Case: 10-70027 Document: 00511555956 Page: 1 Date Filed: 07/29/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 29, 2011
No. 10-70027 Lyle W. Cayce
Clerk
QUINTEZ WREN HODGES,
Petitioner - Appellee
v.
CHRISTOPHER B EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Respondent - Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
Before KING, BENAVIDES, and ELROD, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Petitioner-Appellee Quintez Wren Hodges (“Hodges”), convicted of capital
murder and kidnapping in Mississippi and sentenced to death and twenty years
in prison, respectively, filed a petition for federal habeas relief in district court.
The district court granted habeas relief with respect to the sentencing phase of
trial, ruling that the sentencing instructions incorrectly informed the jurors that
Hodges would be eligible for parole in violation of the Due Process Clause of the
Fourteenth Amendment. The State has appealed. We agree with the district
court that the erroneous sentencing instructions violated Hodges’s due process
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rights.1 Further, we hold that the Mississippi Supreme Court’s ruling that the
error was harmless is unreasonable. We therefore AFFIRM the district court’s
grant of relief with respect to Hodges’s sentence and AFFIRM the district court’s
resentencing order.
I. BACKGROUND
On July 20, 1999, Hodges, who was armed with a gun, broke into the home
of his former girlfriend, Cora Johnson, in Lowndes County, Mississippi. Hodges
v. State, 949 So. 2d 706, 712 (Miss. 2006). Upon entering the home, he
encountered Cora’s brother, Isaac Johnson. Id. Hodges fatally shot Isaac, and
kidnapped Cora and her baby girl. Id. Hodges then drove Cora and her child to
Alabama. Id. Cora testified that after they arrived in Alabama, Hodges raped
her in the back seat of the vehicle. Id. Afterward, Hodges returned Cora and
her daughter to her mother’s house and “turned himself in to the police.” Id.
On November 8, 1999, a Lowndes County, Mississippi grand jury returned
an indictment that charged Hodges with the capital murder of Isaac Johnson
during the commission of a burglary. MISS. CODE ANN. § 97-3-19(2)(e).
Additionally, Hodges was charged with kidnapping Cora Johnson. A jury found
Hodges guilty as charged. After a sentencing hearing conducted pursuant to
§ 99-19-101, the jury unanimously found that Hodges should receive the death
penalty. The trial court sentenced Hodges to death by lethal injection. The
court also sentenced Hodges to a term of twenty years for the kidnapping
conviction.
1
The district court also granted relief as to the sentencing phase on the following two
claims (1) counsel rendered ineffective assistance during the sentencing phase of trial in
violation of the Sixth Amendment; and (2) the prosecution knowingly introduced false
testimony in violation of the Due Process Clause of the Fourteenth Amendment. Because we
affirm the district court’s grant of habeas relief with respect to the jury instructions, we need
not reach these two claims.
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On direct appeal, Hodges argued, among many other things, that the
sentencing instructions violated his due process rights by incorrectly informing
the jurors that he could be sentenced to life with the possibility of parole. The
Mississippi Supreme Court ruled that the claim was procedurally barred and,
in the alternative, rejected the claim on the merits, affirming Hodges’s
convictions and sentences. Hodges v. State, 912 So. 2d 730, 770 (Miss.), cert.
denied, 546 U.S. 1037 (2005). Hodges applied for state post-conviction relief,
again raising a due process violation based on the erroneous sentencing
instructions. The Mississippi Supreme Court stated that the claim was barred
by res judicata and quoted an excerpt from its previous opinion discussing the
merits of the claim. Hodges v. State, 949 So. 2d 706, 722-23 (Miss. 2006), cert.
denied, 522 U.S. 1061 (2007). The state court did not mention the procedural
bar it had imposed on Hodges’s direct appeal.
Hodges subsequently filed a federal petition for writ of habeas corpus,
challenging both his conviction and his death sentence. Hodges raised many
claims, including the due process challenge to the erroneous sentencing
instructions. After holding an evidentiary hearing, the district court denied relief
with respect to the claims challenging Hodges’s conviction and granted habeas
relief with respect to the sentencing portion of trial, holding that the erroneous
sentencing instructions violated his due process rights. The State now appeals.
