     Case: 10-60374     Document: 00511557296         Page: 1     Date Filed: 08/01/2011




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

                                                                            FILED
                                                                           August 1, 2011

                                       No. 10-60374                        Lyle W. Cayce
                                                                                Clerk

WILLIAM JOSEPH HOLLY,

                                                   Petitioner-Appellant
v.

STATE OF MISSISSIPPI; CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                                   Respondents-Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:98-CV-53


Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant William Joseph Holly appeals the district court’s
denial of his federal habeas application brought pursuant to 28 U.S.C. § 2254.
AFFIRMED.
                                              I.
        Holly was indicted for capital murder, kidnapping, and grand larceny. The
offense took place on July 12, 1992 at which time Holly was under the age of


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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eighteen. He was subsequently convicted and was sentenced to death on March
3, 1993. His motion for a new trial was denied, and the Mississippi Supreme
Court affirmed his convictions of capital murder and kidnapping and his
sentence of death.1 Holly v. State, 671 So. 2d 32 (Miss. 1996). No petition for
rehearing was filed, and the Supreme Court denied his petition for a writ of
certiorari. Holly v. Mississippi, 518 U.S. 1025 (1996). Holly filed a post-
conviction petition in state court, which was denied by the Mississippi Supreme
Court. Holly then filed a federal habeas application on March 23, 1998.
      At some point during Holly’s federal habeas proceedings, the district court
granted his motion to stay the proceedings pending the Supreme Court’s decision
in Roper v. Simmons, 543 U.S. 551 (2005). On March 5, 2005, the Supreme Court
issued its decision in Roper, which declared unconstitutional the “imposition of
the death penalty on offenders who were under the age of 18 when their crimes
were committed.” Id. at 578. Thereafter, the district court vacated Holly’s
capital sentence.
      Holly subsequently filed a motion in the Mississippi Supreme Court to
remand his case for resentencing in the circuit court.               In his motion, he
requested a sentence of life in prison with the possibility of parole, which he
deemed “the only Constitutional alternative to death at the time the crime was
committed.”       Holly asserted that MISS. CODE ANN . § 99–19–107 — which
substituted a sentence of life in prison without parole “[i]n the event the death
penalty is held to be unconstitutional by the Mississippi Supreme Court or the
United States Supreme Court” — was inapplicable to his vacated death
sentence. Instead, Holly reasoned that the court should apply the version of the
capital murder statute, MISS. CODE ANN. § 97–3–21, that existed at the time he
committed the offense, which only provided two possible sentences: the death


      1
          The Mississippi Supreme Court vacated the conviction of grand larceny.

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penalty and life in prison with the possibility of parole. (Two years after Holly
was convicted, § 97–3–21 had been amended to include the option of life in
prison without the possibility of parole, but that sentence was not available at
the time that Holly committed the capital offense.) Holly thus concluded that
the Mississippi Supreme Court would violate the Due Process Clause or the Ex
Post Facto Clause of the Constitution if it sentenced him to life in prison without
the possibility of parole.
      On June 5, 2008, the Mississippi Supreme Court remanded Holly’s case
back to the state trial court with instructions to sentence him to life in prison
without parole, pursuant to § 99–19–107. The court did not address the merits
of Holly’s constitutional claims, and he was resentenced pursuant to the
Mississippi Supreme Court’s instructions.
      On March 20, 2009, Holly filed a motion to amend his federal habeas
application, seeking relief on the same constitutional grounds that were rejected
by the Mississippi Supreme Court. The district court denied his application but
granted him a certificate of appealability on “[w]hether, in resentencing [ ] Holly
to life in prison without parole, the Mississippi Supreme Court violated Holly’s
constitutional rights by failing to recognize or enforce the ex post facto clause . . .
as well as the Due Process Clauses of the Fifth and Fourteenth Amendments.”
This appeal followed.
                                          II.
                                          A.
      Holly filed his federal habeas application after 1996, so it is governed by
the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Lindh v.
Murphy, 521 U.S. 320, 324–26 (1997). First, as a matter of jurisdiction, we




