[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF
APPEALS
ELEVENTH CIRCUIT
No. 07-12208 DECEMBER 19, 2011
________________________ JOHN LEY
D. C. Docket No. 97-00629-CV-MHT-WC
BILLY JOE MAGWOOD,
Petitioner-Appellee,
Cross-Appellant,
versus
WARDEN,
COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS,
ATTORNEY GENERAL OF ALABAMA,
Respondents-Appellants,
Cross-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(December 19, 2011)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
BLACK, Circuit Judge:
Alabama death-row inmate Billy Joe Magwood’s 28 U.S.C. § 2254 petition
was partially granted by the district court on his claim that his death sentence
violated the fair-warning requirement of the Due Process Clause because it was
based on Ex parte Kyzer, 399 So. 2d 330 (Ala. 1981), which was decided after he
committed his offense and was retroactively applied to his case. Magwood v.
Culliver, 481 F. Supp. 2d 1262, 1287 (M.D. Ala. 2007). The State of Alabama
then appealed the district court’s grant of relief on the fair-warning issue,1
asserting the district court erred when it granted relief on Magwood’s claim that
Kyzer deprived him of due process of law because the claim was (1) procedurally
defaulted, (2) precluded under 28 U.S.C. § 2244(b), and (3) meritless. We
reversed the district court’s grant of relief on Magwood’s fair-warning claim,
holding the claim was successive and governed by 28 U.S.C. § 2244(b)(2).2
1
The State may appeal as of right a grant of habeas relief by the district court and a
certificate of appealability is not needed. Arthur v. Haley, 248 F.3d 1302, 1303 n.1 (11th Cir.
2001).
2
The district court also granted relief on Magwood’s claim his counsel was ineffective
during resentencing because he failed to argue the retroactive application of Kyzer to Magwood’s
case was a violation of due process. Magwood, 481 F. Supp. 2d at 1295. The State appealed and
we reversed the district court’s grant of relief on this claim as well. Magwood v. Culliver, 555
F.3d 968, 978 (11th Cir. 2009).
2
Magwood v. Culliver, 555 F.3d 968, 976 (11th Cir. 2009). The Supreme Court
granted certiorari, reversed our decision that the fair-warning claim was
successive, and remanded for further proceedings consistent with its opinion.
Magwood v. Patterson, __ U.S. __, 130 S. Ct. 2788, 2803 (2010).
In its supplemental briefing on remand, the State again contends the district
court erred in granting relief on the fair-warning claim because the claim is
(1) procedurally defaulted, and (2) meritless. Magwood asserts this claim is not
procedurally defaulted and that Kyzer unforeseeably suggested that Magwood’s
crime was a death-eligible offense. Magwood further contends the Alabama
Supreme Court has subsequently made clear that Kyzer’s dicta, on which
Magwood’s death sentence was based, was never the law.
This case presents a unique situation. The Alabama Supreme Court’s
interpretation of its death penalty statute in Kyzer–that the charge averred in the
indictment can be used as the aggravating circumstance for a judge to impose the
death penalty–provided the required, and only, “aggravating circumstance” for
Magwood to receive the death penalty when he was resentenced in 1986. See
Kyzer, 399 So. 2d at 337-38. In 2006, however, the Alabama Supreme Court held
the pertinent language in Kyzer was both (1) incorrect and never the law of
Alabama, and (2) dicta. Ex parte Stephens, 982 So. 2d 1148, 1152-53 (Ala. 2006).
3
Magwood is an anomaly on Alabama’s death row. According to Magwood’s
counsel, Magwood is the sole person on Alabama’s death row without an
aggravating circumstance for his crime, and is the only person on Alabama’s death
row whose case is affected by Stephens.
