IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 93-7630

_____________________

WILLIE ALBERT SMITH,

Petitioner-Appellee,

v.

EDDIE LUCAS, Commissioner, 

Mississippi Department of 

Corrections, ET AL.,

Respondents-Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_________________________________________________________________

(December 6, 1993)

Before POLITZ, Chief Judge, KING and SMITH, Circuit Judges.

KING, Circuit Judge:

The Commissioner of the Mississippi Department of

Corrections (Respondent) appeals an order of the district court

granting a writ of habeas corpus in favor of the petitioner,

Willie Albert Smith, based upon the failure of the State of

Mississippi to comply with the district court's order of November

23, 1992. In that order, the district court had declared that it

would grant a writ of habeas corpus "as to Smith's death

sentence" unless the State initiated certain proceedings within

six months to correct the constitutional infirmity in that

sentence. When the deadline expired, the State had failed to
 

1 The lengthy factual and procedural history is set forth in

Smith v. Black, 904 F.2d 950 (5th Cir. 1990). Only the facts

pertinent to the instant appeal are recited in this opinion.

2

commence the required proceedings. The district court granted

the writ, directing Smith's death sentence to be vacated and

ordering the State to impose upon Smith a sentence of life

imprisonment. On appeal from that order, the State contends,

inter alia, that the district court exceeded its authority in

requiring the State to resentence Smith to life imprisonment. We

agree with the State that the district court was without the

power to direct "that the State of Mississippi impose upon

[Smith] a sentence of life imprisonment," and thus we modify the

district court's order to excise the quoted language. We find no

error in the other determinations of the district court and thus

affirm the judgment of the district court as modified.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Willie Albert Smith was tried for the murder of

Shirley Roberts, a convenience store manager, in the Circuit

Court of the First Judicial Circuit of Hinds County,

Mississippi.1 The prosecution introduced "awesome"

circumstantial evidence of Smith's guilt, as conceded by Smith's

own attorney, as well as the testimony of two "eyewitnesses," who

claimed to have seen Smith forcing a woman into a red Pinto in

the convenience store parking lot around the time of the victim's

abduction. Smith v. Black, 904 F.2d 950, 957-58 (5th Cir. 1990)

("Smith I"). The jury convicted Smith of the murder of Shirley
 

2 Following a capital murder conviction, the jury in the

Mississippi system proceeds to the sentencing phase. For a

convicted capital defendant to receive the death sentence, "the

jury must find at least one of eight statutory aggravating

factors, and it must determine that the aggravating factor or

factors are not outweighed by the mitigating circumstances, if

any." Stringer v. Black, ___ U.S. ___, 112 S. Ct. 1130, 1134

(1992) (citing Miss. Code Ann. § 99-19-101).

 

3 After his motion for new trial was denied, Smith pursued

an automatic direct appeal to the Mississippi Supreme Court,

which affirmed both the conviction and sentence. Although it

modified its opinion on rehearing, Smith v. State, 419 So. 2d 563

(Miss. 1982), that court continued to affirm the state district

court's judgment. Smith then obtained new counsel and petitioned

the United States Supreme Court for a writ of certiorari on the

basis of ineffective assistance of counsel and unlawful seizure

of evidence, but this petition was denied by the Supreme Court,

see Smith v. Mississippi, 460 U.S. 1047 (1983). Smith

subsequently filed a petition for writ of error coram nobis,

which was denied by the Mississippi Supreme Court almost solely

on the basis of procedural bars, and that court subsequently

denied Smith's motion for rehearing. Smith v. State, 434 So. 2d

3

Roberts during the course of a robbery, a capital crime in

Mississippi. Id. at 959.

During the sentencing phase2, the prosecution introduced

evidence of rape and of manual strangulation, and the jury found

three aggravating circumstances: (i) that the murder was

committed while Smith was engaged in the commission of robbery,

(ii) that the murder was committed for pecuniary gain, and

(iii) that the murder was "especially heinous, atrocious, or

cruel." Id. The jury also found beyond reasonable doubt that

the aggravating circumstances outweighed the mitigating

circumstances. Id. Consequently, Smith was sentenced to death.

A. This Court's Mandate

Smith pursued several post-conviction remedies in the state

court3 before commencing a habeas proceeding in the District
212 (1983).