II. PAROLE INSTRUCTIONS
The State appeals the district court’s ruling that the sentencing
instructions incorrectly informed the jury that he would be eligible for parole in
violation of the Due Process Clause of the Fourteenth Amendment. Hodges filed
his 28 U.S.C. § 2254 petition for a writ of habeas corpus after the effective date
of the Antiterrorism and Effective Death Penalty Act (AEDPA). The petition,
therefore, is subject to AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Pursuant to the federal habeas statute, as amended by AEDPA, a federal court
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may not grant habeas relief to any claim that was “adjudicated on the merits”
in state court unless the state court’s decision was: (1) “contrary to, or involved
an unreasonable application of, clearly established Federal law”; or (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.” 28 U.S.C.
§ 2254(d). A state court’s decision is deemed contrary to clearly established
federal law if it reaches a legal conclusion in direct conflict with a prior decision
of the Supreme Court or if it reaches a different conclusion than the Supreme
Court based on materially indistinguishable facts. Williams v. Taylor, 529 U.S.
362, 404-08 (2000). A state court’s decision constitutes an unreasonable
application of clearly established federal law if it is “objectively unreasonable.”
Id. at 409. Further, pursuant to section 2254(e)(1), state court findings of fact
are presumed to be correct, and the petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence. See Valdez v.
Cockrell, 274 F.3d 941, 947 (5th Cir. 2001).
A. Procedural Bar
The State first contends that the Mississippi Supreme Court held that this
due process claim was procedurally barred based on an adequate state law
ground. On direct appeal, the Mississippi Supreme Court first found that
because counsel failed to object to the erroneous parole instructions, the claim
was procedurally barred. Hodges, 912 So. 2d at 770. The Court then
alternatively considered the merits of the claim and held that Hodges “was not
entitled to an instruction regarding his ineligibility for parole because he was not
a habitual offender” under Mississippi law. Id. The Court further found that
the erroneous instruction that the court would sentence Hodges to life with
parole if the jurors failed to agree on a sentence was harmless error. Id. at 772.
During the state habeas proceedings, Hodges again challenged the erroneous
parole instructions. This time, the Mississippi Supreme Court did not mention
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a procedural bar; instead, it quoted extensively from the merits discussion in its
earlier opinion on direct appeal denying relief. Hodges, 949 So. 2d at 722-23.
We read the opinion as reaching the merits of the due process claim by adopting
or endorsing its analysis on the merits from its prior opinion.2 After the quoted
language from its previous opinion, the Court stated simply that the claim was
“barred by res judicata.” Id. at 723.
The State contends that the claim is procedurally barred, mistakenly
relying upon precedent that recognizes that a state court may impose a valid
procedural bar and, in the alternative, reach the merits of the federal claim.
Harris v. Reed, 489 U.S. 255, 264 n.10 (1989). Although the Mississippi
Supreme Court did just that in its opinion on Hodges’s direct appeal, that is not
what occurred when the court reached the claim during state habeas
proceedings. The federal district court thus found there was no procedural bar
“[b]ecause the Mississippi Supreme Court held the issue barred by res judicata
while citing its merits discussion and not its previous finding of default.” We
agree with the district court that there is no procedural bar to the instant claim.
The Mississippi Supreme Court did impose a procedural bar on direct appeal.
“State procedural bars are not immortal, however; they may expire because of
later actions by state courts. If the last state court to be presented with a
particular federal claim reaches the merits, it removes any bar to federal-court
review that might otherwise have been available.” Ylst v. Nunnemaker, 501 U.S.
797, 801 (1991). Here, during state habeas proceedings, the last time the
Mississippi Supreme Court was presented with the instant claim, it addressed
the merits of the claim without mentioning the procedural bar. Hodges, 949
So.2d at 722-23. The court also stated that the claim was barred by res judicata.
2
To the extent that it can be argued that the opinion is ambiguous as to whether the
state court is adopting the analysis on the merits from its previous opinion, such ambiguity
does not prevent our review of the claim. Arizona v. Evans, 514 U.S. 1, 9 (1995).
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Id. at 723. However, “[w]hen a state court declines to review the merits of a
petitioner’s claim on the ground that it has done so already, it creates no bar to
federal habeas review.” Cone v. Bell, 129 S. Ct. 1769, 1781 (2009).3 Accordingly,
the last time the state court addressed the instant claim it addressed the claim
on the merits without mentioning the procedural bar, thereby removing the
previously imposed procedural bar. Ylst, 501 U.S. at 801.
