### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 applica t i o n brought pursuant to 28 U.S.C. § 2254. AFFIRMED. I. H olly w a s in dicted for capital murder, kidnapping, and grand larceny . Th e offense took place on July 12, 1992 at which time Holly was under the age of U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 1, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-60374 Document: 00511557296 Page: 1 Date Filed: 08/01/2011No. 10-60374

eighteen. He was subsequently convicted and was sentenced to death on March 3 , 1 9 9 3

. His motion for a new trial was denied, and the Mississippi Suprem e Court aff

i r m ed his convictions of capital murder and kidnapping and his sentence of death. Holly v. State , 671 So. 2 d 32 (Miss. 1996). No petition for 1 rehearing was filed, and the Supreme Court denied h i s p e t ition for a writ of certiorari. Holly v. Mississippi , 518 U.S. 1025 (1996). Holly f i led 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 gr ant e d his motion to stay the proceedings pending the Supreme Court’ s de ci s io n 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

w e r e c o m mitted.” Id. at 578. Thereafter, the district court vacated Holly ’ s capital sentence. Holly subsequently filed a m o t i o n in the Mississippi Supreme Court to remand his case for resentencing in the circuit c o u r t

. In his motion, he requested a sentence of life in prison wit h th e p o s s ibility of parole, which he deemed “the only Constitutional alternative to death at the time the crime was committed.” Holly asserted that M I S S

. C O D E AN N

. § 9 9

– 1 9–107 — 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 Sup r e m e Court” — was inapplicable to his vacated death sentence. Instead, Holly reasoned that the court should apply the version of the capital murder statute, M I S S

. C O D E AN N

. § 97–3–21, that existed at the time he committed the offe n s e , w h ich only provided two possible sentences: the death

TheM iss iss ipp i S upr em e Co urtvac atedt he convic tio n o f grandla rce ny. 1 2 Case: 10-60374 Document: 00511557296 Page: 2 Date Filed: 08/01/2011No. 10-60374

penalty and life in prison with t h e p o s s ibility of parole. (Two years after Holly

was convicted, § 97–3–21 had been amended t o i nclude the option of life in prison without the possibility of p a role, but that sentence was not available at the time that Holly committed the cap i t a l 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 Mississipp i S u p r e me Court remanded Holly’s case back to the state trial court with instruc t i o ns 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 c l ai ms, 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 m atter 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 i s 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 4 8 4 , 4 9 1 ( 5 t h 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-convictio n p r o c eedings 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 mann e r 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

m o t i o n for resentencing, which he filed directly in the Mississippi Supreme Court. When t h a t 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 presente d h i s c laims to the Mississippi Supreme Court in a procedurally proper manner. I n f act, the Mississippi Supreme Court addressed this very procedur a l 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

Nei ther the dist ric t cour t in denyi ng reli ef nor the par tie s in their argum ents to this 2
cour t expli cit ly r ais ed the iss ue of exhaus tion

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Roper , the State filed a motion dir e c t l y i n 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 constitutiona l o bjections. Id. As a result, when the defendant later attempted to appeal his resentencing by the trial court, the M i s s i s sippi 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 P erformance 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 a l t e r native, in a motion for reconsideration of a motion under Miss. R. App. P. 27(h) , o r i n 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 dete r mined that it was procedurally proper for Holly to raise his constitutional claims in his

m o tion for resentencing; that, in fact, it was the only procedurally proper w a y t o do so. We thus conclude that Holly has exhausted state remedi e s , e v e n though he never raised his constitutiona l c laims in state post-conviction proceedings. B. Holly’s federal habeas application, nevertheless , c o m e s to u s in an unusual procedural posture that implicates our standard of review. Given the fact that

a s t a te 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 c l a i ms 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 Mississip p i S up r e m e C ourt violated his rights under the Due Process C l ause when it resentenced him to life in prison without the possibility of parole. The U.S. Supreme Court h a s e x p l a ined 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.” Bo u i e 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 expansio n of narrow and precise statutory language.” Id. at 3 5 2

. “ I f 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 mu s t not be given retroactive effect.” Id. at 354 (internal quotation marks and citation omitted). Here, we must determine whether the M i s s i ssippi Supreme Court’s construction of § 99–19–107 in Foster was “unexpected and indefensible” by reference t o th e plain statutory language of § 99–19–107. Section 99–19–107 wa s e nacted in 1977 in response to national

