Holland v. Anderson

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

FILED
September 18, 2009

No. 06-70034 Charles R. Fulbruge III
Clerk

GERALD JAMES HOLLAND

Petitioner-Appellant
v.

JAMES V ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE
PENITENTIARY

Respondent-Appellee

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

Before WIENER, STEWART, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Petitioner Gerald James Holland (“Holland”) appeals the district court’s
order denying him habeas corpus relief from his Mississippi conviction for
capital murder and sentence of death. Holland raised five issues in his motion
for a Certificate of Appealability (“COA”), and we granted a COA on “the single
issue of whether Holland’s rights were violated at his resentencing when he was
not permitted to rebut the State’s evidence that he killed [Krystal] King while
engaged in the commission of the crime of rape,” as the jury found during the
guilt phase of his trial. Holland v. Anderson, 230 F. App’x 374, 386 (5th Cir.
 No. 06-70034

2007) (per curiam). For the following reasons, we AFFIRM the district court’s
denial of habeas corpus relief.
I. FACTUAL AND PROCEDURAL BACKGROUND
In its opinion denying Holland’s Amended Petition for Writ of Habeas
Corpus, the district court provided a detailed account of the factual background
and procedural history of this case. See Holland v. Anderson, 439 F. Supp. 2d
644, 649-53 (S.D. Miss. 2006). Below, we focus upon only those facts most
relevant to the instant appeal.
On November 17, 1986, a grand jury in Harrison County, Mississippi,
indicted forty-nine-year-old Holland for murdering fifteen-year-old Krystal D.
King (“King”) “while engaged in the commission of the crime and felony of Rape.”
After a transfer of venue, the State tried Holland before a jury in November and
December 1987. Following a twelve-day trial, the jury found Holland guilty of
capital murder, thus making Holland eligible for the death penalty. See M ISS.
C ODE A NN. § 97-3-19(2)(e) (defining capital murder to include murder while
“engaged in the commission of the crime of rape”); § 97-3-21 (authorizing the
death penalty for those convicted of capital murder). Immediately after the jury
returned its guilty verdict, the judge sent the jury out of the room so he could
discuss with the attorneys how the penalty phase would proceed. Approximately
twenty-two minutes later, the jury sent out a note stating, “We, the jury,
sentence Gerald James Holland to death.” The judge then admonished the jury
to refrain from deliberations, and the penalty phase proceeded with the same
jury. At the conclusion of the sentencing phase, the jury recommended—and the
court imposed—a sentence of death.
On Holland’s first direct appeal, the Mississippi Supreme Court affirmed
Holland’s conviction but reversed his death sentence on the ground that the
jury’s premature sentencing deliberations violated his Sixth Amendment right
to a fair and impartial jury. Holland v. State (Holland I), 587 So. 2d 848, 872-75

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(Miss. 1991). The court remanded the case for resentencing by a new jury (the
“resentencing jury”). Id. at 875.
On remand, the trial court concluded that, because the original jury—by
virtue of finding Holland guilty of murder during the commission of a
rape—found that Holland raped King (and this conviction had been affirmed on
appeal), Holland could not deny the rape during his resentencing proceeding.
See Holland v. State (Holland II), 705 So. 2d 307, 327 (Miss. 1997), cert. denied,
525 U.S. 829 (1998). The court ruled that Holland could introduce mitigating
evidence and describe the circumstances of the rape and murder, but he could
not argue that he did not rape King. See id.
The court also submitted to the jury three aggravating factors to consider:
“(1) that the capital offense was committed while the defendant was engaged in
the act of commission of the crime of rape, (2) that the capital offense was
committed for the purpose of avoiding or preventing a lawful arrest, and (3) that
the capital offense was especially heinous, atrocious, or cruel.” Id. at 319. He
further “submitted to the jury the determination of whether Holland actually
killed Krystal D. King, or attempted to kill her, or intended that the killing take
place, or contemplated that lethal force would be employed.” Id.; see M ISS. C ODE
A NN. § 99-19-101(7)(a-d); Enmund v. Florida, 458 U.S. 782, 797 (1982).
Pursuant to Mississippi procedure, the state recalled five witnesses who
testified during the guilt phase of Holland’s trial. See Jackson v. State, 337 So.
2d 1242, 1256 (Miss. 1976) (“At this hearing, the State may elect to stand on the
case made at the first hearing, if before the same jury, or may reintroduce any
part of the evidence adduced at the first hearing which it considers to be
relevant to the particular question of whether the defendant shall suffer death
or be sentenced to life imprisonment.”), superseded by statute on unrelated
grounds as recognized by Gray v. State, 351 So. 2d 1342, 1349 (Miss. 1977).
Among these witnesses was Dr. McGarry, the State’s pathologist, who testified

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that King had been raped and explained the heinous manner in which she had
been murdered. Holland proffered the testimony of his own pathologist, Dr.
Riddick, to rebut Dr. McGarry’s testimony. The record indicates that the court
would have permitted Dr. Riddick to dispute Dr. McGarry’s testimony about the
“especially heinous, atrocious or cruel” aggravating circumstance; the court only
would have prohibited him from contesting the original jury’s finding that
Holland in fact raped King. Holland, however, elected not to call Dr. Riddick.1
Although Holland called multiple witnesses to testify on his behalf, including his
mother, brother, a psychiatrist, and one of the state’s witnesses, he chose not to
testify himself, allegedly because he could not deny the occurrence of the rape,
even though he could have testified to the facts and circumstances thereof in
mitigation. At the conclusion of the resentencing proceeding, the jury found the
existence of all three aggravating factors and “that Holland actually killed
Krystal King, intended to kill and contemplated that lethal force would be
employed.” Holland II, 705 So. 2d at 319. It sentenced Holland to death. Id.
On Holland’s second direct appeal, the Mississippi Supreme Court
affirmed his sentence. Id. at 357. 2 Prior to seeking post-conviction relief in
Mississippi state court, in December 1998, Holland filed a pro se application for
a stay of execution and a motion for appointment of counsel in the U.S. District
Court for the Southern District of Mississippi. The district court granted both
motions, but it stayed further action in Holland’s case pending the exhaustion
of his state court remedies. Holland then filed a petition for post-conviction
relief with the Mississippi Supreme Court, which the court denied. Holland v.

