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
 

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

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
 

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).

3

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
 

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).

4

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
5

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):
6

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
7

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.
8

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.