                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                     January 5, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-60309


                      CHARLES SYLVESTER BELL,

                                                Petitioner-Appellant,

                               versus

               MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                                Respondent-Appellee.


          Appeal from the United States District Court
            for the Southern District of Mississippi
                         (2:00-CV-85-GR)


Before BARKSDALE, GARZA, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Seeking federal habeas relief, and pursuant to a certificate

of appealability (COA) issued by our court, Charles Sylvester Bell,

Mississippi prisoner # 30115, appeals the dismissal of his double

jeopardy claim. Convicted in Mississippi state court of two counts

of murder and one count of armed robbery, Bell claims his armed

robbery conviction violates the Fifth Amendment’s Double Jeopardy

Clause because it was a lesser-included offense in one of his

murder convictions.    The issue for which we granted a COA is

whether the district court erred by dismissing Bell’s double


     *
       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this opinion should not be published and is not precedent except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.
jeopardy claim as procedurally barred under MISS. CODE ANN. § 99-39-

21 (stating, inter alia, that claims not raised either at trial or

on direct appeal are waived, except upon a showing of cause for the

default and actual prejudice). The Mississippi Supreme Court never

made the requisite clear and express statement that Bell’s double

jeopardy claim was procedurally barred.    REVERSED and REMANDED.

                                 I.

     In 1977, Bell was convicted in Mississippi state court of the

murder of D.C. Haden while engaged in the commission of armed

robbery and kidnapping and was sentenced to death.    See MISS. CODE

ANN. § 97-3-19(2)(e).   On appeal, his conviction and sentence were

upheld. Bell v. State, 360 So. 2d 1206 (Miss. 1978), cert. denied,

440 U.S. 950 (1979).

     Bell sought federal habeas relief, challenging his conviction

and sentence on numerous grounds.     The district court denied the

petition.   Our court reversed the district court’s ruling that the

state trial court’s sentencing instructions were constitutionally

adequate and “direct[ed] the district court to issue the writ of

habeas corpus unless the State of Mississippi decide[d] within a

reasonable time to conduct a new sentencing proceeding or to impose

a sentence less than death”.   Bell v. Watkins, 692 F.2d 999, 1014

(5th Cir. 1982), cert. denied, 464 U.S. 843 (1983).   As discussed,

infra, Bell was re-sentenced to life imprisonment.




                                 2
     After the death sentence was overturned, Bell was indicted as

a habitual offender for the armed robbery of D.C. Haden.   See MISS.

CODE ANN. § 99-19-81 (any person convicted of a felony, who (1) has

been previously convicted of two or more felonies arising out of

separate incidences and (2) has been sentenced to a year or more in

any state or federal penal institution, shall be, inter alia,

sentenced to the maximum term of imprisonment for that felony).   In

August 1984, Bell pleaded guilty to the armed robbery charge as a

habitual offender and was sentenced to the maximum term of 25

years.   At that same time, he was also re-sentenced for the murder

conviction of D.C. Haden; the new sentence was life imprisonment.

In addition, Bell had been convicted previously of a separate

capital murder charge and sentenced to life imprisonment. The life

sentence for the murder of D.C. Haden was to run consecutively to

the other life sentence, with the 25-year term for the armed

robbery consecutive to that second life sentence.

     In December 1984, Bell moved in state court to vacate his

armed robbery conviction, claiming, inter alia, that it violated

the Double Jeopardy Clause because the armed robbery was a lesser-

included offense of capital murder under MISS. CODE ANN. § 97-3-

19(2)(e) and a necessary element to his conviction.     (As noted,

supra, § 97-3-19(2)(e) provides that the killing of any human

being, whether intentional or not, while engaged in, inter alia,

kidnapping or robbery is a capital murder.) The motion was denied,


                                 3
and Bell appealed to the Mississippi Supreme Court.         It dismissed

the appeal for lack of prosecution.       Bell v. State, Trial Court No.

11,351 (Miss. 11 August 1986) (Mem.).

     Between 1986 and 1995, Bell filed motions and petitions in

state and federal court, challenging his armed robbery conviction

on various grounds.      All were denied.        His habeas petition in

federal court was dismissed without prejudice because he had failed

to exhaust his state post-conviction remedies.