1
Holland did not present any expert evidence from a pathologist during the guilt phase
of his original trial. The record reflects that Holland chose not to call his original pathologist,
Dr. Steckler, during the guilt phase of his trial because he (Dr. Steckler) agreed with Dr.
McGarry’s conclusion that King was raped.
2
Three Mississippi Supreme Court Justices dissented. See Holland II, 705 So. 2d at
358-60 (Prather, J., dissenting).

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State (Holland III), 878 So. 2d 1, 10 (Miss. 2004), cert. denied, 544 U.S. 906
(2005).
After the Mississippi Supreme Court decided Holland III, the district court
lifted the stay and Holland filed an amended petition for a writ of habeas corpus 3
in which he raised twelve claims for habeas relief. In a thorough opinion, the
district court denied the amended petition and subsequently denied Holland’s
request for a COA. See Holland, 439 F. Supp. 2d 644. Holland then sought a
COA from this court on five issues. Holland, 230 F. App’x at 375. We granted
a COA on the single issue currently before us and denied a COA on each of
Holland’s other claims. Id. at 386.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal under 28 U.S.C. § 2253(a) and
(c)(1)(A) because the district court issued a final order denying Holland habeas
relief and we granted him a COA. See Richardson v. Quarterman, 537 F.3d 466,
472 (5th Cir. 2008).
“On habeas review, we review the district court’s findings of fact for clear
error and its legal conclusions de novo.” Mallard v. Cain, 515 F.3d 379, 381 (5th
Cir. 2008). Our review of Holland’s amended petition for a writ of habeas corpus
is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, which mandates that federal
courts give great deference, subject to limited exceptions, to the state courts’
resolution of a petitioner’s claims. See Foster v. Quarterman, 466 F.3d 359, 365
(5th Cir. 2006). This “deference is mandated both for questions of law and for
mixed questions of law and fact.” Id. Under AEDPA, a federal court cannot
grant habeas relief unless the state court adjudication of a claim either

3
There was no “original” petition for habeas corpus relief in this case other than
Holland’s initial pro se filings. Holland’s Application for Stay of Execution and his Motion for
Appointment of Counsel, filed on December 15, 1998, initiated this case.

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; 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); see also Wiggins v. Smith, 539 U.S. 510, 520 (2003). “Under
§ 2254(d)(1), a decision is contrary to clearly established federal law if ‘the state
court arrives at a conclusion opposite to that reached by [the Supreme Court] on
a question of law’ or ‘confronts facts that are materially indistinguishable from
a relevant Supreme Court precedent and arrives at a result opposite to [that
precedent].’” Oliver v. Quarterman, 541 F.3d 329, 334 (5th Cir. 2008) (quoting
(Terry) Williams v. Taylor, 529 U.S. 362, 405 (2000)) (alterations in original),
cert. denied, 129 S. Ct. 1985 (2009). “A decision involves an unreasonable
application of Supreme Court precedent if it ‘unreasonably extends a legal
principle from [Supreme Court precedent] to a new context where it should not
apply or unreasonably refuses to extend that principle to a new context where
it should apply.’” Id. (quoting Williams, 529 U.S. at 407) (alteration in original).
We must presume that the state court’s factual findings are correct unless
Holland meets his “‘burden of rebutting [that] presumption . . . by clear and
convincing evidence.’” Foster, 466 F.3d at 365 (quoting 28 U.S.C. § 2254(e)(1))
(alteration and omission in original).
III. ANALYSIS
Holland asserts that the trial court violated his constitutional rights by
prohibiting him from rebutting, at his resentencing trial, the State’s evidence
that he murdered King while engaged in the commission of a rape. He claims
that, because the State, to prove an aggravating circumstance under Mississippi
law, put on evidence that he raped King, it was constitutional error to prevent
him from putting on evidence to show that he did not rape King prior to killing

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her. The State contends that the court properly prevented Holland from
disputing that he raped King because the issue was res judicata based on the
original jury’s finding that Holland murdered King “while engaged in the
commission of the crime of rape.” The State argues that this was not error and,
further, that the Supreme Court’s decision in Oregon v. Guzek, 546 U.S. 517
(2006), forecloses Holland’s claim.
This appeal implicates the following issues: (1) whether the resentencing
court improperly prohibited Holland from introducing evidence of the
circumstances of his crime as mitigating evidence, (2) whether Holland was
entitled to present evidence of innocence of his crime of conviction at his
resentencing, and (3) the effect of rape being both an element of Holland’s crime
of conviction and an aggravating circumstance. We address each in turn. Before
analyzing these issues, however, we first briefly review the structure of
Mississippi’s capital sentencing scheme.
A. Mississippi’s Capital Sentencing Scheme
Mississippi law provides for bifurcated trials for capital offenses. See
M ISS. C ODE A NN. § 99-19-101(1). First, if a jury convicts a defendant of capital
murder during the guilt phase of the trial, the defendant is rendered death-
eligible. See id. § 97-3-21. According to Mississippi law, the offense of capital
murder includes “[t]he killing of a human being without the authority of law by
any means or in any manner . . . [w]hen done with or without any design to
effect death, by any person engaged in the commission of the crime of rape.” Id.
§ 97-3-19(2)(e). Thus, the commission of the crime of rape is an element of
capital murder under this subsection.
If a person is convicted of capital murder, “the court shall conduct a
separate sentencing proceeding to determine whether the defendant should be
sentenced to death, life imprisonment without eligibility for parole, or life