Based on a clear reading of Alabama law, we conclude that Magwood was
not eligible for the death penalty. Magwood is entitled to habeas relief because his
death sentence violated the fair-warning requirement of the Due Process Clause3
as it was based on Kyzer, which was an “unforeseeable and retroactive judicial
expansion of narrow and precise statutory language.” Bouie v. City of Columbia,
378 U.S. 347, 352, 84 S. Ct. 1697, 1702 (1964).
I. BACKGROUND
A. Factual background
The facts of Magwood’s offense are not in dispute. They are set forth in an
opinion by the Alabama Court of Criminal Appeals, as follows:
Thomas Weeks, a Coffee County Deputy Sheriff, testified he was
employed as the county jailer on March 1, 1979, under Coffee County
Sheriff Neil Grantham. The witness stated he observed [Magwood],
whom he recognized as a former jail inmate, sitting in a car parked in
3
Because Magwood is entitled to relief from his death sentence on this claim, we do not
decide the State’s other issue on appeal–whether the district court erred when it concluded the
state court’s rejection of Magwood’s ineffective assistance of counsel claim was unreasonable.
Nor do we decide the multiple resentencing issues that Magwood asserts in his cross-appeal.
4
Sheriff Grantham’s parking space at approximately 6:45 a.m. Shortly
before 7:00 a.m., he observed Sheriff Grantham drive up and park his
vehicle. He got out of the automobile, walked to some garbage cans
and deposited a trash bag, and then walked towards the jail door.
[Magwood] got out of his automobile with something in his hand and
met Sheriff Grantham at the rear of the car. At that point, Deputy
Weeks heard three gunshots and saw Sheriff Grantham fall. The
witness then turned back into the jail and obtained a gun. He
observed [Magwood] get back into his car and saw that he held a
pistol in his hand. He exchanged fire with [Magwood] as he drove
away. Deputy Weeks then went over to where Sheriff Grantham lay
on the ground and observed that the Sheriff’s face was blue and that
he appeared not to be breathing, having apparently been hit in the
face and neck. Deputy Weeks stated he observed no one else in the
area at the time the Sheriff was killed.
Magwood v. State, 426 So. 2d 918, 920 (Ala. Crim. App. 1982).
B. Procedural background
Magwood murdered Sheriff Grantham on March 1, 1979. Id. Magwood
was convicted and sentenced to death for the murder in June 1981. Id. at 920 n.1.
On direct appeal, the Alabama Court of Criminal Appeals and the Alabama
Supreme Court affirmed Magwood’s conviction and death sentence. Id. at 929,
aff’d Ex parte Magwood, 426 So. 2d 929, 932 (Ala. 1983), cert. denied 462 U.S.
1124, 103 S. Ct. 3097 (1983).
On July 13, 1983, Magwood filed a petition for writ of error coram nobis in
the Circuit Court of Coffee County. Magwood v. State, 449 So. 2d 1267, 1267
(Ala. Crim. App. 1984). This petition was denied and on March 20, 1984, the
5
Alabama Court of Criminal Appeals affirmed the denial of the coram nobis
petition. Id. at 1268.
Magwood then filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in
the United States District Court for the Middle District of Alabama. On March 26,
1985, the district court upheld Magwood’s conviction but conditionally granted
the writ as to the sentence, based on the failure of the sentencing court to find two
mitigating circumstances. Magwood v. Smith, 608 F. Supp. 218, 225-26 (M.D.
Ala. 1985). This Court affirmed the district court’s decision. Magwood v. Smith,
791 F.2d 1438, 1450 (11th Cir. 1986).
A resentencing hearing was conducted on September 17, 1986. Magwood v.
State, 548 So. 2d 512, 513 (Ala. Crim. App. 1988). On October 2, 1986, the
Alabama trial court, after considering the additional mitigating circumstances as
ordered by the federal district court, again sentenced Magwood to death. Id. The
Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed
Magwood’s resentencing. Id. at 516, aff’d, 548 So. 2d 516 (Ala. 1988), cert.
denied 493 U.S. 923, 110 S. Ct. 291 (1989).
