                             REVISED
                 United States Court of Appeals,

                          Fifth Circuit.

                          No. 95-60789.

              Frank JACKSON, Petitioner-Appellant,

                                 v.

      James V. ANDERSON, Superintendent, Mississippi State
Penitentiary, Respondent-Appellee.

                          May 20, 1997.

Appeal from the United States District Court for the Southern
District of Mississippi.

Before BARKSDALE, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

     BENAVIDES, Circuit Judge:

     Frank Jackson, a Mississippi state prisoner, appeals the

denial of federal habeas corpus relief.     He argues that he was

illegally sentenced to life imprisonment as an habitual offender

because the prosecution failed to prove that he had served separate

terms of at least one year on each of his two prior felony

convictions as required by Miss.Code Ann. § 99-19-83.1   We affirm.



     1
      In pertinent part, § 99-19-83 provides that:

          Every person convicted in this state of a felony who
          shall have been convicted twice previously of any felony
          or federal crime upon charges separately brought and
          arising out of separate incidents at different times and
          who shall have been sentenced to and served separate
          terms of one (1) year or more in any ... penal
          institution ... and where any one (1) of such felonies
          shall have been a crime of violence shall be sentenced to
          life imprisonment, and such sentence shall not be reduced
          or suspended nor shall such person be eligible for parole
          or probation.

                                 1
     In 1972, Jackson was convicted of mayhem and received a

three-year suspended sentence with five years of probation.                               In

1976,       while   still       on     probation,        Jackson    pleaded      guilty   to

manslaughter        and     was       sentenced        to     20   years     imprisonment.2

Subsequently, during his incarceration for manslaughter, Jackson's

probation (for mayhem) was revoked.                         He was sentenced to three

years to run consecutively to his 20-year manslaughter sentence.

After serving a total of six years, nine months, and twenty-eight

days for the manslaughter and mayhem convictions, Jackson was

released on parole in 1981.                      In 1983, he was convicted of the

instant offense of burglary of a dwelling and sentenced to life

imprisonment without parole as an habitual offender.

     On Jackson's direct criminal appeal he argued that the prison

records       "showed     the        time   he       served    covered     one   period   of

confinement" and therefore he had been illegally sentenced as a

violent habitual offender under § 99-19-83.                                The Mississippi

Supreme Court opined:

     that § 99-19-83 was not violated [because Jackson] was
     convicted twice previously of felonies which were brought and
     arose out of separate incidents at different times and was
     sentenced to and did serve one or more years on each offense,
     one of which (in this instance both crimes) was a crime of
     violence.

Jackson v. State, 483 So.2d 1353, 1356-57 (Miss.1986) (emphasis

added).      To make this determination, the Mississippi Supreme Court

relied on the testimony of Christine Houston, the Director of

        2
      Initially, Jackson was convicted of capital murder and was
sentenced to death. The Mississippi Supreme Court reversed and
remanded, establishing procedures for a bifurcated hearing in
capital cases. Jackson v. State, 337 So.2d 1242 (Miss.1976).

                                                 2
Records for the Department of Corrections.                         Houston testified that

Jackson          served    five    years     of     his     twenty-year         sentence     for

manslaughter and one year, nine months, and twenty-eight days for

his three-year sentence for mayhem.                          Id. at 1356.            The newly

amended          federal     habeas       statute      "retain[s]         the     traditional

presumption          of    correctness       afforded        to    state     court      factual

determinations."            Childress v. Johnson, 103 F.3d 1221, 1225 (5th

Cir.1997) (28 U.S.C. § 2254(e)(1)). The amended statute apparently

places       a    more    onerous     burden      on   the    petitioner        in   that    the

petitioner must now rebut the presumption of correctness by clear

and convincing evidence.                   28 U.S.C. § 2254(e)(1).3                    Further,

section 2254(d)(2) prohibits granting the writ in regard to any

claim        adjudicated      on    the    merits      in    state    court       unless     the

adjudication of that claim "resulted in a decision that was based

on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding."