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consider sua sponte2 whether Holly has exhausted his federal habeas claims in
state court.
       Under the AEDPA, “[a]n applicant shall not be deemed to have exhausted
the remedies available in the courts of the State . . . if he has the right under the
law of the State to raise, by any available procedure, the question presented.” 28
U.S.C. § 2254(c). We have explained that “[t]he exhaustion requirement is
satisfied when the substance of the federal claim has been fairly presented to the
highest state court.” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). “Such
presentment can take place via direct appeal or state habeas proceedings.”
Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005) (citing Orman v. Cain, 228
F.3d 616, 620 (5th Cir. 2000)). It follows then that a petitioner need not always
raise a claim in state post-conviction proceedings to exhaust that claim for
AEDPA purposes. That said, the claim must have been presented to the state’s
highest court “in a procedurally proper manner according to the rules of the
state courts.” Mercadel, 179 F.3d at 275 (quotation marks and citation omitted).
       Here, Holly raised his constitutional claims regarding resentencing in his
motion for resentencing, which he filed directly in the Mississippi Supreme
Court. When that court denied his requested sentence, Holly amended his
federal application for habeas relief to include his resentencing claims, without
first raising the claims in state post-conviction proceedings. The question then
is whether Holly presented his claims to the Mississippi Supreme Court in a
procedurally proper manner.
       In fact, the Mississippi Supreme Court addressed this very procedural
issue in Foster v. State, 961 So. 2d 670 (Miss. 2007) (en banc). There, as in the
instant case, the defendant was seventeen years old at the time he committed
the capital offense for which he was sentenced to death. Id. at 671. Following

       2
        Neither the district court in denying relief nor the parties in their arguments to this
court explicitly raised the issue of exhaustion.

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Roper, the State filed a motion directly in the Mississippi Supreme Court to
vacate the defendant’s death sentence and resentence him pursuant to
§ 99–19–107, but the defendant never responded to the State’s motion with any
constitutional objections. Id. As a result, when the defendant later attempted
to appeal his resentencing by the trial court, the Mississippi Supreme Court
held:
        The execution of orders issued by this Court is a purely ministerial
        act, and lower courts have no authority to alter or amend them. See,
        e.g., Miss. Comm’n on Judicial Performance v. Sanders, 708 So. 2d
        866, 874 (Miss. 1998). Instead, [the defendant’s] claim should have
        been raised in a response to the State’s motion to this Court under
        Miss. R. App. P. 27(a), or, in the alternative, in a motion for
        reconsideration of a motion under Miss. R. App. P. 27(h), or in a
        motion for rehearing under Miss. R. App. P. 40, after we granted the
        State’s motion. His failure to do so bars his claim.
Id. at 671–72. As such, the Mississippi Supreme Court itself has determined
that it was procedurally proper for Holly to raise his constitutional claims in his
motion for resentencing; that, in fact, it was the only procedurally proper way
to do so. We thus conclude that Holly has exhausted state remedies, even
though he never raised his constitutional claims in state post-conviction
proceedings.
                                         B.
        Holly’s federal habeas application, nevertheless, comes to us in an unusual
procedural posture that implicates our standard of review. Given the fact that
a state court never addressed Holly’s constitutional claims in post-conviction
proceedings and the Mississippi Supreme Court did not address the merits of his
claims when ordering his resentencing, we are left to consider Holly’s claims
without the benefit of a state court’s analysis. Accordingly, we do not apply the
deferential standard of review that applies under the AEDPA to “any claim that
was adjudicated on the merits in State court proceedings,” 28 U.S.C. § 2254(d),


