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

                                                                            FILED
                                                                          August 11, 2008

                                       No. 07-60154                   Charles R. Fulbruge III
                                                                              Clerk

CHARLES SYLVESTER BELL

                                                  Petitioner-Appellant
v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; PARCHMAN

                                                  Respondents-Appellees



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:00-CV-85


Before SMITH, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Charles Sylvester Bell petitioned the district court
for a writ of habeas corpus, asserting that his Mississippi state court conviction
and sentence for armed robbery as an habitual offender are in violation of his
Fifth Amendment right to be protected against double jeopardy. Bell challenges
the district court’s decision denying his petition as procedurally barred. We
affirm.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60154

                            I. FACTS AND PROCEEDINGS1
       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, for
which he was sentenced to death.2 On appeal, his conviction and sentence were
upheld.3
       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.”4 As discussed, infra, Bell was re-sentenced to life imprisonment.
       After the death sentence was overturned, Bell was indicted as a habitual
offender for the armed robbery of D.C. Haden.5 In August 1984, Bell pleaded
guilty to the charge of armed robbery as a habitual offender and was sentenced
to the maximum term of 25 years without benefit of probation or parole. At that
same time, as a result of a global plea bargain, the State recommended life
imprisonment rather than seeking the death penalty for his capital murder
conviction. The trial court accepted the recommendation and sentenced Bell to
life imprisonment on that conviction. In addition, Bell had been convicted


       1
        In discussing the facts and the procedural history of this case, we borrow liberally from
a prior panel’s unpublished decision in this matter in which it also addressed the question
whether Bell’s double-jeopardy claim is procedurally barred. Bell v. Miss. Dep’t of Corr., 118
F. App’x 874 (5th Cir. 2005).
       2
           See MISS. CODE ANN. § 97-3-19(2)(e).
       3
           Bell v. State, 360 So. 2d 1206 (Miss. 1978), cert. denied, 440 U.S. 950 (1979).
       4
           Bell v. Watkins, 692 F.2d 999, 1014 (5th Cir. 1982), cert. denied, 464 U.S. 843 (1983).
       5
           See MISS. CODE ANN. § 99-19-81.

                                                  2
                                       No. 07-60154

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, and the 25-year term for the armed
robbery was to run consecutively to that second life sentence.
       In December 1984, Bell filed a motion in state court to vacate his armed
robbery conviction, claiming, inter alia, that it violated the Double Jeopardy
Clause of the Fifth Amendment 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. The motion was denied on its merits, and Bell
appealed to the Mississippi Supreme Court, which dismissed for lack of
prosecution.
       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. Notably, in October 1988, his habeas petition in federal court was
dismissed without prejudice because he had failed to exhaust his state
post-conviction remedies. And, in January 1990, Bell filed an appeal in the
Mississippi Supreme Court challenging, inter alia, the lower court’s dismissal
of (1) his petition to clarify his sentence and (2) his motion for out-of-time appeal.
In April 1991, the Mississippi Supreme Court affirmed the dismissal of Bell’s
petition to clarify his sentence as successive writ barred pursuant to Miss. Code
Ann. § 99-39-23(6),6 and it affirmed the dismissal of his motion for out-of-time
appeal as time-barred pursuant to Miss. Code Ann. § 99-39-5(2) (Bell I).7


       6
        See MISS. CODE ANN. § 99-39-23(6) (“[A]ny order dismissing the prisoner's motion or
otherwise denying relief under this article is a final judgment and shall be conclusive until
reversed. It shall be a bar to a second or successive motion under this article.”).
       7
         See MISS. CODE ANN. § 99-39-5(2) (“A motion for relief under this article shall be made
within three (3) years after the time in which the prisoner's direct appeal is ruled upon by the
Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the
time for taking an appeal from the judgment of conviction or sentence has expired, or in case
of a guilty plea, within three (3) years after entry of the judgment of conviction.”).

                                               3
                                         No. 07-60154

      In May 1995, Bell filed motions 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 that 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 II).8 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. The state supreme court declined, however, to rule on Bell’s
double-jeopardy claim, stating: “This issue is not germane to these proceedings.”9
      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 again appealed 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,”10 even though the court, in
Bell II, had ruled that the double-jeopardy issue was not germane to the
proceedings (Bell III). In the analysis portion of the opinion, the state supreme
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.
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


      8
          Bell v. State, 726 So. 2d 93, 94 (Miss. 1998) (Bell II).
      9
          Id.
      10
           Bell v. State, 751 So. 2d 1035, 1036 (Miss. 1999) (Bell III).