     Jackson challenges the conclusion that he became eligible for

parole after he had served five years or one-fourth of his 20-year

manslaughter sentence, arguing that under the version of the parole

statute in effect at the time of his parole,4 a prisoner was

required to          serve    at    least    one-third        of    his    sentence      before

becoming eligible            for    parole.         Jackson       contends      that    he   was


         3
      The previous statute provided that "the burden shall rest
upon the applicant to establish by convincing evidence that the
factual determination by the State court was erroneous." 28 U.S.C.
§ 2254(d).
     4
        Miss.Code Ann. § 47-7-3 (1981).

                                               3
required to serve one-third (six years and eight months) of the 20-

year sentence, which left only one month and twenty-eight days to

be attributed to the consecutive mayhem sentence.                         He therefore

argues that he could not have served one year on the mayhem

conviction.5

         It is undisputed that Jackson served a total of six years,

nine months, and twenty-eight days before he was paroled from his

imprisonment for the manslaughter and mayhem convictions.                            The

obvious flaw in Jackson's analysis is that if he served six years

and eight months on the manslaughter conviction, then he would have

served       only   one    month    and   twenty-eight       days    on    his    mayhem

conviction at the time he was actually paroled.                           If Jackson's

analysis is applied to the mayhem sentence, then he would have had

to serve one year (one-third) of his three-year manslaughter

sentence before           being    eligible       for   parole.     In    other   words,

Jackson's calculations would have required him to serve a total of

seven years and eight months6 before being eligible for parole.

Because he was paroled prior to serving that amount of time,

Jackson's argument is unavailing.                 Indeed, his argument highlights

the fact that the question is not how much time he should have

served under the applicable parole statute, but rather, how much




         5
       The State has not raised the procedural default bar on
appeal. Because the State waived this bar, we decline to reach it.
See Reddix v. Thigpen, 805 F.2d 506, 512 (5th Cir.1986).
     6
      Manslaughter time of six years and eight months plus mayhem
time of one year equals seven years eight months.

                                              4
time he actually served (emphasis in original).7

       In    any   event,      we   need   not    determine   exactly   how   the

Mississippi Corrections Department computed the time attributed to

each of Jackson's sentences because "[w]e will take the word of the

highest court on criminal matters of [Mississippi] as to the

interpretation of its law." Seaton v. Procunier, 750 F.2d 366, 368

(5th Cir.), cert. denied, 474 U.S. 836, 106 S.Ct. 110, 88 L.Ed.2d

90 (1985).    "[W]e do not sit to review that state's interpretation

of its own law."          Id. Because the state court's finding that

Jackson served "one or more years on each offense" was not based on

an unreasonable determination of the facts presented at the state

court proceeding, we are prohibited from granting relief.

      Jackson also argues that he was denied effective assistance

of counsel because counsel allowed Houston to erroneously testify

regarding    the   time   he    served     on    the   manslaughter   and   mayhem


      7
       The dissent determines that, as a matter of law, Jackson
actually served six years and eight months on the manslaughter
conviction, the first period of confinement, and one month and
twenty-seven days on the mayhem conviction, the second period of
confinement. The dissent's analysis proves too much. If this is
a legal question, as opposed to a fact question, then that legal
determination would also mean that Jackson served at least one year
on the mayhem conviction. Of course, because Jackson served only
six years, nine months, and twenty-eight days, both of those
conclusions cannot be correct. Under the dissent's analysis, one
of those conclusions must be false. In light of the burden that is
on Jackson, it is puzzling that the dissent assumes that the
mistake occurred with respect to the calculation of parole
eligibility on the second period of confinement. It is equally
plausible that such a mistake could have occurred in calculating
Jackson's parole eligibility for his manslaughter conviction, the
first period of confinement. Because either scenario is equally
plausible, it cannot be said that the state court's decision was
based on an unreasonable determination of the facts presented at
the state court proceeding.

                                           5
sentences.     Trial counsel was not responsible for the testimony of

Houston and was not unprofessional with respect thereto. Moreover,

Jackson failed to establish that Houston's testimony was erroneous.