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and instead we review Holly’s constitutional claims de novo. Cone v. Bell, 129
S. Ct. 1769, 1784 (2009). Accord Hatten v. Quarterman, 570 F.3d 595, 599–600
(5th Cir. 2009).
                                               C.
       Holly asserts that the Mississippi Supreme Court violated his rights under
the Due Process Clause when it resentenced him to life in prison without the
possibility of parole.3 The U.S. Supreme Court has explained that a state
criminal statute violates the Due Process Clause if it is not “sufficiently explicit
to inform those who are subject to it what conduct on their part will render them
liable to its penalties.” Bouie v. City of Columbia, 378 U.S. 347, 351 (1964)
(quotation marks and citation omitted). As an extension of that principle, “a
deprivation of the right of fair warning can result . . . also from an unforeseeable
and retroactive judicial expansion of narrow and precise statutory language.”
Id. at 352. “If a judicial construction of a criminal statute is unexpected and
indefensible by reference to the law which had been expressed prior to the
conduct in issue, it must not be given retroactive effect.” Id. at 354 (internal
quotation marks and citation omitted). Here, we must determine whether the
Mississippi Supreme Court’s construction of § 99–19–107 in Foster was
“unexpected and indefensible” by reference to the plain statutory language of
§ 99–19–107.
       Section 99–19–107 was enacted in 1977 in response to national




       3
         On appeal, Holly does not raise an independent Ex Post Facto Clause claim, conceding
that “the text of the Ex Post Facto Clause is limited to legislative action.” (citing Marks v.
United States, 430 U.S. 188, 191 (1977) (“The Ex Post Facto Clause is a limitation upon the
powers of the Legislature . . . and does not of its own force apply to the Judicial Branch of
government.”)). Holly does maintain, however, that “the same underlying considerations are
applicable to state courts through the Due Process Clause of the Fourteenth Amendment,”
(citing Proctor v. Cockrell, 283 F.3d 726, 730 (5th Cir. 2002)), so we will only consider ex-post-
facto concerns to that extent.

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uncertainty surrounding the constitutionality of the death penalty.4 As of July
12, 1992, when Holly committed the capital offense, § 99–19–107 stated:
         In the event the death penalty is held to be unconstitutional by the
         Mississippi Supreme Court or the United States Supreme Court, the
         court having jurisdiction over a person previously sentenced to
         death shall cause such person to be brought before the court and the
         court shall sentence such person to imprisonment for life, and such
         person shall not be eligible for parole.
         Since the time when Holly committed the capital offense, the Mississippi
Supreme Court has construed the applicability of § 99–19–107 in two relevant
en banc opinions: (1) Abram v. State, 606 So. 2d 1015 (Miss. 1992) (en banc), and
(2) Foster v. State, 961 So. 2d 670 (Miss. 2007) (en banc).
         In Abram, the Mississippi Supreme Court considered the applicability of
§ 99–19–107 to a capital defendant whose jury-imposed sentence of death had
been set aside by the trial court on grounds that the record lacked sufficient
evidence to support the death penalty in that case. 606 So. 2d at 1039. The trial
court determined that § 99–19–107 could be applied on a case-by-case basis, but
the Mississippi Supreme Court disagreed, holding:
         Although there are no cases addressing the precise application of
         § 99-19-107, we think it fairly obvious that it is reserved for that
         event when either this Court or the United States Supreme Court
         makes a wholesale declaration that the death penalty in general,
         and/or our own statutory death penalty scheme in particular, is
         unconstitutional. This section is not reasonably or logically intended
         for use on a case by case basis by trial courts or this Court . . . .
Id.     The Mississippi Supreme Court then concluded that “the only logical
alternative once the jury verdict was disregarded would have been to impose a
sentence of life imprisonment.” Id. (citation omitted).

         4
        See Furman v. Georgia, 408 U.S. 238 239–40 (1972) (holding that the death penalty
scheme in Georgia constituted cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments); Gregg v. Georgia, 428 U.S. 153, 187 (1976) (holding that imposition
of the death penalty for the crime of murder did not, under all circumstances, violate the
Eighth and Fourteenth Amendments).