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imprisonment.” Id. § 99-19-101(1). To impose a sentence of death, the jury must
unanimously find:
(a) That sufficient factors exist as enumerated in subsection (7) of
this section;
(b) That sufficient aggravating circumstances exist as enumerated
in subsection (5) of this section; and
(c) That there are insufficient mitigating circumstances, as
enumerated in subsection (6), to outweigh the aggravating
circumstances.
Id. § 99-19-101(3). Subsection (7) requires the jury to find that the defendant
actually killed, attempted to kill, intended that a killing take place, or
contemplated that lethal force would be employed. Id. § 99-19-101(7).
Subsection (5) lists eight aggravating circumstances, of which the court
submitted three to the resentencing jury in this case: (1) “[t]he capital offense
was committed while the defendant was engaged . . . in the commission of . . .
rape”; (2) “[t]he capital offense was committed for the purpose of avoiding or
preventing a lawful arrest”; and (3) “[t]he capital offense was especially heinous,
atrocious or cruel.” Id. § 99-19-101(5). Subsection (6) lists various mitigating
circumstances not relevant to this appeal. See id. § 99-19-101(6).
In this case, the jury in Holland’s original trial found him guilty of capital
murder for killing King while engaged in the commission of the crime of rape,
and this conviction was upheld on appeal. At resentencing, the second jury
found that all three aggravating circumstances existed, that there were
insufficient mitigating circumstances to outweigh the aggravating
circumstances, and that Holland actually killed King, intended to kill, and
contemplated that lethal force would be employed. Accordingly, the jury
recommended—and the court imposed—a sentence of death.
As this discussion makes clear, and as our previous opinion granting
Holland a COA explained, “the fact that Holland murdered King while engaged

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in the act of the commission of the crime of rape is both an element of the
guilt/innocence finding on the capital murder charge and an aggravating
circumstance militating toward imposition of the death penalty. It is this dual
function that raises a constitutional question in this case.” Holland, 230 F.
App’x at 383.
B. The Trial Court Did Not Improperly Prohibit Holland from
Introducing Evidence of the Circumstances of His Crime As
Mitigating Evidence
Holland’s primary argument on appeal is that, by prohibiting him from
contesting that he raped King, the resentencing court denied him “his due
process right to present evidence of the circumstances of the offense as a basis
for a sentence less than death.” The State does not challenge the premise that
Holland had the constitutional right to introduce evidence of the circumstances
of his capital crime for the resentencing jury to consider as mitigation. Rather,
the State contends that the evidence Holland sought to introduce was not
evidence of the circumstances of his capital crime. We agree.
1. The Effect of Lockett, Eddings, and Their Progeny
In Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality opinion), the
Supreme Court addressed which facets of an offender or his offense are deemed
“relevant” to mitigation in capital sentencing and “what degree of consideration
of ‘relevant facets’” is required. In that case, the Court entertained a challenge
to an Ohio death penalty statute that “narrowly limit[ed] the sentencer’s
discretion to consider the circumstances of the crime and the record and
character of the offender as mitigating factors.” Id. at 589. The statute limited
the sentencer to considering only three mitigating factors: whether “(1) the
victim had induced or facilitated the offense, (2) it was unlikely that [the
defendant] would have committed the offense but for the fact that []he ‘was
under duress, coercion, or strong provocation,’ or (3) the offense was ‘primarily

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the product of [the defendant’s] psychosis or mental deficiency.” Id. at 593
(quoting O HIO R EV. C ODE §§ 2929.03-.04(B) (1975)). The Ohio statute precluded
any consideration of any other facts or circumstances in mitigation. See id.
Evaluating the constitutionality of this capital sentencing regime, a
plurality of the Court noted that “‘in capital cases the fundamental respect for
humanity underlying the Eighth Amendment . . . requires consideration of the
character and record of the individual offender and the circumstances of the
particular offense as a constitutionally indispensable part of the process of
inflicting the penalty of death.’” Id. at 604 (quoting Woodson v. North Carolina,
428 U.S. 280, 304 (1976) (plurality opinion)). Chief Justice Burger, writing for
the plurality, concluded that
the Eighth and Fourteenth Amendments require that the sentencer,
. . . not be precluded from considering, as a mitigating factor, any
aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a basis
for a sentence less than death.
Id. at 604. In Eddings v. Oklahoma, 455 U.S. 104, 110 (1982), a majority of the
Supreme Court adopted this rule, which is now well-established. See Skipper v.
South Carolina, 476 U.S. 1, 4 (1986).
In adopting this rule, the Eddings Court explained that “the fundamental
respect for humanity underlying the Eighth Amendment” requires such
consideration “as a constitutionally indispensable part of the process of inflicting
the penalty of death.” 455 U.S. at 112. In addition, the Court has explained that
“[e]qually clear is the corollary rule that the sentencer may not refuse to consider
or be precluded from considering any relevant mitigating evidence.” Skipper,
476 U.S. at 4 (internal quotation marks omitted). As the Supreme Court
recently summarized, “[i]n aggregate, our precedents confer upon defendants the
right to present sentencers with [such mitigating] information relevant to the
sentencing decision and oblige sentencers to consider that information in

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determining the appropriate sentence. The thrust of our mitigation
jurisprudence ends here.” Kansas v. Marsh, 548 U.S. 163, 175 (2006).
Notably, the evidence that Holland sought to present at his resentencing
in this case is distinctly different from that at issue in Lockett and Eddings. As
the Supreme Court has recently recognized, Lockett and Eddings each involved
traditional sentence-related evidence: “evidence that tended to show how, not
whether, the defendant committed the crime.” Oregon v. Guzek, 546 U.S. 517,
524 (2006). In Lockett, the defendant sought to introduce evidence which, inter
alia, showed he had a favorable prognosis for rehabilitation and that he had
suffered from drug addiction but was receiving treatment and was “on the road
to success,” but the Ohio statute precluded its consideration in mitigation. 438
U.S. at 594. Similarly, in Eddings, the trial court refused to consider in
mitigation the circumstances of the defendant’s unhappy upbringing, including
his turbulent family history and beatings by a harsh father, and his severe
emotional disturbance. 455 U.S. at 116.4
Importantly, the trial court in this case did not prevent Holland from
introducing such evidence. At his resentencing, the jury heard mitigating
evidence from Holland’s mother and brother, who testified that Holland had a
difficult upbringing and that his alcoholic father physically and mentally abused
him. Dr. Marc Zimmerman, a psychologist who examined Holland prior to his
resentencing trial, testified that although Holland possessed an average or
normal intellectual level, he nonetheless suffered from some brain dysfunction.

4
In Skipper, the Court addressed the specific situation in which a prosecutor argues,
as a factor warranting imposition of the death penalty, that the defendant “would pose
disciplinary problems if sentenced to prison and would likely rape other prisoners.” 476 U.S.
at 3. In such a case, the Court held that, to rebut this testimony, the defendant had the right
to introduce evidence of his good behavior in prison while awaiting trial even though such
evidence did “not relate specifically to [the defendant’s] culpability for the crime he
committed.” Id. at 4-5. Indeed, although not related specifically to the circumstances of the
crime of conviction, such might be the only way a defendant could rebut the prosecutor’s
assertion.