Because we have rejected Jackson's claim on the merits, we likewise

reject Jackson's claim of ineffective assistance that is based on

the same argument.8

      AFFIRMED.

      EMILIO M. GARZA, Circuit Judge, dissenting:

      In   this    case,    a    Mississippi     circuit   court      relied    on   an

unambiguous legal error by a prison system official to make an

incorrect factual finding, and thus sentenced Jackson under the

wrong penal statute.         Because Jackson's illegal sentence violates

his   rights      under    the    Due   Process   Clause    of     the   Fourteenth

Amendment, he is entitled to habeas relief unless the state court

resentences him under the correct provision of the Mississippi

Code. Accordingly, I dissent.

                                          I

      Jackson     could    only    have   been    sentenced      to   life     without

possibility of parole under § 99-19-83 for his burglary conviction

if he had previously been "sentenced to and served separate terms

of one (1) year or more" for two different felonies.                   MISS.CODE ANN.

§ 99-19-83 (1983) (emphasis added).

      Before his burglary conviction, Jackson had been convicted of

manslaughter and mayhem, both felonies, and was sentenced to twenty

      8
      Jackson also argues that his illegal sentence constitutes an
ex post facto violation. Because he raises this for the first time
on appeal, we will not review it.

                                          6
years for the first conviction and three years for the second.             The

three-year   mayhem    sentence   was     to   run   consecutively    to   the

manslaughter sentence.     At the time the state released Jackson on

parole from these two convictions, Mississippi law required any

prisoner who was sentenced "for a definite term or terms of one (1)

year or over" to "serve[ ] not less than one-third (1/3) of the

total of such term or terms."      MISS.CODE ANN. § 47-7-3 (1981).1

       Upon his release, Jackson had served a total of six years,

nine   months,   and   twenty-eight     days   for   the   two   convictions.

Christine Houston, the Director of Records for the Department of

Corrections ("DOC"), testified at the sentencing hearing after

Jackson's August 1983 burglary conviction as to the allocation of

this time between the convictions. The following colloquy occurred

between Houston and the district attorney:

Q: And how long did [Jackson] actually serve in the custody of the
     State Department of Corrections?

A: He served six years, 9 months and 28 days prior to being
     released on parole on September 24, 1981.

Q: And what credit on each one of these charges, the manslaughter
     and the mayhem, did he obtain?

A: He was required to serve five years on the 20 year sentence of
     manslaughter prior to parole eligibility. He served one year,
     nine months and 28 days on the three year sentence.

Q: That would be on the mayhem?

A: On the mayhem charge.

Q: So, is it your testimony that he served more than one year in
     the Department of Corrections on each of these charges,
     manslaughter and mayhem?

        1
       This provision took effect April 3, 1981.                 Jackson was
paroled on September 24, 1981.

                                      7
A: Yes, sir.

       Houston's testimony that Jackson "was required to serve five

years on the 20 year sentence" was an unambiguous legal error.

Houston (or perhaps the person at the DOC who had prepared the

records from which she was reading) had confused the current

version of § 47-7-3 with the one that had been in effect at the

time Jackson was released on parole.       At the time of Houston's

testimony, § 47-7-3 mandated that prisoners who had been sentenced

for fewer than thirty years "serve[ ] not less than one-fourth

(1/4) of the total of such term or terms."     MISS.CODE ANN. § 47-7-3

(1982).2      Under this 1/4 ratio, someone like Jackson would be

required to serve at least five years of a twenty-year sentence.

When Jackson was released on parole, though, a 1/3 ratio was in

effect.      Under the 1/3 ratio, Jackson was required to serve at

least six years, eight months, and a day for manslaughter and at

least one year for mayhem, for a total of seven years, eight

months, and a day.      However, he served some ten months less than

this.      Thus, the DOC released Jackson in violation of Mississippi

law.