Magwood filed an application in this Court for permission to file a second
habeas corpus petition in the district court challenging his conviction, which we
denied. In re Magwood, 113 F.3d 1544, 1553 (11th Cir. 1997). Magwood filed a
6
second habeas petition challenging his resentencing on April 23, 1997. The
district court granted in part and denied in part Magwood’s second habeas
petition. Magwood v. Culliver, 481 F. Supp. 2d 1262, 1295 (M.D. Ala. 2007).
II. ANALYSIS
To determine whether the application of Kyzer to Magwood’s case was a
violation of the fair-warning requirement of the Due Process Clause we must first
set out the relevant portions of Alabama’s death penalty statute at the time of
Magwood’s offense. We then discuss the effect of Kyzer and Stephens on
Magwood’s eligibility for the death penalty. Finally, we conclude Magwood can
overcome any procedural default and that the application of Kyzer violated the
fair-warning requirement of the Due Process Clause.
A. The 1975 Act
Magwood murdered Sheriff Grantham on March 1, 1979. At that time,
Alabama’s death penalty statute provided in Alabama Code § 13-11-2(a)(5)
(1975):4
(a) If the jury finds the defendant guilty, it shall fix the punishment at
death when the defendant is charged by indictment with any of the
following offenses and with aggravation, which must also be averred
in the indictment, and which offenses so charged with said
aggravation shall not include any lesser offenses:
4
Unless otherwise indicated, all cites to the Alabama Code are to the 1975 version.
7
(5) The murder of any police officer, sheriff, deputy, state
trooper or peace officer of any kind, or prison or jail guard
while such prison or jail guard is on duty or because of some
official or job-related act or performance of such officer or
guard.
Alabama Code § 13-11-4, entitled “Determination of sentence by court; court not
bound by punishment fixed by jury” provided:
Notwithstanding the fixing of the punishment at death by the jury, the
court, after weighing the aggravating and mitigating circumstances,
may refuse to accept the death penalty as fixed by the jury and
sentence the defendant to life imprisonment without parole, which
shall be served without parole; or the court, after weighing the
aggravating and mitigating circumstances, and the fixing of the
punishment at death by the jury, may accordingly sentence the
defendant to death. If the court imposes a sentence of death, it shall
set forth in writing, as the basis for the sentence of death, findings of
fact from the trial and the sentence hearing, which shall at least
include the following:
(1) One or more of the aggravating circumstances enumerated
in section 13-11-6, which it finds exists in the case and which it
finds sufficient to support the sentence of death . . . .
(emphasis added).
Magwood’s crime, the murder of a law enforcement officer, is not listed as
one of the aggravating circumstances in § 13-11-6. Additionally, the resentencing
court specifically found that Magwood’s crime did not qualify him for any of the
aggravating circumstances enumerated in § 13-11-6.
8
Thus, although Magwood’s conviction under § 13-11-2(a)(5) forced the jury
to fix the punishment at death, the judge could nonetheless have sentenced
Magwood to life imprisonment without parole. Magwood asserts that under § 13-
11-4, the judge was required to set forth an aggravating circumstance from § 13-
11-6. Magwood contends that because he indisputably did not have an
aggravating circumstance listed in § 13-11-6, the judge was required to sentence
him to life imprisonment.
B. Ex parte Kyzer
Kyzer was tried and convicted under Alabama’s 1975 death penalty statute,
§ 13-11-2(a)(10), for first degree murder “wherein two or more human beings are
intentionally killed by the defendant by one or a series of acts.” Kyzer, 399 So. 2d
at 332. The Alabama Supreme Court concluded there was an evidentiary basis for
lesser included offense instructions in Kyzer’s case, and thus reversed and
remanded for a new trial to be conducted in conformance with Beck v. Alabama,
447 U.S. 625, 100 S. Ct. 2382 (1980).5 Kyzer, 399 So. 2d at 333.
5
In Beck v. Alabama, the United States Supreme Court found fault with the Alabama
death penalty scheme because it failed to allow a jury in a capital case to consider lesser
included, noncapital offenses. 447 U.S. 625, 627-28, 100 S. Ct. 2382, 2384-85 (1980). On
remand, the Alabama Supreme Court determined the preclusion clause could be removed from
the statute, allowing the Alabama rule on lesser included offenses in noncapital cases to apply to
capital cases. Beck v. State, 396 So. 2d 645, 658-59 (Ala. 1980). The Alabama Supreme Court
further decided the statute required jury participation in the sentencing process, and created the
necessary procedures by adding an additional stage to the trial of a capital case. Id. at 659-62.
