IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60374

WILLIAM JOSEPH HOLLY,

Petitioner-Appellant

v.

STATE OF MISSISSIPPI; CHRISTOPHER B. EPPS, COMMISSIONER,

MISSISSIPPI DEPARTMENT OF CORRECTIONS,

Respondents-Appellees

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:98-CV-53

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant William Joseph Holly appeals the district court’s

denial of his federal habeas application brought pursuant to 28 U.S.C. § 2254. 

AFFIRMED.

I.

Hollywas indicted for capital murder, kidnapping, and grand larceny. The

offense took place on July 12, 1992 at which time Holly was under the age of

United States Court of Appeals

Fifth Circuit

F I L E D

August 1, 2011

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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eighteen. He was subsequently convicted and was sentenced to death on March

3, 1993. His motion for a new trial was denied, and the Mississippi Supreme

Court affirmed his convictions of capital murder and kidnapping and his

sentence of death. Holly v. State, 671 So. 2d 32 (Miss. 1996). No petition for 1

rehearing was filed, and the Supreme Court denied his petition for a writ of

certiorari. Holly v. Mississippi, 518 U.S. 1025 (1996). Holly filed a postconviction petition in state court, which was denied by the Mississippi Supreme

Court. Holly then filed a federal habeas application on March 23, 1998.

At some point during Holly’s federal habeas proceedings, the district court

granted his motion to stay the proceedings pending the Supreme Court’s decision

in Roper v. Simmons, 543 U.S. 551 (2005). On March 5, 2005, the Supreme Court

issued its decision in Roper, which declared unconstitutional the “imposition of

the death penalty on offenders who were under the age of 18 when their crimes

were committed.” Id. at 578. Thereafter, the district court vacated Holly’s

capital sentence. 

Holly subsequently filed a motion in the Mississippi Supreme Court to

remand his case for resentencing in the circuit court. In his motion, he

requested a sentence of life in prison with the possibility of parole, which he

deemed “the only Constitutional alternative to death at the time the crime was

committed.” Holly asserted that MISS. CODE ANN. § 99–19–107 — which

substituted a sentence of life in prison without parole “[i]n the event the death

penalty is held to be unconstitutional by the Mississippi Supreme Court or the

United States Supreme Court” — was inapplicable to his vacated death

sentence. Instead, Holly reasoned that the court should apply the version of the

capital murder statute, MISS. CODE ANN. § 97–3–21, that existed at the time he

committed the offense, which only provided two possible sentences: the death

 The Mississippi Supreme Court vacated the conviction of grand larceny. 1

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penalty and life in prison with the possibility of parole. (Two years after Holly

was convicted, § 97–3–21 had been amended to include the option of life in

prison without the possibility of parole, but that sentence was not available at

the time that Holly committed the capital offense.) Holly thus concluded that

the Mississippi Supreme Court would violate the Due Process Clause or the Ex

Post Facto Clause of the Constitution if it sentenced him to life in prison without

the possibility of parole. 

On June 5, 2008, the Mississippi Supreme Court remanded Holly’s case

back to the state trial court with instructions to sentence him to life in prison

without parole, pursuant to § 99–19–107. The court did not address the merits

of Holly’s constitutional claims, and he was resentenced pursuant to the

Mississippi Supreme Court’s instructions.

On March 20, 2009, Holly filed a motion to amend his federal habeas

application, seeking relief on the same constitutional grounds that were rejected

by the Mississippi Supreme Court. The district court denied his application but

granted him a certificate of appealability on “[w]hether, in resentencing [ ] Holly

to life in prison without parole, the Mississippi Supreme Court violated Holly’s

constitutional rights by failing to recognize or enforce the ex post facto clause . . .

as well as the Due Process Clauses of the Fifth and Fourteenth Amendments.” 

This appeal followed.

II.

A.

Holly filed his federal habeas application after 1996, so it is governed by

the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Lindh v.

Murphy, 521 U.S. 320, 324–26 (1997). First, as a matter of jurisdiction, we

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consider sua sponte whether Holly has exhausted his federal habeas claims in 2

state court. 