                                                 4
                                         No. 07-60154

and recommendation recommended that Bell’s petition be dismissed because,
inter alia, his 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.
      In 2005, a prior panel of this court reversed the district court’s decision,
holding that the Mississippi Supreme Court’s decision in Bell III—on which the
district court had relied in denying Bell’s petition—did not provide a “clear and
express” statement that Bell’s double-jeopardy claim was procedurally barred.11
The case was remanded to the district court for further proceedings consistent
with the opinion. On remand, that court again held that Bell’s petition was
procedurally barred. Bell timely filed a notice of appeal, insisting that the
district court (1) violated the prior panel’s mandate order on remand by
reconsidering the procedural bar issue, and (2) erred in denying his petition as
procedurally barred.
                                        II. ANALYSIS
A.    Mandate Order
      We review de novo the district court’s interpretation of our remand order,
including whether the mandate rule precludes any of the district court’s actions
on remand.12
      “The mandate rule requires a district court on remand to effect our
mandate and to do nothing else. Further, on remand the district court must
implement both the letter and the spirit of the appellate court’s mandate and
may not disregard the explicit directives of that court. In implementing the




      11
           Bell v. Miss. Dep’t of Corr., 118 F. App’x 874, 878 (5th Cir. 2005).
      12
           Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d 444, 453 (5th Cir. 2007).

                                                5
                                            No. 07-60154

mandate, the district court must take into account the appellate court’s opinion
and the circumstances it embraces.”13
         Having reviewed the long and protracted procedural history of this case,
we are convinced that the district court violated neither the letter nor the spirit
of our mandate when it reconsidered whether Bell’s petition was procedurally
barred. The prior panel of this court held only that “there is no ‘clear and
express’ statement by the Mississippi Supreme Court [in Bell III] that Bell’s
double-jeopardy claim was procedurally barred under Miss. Code Ann. § 99-39-
21.”14        Because the district court had relied on the state supreme court’s
purported holding in Bell III when it denied federal habeas review, the prior
panel was compelled to reverse that court’s decision. In doing so, however, the
panel did not address whether Bell’s double-jeopardy claim was procedurally
barred even in the absence of a clear and express statement in Bell III, nor did
it instruct the district court not to reconsider whether Bell’s petition was, in fact,
procedurally barred in the light of other evidence. Given the limited scope of the
prior panel’s reversal, and the circumstances surrounding Bell’s habeas
challenge—especially his almost a quarter century journey through the state and
federal court systems—the district court did not violate the prior panel’s
mandate by reconsidering the procedural bar issue.
B.       Denial of Habeas Review
         1.        Applicable Law
         We review de novo a district court’s denial of federal habeas review based
on a state procedural ground.15




         13
              Id. (internal citations and quotation marks omitted).
         14
              Bell v. Miss. Dep’t of Corr., 118 F. App’x at 878.
         15
              Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996).

                                                    6
                                          No. 07-60154

       “Under 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.”16 “In cases where a state
court decision ‘fairly appears’ to rest primarily on federal law, the state must
make a ‘plain statement’ that the state’s review of the claim is procedurally
barred.”17 In other words, “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.”18
       “[I]n order to be ‘adequate,’ a procedural bar must be ‘strictly or regularly’
applied by the state to the ‘vast majority of similar claims.’”19 The burden is on
the defendant to establish that the state procedural bar rule was not strictly and
regularly followed at the time of his appeal.20 “A state has failed to strictly and
regularly apply a procedural rule only when the state ‘clearly and unequivocally
excuse[s] the procedural default.”21 “Moreover, the state must fail to apply the
rule to claims identical or similar to the petitioner’s claim.                   De minimis
exceptions will not preclude the state from asserting the procedural default
doctrine; an occasional act of grace by a state court in excusing or disregarding
a state procedural rule does not render the rule inadequate. ”22

       16
            Id. (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
       17
            Id. (citing Harris v. Reed, 489 U.S. 255, 261 (1989)).
       18
         Harris v. Reed, 489 U.S. 255, 263 (1989) (quoting Caldwell v. Mississippi, 472 U.S.
320, 327 (1985)).
       19
         Martin, 98 F.3d at 847 (citing Amos v. Scott, 61 F.3d 333, 339 (5th Cir.), cert. denied,
516 U.S. 1005 (1995)).
       20
            Id.
       21
            Id. (citing Amos, 61 F.3d at 342).
       22
            Id. (quotation marks and citation omitted).