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Holland further called William Boyer, one of the state’s witnesses, who testified
that King was at Holland’s home on the night of the murder because she had
asked to be taken there. Moreover, the court did not prevent Holland from
testifying: the resentencing court made clear that it would have allowed Holland
to testify about any of the circumstances of his crime and any aspect of his
character or record as mitigation. Nor did the court prevent Holland from
calling his pathologist, Dr. Riddick, to rebut State pathologist Dr. McGarry’s
testimony about the “especially heinous, atrocious or cruel” nature of the crime.
The only testimony and evidence that the court prohibited was that related to
an element of the crime: the commission of a rape. As explained above, rape was
an essential element of the original jury’s capital murder conviction. Without
finding rape, the jury could not have found Holland guilty of capital murder;
rape was therefore not a circumstance of the crime.5 The only witness that the
court precluded Holland from calling was Dr. Canfield, a serologist who Holland
sought to call for the sole purpose of testifying that King had not been raped.6
The fact that Holland sought to introduce evidence to dispute an actual element
of his crime of conviction—not merely evidence to explain the crime or to
describe the circumstances of the crime—distinguishes this case from Lockett,
Eddings, and their progeny.
2. The Effect of Oregon v. Guzek

5
As an illustration, consider non-capital murder. Had Holland been charged only with
the non-capital murder of King, and had he also raped her, the rape would be a circumstance
of the crime of murder (the killing of King). Capital murder in this case, however, required
murder plus rape; rape was an essential element of the crime, not a circumstance thereof.
6
Dr. Canfield would have testified that he found no acid phosphates on a vaginal swab
taken from King or sperm on a slide taken from her rape kit. Of course, as the State notes in
its brief, such a finding, even if made, would not establish that King had not been raped
because under Mississippi law, as elsewhere, rape requires only penetration of the vagina—no
matter how slight—not ejaculation.

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In Oregon v. Guzek, 546 U.S. 517 (2006), the Supreme Court addressed the
rule of Lockett, Eddings, and their progeny and confronted a virtually identical
question as in this case based on virtually identical facts and procedure. The
Court decided Guzek after the Mississippi Supreme Court denied Holland
habeas relief, and the district court found it dispositive of Holland’s claim. Its
holding is also central to the State’s argument. Accordingly, we explain the case
at some length.
In Guzek, the Supreme Court held that, in a resentencing proceeding in
a capital case, a state can constitutionally limit a defendant’s introduction of
innocence-related evidence to the evidence he introduced at his original trial.
See 546 U.S. at 523. A jury convicted Guzek of capital murder in an Oregon
court and sentenced him to death. Id. at 520. The Oregon Supreme Court
affirmed his conviction but vacated his sentence and ordered a new sentencing
proceeding. Id. A jury again sentenced Guzek to death, but the Oregon
Supreme Court again vacated his sentence and remanded. Id. A jury sentenced
Guzek to death yet again, and the Oregon Supreme Court again vacated his
sentence. Id. “Seeking to avoid further errors at the next (the fourth)
sentencing proceeding, the Oregon Supreme Court also addressed the
admissibility of certain evidence Guzek [sought] to introduce at that proceeding,”
namely, new alibi evidence (that he did not offer at his original trial) tending to
show that he could not have committed the capital murder of which the original
jury had found him guilty. Id. Although Oregon law permitted Guzek to
introduce innocence-related evidence from the guilt phase of his trial at
resentencing, it did not allow him to introduce new innocence-related evidence.
See O R. R EV. S TAT. § 138.012(2)(b). Guzek sought to introduce evidence of the
latter type: evidence that “is inconsistent with Guzek’s prior conviction,” “sheds
no light on the manner in which he committed the crime for which he ha[d] been
convicted,” and is not “evidence that Guzek contends was unavailable to him at

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the time of the original trial.” Guzek, 546 U.S. at 523. The Supreme Court
concluded that it could “find nothing in the Eighth or Fourteenth Amendments
that provides a capital defendant a right to introduce new evidence of this kind
at sentencing.” Id.
Notably, the Court specifically distinguished Guzek from Lockett and
Eddings on the ground that the evidence in Guzek was inconsistent with Guzek’s
prior conviction:
But the evidence at issue in [Lockett and Eddings] was traditional
sentence-related evidence, evidence that tended to show how, not
whether, the defendant committed the crime. Nor was the evidence
directly inconsistent with the jury’s finding of guilt.
Id. at 524. The Court further explained that a defendant’s Eighth Amendment
right to present evidence in mitigation of sentence is not unlimited:
The Eighth Amendment also insists that a sentencing jury be able
to consider and give effect to mitigating evidence about the
defendant’s character or record or the circumstances of the offense.
But the Eighth Amendment does not deprive the State of its
authority to set reasonable limits upon the evidence a defendant can
submit, and to control the manner in which it is submitted. Rather,
States are free to structure and shape consideration of mitigating
evidence in an effort to achieve a more rational and equitable
administration of the death penalty.
Id. at 526 (citations and internal quotation marks omitted).
In support of its conclusion, the court explained three circumstances
which, taken together, convinced it that a state could exclude evidence of the
type Guzek sought to present:
First, sentencing traditionally concerns how, not whether, a
defendant committed the crime. See United States Sentencing
Commission, Guidelines Manual § 1A1.1, editorial note, § 4(a), p. 4
(Nov. 2004). But the evidence at issue here—alibi
evidence—concerns only whether, not how, he did so.
Second, the parties previously litigated the issue to which the
evidence is relevant—whether the defendant committed the basic