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      Fifteen years later, in Foster, the Mississippi Supreme Court again
considered the applicability of § 99–19–107 in the wake of Roper under facts
substantially similar to the instant case. The court reexamined the language of
§ 99–19–107 (and its own holding in Abram) in the context of Roper, which did
not declare the death penalty unconstitutional in all cases, but also did not
vacate one single death sentence on a case-by-case basis. The Mississippi
Supreme Court concluded: “The language of the statute is clear; it intends to
provide for an alternative sentence for a person whose death sentence has been
deemed unconstitutional.” Foster, 961 So. 2d at 672. Acknowledging that
certain language in Abram was potentially at odds with this conclusion, the
court further held: “To the extent that Abram is inconsistent with the plain
meaning of section 99-19-107, it is hereby overruled.” Id. The Mississippi
Supreme Court then resentenced the defendant in accordance with § 99–19–107
— and not the pre-1994 version of § 97–3–21 — reasoning that “[b]ecause [the
defendant’s] death penalty was found unconstitutional by the United States
Supreme Court’s ruling in Roper, the application of section 99-19-107 is
appropriate.” Id.
                                      D.
      Holly asserts that the Mississippi Supreme Court violated his due process
rights by “unexpected[ly] and indefensibl[y]” expanding the “narrow and precise
statutory language” of § 99–19–107 in Foster and applying that construction to
him retroactively. We note at the outset that both Abram and Foster were
decided after Holly committed the underlying capital offense. Our inquiry,
therefore, is not whether the Mississippi Supreme Court unexpectedly and
indefensibly expanded its construction of § 99–19–107 from that in Abram to
that in Foster, but rather whether Foster (the judicial construction applied to
Holly) unexpectedly and indefensibly expanded the statutory language of §
99–19–107 as it existed at the time Holly committed the capital offense.

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      Holly’s main argument is that the Mississippi Supreme Court’s
construction of § 99–19–107 in Foster is “directly at odds with the language of
§ 99–19–107.” In particular, Holly asserts that, because § 99–19–107 only
applies “[i]n the event the death penalty is held to be unconstitutional by the
Mississippi Supreme Court or the United States Supreme Court,” MISS. CODE
ANN. § 99–19–107 (emphasis added), it would be unexpected and indefensible for
§ 99–19–107 to be applied when the death sentence of only one offender (or one
class of offenders) is held to be unconstitutional. We disagree.
      As the Mississippi Supreme Court made clear in Foster, § 99–19–107
plainly functions “to provide for an alternative sentence” if the death penalty (to
which the defendant had previously been sentenced) is later declared to be
unconstitutional. 961 So. 2d at 672. Section 99–19–107 thus gives instructions
for that which a court should do if “the court having jurisdiction over a person
previously sentenced to death” must resentence the person under such
circumstances. In that sense, and only in that sense, may § 99–19–107 apply to
an individual defendant. In fact, Abram is instructive on this point. The Abram
court recognized that the plain language of § 99–19–107 “obvious[ly]” indicated
that the statute only applied to “a wholesale declaration” of unconstitutionality,
i.e., it was “not reasonably or logically intended for use on a case by case basis.”
606 So. 2d at 1039. Given this dichotomy of possible circumstances, Roper
clearly was a “wholesale declaration” that the death penalty is unconstitutional
as applied to juveniles; obviously, Roper neither held only that Holly’s death
sentence is unconstitutional, nor vacated Holly’s death sentence because of any
error particular to the unique facts of his case. Roper categorically held that
“[t]he Eighth and Fourteenth Amendments forbid imposition of the death
penalty on offenders who were under the age of 18 when their crimes were
committed.” 543 U.S. at 578 (emphasis added). Consequently, the death penalty
has been “held to be unconstitutional by . . . the United States Supreme Court”

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as to those offenders whose death sentence is come within the plain language of
§ 99–19–107.
      At bottom, the Mississippi Supreme Court’s construction of § 99–19–107
in Foster was not “unexpected and indefensible” by reference to the law (the text
of § 99–19–107) as expressed prior to Holly’s commission of the capital offense.
To the contrary, Holly had fair warning when he committed his offense that
§ 99–19–107 would apply to him if the death penalty were ever “held to be
unconstitutional,” as it later was for juvenile offenders in Roper. The Mississippi
Supreme Court thus constitutionally applied § 99–19–107, pursuant to Foster,
in resentencing Holly.
                                       III.
      For the foregoing reasons, Holly’s federal application for habeas relief is
denied and the judgment of the district court is AFFIRMED.




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