Under the AEDPA, “[a]n applicant shall not be deemed to have exhausted

the remedies available in the courts of the State . . . if he has the right under the

law of the State to raise, by any available procedure, the question presented.” 28

U.S.C. § 2254(c). We have explained that “[t]he exhaustion requirement is

satisfied when the substance of the federal claim has been fairly presented to the

highest state court.” Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). “Such

presentment can take place via direct appeal or state habeas proceedings.” 

Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2005) (citing Orman v. Cain, 228

F.3d 616, 620 (5th Cir. 2000)). It follows then that a petitioner need not always

raise a claim in state post-conviction proceedings to exhaust that claim for

AEDPA purposes. That said, the claim must have been presented to the state’s

highest court “in a procedurally proper manner according to the rules of the

state courts.” Mercadel, 179 F.3d at 275 (quotation marks and citation omitted).

Here, Holly raised his constitutional claims regarding resentencing in his

motion for resentencing, which he filed directly in the Mississippi Supreme

Court. When that court denied his requested sentence, Holly amended his

federal application for habeas relief to include his resentencing claims, without

first raising the claims in state post-conviction proceedings. The question then

is whether Holly presented his claims to the Mississippi Supreme Court in a

procedurally proper manner. 

In fact, the Mississippi Supreme Court addressed this very procedural

issue in Foster v. State, 961 So. 2d 670 (Miss. 2007) (en banc). There, as in the

instant case, the defendant was seventeen years old at the time he committed

the capital offense for which he was sentenced to death. Id. at 671. Following

Neither the district court in denying relief nor the parties in their arguments to this 2

court explicitly raised the issue of exhaustion.

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Roper, the State filed a motion directly in the Mississippi Supreme Court to

vacate the defendant’s death sentence and resentence him pursuant to

§ 99–19–107, but the defendant never responded to the State’s motion with any

constitutional objections. Id. As a result, when the defendant later attempted

to appeal his resentencing by the trial court, the Mississippi Supreme Court

held:

The execution of orders issued by this Court is a purely ministerial

act, and lower courts have no authority to alter or amend them. See,

e.g., Miss. Comm’n on Judicial Performance v. Sanders, 708 So. 2d

866, 874 (Miss. 1998). Instead, [the defendant’s] claim should have

been raised in a response to the State’s motion to this Court under

Miss. R. App. P. 27(a), or, in the alternative, in a motion for

reconsideration of a motion under Miss. R. App. P. 27(h), or in a

motion for rehearing under Miss. R. App. P. 40, after we granted the

State’s motion. His failure to do so bars his claim.

Id. at 671–72. As such, the Mississippi Supreme Court itself has determined

that it was procedurally proper for Holly to raise his constitutional claims in his

motion for resentencing; that, in fact, it was the only procedurally proper way

to do so. We thus conclude that Holly has exhausted state remedies, even

though he never raised his constitutional claims in state post-conviction

proceedings.

B.

Holly’s federal habeas application, nevertheless, comes to us in an unusual

procedural posture that implicates our standard of review. Given the fact that

a state court never addressed Holly’s constitutional claims in post-conviction

proceedings and the Mississippi Supreme Court did not address the merits of his

claims when ordering his resentencing, we are left to consider Holly’s claims

without the benefit of a state court’s analysis. Accordingly, we do not apply the

deferential standard of review that applies under the AEDPA to “any claim that

was adjudicated on the merits in State court proceedings,” 28 U.S.C. § 2254(d),

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and instead we review Holly’s constitutional claims de novo. Cone v. Bell, 129

S. Ct. 1769, 1784 (2009). Accord Hatten v. Quarterman, 570 F.3d 595, 599–600

(5th Cir. 2009). 

C.