     In May 1995, Bell moved in state court for rehearing and to

vacate the armed robbery conviction.        In February 1996, the court

conducted   an    evidentiary   hearing    and   denied   the   motion   as

procedurally barred.      Bell appealed to the Mississippi Supreme

Court, which held:       Bell’s conviction for armed robbery as a

habitual offender violated the Ex Post Facto Clauses of the United

States and Mississippi Constitutions because the habitual offender

statute was enacted in 1977, subsequent to Bell’s 1976 armed

robbery offense.     Bell v. State, 726 So. 2d 93, 94 (Miss. 1998)

(Bell I).   The court remanded for the trial court to determine

whether Bell knowingly waived his ex post facto rights as part of

a plea agreement to avoid the death penalty.       Id. at 95.    The state

supreme court declined, however, to rule on Bell’s double jeopardy

claim, stating:    “The issue is not germane to these proceedings”.

Id. at 94 (emphasis added).




                                    4
     On remand, the state trial court found Bell did waive his ex

post facto rights as part of the plea agreement by which he was re-

sentenced to life for the murder of D.C. Haden.               Bell appealed

again to the Mississippi Supreme Court, which stated in the two-

sentence introduction to its opinion:            “Bell knowingly waived his

double jeopardy and ex post facto rights”, Bell v. State, 751 So.

2d 1035, 1036 (Miss. 1999) (Bell II), despite the court, in Bell I,

having ruled that, as quoted above, the double jeopardy issue was

not germane to the proceedings.           In the analysis portion of the

opinion, the court ruled that Bell’s ineffective assistance of

counsel (IAC) claim was procedurally barred because he had raised

it in 1984 in a previous proceeding.             Id. at 1038.     The double

jeopardy issue was referenced only in ruling on the IAC claim.

     In   April   2000,   Bell   filed     the    instant   habeas   petition

concerning the armed robbery offense, claiming:                 (1) a double

jeopardy violation; (2) an ex post facto violation; (3) IAC; and

(4) an invalid guilty plea.          The magistrate judge’s report and

recommendation recommended Bell’s petition being dismissed because,

inter alia, Bell’s double jeopardy claim was procedurally barred.

     In   September   2001,   over    Bell’s      written   objections,   the

district court adopted the report and recommendation and dismissed

the habeas petition.      It also denied Bell’s FED. R. CIV. P. 59(e)

motion to alter or amend judgment, as well as his COA request.




                                      5
                                    II.

     For his four habeas claims, Bell briefed only the double

jeopardy issue in seeking a COA from our court.               As noted, our

court granted a COA on whether Bell’s double jeopardy claim was

procedurally barred by MISS. CODE ANN. § 99-39-21(1), which provides:

           Failure by a prisoner to raise objections,
           defenses, claims, questions, issues or errors
           either in fact or law which were capable of
           determination at trial and/or on direct
           appeal, regardless of whether such are based
           on the laws and the Constitution of the state
           of Mississippi or of the United States, shall
           constitute a waiver thereof and shall be
           procedurally barred, but the court may upon a
           showing of cause and actual prejudice grant
           relief from the waiver.

(Procedural waiver under § 99-39-21(1) is, of course, distinct from

the knowing waiver of certain rights as part of a plea agreement.)

     Our court reviews de novo a habeas-denial based on a state

procedural ground.     E.g., Martin v. Maxey, 98 F.3d 844, 847 (5th

Cir. 2000).     “[A] procedural default does not bar consideration of

a federal claim on either direct or habeas review unless the last

state   court    rendering   a   judgment   in   the   case   ‘clearly   and

expressly’ states that its judgment rests on a state procedural

bar”.   Harris v. Reed, 489 U.S. 255, 263 (1989) (emphasis added)

(applying the Michigan v. Long, 463 U.S. 1032, 1042, n.7 (1983),

“plain statement” rule to federal habeas review). This rule serves

to prevent a federal habeas court, when faced with an ambiguous

state court ruling concerning a procedural default, from having to


                                     6
“examine the state-court record to determine whether procedural

default was argued to the state court, or ... undertak[ing] an

extensive analysis of state law to determine whether a procedural

bar was potentially applicable to the particular case”.      Id. at

264-65.

     If the last reviewing state court “clearly and expressly”

states that its judgment rests on a state procedural bar, then,

“[u]nder the procedural default doctrine, a federal court may not

consider a state prisoner’s federal habeas claim when the state

based its rejection of that claim on an adequate and independent

state ground”.   Martin, 98 F.3d at 847 (citing Coleman v. Thompson,

501 U.S. 722, 750 (1991)).   If the state court decision is based on

an independent and adequate state ground, then a federal habeas

court is barred from considering the claim, unless the petitioner

can show both cause for the default and prejudice.        Murray v.

