FILED

U.S. COURT OF

APPEALS

ELEVENTH CIRCUIT

DECEMBER 19, 2011

JOHN LEY

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-12208

________________________

D. C. Docket No. 97-00629-CV-MHT-WC

BILLY JOE MAGWOOD,

Petitioner-Appellee, 

Cross-Appellant,

versus

WARDEN, 

COMMISSIONER, ALABAMA DEPARTMENT

OF CORRECTIONS, 

ATTORNEY GENERAL OF ALABAMA,

Respondents-Appellants,

Cross-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

_________________________

(December 19, 2011)

ON REMAND FROM THE 

SUPREME COURT OF THE UNITED STATES
Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.

BLACK, Circuit Judge:

Alabama death-row inmate Billy Joe Magwood’s 28 U.S.C. § 2254 petition

was partially granted by the district court on his claim that his death sentence

violated the fair-warning requirement of the Due Process Clause because it was

based on Ex parte Kyzer, 399 So. 2d 330 (Ala. 1981), which was decided after he

committed his offense and was retroactively applied to his case. Magwood v.

Culliver, 481 F. Supp. 2d 1262, 1287 (M.D. Ala. 2007). The State of Alabama

then appealed the district court’s grant of relief on the fair-warning issue,

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asserting the district court erred when it granted relief on Magwood’s claim that

Kyzer deprived him of due process of law because the claim was (1) procedurally

defaulted, (2) precluded under 28 U.S.C. § 2244(b), and (3) meritless. We

reversed the district court’s grant of relief on Magwood’s fair-warning claim,

holding the claim was successive and governed by 28 U.S.C. § 2244(b)(2).2

 The State may appeal as of right a grant of habeas relief by the district court and a 1

certificate of appealability is not needed. Arthur v. Haley, 248 F.3d 1302, 1303 n.1 (11th Cir.

2001).

 The district court also granted relief on Magwood’s claim his counsel was ineffective 2

during resentencing because he failed to argue the retroactive application of Kyzer to Magwood’s

case was a violation of due process. Magwood, 481 F. Supp. 2d at 1295. The State appealed and

we reversed the district court’s grant of relief on this claim as well. Magwood v. Culliver, 555

F.3d 968, 978 (11th Cir. 2009).

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Magwood v. Culliver, 555 F.3d 968, 976 (11th Cir. 2009). The Supreme Court

granted certiorari, reversed our decision that the fair-warning claim was

successive, and remanded for further proceedings consistent with its opinion. 

Magwood v. Patterson, __ U.S. __, 130 S. Ct. 2788, 2803 (2010). 

In its supplemental briefing on remand, the State again contends the district

court erred in granting relief on the fair-warning claim because the claim is

(1) procedurally defaulted, and (2) meritless. Magwood asserts this claim is not

procedurally defaulted and that Kyzer unforeseeably suggested that Magwood’s

crime was a death-eligible offense. Magwood further contends the Alabama

Supreme Court has subsequently made clear that Kyzer’s dicta, on which

Magwood’s death sentence was based, was never the law.

This case presents a unique situation. The Alabama Supreme Court’s

interpretation of its death penalty statute in Kyzer–that the charge averred in the

indictment can be used as the aggravating circumstance for a judge to impose the

death penalty–provided the required, and only, “aggravating circumstance” for

Magwood to receive the death penalty when he was resentenced in 1986. See

Kyzer, 399 So. 2d at 337-38. In 2006, however, the Alabama Supreme Court held

the pertinent language in Kyzer was both (1) incorrect and never the law of

Alabama, and (2) dicta. Ex parte Stephens, 982 So. 2d 1148, 1152-53 (Ala. 2006). 

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Magwood is an anomaly on Alabama’s death row. According to Magwood’s

counsel, Magwood is the sole person on Alabama’s death row without an

aggravating circumstance for his crime, and is the only person on Alabama’s death

row whose case is affected by Stephens. 

