IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 94-60121
_____________________
WILLIE ALBERT SMITH,
Petitioner-Appellee
Cross-Appellant,
v.
EDDIE LUCAS, Commissioner, Mississippi
Department of Corrections, Et AL.,
Respondents-Appellants
Cross-Appellees.
_________________________________________________________________
Appeals from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
March 8, 1994
Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.
PER CURIAM:
Before us are an appeal and cross-appeal from the district
court's order of February 3, 1994, which prohibits the State of
Mississippi "from seeking to resentence the Petitioner Willie
Albert Smith to the death penalty." Memorandum Opinion and Order
entered February 3, 1994 (the "February 3 Order"). The State
challenges the order as exceeding our mandate in Smith v. Black,
970 F.2d 1383 (5th Cir. 1992) ("Smith III") -- as interpreted in
Smith v. Lucas, 9 F.3d 359 (5th Cir. 1993) ("Smith IV") -- and
the district court's authority under federal law. Smith
complains that the order does not go far enough; he argues that
the district court instead should have ordered his permanent
release from custody. We agree with the State that the district
court again exceeded our mandate and therefore vacate the
February 3 Order.
I. Background
A brief recitation of the procedural posture of this case is
necessary.1 Smith first mounted the habeas challenge to his
sentence in August of 1983, arguing, inter alia, that
Mississippi's use of the "especially heinous" aggravating factor
in the jury's deliberation as to his death sentence was
unconstitutional. The district court denied him relief in 1988,
and we affirmed the court's judgment in 1990, on the basis that
the relief requested would necessitate the creation of a new rule
of constitutional law under Teague v. Lane, 489 U.S. 288 (1989).
See Smith v. Black, 904 F.2d 950 (5th Cir. 1990) ("Smith I")
(declining to apply the "new rule" created by Maynard v.
Cartwright, 486 U.S. 356 (1988), and Clemons v. Mississippi, 494
U.S. 738, 752 (1990)).
The Supreme Court vacated our judgment in Smith I and
remanded the case to us "for further consideration in light of
Stringer v. Black, 112 S. Ct. 1130 (1992)." Smith v. Black, 112
S. Ct. 1463 (1992) ("Smith II"). In Stringer, the Supreme Court
had held that the precedents prior to Maynard and Clemons
"yield[ed] a well-settled principle," and thus the decisions in
1
For a more thorough discussion of the procedural and
factual history of this case, see Smith v. Black, 904 F.2d 950
(5th Cir. 1990).
2
tandem did not constitute a "new rule" for purposes of Teague.
Stringer, 112 S. Ct. at 1140.
On remand, this court applied the Maynard and Clemons rules
in the case presented and held that "the use of the `especially
heinous' aggravating circumstance without a limiting instruction
clearly was error." Smith III, 970 F.2d at 1388. Our mandate to
the district court was as follows:
The case is REMANDED to the district court with
instructions to issue the writ of habeas corpus unless
the State of Mississippi initiates appropriate
proceedings2 in state court within a reasonable time
after the issuance of our mandate.
Id.
The district court at first complied with our order and
issued a conditional writ on November 23, 1992, giving the State
six months in which to correct the sentencing defect. When the
State failed to initiate action to correct the sentencing defect,
however, the district court went beyond our mandate and, on July
9, 1993, issued an order (the "July 9 Order") and accompanying
2
In the text of the opinion, which was incorporated by
reference into our mandate, we advised that the death sentence in
Smith's case could
be salvaged if the state appellate court eliminated the
invalid aggravating factor and reweighed the remaining
valid factors against the mitigating factors, or if it
determined that the use of the invalid factor was
harmless beyond a reasonable doubt. . . . Should the
State elect to initiate further proceedings in the
Mississippi Supreme Court, that court still has the
option of reweighing or performing a harmless error
analysis as those procedures have been defined in [the
relevant cases].
Smith III, 970 F.2d 1383, 1388 (5th Cir. 1992).
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writ, directing "that the State of Mississippi impose upon
[Smith] a sentence of life imprisonment." On appeal to this
court, we affirmed the district court's July 9 Order and writ
vacating Smith's unconstitutional sentence, but specifically
excised that portion of the July 9 Order and writ that exceeded
our directive in Smith III. See Smith IV, 9 F.3d at 368.3
On remand from Smith IV the district court entered an order
in compliance with our mandate in Smith III, as interpreted by
Smith IV, and issued a writ on January 5, 1994, "directing
[Smith's] sentence of death to be vacated." Subsequently,
however, the court below was asked by Smith to "interpret" and
"enforce" that order. Specifically, Smith sought "clarification"
that the January 5 writ "precludes any attempt to resentence
[Smith] to death." The district court apparently recognized
3
In Smith IV, we noted that "[t]he directive from this
court allowed but one consequence if the State failed to comply
with the November 23 Order -- to issue the writ for Smith's
immediate and unconditional release from his unconstitutional
sentence." 9 F.3d at 367. On December 20, 1993, apparently at
the behest of the State, the Circuit Court of Hinds County issued
an order reading, in relevant part, as follows:
The Court having been informed that the sentence of
death in the above styled and numbered cause has been
vacated by order of the United States District [sic]
for the Southern Distinct [sic] of Mississippi, entered
July 8, [sic] 1993, and that the vacation of said death
sentence has been affirmed . . . hereby releases Willie
Albert Smith from custody pursuant to his
constitutionally invalid sentence of death. . . .