 

4 Smith then filed an application for writ of error coram

nobis in the Mississippi Supreme Court on the basis that the two

"eyewitnesses" had perjured themselves at trial. The Mississippi

Supreme Court ordered an evidentiary hearing in the circuit court

on the issue, In re Smith, 457 So. 2d 911 (Miss. 1984), but that

court denied relief, and the Mississippi Supreme Court affirmed

the denial of relief. Smith v. State, 492 So. 2d 260 (Miss.

1986).

While the second state post-conviction action was pending,

Smith filed a third post-conviction motion in state court seeking

collateral relief on the basis that the prosecutor had

unconstitutionally excluded blacks from the jury and had failed

to disclose certain evidence. This motion was also denied by the

Mississippi Supreme Court, as well as Smith's motion for

rehearing. Smith v. State, 500 So. 2d 973 (Miss. 1986).

4

Court for the Southern District of Mississippi on August 1, 1983. 

This court entered a stay of execution and a stay of proceedings

in the district court until Smith's state court remedies were

exhausted. After Smith had exhausted his state remedies,4 he

amended his habeas petition, arguing, inter alia, that

Mississippi's use of the "especially heinous" aggravating

circumstance in the jury's deliberations as to his death sentence

was unconstitutional. The federal district court denied Smith's

habeas petition, as well as his motion to alter or amend the

judgment, Smith v. Thigpen, 689 F. Supp. 644 (S.D. Miss. 1988),

and this court affirmed. Smith I, 904 F.2d at 988. With respect

to the "especially heinous" aggravating circumstance, this court

noted that the Supreme Court had recently held the factor to be

unconstitutional in a context similar to the one presented in

Maynard v. Cartwright, 486 U.S. 356 (1988). In Maynard, the

Supreme Court invalidated an "indistinguishable" Oklahoma
 

5 See, e.g., Teague v. Lane, 489 U.S. 288 (1989)

(prohibiting the retroactive application of "new rules" of

constitutional procedure except in specific, limited situations

which are not applicable in the case at bar).

5

statute, finding that the term "especially heinous, atrocious or

cruel" when used to define an aggravating factor for purposes of

capital sentencing was unconstitutionally vague absent an

appropriate limiting instruction. Id. at 363-64. In a related

decision styled Clemons v. Mississippi, the Court prohibited the

automatic affirmance of a death sentence where at least one valid

aggravating factor remained after another factor had been held to

be impermissible in those states, like Mississippi, which weigh

aggravating against mitigating factors for sentencing purposes. 

494 U.S. 738, 752 (1990). Instead, the Court required either

that the appellate court reweigh the aggravating and mitigating

circumstances or find that the error of including the

unconstitutional aggravating factor was harmless beyond a

reasonable doubt. Id. at 750-52. Maynard and Clemons were both

relevant to Smith's claim for relief since the sentencing jury in

his case found the existence of two other valid aggravating

factors. This court considered itself to be precluded from

reaching the issue in the case presented, however, because

Smith's conviction had become final in 1983, several years before

the relevant Supreme Court decisions were rendered. Thus, it

determined that Smith could not take advantage of the "new

rules"5 announced in Maynard and Clemons. See Smith I, 904 F.2d

at 986.
6

Before the decision in Smith I was announced, Smith filed a

fourth petition for post-conviction relief in the Mississippi

Supreme Court on July 27, 1990, requesting that court to vacate

or set aside his death sentence on the basis of Maynard and

Clemons. The State responded on November 21, 1990, raising

various procedural bars to the determination of the Maynard and

Clemons claim and arguing that, even if the merits were reached,

the Mississippi Supreme Court itself could reweigh or perform a

harmless error examination without remanding for a new sentencing

proceeding. Smith's application is still pending before the

Mississippi Supreme Court.

Subsequently, the Supreme Court vacated the judgment

rendered by this court in Smith I and remanded for further

consideration in light of its contemporaneous decision in

Stringer v. Black, ___ U.S. ___, 112 S. Ct. 1130 (1992). See

Smith v. Black, ___ U.S. ___, 112 S. Ct. 1463 (1992) ("Smith

II"). Stringer involved an almost identical fact-setting in that

the death sentence of the petitioner in that case had also become

final prior to Maynard and Clemons. 112 S. Ct. at 1134-35. The

Court concluded that "the precedents even before Maynard and

Clemons yield[ed] a well-settled principle," and thus, the

decisions in tandem did not constitute a "new rule" for purposes

of Teague. Id. at 1140.