Based on a clear reading of Alabama law, we conclude that Magwood was

not eligible for the death penalty. Magwood is entitled to habeas relief because his

death sentence violated the fair-warning requirement of the Due Process Clause

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as it was based on Kyzer, which was an “unforeseeable and retroactive judicial

expansion of narrow and precise statutory language.” Bouie v. City of Columbia,

378 U.S. 347, 352, 84 S. Ct. 1697, 1702 (1964). 

I. BACKGROUND

A. Factual background

The facts of Magwood’s offense are not in dispute. They are set forth in an

opinion by the Alabama Court of Criminal Appeals, as follows:

Thomas Weeks, a Coffee County Deputy Sheriff, testified he was

employed as the county jailer on March 1, 1979, under Coffee County

Sheriff Neil Grantham. The witness stated he observed [Magwood],

whom he recognized as a former jail inmate, sitting in a car parked in

 Because Magwood is entitled to relief from his death sentence on this claim, we do not 3

decide the State’s other issue on appeal–whether the district court erred when it concluded the

state court’s rejection of Magwood’s ineffective assistance of counsel claim was unreasonable. 

Nor do we decide the multiple resentencing issues that Magwood asserts in his cross-appeal. 

4
Sheriff Grantham’s parking space at approximately 6:45 a.m. Shortly

before 7:00 a.m., he observed Sheriff Grantham drive up and park his

vehicle. He got out of the automobile, walked to some garbage cans

and deposited a trash bag, and then walked towards the jail door. 

[Magwood] got out of his automobile with something in his hand and

met Sheriff Grantham at the rear of the car. At that point, Deputy

Weeks heard three gunshots and saw Sheriff Grantham fall. The

witness then turned back into the jail and obtained a gun. He

observed [Magwood] get back into his car and saw that he held a

pistol in his hand. He exchanged fire with [Magwood] as he drove

away. Deputy Weeks then went over to where Sheriff Grantham lay

on the ground and observed that the Sheriff’s face was blue and that

he appeared not to be breathing, having apparently been hit in the

face and neck. Deputy Weeks stated he observed no one else in the

area at the time the Sheriff was killed.

Magwood v. State, 426 So. 2d 918, 920 (Ala. Crim. App. 1982). 

B. Procedural background

Magwood murdered Sheriff Grantham on March 1, 1979. Id. Magwood

was convicted and sentenced to death for the murder in June 1981. Id. at 920 n.1. 

On direct appeal, the Alabama Court of Criminal Appeals and the Alabama

Supreme Court affirmed Magwood’s conviction and death sentence. Id. at 929,

aff’d Ex parte Magwood, 426 So. 2d 929, 932 (Ala. 1983), cert. denied 462 U.S.

1124, 103 S. Ct. 3097 (1983).

On July 13, 1983, Magwood filed a petition for writ of error coram nobis in

the Circuit Court of Coffee County. Magwood v. State, 449 So. 2d 1267, 1267

(Ala. Crim. App. 1984). This petition was denied and on March 20, 1984, the

5
Alabama Court of Criminal Appeals affirmed the denial of the coram nobis

petition. Id. at 1268.

Magwood then filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in

the United States District Court for the Middle District of Alabama. On March 26,

1985, the district court upheld Magwood’s conviction but conditionally granted

the writ as to the sentence, based on the failure of the sentencing court to find two

mitigating circumstances. Magwood v. Smith, 608 F. Supp. 218, 225-26 (M.D.

Ala. 1985). This Court affirmed the district court’s decision. Magwood v. Smith,

791 F.2d 1438, 1450 (11th Cir. 1986).

A resentencing hearing was conducted on September 17, 1986. Magwood v.

