will not consider arguments belatedly raised after appellees have filed their brief.").
20 by excising the portion of the order resentencing Smith to life
imprisonment.
The July 9 Order of the district court is modified to delete
the words "and that the State of Mississippi impose upon the
Petitioner a sentence of life imprisonment" from its decree. The
writ of habeas corpus issued as a result of the July 9 Order is
similarly amended. As modified, the judgment of the district
court is affirmed.
AFFIRMED as MODIFIED.