On remand of Smith II, and in accordance with the Supreme

Court's directive, this court applied the rules of Maynard and

Clemons and determined that the use of the "especially heinous"
7

aggravating circumstance without a limiting instruction rendered

Smith's death sentence constitutionally infirm -- specifically

holding that the claim had not been procedurally defaulted. 

Smith v. Black, 970 F.2d 1383, 1388 (5th Cir. 1992) ("Smith

III"). However, this court permitted the death sentence in

Smith's case to

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

Clemons and Wiley [v. Puckett, 969 F.2d 86 (5th Cir.

1992)].

Id. Accordingly, we directed the district court "to issue the

writ of habeas corpus unless the State of Mississippi initiates

appropriate proceedings in state court within a reasonable time

after the issuance of our mandate." Id. at 1389.

B. District Court Action on Remand

On remand from this court, the district court issued an

order in pertinent part as follows:

IT IS HEREBY ORDERED that the Court shall issue a writ of

habeas corpus as to the Petitioner Willie Albert Smith's

death sentence unless the State of Mississippi initiates

proceedings to have the state court reweigh any aggravating

and mitigating circumstances or conduct a harmless error

analysis . . . by no later than May 23, 1993.

Ordered entered November 23, 1992 (the "November 23 Order"). 

This order gave the State six months to take appropriate action

as defined therein.
8

After the time-period had expired and the State had failed

to take the requisite action, Smith moved for entry of the writ

of habeas corpus. The State opposed the writ, claiming that it

had not received notice of the November 23 Order. Consequently,

it argued, the State was unaware of the deadline until after its

expiration. Alternatively, the State argued that it had complied

with the spirit of the district court's order since proceedings

were pending before the Mississippi Supreme Court -- proceedings

initiated by Smith more than two years before the November 23

Order -- to resolve the same issues contemplated in the November

23 Order.

The district court held that the State had received adequate

notice and that the pendency of Smith's two-year-old application

before the Mississippi Supreme Court was not sufficient to

constitute an initiation by the State of proceedings "to reweigh

any aggravating and mitigation circumstances or conduct a

harmless error analysis" as required by the November 23 Order. 

Consequently, the lower court entered an order directing the

clerk of court to issue a writ of habeas corpus "directing

[Smith's] sentence of death to be vacated, and that the State of

Mississippi impose upon [Smith] a sentence of life imprisonment." 

Order, entered July 9, 1993 (the "July 9 Order"). A writ of

habeas corpus was issued in accordance with the July 9 Order.

The State then moved, pursuant to Federal Rule of Civil

Procedure 59, to alter or amend the order granting the writ,

asserting the same grounds as before, and adding a claim that the
 

6 In its motion to stay the order granting the writ, the

State had also complained that the district court improperly

determined that the State had received notice of the November 23

Order. The district court noted several circumstances in support

of this finding, including the facts that: (i) the docket sheet

reflected proper service of the order upon the State, and (ii)

the November 23 Order was referred to numerous times in a similar

proceeding at which the State's same attorney was present. 

Moreover, the State was forewarned of the district court's order

when it received this court's August 20, 1992, opinion in Smith

III mandating that result. Consequently, and presumably because

9

July 9 Order exceeded the district court's authority. The State

claimed that the writ amounted to impermissible revision of the

state court's sentence. The State argued that, even if the

district court had the authority to vacate the death sentence,

the court exceeded its authority in requiring Mississippi to

resentence Smith to life imprisonment. This motion was denied by

the district court, and a notice of appeal was immediately filed

by the State.

The State additionally sought a stay of the order granting

the writ pending its appeal, which motion was denied by the

district court. This court granted a stay and ordered an

expedited briefing schedule and oral argument.