State, 548 So. 2d 512, 513 (Ala. Crim. App. 1988). On October 2, 1986, the

Alabama trial court, after considering the additional mitigating circumstances as

ordered by the federal district court, again sentenced Magwood to death. Id. The

Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed

Magwood’s resentencing. Id. at 516, aff’d, 548 So. 2d 516 (Ala. 1988), cert.

denied 493 U.S. 923, 110 S. Ct. 291 (1989).

Magwood filed an application in this Court for permission to file a second

habeas corpus petition in the district court challenging his conviction, which we

denied. In re Magwood, 113 F.3d 1544, 1553 (11th Cir. 1997). Magwood filed a

6
second habeas petition challenging his resentencing on April 23, 1997. The

district court granted in part and denied in part Magwood’s second habeas

petition. Magwood v. Culliver, 481 F. Supp. 2d 1262, 1295 (M.D. Ala. 2007).

II. ANALYSIS

To determine whether the application of Kyzer to Magwood’s case was a

violation of the fair-warning requirement of the Due Process Clause we must first

set out the relevant portions of Alabama’s death penalty statute at the time of

Magwood’s offense. We then discuss the effect of Kyzer and Stephens on

Magwood’s eligibility for the death penalty. Finally, we conclude Magwood can

overcome any procedural default and that the application of Kyzer violated the

fair-warning requirement of the Due Process Clause. 

A. The 1975 Act

Magwood murdered Sheriff Grantham on March 1, 1979. At that time,

Alabama’s death penalty statute provided in Alabama Code § 13-11-2(a)(5)

(1975):

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(a) If the jury finds the defendant guilty, it shall fix the punishment at

death when the defendant is charged by indictment with any of the

following offenses and with aggravation, which must also be averred

in the indictment, and which offenses so charged with said

aggravation shall not include any lesser offenses:

 Unless otherwise indicated, all cites to the Alabama Code are to the 1975 version. 4

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(5) The murder of any police officer, sheriff, deputy, state

trooper or peace officer of any kind, or prison or jail guard

while such prison or jail guard is on duty or because of some

official or job-related act or performance of such officer or

guard.

Alabama Code § 13-11-4, entitled “Determination of sentence by court; court not

bound by punishment fixed by jury” provided:

Notwithstanding the fixing of the punishment at death by the jury, the

court, after weighing the aggravating and mitigating circumstances,

may refuse to accept the death penalty as fixed by the jury and

sentence the defendant to life imprisonment without parole, which

shall be served without parole; or the court, after weighing the

aggravating and mitigating circumstances, and the fixing of the

punishment at death by the jury, may accordingly sentence the

defendant to death. If the court imposes a sentence of death, it shall

set forth in writing, as the basis for the sentence of death, findings of

fact from the trial and the sentence hearing, which shall at least

include the following:

(1) One or more of the aggravating circumstances enumerated

in section 13-11-6, which it finds exists in the case and which it

finds sufficient to support the sentence of death . . . .

(emphasis added).

Magwood’s crime, the murder of a law enforcement officer, is not listed as

one of the aggravating circumstances in § 13-11-6. Additionally, the resentencing

court specifically found that Magwood’s crime did not qualify him for any of the

aggravating circumstances enumerated in § 13-11-6.

8
Thus, although Magwood’s conviction under § 13-11-2(a)(5) forced the jury

to fix the punishment at death, the judge could nonetheless have sentenced

Magwood to life imprisonment without parole. Magwood asserts that under § 13-

11-4, the judge was required to set forth an aggravating circumstance from § 13-

11-6. Magwood contends that because he indisputably did not have an

aggravating circumstance listed in § 13-11-6, the judge was required to sentence

him to life imprisonment.