B. Merits of Due Process Claim
In the alternative, the State argues that the improper parole instructions
constituted harmless error and thus the state court’s decision was not an
unreasonable determination of facts or an unreasonable application of clearly
established law. At the conclusion of the sentencing hearing, the trial court
instructed the jury that it could sentence Hodges to: (1) death; (2) life
imprisonment without the possibility of parole; or (3) life imprisonment with the
possibility of parole. Section 99-19-101 of the Mississippi Code does set forth
those three sentencing options. Nevertheless, § 47-7-3(f) provides that “[n]o
person shall be eligible for parole who is charged, tried, convicted and sentenced
to life imprisonment under the provisions of Section 99-19-101.” Thus, “in
reality a life sentence imposed after June 30, 1995, automatically means life
without parole because . . . § 47–7–3(1)(f) . . . was amended effective June 30,
1995, to provide that no person shall be eligible for parole who is charged, tried,
convicted and sentenced to life imprisonment” for a capital offense. Barnes v.
State, 763 So. 2d 216, 223 (Miss. App. 2000). Because Hodges’s sentence was
imposed after June 30, 1995, he is not eligible for parole under Mississippi law.
3
We note that if the Mississippi Supreme Court had not addressed the merits and
instead had simply stated that the claim was barred by res judicata, the procedural bar
imposed on direct appeal would have remained in place. Cone, 129 S. Ct. at 1781 (explaining
that when a state court declines to reach a claim because the claim has previously been
adjudicated, a “pre-existing procedural default” is not lifted).
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In any event, it is undisputed that the state trial court erroneously
instructed the jury that there was a third sentencing option of life with the
possibility of parole. It is also undisputed that the court erroneously instructed
the jurors that if they could not unanimously agree on punishment, then the
court “must sentence the Defendant to a term of life imprisonment with the
possibility of parole.”
In Simmons v. South Carolina, in a plurality opinion, Justice Blackmun
opined that “if the State rests its case for imposing the death penalty at least in
part on the premise that the defendant will be dangerous in the future, the fact
that the alternative sentence to death is life without parole will necessarily
undercut the State’s argument regarding the threat the defendant poses to
society.” Simmons, 512 U.S. 168-69. Further, “[b]ecause truthful information
of parole ineligibility allows the defendant to ‘deny or explain’ the showing of
future dangerousness, due process plainly requires that he be allowed to bring
it to the jury’s attention.” Id. at 169. Justice O’Connor concurred in the
judgment and wrote the controlling opinion,4 which provided that:
When the State seeks to show the defendant’s future dangerousness,
however, the fact that he will never be released from prison will
often be the only way that a violent criminal can successfully rebut
the State’s case. I agree with the Court that in such a case the
defendant should be allowed to bring his parole ineligibility to the
jury’s attention-by way of argument by defense counsel or an
instruction from the court-as a means of responding to the State’s
showing of future dangerousness.
Id. at 169-70.
In the case at bar, the State understandably does not challenge the district
court’s ruling that it relied on Hodges’s future dangerousness in arguing for the
death penalty. Nor does the State challenge the district court’s ruling that
4
Holland v. Anderson, 583 F.3d 267, 281 (5th Cir. 2009).
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Hodges was entitled to have the jury instructed that he would be ineligible for
parole if he was sentenced to life in prison—either by the jury or the trial judge
if the jury could not reach a unanimous verdict. However, the State does argue
that the Mississippi Supreme Court’s holding of harmless error was not
unreasonable. Accordingly, we must determine whether the “flaw in the
instructions ‘had substantial and injurious effect or influence in determining the
jury’s verdict.’” See Hedgpeth v. Pulido, __ U.S .__, 129 S. Ct. 530, 530–31 (2008)
(quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Applying this
standard of review, Hodges “should prevail [if] the record is ‘so evenly balanced
that a conscientious judge is in grave doubt as to the harmlessness of the error.’”
Robertson v. Cain, 324 F.3d 297, 305 (5th Cir. 2003) (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995)).
There were two errors in the sentencing charge. The first error was that
the court instructed the jury that it could sentence Hodges to life with parole.
As previously set forth, Mississippi law does not allow a person convicted of
capital murder to become eligible for parole. Although the jury was wrongfully
instructed that it could choose a sentence of life with parole, the jury still had
the option of choosing life without parole. Thus, despite knowing it could
sentence him to life without parole, the jury chose the more severe option of a
death sentence.5 Under these circumstances, Hodges was not precluded from
arguing to the jury that he would not be a future danger to society because he
could not be paroled. We conclude that the Mississippi Supreme Court’s holding
that this error was harmless is not unreasonable because the instructions
informed the jury it could sentence him to life without parole, and the jury
nonetheless sentenced Hodges to death. Accordingly, we do not find that the
5
Because the State only argues that the error was harmless, we assume for purposes
of this appeal that this error violated Hodges’s due process rights.