II. ANALYSIS OF ARGUMENTS AND AUTHORITIES

The State requests a reversal of the district court's order

granting the habeas writ, upon the following bases: (i) the

proceedings currently pending before the Mississippi Supreme

Court were sufficient to comply with the mandate, and thus, the

lower court had no basis to issue the writ; and (ii) the district

court exceeded its authority in directing the Mississippi state

courts to commute Smith's sentence to life imprisonment.6
of the deference which this court must accord to part of the

district court's finding in this regard under the clearly

erroneous standard, the State has relegated this "lack of notice"

argument to a footnote in its appellate brief.

10

Smith responds that the state court proceeding which he

initiated did not suffice to show compliance by the State with

the November 23 Order, especially where the State had filed a

response arguing for the application of various procedural bars,

which, if decided against Smith, would preclude the Mississippi

court from even reaching the constitutional reweighing or

harmless error analysis ordered to be performed by this court. 

Moreover, Smith contends, the State's failure either to withdraw

or amend its response to reflect the ruling of this court negates

any claim of compliance. With respect to the extent of the

district court's authority, Smith advocates an estoppel-type

analysis, claiming that the writ may be used to preclude the

State from resentencing Smith to death.

A. Sufficiency of the State Court Proceedings

The State's first argument for reversing the district court

involves its claimed prior compliance with the November 23 Order. 

The district court, however, held that the fortuitous

circumstance that Smith had previously filed a petition with the

Mississippi Supreme Court addressed to the issues raised in the

November 23 Order did not amount to compliance by the State with

the order. Consequently, the district court dismissed this

argument as being "without merit," but did not make specific

findings in this regard. The district court's finding that the
 

7 See, e.g., Gegenheimer v. Galan, 920 F.2d 307 (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 expressly or impliedly disposed of in its

decision.); Newball v. Offshore Logistics, Int'l, 803 F.2d 821

(5th Cir. 1986) (The appellate mandate controls on all matters

within its scope.). 

 

8 For example, the State has raised in its response at least

two procedural bars, either of which could prevent the

Mississippi court from ever reaching the constitutionally

11

proceedings before the Mississippi Supreme Court were

insufficient to comply with the November 23 Order is a legal

conclusion, reviewed de novo. Halferty v. Pulse Drug Co., Inc.,

864 F.2d 1185, 1188 (5th Cir. 1989). The decision is correct. 

This court directed the State (through the district court) to

remedy the constitutional problem identified, and the State's

failure to take steps in a Mississippi court to do so clearly

does not comply with our mandate or the district court's order.

Even if we were to concede arguendo that the State could

avail itself of Smith's fourth post-conviction filing in the

Mississippi Supreme Court -- a difficult concession in view of

the requirement of exact compliance with our mandate7 -- the

State's failure to amend its response already on file with the

Mississippi Supreme Court to reflect this court's mandate and the

district court's order falls short of compliance. As Smith

points out, the State's response to his fourth Mississippi

petition includes a "myriad of threshold issues," which were

raised by the State in opposition to the petition and,

significantly, were never withdrawn by the State in response to

the District Court's November 23 Order.8 If these "threshold"
defective jury instructions -- contrary to this court's mandate. 

In its pleadings currently on file before the Mississippi Supreme

Court, the State argues that:

(i) Smith's challenge to the "especially heinous"

sentencing factor was previously adjudicated by the

Mississippi Supreme Court in his initial application

for collateral relief; accordingly, Smith was barred

under the Mississippi doctrine of successive petitions

from raising the claim, Miss. Code Ann. § 99-39-27(9);

and

(ii) Smith's failure to raise the constitutional error at

trial or on direct appeal operates as a waiver of the

claim which is res judicata in subsequent proceedings

under Miss. Code Ann. § 99-39-21.

12

issues were resolved against Smith, they would prevent the

Mississippi Supreme Court from considering the pertinent issues

on the merits. The State's failure to withdraw or excise these

arguments from its response before the Mississippi Supreme Court

creates problems for the relief Smith requested that literal

compliance by the State with this court's mandate and the

district court's order would have obviated. See, e.g., Wiley v.

State, No. 03-DP-0057, 1993 WL 39685 at *3 (Miss. October 7,

1993) ("As this case has been returned to our Court pursuant to

orders of the Fifth Circuit Court of Appeals and the United

States District Court, no procedural bar may be applied. 

