           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          October 8, 2007

                                       No. 05-30894                   Charles R. Fulbruge III
                                                                              Clerk

FRANK GUILLORY

                                                  Petitioner-Appellant
v.

BURL CAIN

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:99-CV-1352


Before JOLLY, DAVIS, and WIENER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:1
       Petitioner Frank Guillory, Louisiana prisoner #347892, appeals the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. Because
we find that the district court disregarded the mandate in our previous
remand, we vacate and remand for further proceedings consistent with this
opinion.
                                             I.



       1
          Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 05-30894

      In 1994, a Louisiana jury convicted Frank Guillory, Sr., now Louisiana
inmate # 347892, of two counts of first-degree murder. State v. Guillory, 670
So. 2d 301, 303 (La. Ct. App. 1996). The jury assessed concurrent sentences
of life imprisonment without benefit of probation, parole, or suspension of
sentence. Id. On direct appeal, Guillory argued, inter alia, that he had been
denied due process and equal protection because Louisiana’s method of
selecting the grand jury foreperson was discriminatory. Id. at 305. The
Louisiana Court of Appeal affirmed, concluding that Guillory, who is white,
did not have standing to assert a claim for “alleged discrimination against
another race in the selection of a grand jury foreman” and affirmed the
convictions and sentences. Id. at 305, 307. Guillory did not petition the
Louisiana Supreme Court for further direct review.
      Guillory attempted to raise the grand-jury-foreperson claim, along with
many other claims, in at least two postconviction applications that he filed in
the state courts in the late 1990s. In the first proceeding, the trial court
denied relief pursuant to LA. CODE CRIM. PROC. art. 930.4, explaining that the
claims had been “fully litigated” on direct appeal and were repetitive.2 The

      2
          Article 930.4 addresses “[r]epetitive applications” and states:

      A. Unless required in the interest of justice, any claim for relief which was fully
      litigated in an appeal from the proceedings leading to the judgment of conviction and
      sentence shall not be considered.

      B. If the application alleges a claim of which the petitioner had knowledge and
      inexcusably failed to raise in the proceeding leading to conviction, the court may deny
      relief.

      C. If the application alleges a claim which the petitioner raised in the trial court and
      inexcusably failed to pursue on appeal, the court may deny relief.

      D. A successive application may be dismissed if it fails to raise a new or different claim.

      E. A successive application may be dismissed if raises a new or different claim that was
      inexcusably omitted from a prior application.


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court also ruled that the claims were “without merit.” Id. In 1997, the
Louisiana Court of Appeal denied review as to the grand-jury-foreperson
claim pursuant to art. 930.4(D) because the claim was “repetitive,” and, in
October 1998, the Louisiana Supreme Court denied review without reasons.
       In his second state application, filed in July 1998, Guillory again
alleged a denial of due process and equal protection based on the method of
selection of the grand jury foreperson. The trial court dismissed the
application pursuant to LA. CODE CRIM. PROC. art. 930.8 as untimely and art.
930.4 for presenting claims that had been considered previously. In 1999, the
appellate court denied review because Guillory’s claims were “repetitive”
under art. 930.4(D), and the Louisiana Supreme Court denied review without
reasons.
       In a timely-filed § 2254 petition, Guillory reiterated his grand-jury-
foreperson arguments, among other claims. The magistrate judge determined
that, although the art. 930.4 procedural bar was adequate and had been
correctly applied, federal habeas review was warranted as to the grand-jury-
foreperson claim, due to the complexity of the issues and the need for an
extensive review under Teague v. Lane, 489 U.S. 288 (1989). After additional
briefing, the magistrate judge concluded that, although “the denial of relief
[as to this claim] by the state courts based on the repetitive nature of the
claim is a procedural bar to federal habeas review unless petitioner can
establish cause for the default or establish that he is actually innocent of the
crimes,” the “complexity of the issues, and the fact that petitioner’s claims
require an extensive Teague review” warranted a conclusion that the claims
were not procedurally defaulted. The magistrate judge concluded that
Campbell v. Louisiana, 523 U.S. 392, 401 (1998), announced a new rule that


(emphasis added). Under art. 930.4(F), the petitioner should be given an opportunity to state
his reasons for his failure to comply with subsections (B), (C), or (E).