B. Ex parte Kyzer

Kyzer was tried and convicted under Alabama’s 1975 death penalty statute,

§ 13-11-2(a)(10), for first degree murder “wherein two or more human beings are

intentionally killed by the defendant by one or a series of acts.” Kyzer, 399 So. 2d

at 332. The Alabama Supreme Court concluded there was an evidentiary basis for

lesser included offense instructions in Kyzer’s case, and thus reversed and

remanded for a new trial to be conducted in conformance with Beck v. Alabama,

447 U.S. 625, 100 S. Ct. 2382 (1980). Kyzer, 399 So. 2d at 333. 

5

 In Beck v. Alabama, the United States Supreme Court found fault with the Alabama 5

death penalty scheme because it failed to allow a jury in a capital case to consider lesser

included, noncapital offenses. 447 U.S. 625, 627-28, 100 S. Ct. 2382, 2384-85 (1980). On

remand, the Alabama Supreme Court determined the preclusion clause could be removed from

the statute, allowing the Alabama rule on lesser included offenses in noncapital cases to apply to

capital cases. Beck v. State, 396 So. 2d 645, 658-59 (Ala. 1980). The Alabama Supreme Court

further decided the statute required jury participation in the sentencing process, and created the

necessary procedures by adding an additional stage to the trial of a capital case. Id. at 659-62.

9
The Alabama Supreme Court went on to address the issue of whether the

death penalty would be an available option to the State if Kyzer was retried. 

Kyzer, like Magwood, was convicted of an aggravated offense in § 13-11-2 for

which the legislature failed to provide a corresponding aggravating circumstance

in § 13-11-6. The Alabama Supreme Court stated: “[t]his case presents in purest

form an anomaly in Alabama’s Death Penalty Statute.” Id. at 334. The Alabama

Supreme Court concluded “[a] literal and technical reading of the statute” would

lead to the conclusion that if the trial judge cannot find the existence of an

aggravating circumstance other than the charge averred in the indictment, the trial

judge must refuse to accept the death penalty as fixed by the jury. Id. at 337. The

Alabama Supreme Court could think of no reason the Alabama legislature would

have imposed such a result, however, and concluded the trial judge is authorized

to use the charge averred in the indictment in lieu of an aggravating circumstance

listed in § 13-11-6 to impose a sentence of death. Id. at 337-38. 

C. Ex parte Stephens

In 2006, the Alabama Supreme Court held the discussion in Kyzer regarding

the aggravating circumstances in sentencing was dicta and “completely irrelevant

to our decision.” Ex parte Stephens, 982 So. 2d at 1152-53. The Alabama

Supreme Court rejected the conclusion that the jury and the trial judge could find

10
the charge averred in the indictment as the aggravating circumstance even though

the charge is not listed in § 13-11-6 as an aggravating circumstance. Id. at 1153.

6

The Court stated “Kyzer did not ‘hold’ anything with respect to sentencing,” and

its discussion of aggravating circumstances “was premature and should not be

persuasive.” Id. The Court reasoned:

[T]he dicta in Kyzer conflicts with the plain language of the Alabama

Criminal Code (as the Kyzer Court itself acknowledged). Section [13-

11-6] states that “[a]ggravating circumstances shall be the following.” 

The language “shall be”–as opposed to “shall include”–indicates that

the list is intended to be exclusive. . . . Our dicta to the contrary in

Kyzer was incorrect.

Id. (emphasis added).

D. Whether Magwood was eligible for the death penalty

Magwood’s claim and the State’s appeal are based on the retroactive 

application of Kyzer to his case. The Alabama Supreme Court has held in

unambiguous, clear language that Kyzer is incorrect. Thus, we must determine

whether Magwood’s death sentence violated the fair-warning requirement of the

 Although Stephens refers to § 13A-5-49, the opinion specifically states that § 13A-5-49 6

was previously § 13-11-6 (1975). Stephens, 982 So. 2d at 1152. Additionally, Kyzer was

convicted under the 1975 statute. Kyzer, 399 So. 2d at 332. To the extent the State argues that

Stephens expresses no opinion on the 1975 statute, that argument is meritless. 

11
Due Process Clause when the case that was retroactively applied to him has since

been held to be dicta and incorrectly decided. 