Carrier, 477 U.S. 478, 485 (1986); see also MISS. CODE ANN. § 99-39-

21(4)-(5) (defining the terms “cause” and “actual prejudice” as

used in § 99-39-21(1), quoted supra).   (An exception to the “cause

and prejudice” requirement is that a federal habeas court may

entertain a procedurally barred claim if a failure to do so would

result in a fundamental miscarriage of justice.     E.g., Romero v.

Collins, 961 F.2d 1181, 1183 (5th Cir. 1992).     This exception is

extremely narrow and requires establishing a “colorable claim of

factual innocence”.   Sawyer v. Whitley, 505 U.S. 333, 339 (1992).)


                                  7
     In the two-sentence introduction to its opinion in Bell II,

the Mississippi Supreme Court stated:     “This matter is before the

Court on appeal from the denial of Charles Sylvester Bell’s motion

for post-conviction relief by the Circuit Court of Forrest County,

Mississippi. Because Bell knowingly waived his double jeopardy and

ex post facto rights, we affirm”.      751 So. 2d at 1036 (emphasis

added).     Later in the opinion, however, it is unclear which of

Bell’s claims the court found procedurally barred under MISS. CODE

ANN. § 99-39-21.     Therefore, a closer examination of Bell II is

necessary.

     Part I of Bell II recites the facts and procedural history of

the case.    Part II discusses only Bell’s ex post facto claim.   Part

III states:

                  Bell argues that he received ineffective
            assistance of counsel when his attorneys
            advised him to plead guilty to armed robbery,
            which    Bell  contends   is  barred   by  the
            constitutional provisions of double jeopardy.

                 When reviewing claims of ineffective
            assistance of counsel, this Court utilizes the
            standard    set    forth    in   Strickland   v.
            Washington, 466 U.S. 668 (1990) .... The
            defendant claiming ineffective assistance of
            counsel must show, by a preponderance of the
            evidence,    that    there   is   a   reasonable
            probability that had counsel's assistance been
            effective, he would not have pled guilty, but
            would have insisted on going to trial. One
            who claims that counsel was ineffective must
            overcome   the    presumption   that   counsel's
            performance    falls    within  the   range   of
            reasonable professional assistance ....


                                   8
                Bell's claim must be viewed in light of
           the fact that we clearly have a plea bargain
           to avoid the death penalty. There is simply
           no evidence that this claim, like the ex post
           facto claim[,] was not waived in order to
           avoid a second sentence of death.

                Additionally, this claim was raised in
           1984. It was rejected by the trial court[,]
           and Bell failed to prosecute his appeal
           resulting in dismissal. The claim is therefore
           procedurally barred by MISS. CODE ANN. §
           99-39-21.

Bell II, 751 So. 2d at 1038 (emphasis added; internal citations and

quotations omitted).      In the concluding Part IV, the court stated:

“We hold the lower court’s findings are supported by the record and

should be upheld.    Accordingly, the judgment of the Forrest County

Circuit Court is affirmed.”        Id.

     As the above quotation from Part III shows, Bell’s double

jeopardy claim is only mentioned in connection with whether his

counsel’s performance was ineffective.              Furthermore, the state

supreme court discusses only legal principles applicable to an IAC

claim. Applicable law pertaining to a double jeopardy claim is not

mentioned.     In addition, the court states that “this claim”, not

claims, is procedurally barred, without specifying the claim to

which it is referring.     Given that only legal standards for an IAC

claim are discussed, that may be the claim which the court found

procedurally    barred.     Moreover,     both     the   IAC   and   the   double

jeopardy   claim   were   raised    in    Bell’s    1984   motion    to    vacate

judgment, which was dismissed for lack of prosecution in 1986.


                                      9
     Accordingly, there is no “clear and express” statement by the

Mississippi Supreme Court that Bell’s double jeopardy claim was

procedurally barred under MISS. CODE ANN. § 99-39-21.                 Our holding is

consistent with the purpose of the “plain statement” rule – to

prevent a federal habeas court from undertaking a detailed review

of the state court record to determine whether the procedural

default was argued to the state court, or conducting an extensive

analysis   of   state    law   to    determine        whether    §    99-39-21    was

applicable.      See    Harris,     489   U.S.   at    264-65.       Therefore,   the

district court erred in denying Bell’s double jeopardy claim as

procedurally barred.        Because there is no “clear and express”

statement holding Bell’s double jeopardy claim procedurally barred,

it is unnecessary for us to determine whether § 99-39-21 is an

“independent and adequate” state ground that would preclude federal

habeas review.

                                      III.

     For the foregoing reasons, the district court’s ruling that

Bell’s double jeopardy claim is procedurally barred is REVERSED.

This case is REMANDED for further proceedings consistent with this

opinion.

                                                      REVERSED and REMANDED




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