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                                        No. 07-60154

      When the state court decision is based on an independent and adequate
state ground, a federal habeas court is barred from considering the claim unless
the petitioner can show (1) both cause for the default and actual prejudice as a
result of the alleged violation, or (2) that failure to consider the claim would
result in a fundamental miscarriage of justice.23                The latter exception is
extremely narrow and requires establishing a “colorable claim of factual
innocence.”24
      2.        Discussion
      This is the second occasion on which we have addressed whether Bell’s
habeas petition, in which he asserts his double-jeopardy challenge to his armed
robbery conviction and sentence, is procedurally barred. As noted, in 2005, a
prior panel of this court reversed the lower court’s decision denying Bell’s
petition because that court had erroneously held that the Mississippi Supreme
Court in Bell III provided a “clear and express” statement that Bell’s double-
jeopardy claim was procedurally barred. The State insists that Bell III need not
be the final word on whether Bell’s double-jeopardy claim was held to be
procedurally barred by the Mississippi state courts. Relying on the United
States Supreme Court decision in Ylst v. Nunnemaker, the State urges us to look
through the last “unexplained” opinion of the state court that addressed Bell’s
double-jeopardy challenge—Bell III—to the last “reasoned” decision on the
issue—Bell I—to determine whether the denial of his claim rested on a state
procedural bar.25
      In Ylst, the Supreme Court considered whether the California Supreme
Court’s unexplained order denying petitioner’s habeas petition on his Miranda


      23
           See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
      24
           Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (citation omitted).
      25
           501 U.S. 797 (1991).

                                               8
                                       No. 07-60154

claim constituted a “decision on the merits” of that claim sufficient to lift the
procedural bar previously imposed by the California Court of Appeal.26 In
resolving the question, the Ylst Court applied the following presumption: “When
there has been one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the same claim rest
upon the same ground.”27 Accordingly, when “the last reasoned opinion on the
claim explicitly imposes a procedural default, we will presume that a later
decision rejecting the claim did not silently disregard that bar and consider the
merits.”28
       Under the precise circumstances of this case, we are persuaded to adopt
the State’s position. The Mississippi Supreme Court’s decision in Bell III is not
the last explained state-court judgment on Bell’s double-jeopardy claim, as the
court did not rule on that particular challenge. Although the state supreme
court addressed Bell’s IAC claim in Bell III, the court was, as our prior panel
held, effectively silent on his double-jeopardy claim, thereby implicitly rejecting
it without explanation. Accordingly, we may “look through” that decision to the
last reasoned opinion that addressed Bell’s instant challenge. In Bell I, the
Mississippi Supreme Court summarily dismissed (1) his petition to clarify his
sentence on the basis that it was procedurally barred pursuant to the successive
writ bar of Miss. Code Ann. § 99-39-23(6) and (2) his motion for out-of-time
appeal on the basis that it was procedurally barred pursuant to the time bar of
Miss. Code Ann. § 99-39-5(2).29 Bell’s pleadings to the Mississippi Supreme


       26
            Id. at 801.
       27
            Id. at 803.
       28
            Id.
       29
         Specifically, the Mississippi Supreme Court’s final judgment stated as follows: “Lower
Court’s Dismissal of Petition to Clarify Sentence Affirmed as Successive Writ Barred Pursuant
to Miss. Code Ann. Section 99-39-23(6) (Supp. 1990); Lower Court’s dismissal of Motion for

                                              9
                                     No. 07-60154

Court in Bell I, construed liberally, alleged violations of, inter alia, his right to
effective assistance of counsel and his right to be protected from double jeopardy.
Unlike the Mississippi Supreme Court’s decision in Bell III, in which it clearly
and expressly held only that Bell’s IAC claim was procedurally barred, its
judgment in Bell I unambiguously dismissed as procedurally barred both Bell’s
petition and his motion in their entireties, which dismissals necessarily included
all claims asserted therein, including Bell’s double-jeopardy challenge. As the
Mississippi state courts did not re-visit Bell’s double-jeopardy claim in any
proceeding subsequent to Bell I, it remains the last reasoned decision directed
at the instant challenge.
      Furthermore, the Mississippi Supreme Court’s summary dismissal of
Bell’s petition and motion in Bell I is sufficiently “reasoned” under these
circumstances because it was apparent on the face of the record that Bell’s
claims were procedurally barred. Bell’s double-jeopardy challenge was denied
on its merits in 1985 by the Mississippi Circuit Court of Forrest County. From
this order an appeal was taken to the Mississippi Supreme Court; however, the
following year, that court dismissed Bell’s appeal for lack of prosecution, which
forever foreclosed his entitlement to raise the claim again. The Mississippi
Supreme Court recognized in Bell I that his double-jeopardy challenge was
plainly subject to procedural bar and expressly provided its reasons for
dismissing his petition and motion, albeit in succinct fashion.               We hold,
therefore, that the Mississippi Supreme Court in Bell I clearly and expressly
held that Bell’s double-jeopardy claim was procedurally barred.
      Moreover, Bell has failed to meet his burden of demonstrating that Miss.
Code Ann. §§ 99-39-23(6) and 99-39-5(2) are inadequate procedural bars. We
have held previously that each of these rules is an independent and adequate

Out-of-Time Appeal Affirmed as Time Barred Pursuant to Miss. Code Ann. Section 99-39-5(2)
(Supp. 1990) . . . .”