Therefore, Wiley's claim is viable.").

Moreover, the Maynard-Clemons-Stringer trilogy produced

several cases in a procedural posture identical to this case. 

E.g., Wilcher v. State, No. 03-DP-0032 & 03-DP-0037, 1993 WL

398680 (Miss. October 7, 1993); Wiley, 1993 WL 39685 at * 2-3. 

In those cases, the State affirmatively filed pleadings in the
 

9 As noted above, this court ordered the district court:

to issue the writ of habeas corpus unless the

State of Mississippi initiates appropriate

proceedings in state court within a

reasonable time after the issuance of our

mandate.

13

state supreme court in response to virtually identical,

conditional habeas mandates from this court -- evidencing that

the State itself recognized the proper response to such an order. 

In Wilcher, to review but one example, the case was decided by

the Mississippi Supreme Court and was remanded for a new

sentencing hearing within nine and one-half months after the

issuance of our mandate. In this case, by contrast, Smith has

continued on death row for fifteen months after the issuance of

our mandate, under a constitutionally infirm sentence, and the

State has done absolutely nothing to remedy that situation. It

is difficult to understand how the State can even argue that it

has complied with our mandate or the district court's order. For

all of these reasons, we hold that the district court committed

no reversible error in finding the Mississippi proceedings to be

inadequate.

B. The Legal Effect of the Fifth Circuit Mandate Upon the

District Court

Although the State and Smith focus their arguments upon the

extent of the district court's authority under federal law to

issue the disputed writ (as discussed infra), neither party

addresses the fact that the district court's July 9 Order

exceeded this court's mandate.9 The attempt of the district
Smith III, 970 F.2d at 1389. The July 9 Order deviated from our

mandate as follows:

IT IS THEREFORE ORDERED AND ADJUDGED that . . . the

said writ [of habeas corpus] shall issue forthwith from

the Clerk of this Court directing the Petitioner's

sentence of death to be vacated, and that the State of

Mississippi impose upon Petitioner a sentence of life.

July 9 Order (emphasis added).

 

10 See supra note 7.

 

11 As a preliminary matter, we note that the district

court's conclusions about the extent of its authority in issuing

the writ under both our mandate and federal law are also issues

of law reviewable de novo by this court. Halferty v. Pulse Drug

Co., Inc., 864 F.2d 1185, 1188 (5th Cir. 1989).

14

court to require the Mississippi courts to resentence Smith to

life imprisonment was not prescribed in this court's mandate. 

As discussed below, we doubt that the district court had the

authority under federal law to order the Mississippi trial court

to sentence Smith to life imprisonment. But even if the district

court theoretically possessed such power, the district court was

bound by our mandate, and the July 9 Order must be modified to

conform to that mandate.10

C. Extent of a Federal Court's Authority to Enter a Writ

of Habeas Corpus

The State also claims that the district court was without

the power to use the writ to compel a state court to modify its

sentence, citing to Duhamel v. Collins, 955 F.2d 962 (5th Cir.

1992), in support of this contention.11 In Duhamel, this court

vacated a similar order from the District Court for the Southern

District of Texas which attempted to commute a death sentence

into life imprisonment, holding that this action was beyond the
15

authority of a federal court. 955 F.2d at 968. The State also

cites to Fay v. Noia, 372 U.S. 391, 430-431 (1963) -- quoted in

Duhamel -- for the proposition that a federal court "cannot

revise the state court judgment; it can only act on the body of

the petitioner."

Smith responds that our opinion in Welch v. Beto, 355 F.2d

1016, 1020 (5th Cir.), cert. denied, 385 U.S. 839 (1966), and the

district court's opinion in Jones v. Smith, 685 F. Supp. 604

(S.D. Miss. 1988), control this outcome and that a federal court

may use the habeas writ to prohibit the State permanently from

executing a prisoner. In Welch, this court, upon finding a

violation of the petitioner's federal rights, remanded the case

and ordered the district court to take such action as necessary

to allow the state an "opportunity" to accord the petitioner a

post-conviction hearing in accordance with the opinion within "a

reasonable time." 355 F.2d at 1020. This court further mandated

that "[i]n default thereof, the petitioner shall not be

executed." Id. In Jones, another judge in the Southern District

of Mississippi issued an order virtually identical to the one

issued in the instant case. See 685 F. Supp. at 606-07. The

Jones court relied upon a line of authority allowing a federal

court to employ its "broad discretionary powers to grant various

forms of equitable relief (without which it is obvious that

similar orders would be issued in vain)." Id. at 606. On the

basis of the foregoing authorities, Smith concludes that it is

appropriate for a federal court to use its habeas powers to
 

12 Fay v. Noia was recently overruled on other grounds. See

Coleman v. Thompson, ___ U.S. ___, 111 S. Ct. 2546 (1991)