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first error had substantial and injurious effect or influence on the jury’s verdict.
The second error was that the court improperly instructed the jurors that
if they could not unanimously agree on punishment, then the court “must
sentence the Defendant to a term of life imprisonment with the possibility of
parole.” (emphasis added). There is no dispute that Hodges was not entitled to
parole. As stated by the district court, this “Court cannot know whether at least
one juror, despite a desire to vote for a sentence of life imprisonment without
parole, voted to impose a sentence of death to prevent a hung jury, and thus,
Petitioner’s potential release into society.” Op. at 33. The district court noted
that the error was exacerbated by the prosecutor’s closing argument in which he
referred to the incorrect sentencing option of life with parole.
As previously set forth, a prosecutor’s argument that a defendant will be
a future danger can be rebutted if a defendant is not eligible for parole.
Simmons, 512 U.S. 169-70. To determine whether the erroneous instruction had
substantial and injurious effect or influence on the jury’s verdict, we now turn
to examine the prosecutor’s closing argument regarding Hodges’s future
dangerousness to society. During argument to the jury, the prosecutor listed the
sentencing options, including the sentence of life with parole. He further stated
to the jury that if it was unable to “unanimously reach a verdict because any of
those verdicts you reach must be unanimous, then you are to return that to the
Court and state that you’re unable to reach a verdict and at that point in time
the Court will sentence him to life with parole.”6 The court below correctly noted
that the prosecutor’s closing argument emphasized or exacerbated the error.
6
Indeed, defense counsel reiterated that there were three sentencing options,
including a sentence of life with parole. Defense counsel also stated to the jury that: “If you
don’t feel that the death penalty is what this man deserves, then give him one of the other two
options.”
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The prosecutor also reminded the jury that Hodges had escaped from jail twice.
This Court has recognized that repeated escapes from custody constitute
evidence that a defendant would be a future danger. See Moody v. Johnson, 139
F.3d 477, 484 (5th Cir. 1998).
Further, referring to Hodges’s testifying at trial, the prosecutor argued
that the “most damning thing isn’t what you heard or what you saw, it’s what
you didn’t see. . . . You didn’t see remorse [from Hodges]. Not one tear. Not a
quiver in his voice. Not an ounce of sincerity in his apology.” A defendant’s lack
of remorse has also been construed as evidence of future dangerousness. White
v. Johnson, 153 F.3d 197, 203 (5th Cir. 1998). In the same vein, the prosecutor
argued that Hodges had received “a series of failed second chances.” For
example, the prosecutor reminded the jury that the victim of his prior burglary
was the mother of the capital murder victim and that, during the previous
burglary proceedings, she had requested that Hodges not be sentenced to prison.
Three weeks after Hodges was released from custody in the burglary case, he
committed the instant capital murder, killing her son and kidnapping her
daughter. The prosecutor argued that although Hodges refused to acknowledge
it during his testimony, he had been given “a second chance of monumental
proportions” and a “huge measure of grace.” Additionally, near the end of
closing argument, the prosecutor stated as follows: “All I know is the good boy
turned bad . . . . When you go back into that jury room, ladies and gentlemen,
to reach that judgment consider this: He stands before you and asks you for a
second chance. A second chance to do what to who and when and where?” The
prosecutor was clearly attempting to persuade the jury to sentence Hodges to
death so that he would not have a second chance to hurt someone. In other
words, the prosecutor was again arguing that Hodges would be a future danger.
In light of the prosecutor’s extensive reliance on the evidence of Hodges’s
future dangerousness, including “failed second chances” and two escapes while
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in custody for the instant murder, we have grave doubt as to the harmlessness
of this error.7 We therefore conclude that erroneous instructions had substantial
and injurious effect or influence in determining the jury’s verdict.
Accordingly, for the above stated reasons, we affirm the district court’s
holding that because of the erroneous parole instructions, Hodges was denied a
reliable sentencing hearing in violation of due process. Further, we conclude
that the Mississippi Supreme Court’s finding that such error was harmless was
unreasonable.
7
Although the jury did not send a note to the court inquiring about parole eligibility,
the Supreme Court has expressly held it is not necessary for a jury to “manifest[ ] its
confusion” on the record. Kelly v. South Carolina, 534 U.S. 246, 256 (2002).
11