       In addition, it is crucial that Jackson was sentenced to serve

his three-year mayhem sentence consecutively to the twenty-year

manslaughter sentence.      Under applicable Mississippi law, when a

court sentences a person to imprisonment on two convictions, the

sentence that runs consecutively (that is, the second sentence),

"shall commence at the termination of the imprisonment for the

       2
        This provision became effective July 1, 1982.

                                    8
preceding conviction...."   MISS.CODE ANN. § 99-19-21 (1977).3    In

other words, Jackson could not serve any time for mayhem (let alone

be paroled from his mayhem conviction) until after he had served

the minimum required time for manslaughter.         Indeed, Houston

herself testified to this point at the sentencing hearing.       She

noted that

     [Jackson] would have to serve the minimum amount of time
     required for parole on the 20 years first. It would be the
     first sentence imposed and he would have to serve the
     subsequent time required on the 3 years [sic] sentence before
     he could be considered for release.

This means that only after Jackson had served six years, eight

months, and a day for manslaughter could he have served any time

for mayhem.   It also means that the most he could have served for

mayhem is one month and twenty-seven days.    Thus, clearly, Jackson

has not "served separate terms of one (1) year or more" for two

different convictions, MISS.CODE ANN. § 99-19-83 (1983), and the

court could not have legally sentenced him under § 99-19-83 to life

imprisonment without possibility of parole.    Rather, as discussed

below, the court should have sentenced him to the maximum term for

burglary, without possibility of parole, as required by § 99-19-81

of the Mississippi Code.

                                II

     It is difficult to see how the majority can avoid the force of

this argument.   However, it offers two contentions.     First, the

majority asserts that because Jackson was released on parole too

     3
      Mississippi amended this provision in 1983 to permit courts
to sentence people to concurrent sentences, rather than just
consecutive ones.

                                 9
early he cannot argue that the court illegally sentenced him to

life imprisonment.         However, it is precisely because Jackson was

released on parole too early that he can make this argument.                             By

ending Jackson's imprisonment for his mayhem conviction after he

had served less than two months, the state effectively ensured that

Jackson would be legally barred from being sentenced under § 99-19-

83.   In a similar vein, the majority claims that "the question is

not how much time he should have served under the applicable parole

statute, but rather how much time he actually served."                           But, in

fact, the two questions work in tandem in this case.                      Since we know

how much time Jackson should have served, we can calculate the

maximum    time    he    actually       could     have    served     on    the       mayhem

conviction—and this maximum time is less than two months.

      Second, quoting a 1985 Fifth Circuit opinion, Seaton v.

Procunier, 750 F.2d 366, 368 (5th Cir.), cert. denied, 474 U.S.

836, 106 S.Ct. 110, 88 L.Ed.2d 90 (1985), the majority contends

that it will assume that Houston's allocation is correct because

"[w]e will take the word of [the Mississippi Supreme Court] as to

the interpretation of its law."               It then asserts that Jackson has

failed to overcome the presumption of correctness afforded the

finding   that     Jackson     had     served     "one   or   more   years       on    each

offense."    However, the state court's finding that Jackson had

served    "one    or    more   years    on    each   offense"      is     not    a    legal

conclusion (though, of course, it indirectly stems from Houston's

erroneous application of state law);                     rather, it is a factual

finding. Seaton is not relevant. Moreover, the standard of review


                                             10
of a state court factual finding is no longer just presumptive

correctness.     Rather, it can be found in § 2254(e)(1) and §

2254(d)(2) of the Antiterrorism and Effective Death Penalty Act

("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996).4

     Section § 2254(e)(1) retains the old presumptive correctness

standard of § 2254.   It states that "[i]n a proceeding instituted

by an application for a writ of habeas corpus by a person in

custody pursuant to a judgment of a State court, a determination of

a factual issue made by a State court shall be presumed to be

correct."      However, it then adds a new burden of proof and

persuasion on the prisoner—"[t]he applicant shall have the burden

of rebutting the presumption of correctness by clear and convincing

evidence."   In addition, § 2254(d)(2) states that

     [a]n application for a writ of habeas corpus on behalf of a
     person in custody pursuant to the judgment of a State court
     shall not be granted with respect to any claim that was
     adjudicated on the merits in State court proceedings unless
     the adjudication of the claim ...