(specifically rejecting the "deliberate bypass" approach used in

Fay v. Noia for determining whether an issue that has been

procedurally defaulted in the state courts may be reached on

federal collateral review).

 

13 As the Court instructed:

 [T]he writ of habeas corpus is a new suit brought by a

petitioner to enforce a civil right, which he claims as

against those who are holding him in custody. The

proceeding is one instituted by himself for his

liberty, and not by the government to punish for his

crime. The judicial proceeding under it is not to

inquire into the criminal act which is complained of,

but into the right to liberty notwithstanding the act.

16

impose conditionally "[a] prohibition against the re-imposition

of the death penalty" unless the State avails itself of the

opportunity to correct the constitutional error. 

We agree with the State that the district court did not have

the authority under federal law to compel Mississippi to "impose

upon [Smith] a sentence of life imprisonment." In Fay v. Noia,

the Supreme Court recounted the historical use of the writ of

habeas corpus and the federal reluctance to extend the writ to

interfere with state court proceedings. 372 U.S. 403.12 The

Court recognized that the "root principle" of the habeas writ is

"that in a civilized society, government must always be

accountable to the judiciary for a man's imprisonment: if the

imprisonment cannot be shown to conform with the fundamental

requirements of law, the individual is entitled to his immediate

release." 372 U.S. at 402 (emphasis added). Thus, the focus of

the writ is an inquiry "into the legality of the prisoner's

detention." Id. at 418.13
Fay v. Noia, 372 U.S. at 423 n.34 (quoting 1 BAILEY, HABEAS CORPUS

AND SPECIAL REMEDIES § 4 (1913)) (emphasis added). 

17

We have found no indication that the Supreme Court has

somehow changed its position and extended the use of habeas

corpus in the context presented -- i.e., to revise a state

criminal defendant's sentence without requiring his release. It

would thus appear that the writ has but one remedy -- to direct

the liberation of a state prisoner whose confinement violates

federal law. "Habeas lies to enforce the right of personal

liberty; when that right is denied and a person confined, the

federal court has the power to release him. Indeed, it has no

other power . . . ." Fay v. Noia, 372 U.S. at 430-31. It would

be a serious departure from prior precedent to hold that the writ

can vacate the defective sentence only to allow the federal court

to resentence the state defendant on its own accord.

The Supreme Court has recognized the conditional use of the

writ to require constitutional compliance. See, e.g., Richmond

v. Lewis, ___ U.S. ___, 113 S. Ct. 528, 537 (1992). In Richmond,

the Court issued the following mandate:

We reverse the judgment of the Court of Appeals and

remand with instructions to return the case to the

District Court to enter an order granting the petition

for a writ of habeas corpus unless the State of Arizona

within a reasonable period of time either corrects the

constitutional error in petitioner's death sentence or

vacates the sentence and imposes a lesser sentence

consistent with law.

Id. As with our mandate in the instant case, the Court's

direction to the district court is to grant the writ unless the
 

14 It is notable that the Richmond case also involved an

infirmity in the sentence alone, yet the Court mandated the

issuance of the writ for release of the prisoner unless the error

in sentencing were corrected by the state. See Richmond v.

Lewis, ___ U.S. ___, 113 S. Ct. 528, 537 (1992). 