Holly asserts that the MississippiSupreme Court violated his rights under

the Due Process Clause when it resentenced him to life in prison without the

possibility of parole. The U.S. Supreme Court has explained that a state 3

criminal statute violates the Due Process Clause if it is not “sufficiently explicit

to inform those who are subject to it what conduct on their part will render them

liable to its penalties.” Bouie v. City of Columbia, 378 U.S. 347, 351 (1964)

(quotation marks and citation omitted). As an extension of that principle, “a

deprivation of the right of fair warning can result . . . also from an unforeseeable

and retroactive judicial expansion of narrow and precise statutory language.” 

Id. at 352. “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 (internal

quotation marks and citation omitted). Here, we must determine whether the

Mississippi Supreme Court’s construction of § 99–19–107 in Foster was

“unexpected and indefensible” by reference to the plain statutory language of

§ 99–19–107.

Section 99–19–107 was enacted in 1977 in response to national

On appeal, Holly does not raise an independent Ex Post Facto Clause claim, conceding 3

that “the text of the Ex Post Facto Clause is limited to legislative action.” (citing Marks v.

United States, 430 U.S. 188, 191 (1977) (“The Ex Post Facto Clause is a limitation upon the

powers of the Legislature . . . and does not of its own force apply to the Judicial Branch of

government.”)). Holly does maintain, however, that “the same underlying considerations are

applicable to state courts through the Due Process Clause of the Fourteenth Amendment,”

(citing Proctor v. Cockrell, 283 F.3d 726, 730 (5th Cir. 2002)), so we will only consider ex-postfacto concerns to that extent.

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uncertainty surrounding the constitutionality of the death penalty. As of July 4

12, 1992, when Holly committed the capital offense, § 99–19–107 stated:

In the event the death penalty is held to be unconstitutional by the

MississippiSupreme Court or the United States Supreme Court, the

court having jurisdiction over a person previously sentenced to

death shall cause such person to be brought before the court and the

court shall sentence such person to imprisonment for life, and such

person shall not be eligible for parole.

Since the time when Holly committed the capital offense, the Mississippi

Supreme Court has construed the applicability of § 99–19–107 in two relevant

en banc opinions: (1) Abram v. State, 606 So. 2d 1015 (Miss. 1992) (en banc), and

(2) Foster v. State, 961 So. 2d 670 (Miss. 2007) (en banc).

In Abram, the Mississippi Supreme Court considered the applicability of

§ 99–19–107 to a capital defendant whose jury-imposed sentence of death had

been set aside by the trial court on grounds that the record lacked sufficient

evidence to support the death penalty in that case. 606 So. 2d at 1039. The trial

court determined that § 99–19–107 could be applied on a case-by-case basis, but

the Mississippi Supreme Court disagreed, holding:

Although there are no cases addressing the precise application of

§ 99-19-107, we think it fairly obvious that it is reserved for that

event when either this Court or the United States Supreme Court

makes a wholesale declaration that the death penalty in general,

and/or our own statutory death penalty scheme in particular, is

unconstitutional. This section is not reasonably or logically intended

for use on a case by case basis by trial courts or this Court . . . .

Id. The Mississippi Supreme Court then concluded that “the only logical

alternative once the jury verdict was disregarded would have been to impose a

sentence of life imprisonment.” Id. (citation omitted).

See Furman v. Georgia, 408 U.S. 238 239–40 (1972) (holding that the death penalty

4

scheme in Georgia constituted cruel and unusual punishment in violation of the Eighth and

Fourteenth Amendments); Gregg v. Georgia, 428 U.S. 153, 187 (1976) (holding thatimposition

of the death penalty for the crime of murder did not, under all circumstances, violate the

Eighth and Fourteenth Amendments).