            (2) resulted in a decision that was based on an
            unreasonable determination of the facts in light of the
            evidence presented in the State court proceeding.

     The record indicates that the only evidence presented in state


      4
       Jackson filed his notice of appeal before the president
signed the AEDPA into law.       However, § 2254(d)(2) applies
retroactively to the appeal. See Moore v. Johnson, 101 F.3d 1069,
1074 (5th Cir.1996) (applying § 2254(d)(2) retroactively); cf.
Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996) (applying
§ 2254(d)(1) retroactively).

          This circuit has yet to decide whether the amended §
     2254(e)(1) applies retroactively. But, because I believe that
     Jackson can prevail regardless of whether the old or amended
     § 2254(e)(1) pertains here, I will assume that the amended
     provision applies retroactively.

                                 11
court     regarding     the    allocation         of    time        between      Jackson's

manslaughter     and    mayhem       convictions        is     Houston's       testimony.

However,    it   cannot       be   denied       that    Houston's         allocation     is

incorrect.    Her statement that Jackson "was required to serve five

years on the 20 year sentence" is an unambiguous legal error.

Moreover, her claim that Jackson "served one year, nine months and

28 days on the three year sentence" is a pure factual error.                           To be

released on parole for mayhem, Jackson could not have served more

than one month and twenty-seven days for that conviction.                           Hence,

her    conclusion     that    Jackson      served      at    least    a   year    on   both

convictions is false.

       Both the state circuit court and the Mississippi Supreme Court

blindly relied on Houston's erroneous testimony.                       By examining the

evidence before        them    and   the    applicable         law,    and    using    some

elementary logic and arithmetic, they could have easily determined

that she was wrong. The state circuit court's factual finding that

Jackson served one or more years for each conviction, then, was

obviously "unreasonable." Certainly, Jackson has shown clearly and

convincingly that the finding is incorrect.                        Moreover, the state

courts'    decisions     to    uphold      Jackson's         life     sentence    without

possibility of parole were based on this unreasonable and incorrect

finding.    The state circuit court did not cite any evidence other

than    Houston's      testimony      in    making          this    finding,     and    the

Mississippi Supreme Court did not mention any proof other than this

testimony in upholding this finding.                        Thus, I believe that §




                                           12
2254(d) does not bar us from granting habeas relief.5

                               III

     While the majority's arguments in favor of affirming the

district court are unpersuasive, that does not mean that the

district court judgment should perforce be reversed. Jackson faces

two other potential obstacles to habeas relief, both of which I

     5
      In footnote 7 of the majority opinion, the majority asserts
that I treat the question of how much time Jackson served as a
"legal" one. However, as I have tried to make clear, the amount of
time Jackson served for each offense is a fact, just as the total
amount of time he served is a fact.

          Houston testified as to both of these facts. However,
     her testimony on the first fact is wrong because that supposed
     "fact" was calculated using a statute that did not apply to
     Jackson.   That means we do not know exactly how much time
     Jackson served for each offense (though obviously he served
     some amount of time for manslaughter and some amount of time
     for mayhem, otherwise he would not have been released). But
     our lack of knowledge of this fact does not matter. Using
     controlling state law, we can calculate the minimum time that
     Jackson could have served for manslaughter (the offense that
     must be counted first); in other words, we can figure out the
     lower "limit" for this fact.     Then, based on this minimum
     amount of time for the first offense and the total amount of
     time Jackson served for both offenses, we can then determine
     that the maximum time Jackson could have served for the mayhem
     offense is less than one year;     we can establish an upper
     limit for this fact. The state court's factual finding (based
     on Houston's testimony) that Jackson served at least one year
     on the mayhem offense exceeds this upper limit. This factual
     finding can only be correct if we ignore controlling
     Mississippi law and basic mathematics. Therefore, because the
     state court's finding cannot be correct, it must be
     unreasonable.