 

15 In Jones v. Smith, 685 F. Supp. 604, 606 (S.D. Miss.

1988), the federal district court vacated the petitioner's death

sentence and conditionally granted a writ of habeas corpus

"thereby resulting in the imposition of a life sentence under

Mississippi Law" unless the state resentenced the petitioner

within thirty days. In a curious footnote, the federal district

court in Jones v. Smith implied that this court might sanction

such an approach, citing to our opinion in Jones v. Thigpen, 741

F.2d 805, 816 (5th Cir. 1984), in which we affirmed the district

court's order vacating a state petitioner's defective sentence

and determined that the state was precluded on Double Jeopardy

grounds from holding another sentencing hearing in which it could

seek the death penalty. See Jones v. Smith, 685 F. Supp. at 606

n.3. As the district court acknowledges, however, this court's

holding in Jones v. Thigpen, was implicitly overruled by the

Supreme Court in Thigpen v. Jones, 475 U.S. 1003 (1986), and

Cabana v. Bullock, 474 U.S. 376, 392 (1986). In light of this

precedent, the holding in Jones that habeas may be used to effect

a conditional resentencing does not rest on solid ground. 

18

State takes action to remedy the infirmity in the death

sentence.14 See, e.g., Smith, 970 F.2d at 1389; Wiley v.

Puckett, 969 F.2d 86, 94, 106 (5th Cir. 1992). However, the

conditional issuance of a habeas writ is decidedly different from

a "conditional resentencing," such as in Jones or the instant

case.15 In the conditional writ cases, the federal court has

determined that it has the authority to order immediate release

of the prisoner as a result of the federal law violation; the

court chooses, however, to delay the writ to allow the state to

correct the problem as best it can. Although the federal court,

in doing so, may certainly suggest a corrective procedure in

broad terms, the real thrust of the order is to alert the state

court to the constitutional problem and notify it that the
19

infirmity must be remedied. By contrast, a "conditional

resentencing" -- in which the federal court threatens to alter

the state court's sentence or impose its own sentence if the

State fails to take action -- crosses the line into impermissible

interference with the state court's autonomy in applying its own

criminal procedures. See Dixon v. Beto, 472 F.2d 598, 599 (5th

Cir. 1973) ("The federal courts are not empowered to order the

state courts to make remedies available nor are they authorized

to dictate the type of hearing which is to be conducted by the

state courts."). Thus, both Richmond and our directive in Smith

are consistent with the analysis in Fay v. Noia.

Smith's interpretation of Welch, however, does not comport

with Fay v. Noia or with this court's opinion in Duhamel. 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. As noted

previously, in Welch, this court ordered relief in a habeas

proceeding conditioned upon the state's affording the petitioner

an appropriate post-conviction proceeding. This court further

mandated that "[i]n default thereof, the petitioner shall not be

executed." 355 F.2d at 1020.

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
 

16 At oral argument, the Respondent contended for the first

time that the State would be able to continue to hold Smith under

Mississippi law pending resentencing even if the district court's

decision to vacate Smith's death sentence were to be affirmed. 

We express no opinion on that contention, as we do not address

unbriefed arguments raised for the first time at oral argument. 

Najarro v. First Fed. Sav. & Loan Ass'n of Nacogdoches, 918 F.2d

513, 516 (5th Cir. 1990) ("In the absence of manifest injustice,

this court will not consider arguments belatedly raised after

appellees have filed their brief.").

20

sentence. Nothing in our opinion in that case can be read to

have precluded the state from subsequently seeking a

constitutionally valid death sentence.

In summary, we find that the portion of the July 9 Order

directing Smith to be resentenced to life imprisonment amounts to

an impermissible alteration of Smith's sentence.

V. CONCLUSION

The district court's July 9 direction to the Mississippi

courts to "impose upon [Smith] a sentence of life imprisonment"

did not comply either with our mandate in Smith III or with

federal law. There is no authority for a holding that the writ

of habeas corpus may be employed to revise Smith's

constitutionally infirm sentence in this manner. Our mandate in

Smith III stated that the writ would be issued upon the State's

failure to take the requisite action during the defined period. 

The 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.16 Consequently, this court must

modify the order of the district court to conform to our mandate
21

by excising the portion of the order resentencing Smith to life

imprisonment.

The July 9 Order of the district court is modified to delete

the words "and that the State of Mississippi impose upon the

Petitioner a sentence of life imprisonment" from its decree. The

writ of habeas corpus issued as a result of the July 9 Order is

similarly amended. As modified, the judgment of the district

court is affirmed.

AFFIRMED as MODIFIED.