On app eal, Ho lly doe s not rais e an inde pend ent Ex Pos t Fact o Claus e clai m, conc edi ng 3 that “th e text of the Ex P o s t F a cto Claus e is lim ite d to legis lative act ion. ” (c itin g Ma rks v. Uni ted States , 430 U. S. 188, 191 (197 7) (“ The Ex Pos t Fact o Claus e is a lim itat ion upon the pow ers of the Legis latur e . . . a n d d o e s n o t o f its ow n for ce app ly to the Judi cial Branc h of governm ent. ”) ). Ho lly doe s mai ntain , how ever, that “th e sam e unde rlying cons ide rat ions are app licable to st ate cour ts thr ough the D u e P r oce ss Claus e of the Fourt eent h Ame ndm ent, ” (c itin g Proc tor v. Cockrel l , 283 F.3d 726, 730 (5t h Cir. 2002) ), so we wi ll only cons ide r ex-p os tfac to conc erns t o t hat extent. 6 Case: 10-60374 Document: 00511557296 Page: 6 Date Filed: 08/01/2011No. 10-60374

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 Mi s s i s s ip p i S upreme Court or the United States Supreme Court, th e cou r t 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 t h e r e c o r d l acked 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: Althou gh there are no cases addressing the precise application of § 99-19-107, we think it fairly obvious that it is reserved for that event whe n e it her this Court or the United States Supreme Court makes a wholesale declaration that the death penalty in ge n e r al, and/or our own s t a t u tory death penalty scheme in particular, is unconstitutional. This section is not reasonab ly or lo gic ally intended for use on a case by case basis by trial courts or this Court . . . . Id. The Mississippi Supreme Court then concluded that “the o nl y logical alternative once the jury verdict was disregarded would have been to impose a sentence of life imprisonment.” Id. (citation omitted).

See Furm an v. Geo rgia , 408 U. S. 238239–40 (197 2) (h olding that thedeathpenalt y 4
sc hem e in Geo rgia cons tit utedcruel andunu sua l p unis hme nt in violat ion of the Eighth and Fourt eent h Ame ndm ents ); Gregg v. Ge orgi a , 428 U. S. 153, 187 (197 6) (ho ldi ng that im pos itio n of the dea th penalty fo r t h e cri me of mur der did not, unde r all cir cum st ance s, violat e the Eighth and Fourt eenth Am endm ents ). 7 Case: 10-60374 Document: 00511557296 Page: 7 Date Filed: 08/01/2011No. 10-60374

Fifteen years later, in Foster , the Mississippi Suprem e C o u rt again

co n s i d e red 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 penal t y unconstitutional in all cases, but also did not vacat e o n e s ingle death sentence on a case-by-case basis. The Mississippi S u p r e m e Court concluded: “The language of the statute is clear; it intends t o provide for an alternative sentence for a person whose death sentence has been deemed unconstitutional.” Foster , 9 6 1 S o . 2d at 672. Acknowledging that

c e r t a in 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 ove r r u l e d

. ” 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 unconstitution a l b y t he 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 r etroactively. 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 Mississ i ppi Supreme Court unexpectedly and indefensibly expanded its construction of § 99–19–107 from that in A b ra m t o that in Foster , but rathe r w h e t h e r Foster (the judicial construction applied to Holly) unexpectedly and indefe n s ib l y 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 S u p r eme Court’s construction of § 9 9

– 1 9–107 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 t h e event the death penalty is held to be unconstitutional by the Mississippi Supreme Court or the United States Supreme Cour t , ” M I S S

. C O D E AN N

. § 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 cle a r in Foster , § 99–19–107 plainly functions “to provide for an alternative sentence” if the death penalty (to which the d e f

e n d ant 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 j urisdiction over a person previously sentenced to death” must res e n t ence 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 juven i l e s ; 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 f a c t s of his case. Roper categorically held that “[t]he Eighth and Fourteenth Amendme n t s f o rbid 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). Consequ e ntly, 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. T o t h e c o n trary, Holly had fair warning when he committed his offense that § 99–19

– 1 0 7 w ould apply to him if the death penalty were ever “held to be unconstitutional,” as it later was for juvenile offenders in Roper

. The Missis s ippi Supreme Court thus constitutionally applied § 99–19–107, pursuant to Foster , in resentencing Holly. III. For the f

o regoing reasons, Holly’s federal application for habeas relief is denied and the judgment of the district court is AFFIRMED.

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