9
The Alabama Supreme Court went on to address the issue of whether the
death penalty would be an available option to the State if Kyzer was retried.
Kyzer, like Magwood, was convicted of an aggravated offense in § 13-11-2 for
which the legislature failed to provide a corresponding aggravating circumstance
in § 13-11-6. The Alabama Supreme Court stated: “[t]his case presents in purest
form an anomaly in Alabama’s Death Penalty Statute.” Id. at 334. The Alabama
Supreme Court concluded “[a] literal and technical reading of the statute” would
lead to the conclusion that if the trial judge cannot find the existence of an
aggravating circumstance other than the charge averred in the indictment, the trial
judge must refuse to accept the death penalty as fixed by the jury. Id. at 337. The
Alabama Supreme Court could think of no reason the Alabama legislature would
have imposed such a result, however, and concluded the trial judge is authorized
to use the charge averred in the indictment in lieu of an aggravating circumstance
listed in § 13-11-6 to impose a sentence of death. Id. at 337-38.
C. Ex parte Stephens
In 2006, the Alabama Supreme Court held the discussion in Kyzer regarding
the aggravating circumstances in sentencing was dicta and “completely irrelevant
to our decision.” Ex parte Stephens, 982 So. 2d at 1152-53. The Alabama
Supreme Court rejected the conclusion that the jury and the trial judge could find
10
the charge averred in the indictment as the aggravating circumstance even though
the charge is not listed in § 13-11-66 as an aggravating circumstance. Id. at 1153.
The Court stated “Kyzer did not ‘hold’ anything with respect to sentencing,” and
its discussion of aggravating circumstances “was premature and should not be
persuasive.” Id. The Court reasoned:
[T]he dicta in Kyzer conflicts with the plain language of the Alabama
Criminal Code (as the Kyzer Court itself acknowledged). Section [13-
11-6] states that “[a]ggravating circumstances shall be the following.”
The language “shall be”–as opposed to “shall include”–indicates that
the list is intended to be exclusive. . . . Our dicta to the contrary in
Kyzer was incorrect.
Id. (emphasis added).
D. Whether Magwood was eligible for the death penalty
Magwood’s claim and the State’s appeal are based on the retroactive
application of Kyzer to his case. The Alabama Supreme Court has held in
unambiguous, clear language that Kyzer is incorrect. Thus, we must determine
whether Magwood’s death sentence violated the fair-warning requirement of the
6
Although Stephens refers to § 13A-5-49, the opinion specifically states that § 13A-5-49
was previously § 13-11-6 (1975). Stephens, 982 So. 2d at 1152. Additionally, Kyzer was
convicted under the 1975 statute. Kyzer, 399 So. 2d at 332. To the extent the State argues that
Stephens expresses no opinion on the 1975 statute, that argument is meritless.
11
Due Process Clause when the case that was retroactively applied to him has since
been held to be dicta and incorrectly decided.7
Stephens tells us that Kyzer should not have applied to Magwood’s case.
Therefore, Magwood was not eligible for the death penalty at the time of his
conviction. Regardless of the conclusion that Magwood was ineligible for the
death penalty under Alabama law, we must still consider whether Magwood has
established a constitutional violation upon which federal habeas relief may be
granted.