However, since neither the state nor federal courts
have found any infirmity in Smith's conviction of
capital murder, . . . the State of Mississippi shall
retain him in custody pursuant to the valid conviction
for capital murder pending his resentencing hearing.
Order dated December 20, 1993 (citations omitted).
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itself to be bound by our mandate; nonetheless, it concluded that
the relief Smith requested had not been addressed by this court
in Smith IV. See, e.g., Engel v. Teleprompter Corp., 732 F.2d
1238, 1241 (5th Cir. 1984) (noting that a "district court is not
preempted from acting on a matter neither raised before it nor
acted upon by this court"). Consequently, the court below
determined that it had the authority to decide the issue. In
light of its view that "[t]here must be some consequence to the
State for failure to comply with the Order of this Court," and
apparently believing it had the authority to do so under Burton
v. Johnson, 975 F.2d 690, 693 (10th Cir. 1992), cert. denied, 113
S. Ct. 1879 (1993), the district court issued the February 3
Order, permanently prohibiting the State from any future attempt
to resentence Smith to death.
II. Analysis
The court below found that it was permissible for it to
prevent the State from seeking the death penalty on resentencing
apparently because it viewed such an action as part of its
"oblig[ation] to carry out the instructions [this court] ha[d]
given" and because it "should then be presumed to be free to take
any other consistent actions." We disagree. The exact issue
decided by the district court in the February 3 Order was argued
to this court in Smith IV in the context of Welch v. Beto, 355
F.2d 1016, 1020 (5th Cir.), cert. denied, 385 U.S. 839 (1966),
and Jones v. Smith, 685 F. Supp. 604, 606 (S.D. Miss. 1988):
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Smith responds . . . that a federal court may use the
habeas writ to prohibit the State permanently from
executing a prisoner
* * *
Smith understands Welch to allow a federal court
indirectly to commute a death sentence into life
imprisonment by prohibiting execution of the death
sentence. Thus, he concludes, it is proper for a
federal court to grant habeas relief to a state
defendant sentenced to death in the form of a life
sentence.
Smith IV, 9 F.3d at 365-67. We responded that Welch did not
support such an interpretation of our habeas powers:
Smith misreads our opinion in Welch. In that case, we
held only that the state's default in compliance with
our mandate would result in its inability to execute
upon the defective sentence. Nothing in our opinion in
that case can be read to have precluded the state from
subsequently seeking a constitutionally valid death
sentence.
Id. at 367 (emphasis added). Essentially, in telling the
district court that it could not directly commute Smith's death
penalty to life imprisonment (through the medium of an order
directing the state court to sentence Smith to life), we also
rejected Smith's position that the district court, at least under
the circumstances presented in Smith's case, could do so
indirectly (through the medium of an order prohibiting the State
from subsequently seeking a death sentence). The February 3
Order therefore is a de facto amendment to our mandate and thus
exceeded the district court's authority. See, e.g., Gegenheimer
v. Galan, 920 F.2d 307, 309 (5th Cir. 1991) ("On remand, the
district court must comply with the mandate of the court of
appeals and may not revisit any issues that the appellate court
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expressly or impliedly disposed of in its decision."); Newball v.
Offshore Logistics, Int'l, 803 F.2d 821, 826 (5th Cir. 1986) (The
appellate mandate controls on all matters within its scope.).
Even if it were not abundantly clear that we have already
disposed of this issue, the district court still erred in
attempting to interpret a sanction into our mandate that we did
not intimate, and, as discussed above, is entirely counter to our
opinion in Smith IV. Indeed, we have some doubt as to whether a
federal court has the authority to enter such a prohibition.
Assuming arguendo that the district court was so empowered, we
note that the very case upon which it relies in concluding that
it may bar the State from resentencing Smith -- Burton -- viewed
such a prohibition as an "extraordinary" remedy which must be
clearly intended in the relevant mandate. 975 F.2d at 693.
While we express no opinion as to the holding in Burton, we
observe that the Tenth Circuit remanded that case to the district
court to insure that the lower court intended such an extreme
result. Id. In the case presented, by contrast, the applicable
mandate came from this court. Therefore, even if we suppose
Burton to be correctly decided, it would be up to this court to
determine whether a permanent resentencing bar was intended.
There is simply no way that our opinion can be read to authorize
the district court to prohibit the State from seeking a new,
constitutional death sentence to replace the one vacated in July
of 1993.
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As for Smith's cross-appeal, the district court specifically
declined to issue a ruling "at this time" on Smith's request that
the State be barred from imposing any sentence and effectively
ordering his release. Accordingly, any cross-appeal is
premature.
III. Conclusion
To summarize the status quo (and giving effect to this
opinion), the July 9 Order and accompanying writ, as modified in
Smith IV, remain in effect. As so modified, the July 9 Order
reads as follows:
the said writ [of habeas corpus] shall issue forthwith
from the Clerk of this Court directing [Smith's]
sentence of death to be vacated.
The accompanying writ, as modified, reads as follows:
IT IS HEREBY COMMANDED AND ORDERED that [Smith's]
sentence of death is vacated.
Smith's unconstitutional death sentence has been vacated arguably
since July 9, 1993, but certainly since December 28, 1993, the
date on which our mandate issued in Smith IV. It is now up to
the Mississippi courts to assess a new sentence for Smith's
constitutionally valid conviction.
The district court's order of February 3, 1994 is VACATED.
Smith's cross-appeal is DISMISSED.
Chief Judge Politz dissents.
8