          In response, the majority suggests that it is "equally
     plausible" that Jackson "mistake[nly]" served some amount of
     time less than six years, eight months, and a day for
     manslaughter and more than a year for mayhem. However, this
     suggestion is actually implausible. Under § 99-19-21, Jackson
     could not even begin his mayhem sentence until he had served
     at least six years, eight months, and a day for manslaughter.
     He could not, mistakenly or otherwise, have served at least a
     year for mayhem.

                                13
must address. See Pongetti v. General Motors Acceptance Corp., 101

F.3d    435,    442        (5th   Cir.1996)         (stating     that    "reversal    is

inappropriate if the ruling of the district court can be affirmed

on   any   grounds").          First,     the      Mississippi    Supreme    Court   has

determined that Jackson is procedurally barred under state law from

seeking post-conviction relief.                   Assuming this procedural bar is

independent and adequate, a federal court can only entertain

Jackson's            habeas            petition        if        he      meets       the

cause-and-prejudice/miscarriage-of-justice standard set forth in

Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640

(1991).     Second, Jackson must demonstrate that he is, as his

petition alleges, in custody in violation of either the Due Process

Clause of the Fourteenth Amendment or the Ex Post Facto Clause.                        I

examine these two issues in turn.

                                              A

       In spite of Jackson's procedural default, the district court

addressed      the    merits      of   his    petition    because,      in   part,   "the

Mississippi Supreme Court considered the substance and merits of

all of the claims in the direct appeal...."                    However, in his direct

appeal, Jackson did not make the 1/3-ratio argument.                         Rather, he

merely asserted, among other things, that the entire six years,

nine months, and twenty-eight days he served was "one period of

confinement"         for   purposes      of   §    99-19-83.      In    rejecting    this

contention, the state circuit court and Mississippi Supreme Court

relied on Houston's testimony and found that Jackson had served at

least one year on each conviction.


                                              14
     Unlike the district court and apparently the majority, I do

not think that the Mississippi Supreme Court (or, for that matter,

the state circuit court) considered the "substance and merits" of

the 1/3-ratio argument in Jackson's direct appeal.        Moreover, when

he raised this specific contention for the first time in his

application for post-conviction relief, the Mississippi Supreme

Court denied it on the grounds that it was procedurally barred by

§ 99-39-5 of the Mississippi Code. Where a state prisoner has

defaulted on his federal claims in state court pursuant to an

independent and adequate state procedural rule and the prisoner

then pursues   federal   habeas   relief,   a   federal   court   may   not

consider such relief unless the prisoner can demonstrate cause for

the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider

the claims will result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750, 111 S.Ct. at 2565.        We have previously

determined that § 99-39-5 represents an independent and adequate

procedural rule. Lott v. Hargett, 80 F.3d 161, 165 (5th Cir.1996).

     Jackson does not attempt to explain why he did not raise the

1/3-ratio argument earlier.       Rather, he simply asserts that it

would be a fundamental miscarriage of justice to require him to

serve a sentence of which he is actually innocent.         I agree.

     The actual innocence exception set forth in Coleman extends to

the sentencing phase of a trial.        See Mills v. Jordan, 979 F.2d

1273, 1279 (7th Cir.1992) (ruling that the "actual innocence

exception applies to habitual offender proceedings ... whether or


                                   15
not they involve the possibility of capital punishment"); Jones v.

Arkansas, 929 F.2d 375, 381 & n. 16 (8th Cir.1991) (holding that

defendant was actually innocent of sentence under habitual offender

statute where that statute did not apply);           cf.   United States v.

Maybeck, 23 F.3d 888, 894 (4th Cir.1994) (finding petitioner was

actually innocent of being a career offender because he had only

one relevant prior felony conviction instead of the required two),

cert. denied, --- U.S. ----, 116 S.Ct. 1555, 134 L.Ed.2d 657

(1996);      Smith v. Collins, 977 F.2d 951, 959 (5th Cir.1993)

(assuming, without deciding, that actual innocence exception is

available in non-capital sentencing case), cert. denied, 510 U.S.