7

Stephens tells us that Kyzer should not have applied to Magwood’s case. 

Therefore, Magwood was not eligible for the death penalty at the time of his

conviction. Regardless of the conclusion that Magwood was ineligible for the

death penalty under Alabama law, we must still consider whether Magwood has

established a constitutional violation upon which federal habeas relief may be

granted. 

E. Procedural default

The State first argues Magwood has procedurally defaulted his

constitutional claim that he did not have fair warning by failing to raise it in the

State courts. Even assuming, arguendo, that Magwood did not sufficiently raise

this claim, any procedural default is excused because Magwood meets the test of

being actually innocent of the death penalty, as explained in Sawyer v. Whitley,

505 U.S. 333, 346-47, 112 S. Ct. 2514, 2523 (1992). “Sawyer excuses procedural

default . . . when a petitioner shows by clear and convincing evidence that, but for

 We are not certifying this question to the Alabama Supreme Court because the answer

7

is settled. We certify questions to that Court when “we find no controlling precedent on point

under Alabama law and [] the resolution of th[e] appeal hinges on [an] unsettled aspect of

Alabama law.” See Ohio Cas. Ins. Co. v. Holcim (US), Inc., 548 F.3d 1352, 1358 (11th Cir.

2008). Here, Alabama’s precedent could not be clearer, the “dicta . . . in Kyzer was incorrect.” 

Stephens, 982 So. 2d at 1153.

12
a constitutional error, no reasonable juror would have found the petitioner eligible

for the death penalty under the applicable state law.” Cade v. Haley, 222 F.3d

1298, 1308 (11th Cir. 2000) (quotations omitted). The actual innocence

requirement focuses on those elements that render a defendant eligible for the

death penalty. Sawyer, 505 U.S. at 345, 112 S. Ct. at 2522. This Court has

explained that “the actual innocence exception applies to constitutional errors in

capital sentencing only when the constitutional error resulted in the petitioner

becoming statutorily eligible for a death sentence that could not otherwise have

been imposed.” Gilbert v. United States, 640 F.3d 1293, 1320 (11th Cir. 2011)

(en banc); see also Cade, 222 F.3d at 1308 (“[A] showing of actual innocence can

only refer to those state-law requirements that must be satisfied to impose the

death penalty, i.e., the elements of the capital crime and minimum required

aggravating factors.”).

Here, the only aggravation found by the sentencing body was the murder

charge in the indictment. Stephens tells us that the charge of the murder of a law

enforcement officer should not have been used as an aggravating circumstance to

impose the death penalty, as it was not listed in § 13-11-6. See Stephens, 982 So.

2d at 1153.

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We conclude that but for the alleged violation of the fair-warning

requirement of the Due Process Clause, the judge could not have found any

statutory aggravating factors and Magwood was therefore ineligible for the death

penalty. See Gilbert, 640 F.3d at 1320. Thus, even if Magwood’s claim is

procedurally defaulted, he is the rare capital defendant who meets Sawyer’s actual

innocence exception and his procedural default is excused. See Sawyer, 505 U.S.

at 346-47, 112 S. Ct. at 2523. We turn now to the constitutional error that

Magwood has established.

F. Fair warning

As an initial matter, because Magwood arguably procedurally defaulted this

claim, we do not have a state court adjudication of his fair-warning claim and our

“review is not subject to the deferential standard that applies under [the

Antiterrorism and Effective Death Penalty Act of 1996] to any claim that was

adjudicated on the merits in State court proceedings.” See Cone v. Bell, 556 U.S.

449, 129 S. Ct. 1769, 1784 (2009) (quotations omitted). “Instead, the claim is

reviewed de novo.” Id. 