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crime. The evidence thereby attacks a previously determined
matter in a proceeding at which, in principle, that matter is not at
issue. The law typically discourages collateral attacks of this kind.
Cf. Allen v. McCurry, 449 U.S. 90, 94 (1980) (“As this Court and
other courts have often recognized, res judicata and collateral
estoppel relieve parties of the cost and vexation of multiple lawsuits,
conserve judicial resources, and, by preventing inconsistent
decisions, encourage reliance on adjudication[.]”).
Third, the negative impact of a rule restricting defendant’s
ability to introduce new alibi evidence is minimized by the fact that
Oregon law gives the defendant the right to present to the
sentencing jury all the evidence of innocence from the original trial
regardless. That law permits the defendant to introduce at
resentencing transcripts and exhibits from his prior trial. O RE. R EV.
S TAT. § 138.012(2)(b) (2003). The defendant here has not claimed
that the evidence at issue was unavailable at the time of his original
trial. Thus, he need only have introduced it at that time to
guarantee its presentation (albeit through transcripts) to a
resentencing jury as well.
The legitimacy of these trial management and evidentiary
considerations, along with the typically minimal adverse impact
that a restriction would have on a defendant’s ability to present his
alibi claim at resentencing convinces us that the Eighth
Amendment does not protect defendant’s right to present the
evidence at issue here. We conclude that the Oregon court was
wrong in holding to the contrary.
Id. at 526-27.
The district court in the instant case found Guzek dispositive:
Based on the holdings in Guzek, this Court finds that the trial court
in Holland’s re-sentencing trial did not constitutionally err by
barring introduction of evidence suggesting that Holland did not
murder King while in the act of raping her. That evidence relates
to whether Holland committed the crime for which he was convicted,
not how the crime was committed. Further, barring the
introduction of this evidence did not prevent Holland from
introducing other evidence of mitigating circumstances enumerated
in § 99-19-101(6) of the Mississippi Code.
Holland, 439 F. Supp. 2d at 673-74 (emphasis added).

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We agree that the Supreme Court’s holding in Guzek suggests that
Holland was not entitled to introduce evidence indicating that he did not rape
King. Of the three circumstances the Guzek Court identified as supporting the
assertion that a State may prohibit the introduction of new evidence of innocence
at resentencing, two are directly applicable here. First, the Court noted that
“sentencing traditionally concerns how, not whether, a defendant committed the
crime.” Guzek, 546 U.S. at 526. Just like the alibi evidence in Guzek, the
evidence and testimony that Holland did not rape King, which Holland
unsuccessfully sought to present at resentencing “concerns only whether, not
how, he [committed his crime of conviction].” See id. Second, the Guzek Court
explained that “the parties previously litigated the issue to which the evidence
[that Guzek sought to introduce at resentencing] is relevant—whether [he]
committed the basic crime,” which is “a previously determined matter.” Id. The
same is true here. By virtue of his capital murder conviction, a jury found that
Holland raped King, and the issue was actually litigated and necessary to the
judgment of conviction.
Only the third circumstance identified by the Guzek Court does not apply
in this case: whereas an Oregon statute expressly allows a defendant “to present
to the sentencing jury all the evidence of innocence from the original trial,”
Mississippi does not have a comparable statute. See id. at 526-27 (emphasis
omitted).7 However, the importance of this third circumstance is not clear. In

7
The State argues that “[u]nder Mississippi case law and procedure a capital defendant
and the state are generally allowed to reintroduce any evidence adduced at the guilt/innocence
phase in the sentence phase or resentencing phase.” In support, it cites the Mississippi
Supreme Court’s decision in Bell v. State, 360 So. 2d 1206, 1211-12 (Miss. 1978), and
subsequent cases, most of which rely upon Jackson v. State, 337 So. 2d 1242 (Miss. 1976),
superseded by statute on unrelated grounds as recognized by Gray v. State, 351 So. 2d 1342,
1349 (Miss. 1977). Although the Bell court noted that the defendant “moved to reaffirm” his
testimony at resentencing, it did not hold that the defendant has a right to reintroduce
evidence adduced during the guilt-innocence phase in the sentencing or resentencing phase.
See Bell, 360 So. 2d at 1211-12. Jackson and its progeny address only the State’s right to

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his concurrence in Guzek, Justice Scalia questioned the Court’s inclusion of this
third circumstance in its analysis:
The first two of the circumstances are alone sufficient to dispose of
the claim that the Eighth Amendment guarantees a capital
defendant a second opportunity, at sentencing, to litigate his
innocence. In fact, the Court’s third “circumstance” is an analytical
misfit in the company of the other two. The first two—that
“sentencing traditionally concerns how, not whether, a defendant
committed the crime,” and that “the parties previously litigated the
issue to which the evidence is relevant”—show that compelling the
admission of innocence-related evidence would be improper and
unnecessary at a sentencing hearing. The third, by contrast,
suggests that there is no constitutional violation in this case
because enough of such evidence may be admitted on remand. The
latter factor would be relevant only if the former two were not.
See id. at 528 (Scalia, J., concurring in the judgment) (citations omitted).
Moreover, at least two circuit courts have cited Guzek’s holding that a defendant
has no right to present new evidence of innocence at sentencing without
mentioning this “third circumstance.” See Owens v. Guida, 549 F.3d 399, 419
(6th Cir. 2008); Shelton v. Carroll, 464 F.3d 423, 442 (3d Cir. 2006) (explaining
that “because [the defendant] did not testify at trial, any factual statements
about what happened on the night of the murder and his involvement in the
crime would have been new evidence not already in the trial record,” and
therefore holding that the state court’s refusal to permit the defendant to testify
to such facts at allocution was not an unreasonable application of Lockett or any
other clearly established federal law). Thus, even though only two of the three
considerations that the Guzek Court identified as underlying its holding are
present in this case, this does not render Guzek inapplicable.
Importantly, almost all of the evidence that Holland sought to present at
resentencing is exactly the type of new evidence of innocence described in Guzek.

reintroduce such evidence. No case that the State cites specifically holds that a defendant has
a similar right.