829, 114 S.Ct. 97, 126 L.Ed.2d 64 (1993).           As I have shown above,

§ 99-19-83, by its own terms, does not apply to Jackson.            Moreover,

"[i]t would be difficult to think of one who is more "innocent' of

a sentence than a defendant sentenced under a statute that by its

very terms does not even apply to the defendant."           Jones, 929 F.2d

at 381.

      In this circuit, though, Jackson must also show that he could

not   have   received   a   sentence    of   life    imprisonment     without

possibility of parole under a provision other than § 99-19-83.           See

Smith, 977 F.2d at 959 (noting that "for a defendant to demonstrate

actual innocence of the sentence imposed he would have to show that

but for the constitutional error he would not have been legally

eligible for the sentence he received").            Jackson can do so.    If

the state courts had recognized that Jackson could not have served

at least one year for the mayhem charge, he would have been


                                   16
sentenced pursuant to § 99-19-81, not § 99-19-83.            Under § 99-19-

81, any person who has been convicted of two different felonies and

"who shall have been sentenced to separate terms of one (1) year or

more ... shall be sentenced to the maximum term of imprisonment

prescribed for such felony, and such sentence shall not be reduced

or suspended nor shall such person be eligible for parole or

probation" (emphasis added).         At the time of sentencing, the

maximum term for burglary of a dwelling in violation of § 97-17-19,

with which Jackson was charged and convicted, was ten years.6

Thus, the most Jackson could have been required to serve after his

third conviction was a decade, not life.

     Therefore, I would determine that Jackson is actually innocent

of his term of life in prison, without possibility of parole, and

thus it would be a fundamental miscarriage of justice to require

him to serve such a term.     Accordingly, I find that we can consider

granting Jackson habeas relief.

                                     B

     Another issue the majority does not raise, but which was

suggested by the district court, is that Jackson's habeas claims

are not cognizable under § 2254(a).       Section 2254(a) requires that

a prisoner allege that he "is in custody in violation of the

Constitution or laws or treaties of the United States."             However,

Jackson   does   assert    that   illegally     sentencing    him   to   life

imprisonment     without    possibility       of   parole    violates    his

constitutional due process rights and the Ex Post Facto Clause.            I

     6
      Mississippi repealed § 97-17-19 in 1996.

                                    17
believe that Jackson's allegation that he was sentenced under the

wrong state statutory provision, thereby jailing him for the rest

of his life rather than for a lesser term, presents a reviewable

claim under the Due Process Clause of the Fourteenth Amendment.

See, e.g., Hill v. Estelle, 653 F.2d 202, 204 (5th Cir. Unit A)

(noting that "[v]iolation of state sentencing statutes can in

certain circumstances invoke the due process protections of the

Constitution"), cert. denied, 454 U.S. 1036, 102 S.Ct. 577, 70

L.Ed.2d 481 (1981).      Indeed, I find that he has met his burden in

showing such a violation.      See Burge v. Butler, 867 F.2d 247, 250

(5th Cir.1989) (holding that prisoner who was sentenced to life

imprisonment without possibility of parole pursuant to a statute

that under state law did not apply to his crime and who could not

have been given this penalty under any applicable statute, was

sentenced in violation of the Due Process Clause of the Fourteenth

Amendment).

                                      IV

     In conclusion, I would hold that Jackson's sentence of life

imprisonment   without    possibility          of   parole   under   §   99-19-83

violated his constitutional due process rights, and I would vacate

the district   court's     opinion.        I    would   then   grant     Jackson's

application for a writ of habeas corpus in ninety days if, by then,

the state had failed to resentence him for the maximum term for

burglary of a dwelling, without possibility of parole, as mandated




                                      18
by § 99-19-81.7




     7
      I note that Jackson has already served more than thirteen
years under § 99-19-83. Resentencing Jackson to a ten-year term
under § 99-19-81 would necessarily mean his release from
incarceration.

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