                                           10
                                           No. 07-60154

procedural bar to federal habeas review.30 And, here, Bell has not shown that
the State of Mississippi failed to apply the bars regularly with respect to the
vast majority of similar claims during the applicable period. In only one of the
cases to which he refers, Fuselier v. State, did the Mississippi Supreme Court
decline to impose a procedural bar in factual circumstances similar to those at
issue.31 This case is distinguishable, however, considering that (1) Bell is serving
two consecutive life sentences for two separate capital murder offenses, as
opposed to only one, (2) he was separately indicted for the crimes of armed
robbery as an habitual offender and the murder of D.C. Haden, rather than
being charged with both crimes in a single indictment, and (3) the procedural
bars at issue here are Miss. Code Ann. §§ 99-39-26(6) and 99-39-5(2), whereas
the bar apparently excused in Fuselier was Miss. Code Ann. § 99-39-21(1).
Moreover, this court has held that an occasional act of grace in overlooking a
state procedural rule does not render the rule inadequate.32 Finally, none of the
other cases that Bell cites involved a claim of double jeopardy, and in none of
those cases did the defendant obtain a reversal of a sentence he knowingly,
intelligently, and voluntarily assumed to avoid the death penalty.33


       30
         See, e.g., Moawad v. Anderson, 143 F.3d 942, 947 (5th Cir. 1998) (applying § 99-39-
23(6) to bar petitioner from raising claim in subsequent state court proceeding for post-
conviction relief); Lott v. Hargett, 80 F.3d 161, 164-65 (5th Cir. 1996) (holding that § 99-39-
23(6) bars federal habeas review of substantive claims raised by petitioner in successive
motion); Sones v. Hargett, 61 F.3d 410, 417-18 (5th Cir. 1995) (holding that § 99-39-5(2)
“functions as an independent and adequate procedural bar to review of Sones’s ineffective
assistance of counsel claim in federal court”).
       31
            654 So. 2d 519 (Miss. 1995).
       32
            See Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996) (quotation marks and citation
omitted).
       33
         See id.; Kennedy v. State, 732 So. 2d 184 (Miss. 1999); Stevenson v. State, 674 So. 2d
501 (Miss. 1996); Kennedy v. State, 626 So. 2d 103 (Miss. 1993); Luckett v. State, 582 So. 2d
428 (Miss. 1991); Grubb v. State, 582 So. 2d 428 (Miss. 1991); Smith v. State, 477 So. 2d 191
(Miss. 1985).

                                               11
                                       No. 07-60154

      As we noted above, federal habeas courts are estopped from reviewing
state cases applying an independent and adequate state procedural rule unless
the petitioner can demonstrate either (1) cause and actual prejudice or (2) that
a fundamental miscarriage of justice would result if the case is not reviewed.34
Cause requires “something external to the petitioner, something that cannot be
fairly attributed to him.”35 Bell is unable to make such a showing. His error
came when he failed to prosecute further the appeal of his first post-conviction
petition when it was denied by the Mississippi circuit court in 1985. As Bell had
no constitutional right to counsel in pursuing post-conviction relief,36 and as he
does not point to any other external factor causing his lapse, his mistake is
attributable to him and to him alone. Because Bell has failed to demonstrate
cause, we do not consider whether he suffered actual prejudice. Furthermore,
we are not persuaded that there will be a “fundamental miscarriage of justice”
if Bell’s challenge is not heard on its merits. Bell makes no effort in his brief to
argue that there would be a fundamental miscarriage of justice if we hold that
his habeas petition is procedurally barred, nor do we believe there would be,
considering that his double-jeopardy claim arises from a plea agreement that
was of such obvious and immense benefit to him.
                                   III. CONCLUSION
      The district court’s decision denying Bell’s petition for a writ of habeas
corpus as procedurally barred is AFFIRMED.




      34
           See Coleman v. Thompson, 501 U.S. 722, 750 (1991).
      35
           Id. at 753.
      36
           See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987).

                                              12