Due process prohibits the retroactive application of judicial interpretations

of criminal statutes that are “unexpected and indefensible by reference to the law

which had been expressed prior to the conduct in issue.” Rogers v. Tennessee, 532

14
U.S. 451, 461, 121 S. Ct. 1693, 1700 (2001) (quoting Bouie v. City of Columbia,

378 U.S. 347, 354, 84 S. Ct. 1697, 1703 (1964). In Bouie, the Supreme Court

stated that “a deprivation of the right of fair warning can result . . . from an

unforeseeable and retroactive judicial expansion of narrow and precise statutory

language.” Bouie, 378 U.S. at 352, 84 S. Ct. at 1702 (quotations omitted). “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, 84 S. Ct. 1703. Rogers later

clarified that if a judicial decision is a “routine exercise of common law

decisionmaking in which the court brought the law into conformity with reason

and common sense” rather than “a marked and unpredictable departure from prior

precedent,” its retroactive application to conduct that occurred before the decision

was made would not contravene the fair-warning principle of the Due Process

Clause. Rogers, 532 U.S. at 467, 121 S. Ct. at 1703.

“Although petitioner’s claim is one of due process, the Constitution’s Ex

Post Facto Clause figures prominently in his argument.” See id. at 456, 121 S. Ct.

at 1697. This clause provides that “‘[n]o State shall . . . pass any . . . ex post facto

Law.’” Id. (quoting U.S.Const. art. I, § 10, cl. 1). The Ex Post Facto Clause

prohibits four distinct categories of legislative action: laws that (1) make innocent

15
conduct criminal, (2) “aggravate[] a crime, or make[] it greater than it was, when

committed;” (3) “change[] the punishment, and inflict[] a greater punishment,” and

(4) “alter[] the legal rules of evidence . . . in order to convict the offender.” Id.

(quoting Calder v. Bull, 3 Dall. 386, 390 (1798)). Although the Ex Post Facto

clause deals with legislative action, the Supreme Court has observed that

“limitations on ex post facto judicial decisionmaking are inherent in the notion of

due process.” Id. 

Magwood’s due process claim falls into the third Calder category. The

State asserts that Bouie only dealt with Calder’s first category, and that the

Supreme Court clarified in Rogers that “nowhere in the [Bouie] opinion did we go

so far as to incorporate jot-for-jot the specific categories of Calder into due

process limitations on the retroactive application of judicial decisions.” Id. at 459,

121 S. Ct. at 1699. The State contends the Supreme Court has not incorporated

the third Calder category, retroactively increasing punishment, into the Due

Process Clause. This Circuit has never decided this issue. See United States v.

Duncan, 400 F.3d 1297, 1307 n.12 (11th Cir. 2005) (“assum[ing] arguendo,

without deciding, that Rogers’ fair warning principle does apply to retroactive

increases of punishment as well as to the core Calder category of retroactive

criminalization of conduct”).

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If, as the State suggests, we decline to extend Calder’s third category to

Bouie’s holding in a capital case, it would necessarily “mean that no judicial

expansion of a death-qualifying [aggravating] circumstance could ever be

challenged under Bouie on retroactivity grounds.” See Clark v. Brown, 450 F.3d

898, 912 (9th Cir. 2006). Even though the Supreme Court has not explicitly

incorporated the retroactive increase of punishment into its Bouie holding, we are

mindful that “death is a different kind of punishment from any other which may be

imposed in this country.” Gardner v. Florida, 430 U.S. 349, 357, 97 S. Ct. 1197,

1204 (1977). Sawyer instructs us that convicting someone of a capital offense as

opposed to a non-capital one is not a mere enhanced sentence, it is a sentence for

which one can be “innocent.” Sawyer, 505 U.S. at 345, 112 S. Ct. at 2522. Thus,

while we express no opinion in the context of non-capital cases, we conclude that

a capital defendant can raise a Bouie fair-warning challenge to a judicial

interpretation of a statute that increases his punishment from life to death. See

Clark, 450 F.3d at 913-16 (conducting a Bouie analysis of a death-qualifying

special circumstance statute to determine whether it had been improperly

expanded and retroactively applied); Webster v. Woodford, 369 F.3d 1062, 1073-

75 (9th Cir. 2004) (same).