E. Procedural default
The State first argues Magwood has procedurally defaulted his
constitutional claim that he did not have fair warning by failing to raise it in the
State courts. Even assuming, arguendo, that Magwood did not sufficiently raise
this claim, any procedural default is excused because Magwood meets the test of
being actually innocent of the death penalty, as explained in Sawyer v. Whitley,
505 U.S. 333, 346-47, 112 S. Ct. 2514, 2523 (1992). “Sawyer excuses procedural
default . . . when a petitioner shows by clear and convincing evidence that, but for
7
We are not certifying this question to the Alabama Supreme Court because the answer
is settled. We certify questions to that Court when “we find no controlling precedent on point
under Alabama law and [] the resolution of th[e] appeal hinges on [an] unsettled aspect of
Alabama law.” See Ohio Cas. Ins. Co. v. Holcim (US), Inc., 548 F.3d 1352, 1358 (11th Cir.
2008). Here, Alabama’s precedent could not be clearer, the “dicta . . . in Kyzer was incorrect.”
Stephens, 982 So. 2d at 1153.
12
a constitutional error, no reasonable juror would have found the petitioner eligible
for the death penalty under the applicable state law.” Cade v. Haley, 222 F.3d
1298, 1308 (11th Cir. 2000) (quotations omitted). The actual innocence
requirement focuses on those elements that render a defendant eligible for the
death penalty. Sawyer, 505 U.S. at 345, 112 S. Ct. at 2522. This Court has
explained that “the actual innocence exception applies to constitutional errors in
capital sentencing only when the constitutional error resulted in the petitioner
becoming statutorily eligible for a death sentence that could not otherwise have
been imposed.” Gilbert v. United States, 640 F.3d 1293, 1320 (11th Cir. 2011)
(en banc); see also Cade, 222 F.3d at 1308 (“[A] showing of actual innocence can
only refer to those state-law requirements that must be satisfied to impose the
death penalty, i.e., the elements of the capital crime and minimum required
aggravating factors.”).
Here, the only aggravation found by the sentencing body was the murder
charge in the indictment. Stephens tells us that the charge of the murder of a law
enforcement officer should not have been used as an aggravating circumstance to
impose the death penalty, as it was not listed in § 13-11-6. See Stephens, 982 So.
2d at 1153.
13
We conclude that but for the alleged violation of the fair-warning
requirement of the Due Process Clause, the judge could not have found any
statutory aggravating factors and Magwood was therefore ineligible for the death
penalty. See Gilbert, 640 F.3d at 1320. Thus, even if Magwood’s claim is
procedurally defaulted, he is the rare capital defendant who meets Sawyer’s actual
innocence exception and his procedural default is excused. See Sawyer, 505 U.S.
at 346-47, 112 S. Ct. at 2523. We turn now to the constitutional error that
Magwood has established.
F. Fair warning
As an initial matter, because Magwood arguably procedurally defaulted this
claim, we do not have a state court adjudication of his fair-warning claim and our
“review is not subject to the deferential standard that applies under [the
Antiterrorism and Effective Death Penalty Act of 1996] to any claim that was
adjudicated on the merits in State court proceedings.” See Cone v. Bell, 556 U.S.
449, 129 S. Ct. 1769, 1784 (2009) (quotations omitted). “Instead, the claim is
reviewed de novo.” Id.
Due process prohibits the retroactive application of judicial interpretations
of criminal statutes that are “unexpected and indefensible by reference to the law
which had been expressed prior to the conduct in issue.” Rogers v. Tennessee, 532
14
U.S. 451, 461, 121 S. Ct. 1693, 1700 (2001) (quoting Bouie v. City of Columbia,
378 U.S. 347, 354, 84 S. Ct. 1697, 1703 (1964). In Bouie, the Supreme Court
stated that “a deprivation of the right of fair warning can result . . . from an
unforeseeable and retroactive judicial expansion of narrow and precise statutory
language.” Bouie, 378 U.S. at 352, 84 S. Ct. at 1702 (quotations omitted). “If a
judicial construction of a criminal statute is unexpected and indefensible by
reference to the law which had been expressed prior to the conduct in issue, it
must not be given retroactive effect.” Id. at 354, 84 S. Ct. 1703. Rogers later
clarified that if a judicial decision is a “routine exercise of common law
decisionmaking in which the court brought the law into conformity with reason
and common sense” rather than “a marked and unpredictable departure from prior
precedent,” its retroactive application to conduct that occurred before the decision
was made would not contravene the fair-warning principle of the Due Process
Clause. Rogers, 532 U.S. at 467, 121 S. Ct. at 1703.