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Fifteen years later, in Foster, the Mississippi Supreme Court again

considered the applicability of § 99–19–107 in the wake of Roper under facts

substantially similar to the instant case. The court reexamined the language of

§ 99–19–107 (and its own holding in Abram) in the context of Roper, which did

not declare the death penalty unconstitutional in all cases, but also did not

vacate one single death sentence on a case-by-case basis. The Mississippi

Supreme Court concluded: “The language of the statute is clear; it intends to

provide for an alternative sentence for a person whose death sentence has been

deemed unconstitutional.” Foster, 961 So. 2d at 672. Acknowledging that

certain language in Abram was potentially at odds with this conclusion, the

court further held: “To the extent that Abram is inconsistent with the plain

meaning of section 99-19-107, it is hereby overruled.” Id. The Mississippi

Supreme Court then resentenced the defendant in accordance with § 99–19–107

— and not the pre-1994 version of § 97–3–21 — reasoning that “[b]ecause [the

defendant’s] death penalty was found unconstitutional by the United States

Supreme Court’s ruling in Roper, the application of section 99-19-107 is

appropriate.” Id.

D.

Holly asserts that the Mississippi Supreme Court violated his due process

rights by “unexpected[ly] and indefensibl[y]” expanding the “narrow and precise

statutory language” of § 99–19–107 in Foster and applying that construction to

him retroactively. We note at the outset that both Abram and Foster were

decided after Holly committed the underlying capital offense. Our inquiry,

therefore, is not whether the Mississippi Supreme Court unexpectedly and

indefensibly expanded its construction of § 99–19–107 from that in Abram to

that in Foster, but rather whether Foster (the judicial construction applied to

Holly) unexpectedly and indefensibly expanded the statutory language of §

99–19–107 as it existed at the time Holly committed the capital offense.

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Holly’s main argument is that the Mississippi Supreme Court’s

construction of § 99–19–107 in Foster is “directly at odds with the language of

§ 99–19–107.” In particular, Holly asserts that, because § 99–19–107 only

applies “[i]n the event the death penalty is held to be unconstitutional by the

Mississippi Supreme Court or the United States Supreme Court,” MISS. CODE

ANN. § 99–19–107 (emphasis added), it would be unexpected and indefensible for

§ 99–19–107 to be applied when the death sentence of only one offender (or one

class of offenders) is held to be unconstitutional. We disagree.

As the Mississippi Supreme Court made clear in Foster, § 99–19–107

plainly functions “to provide for an alternative sentence” if the death penalty (to

which the defendant had previously been sentenced) is later declared to be

unconstitutional. 961 So. 2d at 672. Section 99–19–107 thus gives instructions

for that which a court should do if “the court having jurisdiction over a person

previously sentenced to death” must resentence the person under such

circumstances. In that sense, and only in that sense, may § 99–19–107 apply to

an individual defendant. In fact, Abram is instructive on this point. The Abram

court recognized that the plain language of § 99–19–107 “obvious[ly]” indicated

that the statute only applied to “a wholesale declaration” of unconstitutionality,

i.e., it was “not reasonably or logically intended for use on a case by case basis.” 

606 So. 2d at 1039. Given this dichotomy of possible circumstances, Roper

clearly was a “wholesale declaration” that the death penalty is unconstitutional

as applied to juveniles; obviously, Roper neither held only that Holly’s death

sentence is unconstitutional, nor vacated Holly’s death sentence because of any

error particular to the unique facts of his case. Roper categorically held that

“[t]he Eighth and Fourteenth Amendments forbid imposition of the death

penalty on offenders who were under the age of 18 when their crimes were

committed.” 543 U.S. at 578 (emphasis added). Consequently, the death penalty

has been “held to be unconstitutional by . . . the United States Supreme Court”

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as to those offenders whose death sentence is come within the plain language of

§ 99–19–107. 

At bottom, the Mississippi Supreme Court’s construction of § 99–19–107

in Foster was not “unexpected and indefensible” by reference to the law (the text

of § 99–19–107) as expressed prior to Holly’s commission of the capital offense. 

To the contrary, Holly had fair warning when he committed his offense that

§ 99–19–107 would apply to him if the death penalty were ever “held to be

unconstitutional,” as it later was for juvenile offenders in Roper. The Mississippi

Supreme Court thus constitutionally applied § 99–19–107, pursuant to Foster,

in resentencing Holly.

III.

For the foregoing reasons, Holly’s federal application for habeas relief is

denied and the judgment of the district court is AFFIRMED.

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