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Holland assigns error to the resentencing court’s refusal to let him call his
pathologist, Dr. Riddick, to rebut Dr. McGarry’s testimony that King had been
raped.8 However, Holland never called a pathologist at trial. He elected not to
do so because his pathologist at the time, Dr. Steckler, agreed with Dr.
McGarry’s conclusion that King had been raped. Moreover, Holland chose not
to testify during the guilt phase of his trial. Thus, any testimony from Holland
that the rape did not occur (as opposed to testimony regarding the circumstances
of the rape), would constitute new evidence inconsistent with the jury’s guilty
verdict. See Shelton, 464 F.3d at 442 (“[B]ecause [the defendant] did not testify
at trial, any factual statements about what happened on the night of the murder
and his involvement in the crime would have been new evidence not already in
the trial record.”). 9 The only witness who testified during the guilt phase who
the court prohibited Holland from recalling was Dr. Canfield, and Holland does
not specifically challenge his exclusion on appeal. Regardless, as explained
above, see supra note 6, Dr. Canfield would have merely testified that he found
no acid phosphates on a vaginal swab taken from King or sperm on a slide taken
from her rape kit. This testimony could not have demonstrated that a rape did
not occur. Accordingly, the exclusion of Dr. Canfield’s testimony, if error, was
harmless. See Nixon v. Epps, 405 F.3d 318, 329-30 (5th Cir. 2005) (citing Brecht
v. Abrahamson, 507 U.S. 619, 623 (1993)); see also Oliver, 541 F.3d at 340-44

8
Holland suggests in his brief that the court prohibited him from calling Dr. Riddick
altogether. However, this is not true. As explained above, see supra Section I, the court would
have permitted Holland to call Dr. Riddick to dispute Dr. McGarry’s testimony regarding the
nature of King’s injuries to rebut the “especially heinous, atrocious, or cruel” aggravating
circumstance. The only fact that he could not contest was that Holland raped King, which the
guilt-phase jury had previously found.
9
We recognize that the rule in Shelton would appear to create a perverse incentive for
a defendant when determining whether to testify during the guilt phase of his trial, potentially
in violation of the Fifth Amendment. However, the decision in Shelton, based on Guzek,
shows—at the very least—that there is no clearly established federal law that would permit
a defendant to offer such new evidence during the resentencing phase.

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 No. 06-70034

(finding a constitutional error harmless under the Brecht standard on habeas
review).
As we noted when granting Holland a COA, however, Guzek is not
completely on all fours with this case: in addition to the difference in Oregon and
Mississippi law, “there do not appear to have been any overlapping issues
between the guilt/innocence phase and the re-sentencing phase in Guzek.”
Holland, 230 F. App’x at 384. Notwithstanding these dissimilarities, the holding
in Guzek—and its supporting reasoning—demonstrates that Holland does not
have the right to present evidence at resentencing that is inconsistent with the
verdict of the guilt-phase jury. At the very least, in light of these cases, the
Mississippi Supreme Court’s denial of Holland’s claim “was not contrary to or an
unreasonable application of Lockett or any other clearly established federal law
as determined by the Supreme Court.” See Shelton, 464 F.3d at 442-43.
C. The Trial Court Did Not Impose Holland’s Death Sentence on the
Basis of Information He Had No Opportunity to Deny or Explain
Holland argues that the trial court, at resentencing, violated his due
process rights by imposing a death sentence on the basis of information that he
had no opportunity to deny or explain. In support, Holland relies on two
plurality decisions of the Supreme Court: Gardner v. Florida, 430 U.S. 349
(1977) (plurality opinion), and Simmons v. South Carolina, 512 U.S. 154 (1994)
(plurality opinion). In Gardner, a jury found the defendant guilty of the capital
murder of his wife, and in a separate sentencing proceeding expressly found that
the mitigating circumstances outweighed the aggravating circumstances and
therefore recommended a sentence of life imprisonment. 430 U.S. at 352-53.
However, the trial judge, who was the ultimate sentencer at the time, considered
a presentence report containing confidential information not disclosed to the
defense, and, on the basis of information in the report, sentenced the defendant
to death. Id. at 353. The Supreme Court reversed, with a plurality concluding,

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apparently broadly, “that [the defendant] was denied due process of law when
the death sentence was imposed, at least in part, on the basis of information
which he had no opportunity to deny or explain.” Id. at 362. However, as the
State notes, Justice White’s concurring opinion provided the narrowest ground
for decision among the Justices who voted to reverse and is therefore controlling.
See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a fragmented Court
decides a case and no single rationale explaining the result enjoys the assent of
five Justices, the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds . . . .”
(internal quotation marks omitted)). Justice White expressly declined to rely on
the Due Process Clause and found that “[a] procedure for selecting people for the
death penalty which permits consideration of such secret information relevant
to the ‘character and record of the individual offender’” violates the Eighth
Amendment. Gardner, 430 U.S. at 364 (White, J., concurring in the judgment).
In Simmons, a jury found the defendant guilty of the capital murder of an
elderly woman. 512 U.S. at 157. During the sentencing phase, the prosecution
argued that the defendant’s future dangerousness was a factor warranting
imposition of a death sentence. Id. Notwithstanding evidence suggesting that
the jury would likely believe that a life sentence would allow for the possibility
of parole, the court refused to allow the defendant to inform the jury that, if
sentenced to life imprisonment, he would be ineligible for parole. Id. at 158-60.
The plurality quoted the Gardner plurality’s statement that “[t]he Due Process
Clause does not allow the execution of a person ‘on the basis of information
which he had no opportunity to deny or explain.’” Id. at 161 (quoting Gardner,
430 U.S. at 362). However, its holding was much narrower: “[W]here the
defendant’s future dangerousness is at issue, and state law prohibits the
defendant’s release on parole, due process requires that the sentencing jury be
informed that the defendant is parole ineligible.” Id. at 156. Moreover, Justice

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O’Connor’s opinion is the controlling opinion, as it provides an even narrower
ground of decision:
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 . . . as a means of responding to the State’s showing
of future dangerousness.
Id. at 177 (O’Connor, J., concurring in the judgment).
Holland’s reliance upon Gardner and Simmons is thus problematic for
several reasons. First, both cases are factually distinguishable from Holland’s
case. The defendant in Gardner was sentenced on the basis of information which
no jury received and of which the defense was not even aware; the defendant in
Simmons was essentially prevented from ever contesting the State’s argument
and from alleviating what he showed to be probable jury confusion. Here, no
information was ever kept secret from Holland, the court did not prevent
Holland from having the opportunity to ever contest the State’s arguments, and
there was no evidence of jury confusion. Moreover, Holland did have the
opportunity to challenge the fact that he raped King—during the guilt phase of
his trial. Neither Gardner nor Simmons suggests that Holland is
constitutionally entitled to a second bite at this apple. Second, the narrowest
ground of decision in Gardner did not even implicate due process, and that in
Simmons was specifically limited to demonstration of parole ineligibility in
response to the state’s argument for a death sentence on the basis of future
dangerousness. Third, in neither Gardner nor Simmons did five Justices agree
to the propositions for which Holland cites the cases; accordingly, they are not
holdings of the Court and cannot constitute “clearly established Federal law, as
determined by the Supreme Court” as required by 28 U.S.C. § 2254(d)(1). See