“Although petitioner’s claim is one of due process, the Constitution’s Ex
Post Facto Clause figures prominently in his argument.” See id. at 456, 121 S. Ct.
at 1697. This clause provides that “‘[n]o State shall . . . pass any . . . ex post facto
Law.’” Id. (quoting U.S.Const. art. I, § 10, cl. 1). The Ex Post Facto Clause
prohibits four distinct categories of legislative action: laws that (1) make innocent
15
conduct criminal, (2) “aggravate[] a crime, or make[] it greater than it was, when
committed;” (3) “change[] the punishment, and inflict[] a greater punishment,” and
(4) “alter[] the legal rules of evidence . . . in order to convict the offender.” Id.
(quoting Calder v. Bull, 3 Dall. 386, 390 (1798)). Although the Ex Post Facto
clause deals with legislative action, the Supreme Court has observed that
“limitations on ex post facto judicial decisionmaking are inherent in the notion of
due process.” Id.
Magwood’s due process claim falls into the third Calder category. The
State asserts that Bouie only dealt with Calder’s first category, and that the
Supreme Court clarified in Rogers that “nowhere in the [Bouie] opinion did we go
so far as to incorporate jot-for-jot the specific categories of Calder into due
process limitations on the retroactive application of judicial decisions.” Id. at 459,
121 S. Ct. at 1699. The State contends the Supreme Court has not incorporated
the third Calder category, retroactively increasing punishment, into the Due
Process Clause. This Circuit has never decided this issue. See United States v.
Duncan, 400 F.3d 1297, 1307 n.12 (11th Cir. 2005) (“assum[ing] arguendo,
without deciding, that Rogers’ fair warning principle does apply to retroactive
increases of punishment as well as to the core Calder category of retroactive
criminalization of conduct”).
16
If, as the State suggests, we decline to extend Calder’s third category to
Bouie’s holding in a capital case, it would necessarily “mean that no judicial
expansion of a death-qualifying [aggravating] circumstance could ever be
challenged under Bouie on retroactivity grounds.” See Clark v. Brown, 450 F.3d
898, 912 (9th Cir. 2006). Even though the Supreme Court has not explicitly
incorporated the retroactive increase of punishment into its Bouie holding, we are
mindful that “death is a different kind of punishment from any other which may be
imposed in this country.” Gardner v. Florida, 430 U.S. 349, 357, 97 S. Ct. 1197,
1204 (1977). Sawyer instructs us that convicting someone of a capital offense as
opposed to a non-capital one is not a mere enhanced sentence, it is a sentence for
which one can be “innocent.” Sawyer, 505 U.S. at 345, 112 S. Ct. at 2522. Thus,
while we express no opinion in the context of non-capital cases, we conclude that
a capital defendant can raise a Bouie fair-warning challenge to a judicial
interpretation of a statute that increases his punishment from life to death. See
Clark, 450 F.3d at 913-16 (conducting a Bouie analysis of a death-qualifying
special circumstance statute to determine whether it had been improperly
expanded and retroactively applied); Webster v. Woodford, 369 F.3d 1062, 1073-
75 (9th Cir. 2004) (same).
17
In Magwood’s case, we conclude that Kyzer was “an unforeseeable and
retroactive judicial expansion of narrow and precise statutory language.” See
Bouie, 378 U.S. at 352, 84 S. Ct. at 1702. Alabama’s death penalty statute
provided that a jury should fix the punishment at death for a defendant who
murders a law enforcement officer. Ala. Code § 13-11-2. Thus, Magwood’s
punishment should have been fixed at death by a jury. However, Alabama’s
statutory process for imposing the death penalty did not end with the jury fixing
the punishment at death. The judge was required to perform an additional step.