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was not retroactively applicable to cases on collateral review. The district
court adopted the magistrate judge’s report and recommendation and denied
§ 2254 relief. This court granted a certificate of appealability (COA) on the
issue whether Campbell announced a new rule of constitutional law that is
retroactively applicable to cases on collateral review, and the case was held
pending a decision in Peterson v. Cain, 302 F.3d 508 (5th Cir. 2002). A COA
was denied as to all other claims.
      On April 3, 2003, this court vacated the district court’s judgment and
remanded for further proceedings in light of Peterson. We found that insofar
as the first state postconviction court to address Guillory’s grand-jury-
foreperson claim had effectively dismissed his postconviction application
pursuant to LA. CODE CRIM. P. art. 930.4(A), on the ground that the claim had
been “fully litigated” on appeal, this was “not a procedural bar in the
traditional sense” and did not exclude the federal district court from
addressing the merits. (citing Bennett v. Whitley, 41 F.3d 1581, 1583 (5th Cir.
1994)). In Campbell, 523 U.S. at 401, the Supreme Court held that a white
defendant did have standing to assert grand-jury-foreperson claims like
Guillory’s. In Peterson, this court held that Campbell did not announce a new
rule of constitutional law, which meant that Guillory was authorized to raise
such a claim in his § 2254 petition.
      The magistrate judge on remand, rather than addressing the merits of
Guillory’s Campbell claim as directed, issued a report recommending that
Guillory’s remaining claims be dismissed as procedurally defaulted. Although
the merits of Guillory’s grand-jury-foreperson claim had been addressed in
the magistrate judge’s previous report, “[u]pon further review, it [was] clear
that important issues of exhaustion and procedural default ha[d] not been
fully addressed” at that time. In short, the magistrate judge concluded that



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Guillory failed to exhaust the claim on direct appeal because he never sought
a supervisory writ from the Louisiana Supreme Court.
      Guillory objected, emphasizing that the Fifth Circuit had directed the
district court to consider his claim on the merits in light of Peterson. The
district court adopted the magistrate judge’s conclusions and dismissed
Guillory’s petition. Guillory timely filed a notice of appeal. The district court
denied his application for a COA.
      On August 9, 2006, this court granted Guillory a COA. The court
observed that “Guillory’s pro se contention, if construed liberally, is that the
district court’s reliance on the procedural-default doctrine was barred by the
law-of-the-case doctrine or, more specifically, the mandate rule.” This court
directed the parties to “address whether the mandate rule precluded the
district court from ruling that Guillory’s claim was procedurally defaulted
and whether reexamination of this matter was authorized under any of the
mandate rule’s exceptions.”
                                        II.
      “The law of the case doctrine provides that ‘an issue of law or fact
decided on appeal may not be reexamined either by the district court on
remand or by the appellate court on a subsequent appeal.’” Fuhrman v.
Dretke, 442 F.3d 893, 896 (5th Cir. 2006)(internal citations omitted).
“Exceptions to the law of the case doctrine allow reexamination only if ‘(i) the
evidence on a subsequent trial was substantially different, (ii) controlling
authority has since made a contrary decision of the law applicable to such
issues, or (iii) the decision was clearly erroneous and would work a manifest
injustice.’” Id. at 897 (internal citations omitted).
      “‘A corollary of the law of [the] case doctrine is the mandate rule, which
provides that a lower court on remand must implement both the letter and
spirit of the [appellate court’s] mandate, and may not disregard the explicit

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directives of that court.” Tollett v. City of Kemah, 285 F.3d 357, 364 (5th Cir.
2002)(internal quotations and citations omitted) (emphasis in original).
“‘Absent exceptional circumstances, the mandate rule compels compliance on
remand with the dictates of a superior court and forecloses relitigation of
issues expressly or impliedly decided by the appellate court.’” Fuhrman, 442
F.3d at 897 (citation omitted). The district court may deviate from the
mandate only “if one of the exceptions to the law of the case doctrine applies.”
Id.
      On remand, the district court deviated from this court’s “explicit
directive,” which was to consider Guillory’s grand-jury-foreperson claim in
light of our opinion in Peterson, 302 F.3d at 513-14. Peterson stated that
“Campbell . . . enunciated that a white defendant has Fourteenth Amendment
due process standing to litigate whether his conviction was obtained by
means or procedures contravening due process when black venire members
are discriminated against in the selection of his grand jury.” Peterson, 302
F.3d at 513-14. The “letter and spirit” of this court’s mandate was for the
district court to consider the merits of Guillory’s Campbell claim.
      In its opinion on Guillory’s initial appeal from the denial of § 2254
relief, this court held that “[t]he article 930.4 bar does not preclude the
district court from addressing the merits of the claims.” Neither the
magistrate judge nor the respondent cites any recognized exception to support
deviating from the law-of-the-case doctrine or the mandate rule to revisit the
issue whether Guillory’s grand-jury-foreperson claim was procedurally
defaulted. Accordingly, we vacate the judgment of the district court and
remand for consideration of Guillory’s grand-jury-foreperson claim in light of
this court’s opinion in Peterson.
      VACATED and REMANDED.



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