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Jacobsen v. United States Postal Service, 993 F.2d 649, 655 (9th Cir. 1992); see
also Stevens v. Ortiz, 465 F.3d 1229, 1237-38 (10th Cir. 2006).
Essentially, Holland’s argument premised on Gardner and Simmons boils
down to a contention that Holland has the right to introduce evidence of
innocence at sentencing. However, as the Mississippi Supreme Court’s opinion
denying Holland’s second direct appeal thoroughly explains, Holland does not
have a clearly established constitutional right to do so. As that court observed,
federal courts are split on the issue of whether a defendant may introduce
evidence of innocence of a crime of conviction at sentencing. See Holland II, 705
So. 2d at 325. Multiple circuits have permitted findings of guilt to estop a
defendant in a later proceeding. See Hernandez-Uribe v. United States, 515 F.2d
20, 22 (8th Cir. 1975) (holding that there is “no violation of any constitutional
right of the defendant” when he is collaterally estopped from denying his alien
status on the basis of a prior criminal conviction); United States v. Colacurcio,
514 F.2d 1, 6 (9th Cir. 1975) (allowing collateral estoppel to apply against a
defendant in a criminal case, and holding that “facts actually decided which were
essential to the judgment in [a] prior [criminal] case” may be used against a
criminal defendant). Two other circuits, however, have prohibited such use of
collateral estoppel against a criminal defendant. See United States v. Pelullo,
14 F.3d 881, 896 (3d Cir. 1994), rev’d on other grounds, 105 F.3d 117 (3d Cir.
1997); United States v. Harnage, 976 F.2d 633, 635-36 (11th Cir. 1992) (rejecting
application of collateral estoppel against criminal defendants on the ground that
it does not sufficiently promote judicial economy and expressly not reaching any
due process implications). Yet another court has recognized that the Supreme
Court has never addressed the application of collateral estoppel against a
criminal defendant. Flittie v. Solem, 775 F.2d 933, 940 (8th Cir. 1985). Indeed,
the Mississippi Supreme Court noted that state courts are similarly split on this
issue. See Holland II, 705 So. 2d at 323-24 (citing cases from various states).

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This clear split among federal—and state—courts as to whether a
defendant does or does not have a constitutional right to present evidence of
innocence at sentencing when such evidence would contravene a prior guilty
adjudication indicates that the Mississippi Supreme Court’s denial of Holland’s
claim that he had such a right cannot possibly be “contrary to or involve[] an
unreasonable application of, clearly established Federal law.” See 28 U.S.C.
§ 2254(d)(1); cf. McDuffie v. Estelle, 935 F.2d 682, 689 (5th Cir. 1991) (“Absent
binding precedent in this circuit and faced with somewhat conflicting decisions
in the two circuits which actually addressed the issue relevant here, we cannot
say that the law as set forth by the Ninth Circuit in Clutchette was ‘clearly
established’ so as to affect the actions within the Fifth Circuit of the . . .
defendants in 1976.”).
Furthermore, to the extent that Holland seeks to premise his argument
that he has a constitutional right to present evidence of innocence at sentencing
upon a right to argue residual or whimsical doubt, his argument fails.
Preliminarily, we note that although Holland argued in his second direct appeal
that the resentencing court impermissibly prohibited him from introducing
evidence of residual or whimsical doubt, he did not raise a similar issue in his
amended petition for writ of habeas corpus,10 and thus we did not grant a COA
on this issue. Consideration of the issue, however, is nonetheless relevant.
Notably, the Supreme Court has “fail[ed] to recognize a constitutional right to
have such doubts considered as a mitigating factor.” Franklin v. Lynaugh, 487
U.S. 164, 174 (1988) (plurality opinion). In Franklin, Justice White, writing for
a plurality, explained:

10
See Holland, 439 F. Supp. 2d at 672 n.12 (“Holland made many other arguments
related to this issue [of whether the court violated his rights by restricting the evidence he
could offer at resentencing] in his second direct appeal. However, this Court will consider only
the arguments specifically asserted in the Amended Petition. See Fuentes[ v. Dretke, 89 F.
App’x 868, 875 (5th Cir. 2004).]” (citation omitted)).

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Finding a constitutional right to rely on a guilt-phase jury’s
“residual doubts” about innocence when the defense presents its
mitigating case in the penalty phase is arguably inconsistent with
the common practice of allowing penalty-only trials on remand of
cases where a death sentence—but not the underlying conviction—is
struck down on appeal. In fact, this Court has, on several previous
occasions, suggested such a method of proceeding on remand.
Moreover, petitioner himself, in suggesting the appropriate relief in
this case, asked only that he be “resentenced in a proceeding that
comports with the requirements of Lockett ”—not that he be retried
in full so as to have the benefit of any potential guilt-phase “residual
doubts.”
In sum, we are quite doubtful that such “penalty-only” trials
are violative of a defendant’s Eighth Amendment rights. Yet such
is the logical conclusion of petitioner’s claim of a constitutional right
to argue “residual doubts” to a capital sentencing jury.
Id. at 173 n.6 (citations omitted).11
In light of the fact that the Supreme Court has not recognized a
constitutional right to argue “residual doubt” at sentencing, any argument that
the Mississippi court erred by not allowing Holland to argue at resentencing that
he did not rape King premised upon a right to argue residual or whimsical doubt
does not suffice to demonstrate that the court’s holding was “contrary to, or
involved an unreasonable application of, clearly established Federal law.” See
28 U.S.C. § 2254(d)(1).
D. The Effect of Rape Being Both an Element of Holland’s Crime of
Conviction and an Aggravating Circumstance
Although Holland does not argue that it is improper for an aggravating
factor to duplicate an element of capital murder—and such an argument would
lack merit—we briefly address the fact of the overlap in this case as it bears on

11
As the Mississippi Supreme Court recognized in Holland’s second direct appeal,
“[m]ost federal courts generally follow Franklin.” Holland II, 705 So. 2d at 326 (citing Evans
v. Thompson, 881 F.2d 117, 120 (4th Cir. 1989), and Coleman v. Saffle, 869 F.2d 1377, 1393
(10th Cir. 1989)). Moreover, state courts are split on the issue. See Holland II, 705 So. 2d at
325 (collecting cases).