“Notwithstanding the fixing of the punishment at death by the jury . . . the
court . . . shall set forth in writing as the basis for the sentence of death, findings of
fact from the trial and the sentence hearing, which shall at least include . . . [o]ne
or more of the aggravating circumstances enumerated in section 13-11-6.” Ala.
Code § 13-11-4 (emphasis added). There is no dispute that § 13-11-6 did not have
a corresponding aggravating circumstance for the crime for which Magwood was
convicted–the murder of a law enforcement officer. Additionally, the resentencing
court specifically found that Magwood’s crime did not qualify him for any of the
aggravating circumstances listed in § 13-11-6.
Magwood became “eligible” for the death penalty only when Kyzer
interpreted the statute to allow the charge in § 13-11-2 to be used in lieu of a § 13-
18
11-6 aggravating circumstance for purposes of the judge’s written sentencing
findings.8 The Alabama Supreme Court admitted in Kyzer that “[a] literal and
technical reading of the statute” would not allow a defendant to be sentenced to
death absent an aggravating circumstance as provided in § 13-11-6. Kyzer, 399
So. 2d at 337. Magwood did not have fair warning that a court, when faced with
an unambiguous statute, would reject the literal interpretation. This conclusion is
buttressed by the Alabama Supreme Court’s pronouncement that “[t]he dicta in
Kyzer conflicts with the plain language of the Alabama Criminal Code” and that
Kyzer was “incorrect.” Stephens, 982 So. 2d at 1153.
We conclude that Kyzer’s interpretation of the Alabama death penalty
statute was an unexpected and indefensible construction of narrow and precise
statutory language.9 See Bouie, 378 U.S. at 352, 84 S. Ct. at 1702. The
8
This fact makes the State’s argument pursuant to Dobbert v. Florida, 432 U.S. 282,
293-94, 97 S. Ct. 2290, 2298 (1977), unpersuasive. In Dobbert, the Supreme Court concluded
that a change in Florida’s death penalty selection procedure was not an ex post facto violation
because the changes in the death penalty statute between the time of the murder and time of the
trial were procedural and on the whole ameliorative. In contrast to Magwood’s case, the changes
in Florida’s law “altered the methods employed in determining whether the death penalty was to
be imposed; there was no change in the quantum of punishment attached to the crime.” Id. at
293-94, 97 S. Ct. at 2298 (emphasis added). Unlike Dobbert, the retroactive application of Kyzer
did change the quantum of punishment attached to a defendant who did not have an aggravating
circumstance as listed in § 13-11-6.
9
To the extent the State argues that Kyzer was expected and defensible by reference to
the law which had been expressed prior to Magwood’s conduct, we reject that argument. See
Keller v. State, 380 So. 2d 926, 937 (Ala. Crim. App. 1979) (decided before Magwood
committed his crime and invalidating one of the aggravating circumstances weighed against the
19
application of Kyzer to Magwood’s case violated the fair-warning requirement of
the Due Process Clause. Thus, we affirm the district court’s grant of Magwood’s
habeas petition.
AFFIRMED.
defendant, stating “[t]he first aggravating circumstance [that the capital felony was committed
while engaged in a robbery] describes the crime charged in the indictment and cannot be used as
both the criminal charge and the circumstance aggravating that charge”). The case cited by the
State purporting to show that Magwood should have had fair warning states: “An aggravating
circumstance is implicit in the statute and necessarily is considered by the jury when fixing
punishment.” Harris v. State, 352 So. 2d 479, 284 (Ala. 1977). Magwood is not arguing he did
not have fair warning that the jury would consider his charge for murdering a police officer in
fixing his punishment at death, Ala. Code §13-11-2. His argument is that he did not have fair
warning that this statutory provision could be used in lieu of an aggravating circumstance in
§ 13-11-6 for purposes of the ultimate sentence of death by the judge.
20