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our decision. The Supreme Court has explained that “[t]o pass constitutional
muster, a capital sentencing scheme must genuinely narrow the class of persons
eligible for the death penalty and must reasonably justify the imposition of a
more severe sentence on the defendant compared to others found guilty of
murder.” Lowenfeld v. Phelps, 484 U.S. 231, 244 (1988) (internal quotation
marks omitted). This is the purpose of requiring a jury to find at least one
aggravating circumstance before allowing the imposition of the death penalty:
“By doing so, the jury narrows the class of persons eligible for the death penalty
according to an objective legislative definition.” Id.
The Supreme Court has long accepted that an aggravating circumstance
may duplicate an element of the capital crime of conviction. See Lowenfeld v.
Phelps, 484 U.S. at 244-46. In Tuilaepa v. California, 512 U.S. 967 (1994), the
Court further explained the role of aggravating circumstances:
Our capital punishment cases under the Eighth Amendment
address two different aspects of the capital decisionmaking process:
the eligibility decision and the selection decision. To be eligible for
the death penalty, the defendant must be convicted of a crime for
which the death penalty is a proportionate punishment. To render
a defendant eligible for the death penalty in a homicide case, we
have indicated that the trier of fact must convict the defendant of
murder and find one “aggravating circumstance” (or its equivalent)
at either the guilt or penalty phase. The aggravating circumstance
may be contained in the definition of the crime or in a separate
sentencing factor (or in both). As we have explained, the
aggravating circumstance must meet two requirements. First, the
circumstance may not apply to every defendant convicted of a
murder; it must apply only to a subclass of defendants convicted of
murder. See Arave v. Creech, 507 U.S. 463, 474 (1993) (“If the
sentencer fairly could conclude that an aggravating circumstance
applies to every defendant eligible for the death penalty, the
circumstance is constitutionally infirm”). Second, the aggravating
circumstance may not be unconstitutionally vague.
Id. at 971-72 (citations omitted). Thus, as long as an aggravating circumstance
serves to narrow the class of defendants convicted of murder (and is not

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unconstitutionally vague), it “may be contained in the definition of the crime [of
conviction] or in a separate sentencing factor (or in both).” Id. at 972 (emphases
added). The Court’s use of the word “or” in this requirement indicates that a
jury must find this factor only once to render a death sentence (assuming all
other requirements are satisfied). The Court’s language clearly indicates that
a jury need not find an aggravating circumstance at both the guilt and
sentencing phases.12
Thus, in this case, Holland’s death sentence could stand even if the State
had not presented the “rape” aggravating factor to the resentencing jury.
Indeed, to satisfy federal constitutional requirements, that jury did not even
need to find the existence of the two other aggravating circumstances (the “to
avoid arrest” and “especially heinous” circumstances), so long as it did not find
sufficient mitigating factors to warrant imposition of a life sentence rather than
death: the original jury found the required “aggravating circumstance”—better
termed a “narrowing circumstance”—when it found Holland guilty of capital
murder (as opposed to simply murder). The fact that the court precluded
Holland from contesting the rape at resentencing—thereby effectively
preventing him from disputing the existence of the “rape” aggravating
circumstance—therefore did not prejudice him.
Importantly, the entirety of Dr. McGarry’s testimony regarding King’s
rape and murder was relevant not only to the “rape” aggravator but also to the
aggravating circumstance that “the capital offense was especially heinous,
atrocious, or cruel.” Thus, even had the court not submitted the rape aggravator
to the jury, the State would have still been able to introduce Dr. McGarry’s
testimony in its entirety. The inclusion of the rape aggravator therefore could

12
The rationale underlying this rule is, admittedly, not as strong when a defendant is
convicted and sentenced by different juries.

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 No. 06-70034

not have prejudiced Holland by allowing testimony to be presented to the
resentencing jury that otherwise would not have been.
E. Miscellaneous Arguments
Holland makes two other arguments, both of which lack merit. First,
H o lla n d a rg u es th a t th e resen ten cin g cou rt essen tia lly — a n d
improperly—directed a verdict on the issue of whether Holland murdered King
during the commission of the crime of rape. However, the court expressly stated
that “there would not be a directed verdict granted by the Court.” The fact that
the court allowed the State to reintroduce evidence from the guilt phase, as
expressly permitted by Mississippi state law not challenged here, see Jackson,
337 So. 2d at 1256, does not constitute a directed verdict.
Second, Holland argues that it was error for the resentencing court to
inform jurors that Holland was eligible for the death penalty. In so arguing,
Holland misconstrues the meaning of “death eligibility.” As explained above,
Mississippi capital punishment cases involve two distinct decisions: the
eligibility decision and the selection decision. See Tuilaepa, 512 U.S. at 971.
Here, the guilt-phase jury made the first decision when it found Holland guilty
of capital murder. Based on this finding, Holland became death-eligible.
However, the selection decision—whether or not to impose the death penalty for
which Holland was eligible—remained. It was this decision that was within the
province of the resentencing jury. The question of Holland’s eligibility for the
death penalty was already settled.13

13
Holland further argues in his brief that the district court erred in denying him
habeas relief on the ground that he was denied the right to be tried by a fair and impartial
jury during the guilt phase of his trial. However, we previously denied Holland’s request for
a COA on this issue, see Holland, 230 F. App’x at 378-80, and therefore lack jurisdiction to
consider it, see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“This is a jurisdictional
prerequisite because the COA statute mandates that ‘[u]nless a circuit justice or judge issues
a certificate of appealability, an appeal may not be taken to the court of appeals . . . .’” (quoting
28 U.S.C. § 2253(c)(1)) (omission in original)).

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IV. CONCLUSION
For the reasons herein, the Mississippi Supreme Court’s denial of
Holland’s claim for habeas relief was not “contrary to” and did not “involve[] an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court.” Thus, Holland is not entitled to relief under 28 U.S.C.
§ 2254. We therefore AFFIRM the district court’s denial of Holland’s request for
habeas relief.
AFFIRMED.

28