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In Magwood’s case, we conclude that Kyzer was “an unforeseeable and

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

Bouie, 378 U.S. at 352, 84 S. Ct. at 1702. Alabama’s death penalty statute

provided that a jury should fix the punishment at death for a defendant who

murders a law enforcement officer. Ala. Code § 13-11-2. Thus, Magwood’s

punishment should have been fixed at death by a jury. However, Alabama’s

statutory process for imposing the death penalty did not end with the jury fixing

the punishment at death. The judge was required to perform an additional step.

“Notwithstanding the fixing of the punishment at death by the jury . . . the

court . . . shall set forth in writing as the basis for the sentence of death, findings of

fact from the trial and the sentence hearing, which shall at least include . . . [o]ne

or more of the aggravating circumstances enumerated in section 13-11-6.” Ala.

Code § 13-11-4 (emphasis added). There is no dispute that § 13-11-6 did not have

a corresponding aggravating circumstance for the crime for which Magwood was

convicted–the murder of a law enforcement officer. Additionally, the resentencing

court specifically found that Magwood’s crime did not qualify him for any of the

aggravating circumstances listed in § 13-11-6.

Magwood became “eligible” for the death penalty only when Kyzer

interpreted the statute to allow the charge in § 13-11-2 to be used in lieu of a § 13-

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11-6 aggravating circumstance for purposes of the judge’s written sentencing

findings. The Alabama Supreme Court admitted in Kyzer that “[a] literal and

8

technical reading of the statute” would not allow a defendant to be sentenced to

death absent an aggravating circumstance as provided in § 13-11-6. Kyzer, 399

So. 2d at 337. Magwood did not have fair warning that a court, when faced with

an unambiguous statute, would reject the literal interpretation. This conclusion is

buttressed by the Alabama Supreme Court’s pronouncement that “[t]he dicta in

Kyzer conflicts with the plain language of the Alabama Criminal Code” and that

Kyzer was “incorrect.” Stephens, 982 So. 2d at 1153. 

We conclude that Kyzer’s interpretation of the Alabama death penalty

statute was an unexpected and indefensible construction of narrow and precise

statutory language. See Bouie, 378 U.S. at 352, 84 S. Ct. at 1702. The 9

 This fact makes the State’s argument pursuant to Dobbert v. Florida, 432 U.S. 282, 8

293-94, 97 S. Ct. 2290, 2298 (1977), unpersuasive. In Dobbert, the Supreme Court concluded

that a change in Florida’s death penalty selection procedure was not an ex post facto violation

because the changes in the death penalty statute between the time of the murder and time of the

trial were procedural and on the whole ameliorative. In contrast to Magwood’s case, the changes

in Florida’s law “altered the methods employed in determining whether the death penalty was to

be imposed; there was no change in the quantum of punishment attached to the crime.” Id. at

293-94, 97 S. Ct. at 2298 (emphasis added). Unlike Dobbert, the retroactive application of Kyzer

did change the quantum of punishment attached to a defendant who did not have an aggravating

circumstance as listed in § 13-11-6.

 To the extent the State argues that Kyzer was expected and defensible by reference to 9

the law which had been expressed prior to Magwood’s conduct, we reject that argument. See

Keller v. State, 380 So. 2d 926, 937 (Ala. Crim. App. 1979) (decided before Magwood

committed his crime and invalidating one of the aggravating circumstances weighed against the

19
application of Kyzer to Magwood’s case violated the fair-warning requirement of

the Due Process Clause. Thus, we affirm the district court’s grant of Magwood’s

habeas petition.

AFFIRMED.

defendant, stating “[t]he first aggravating circumstance [that the capital felony was committed

while engaged in a robbery] describes the crime charged in the indictment and cannot be used as

both the criminal charge and the circumstance aggravating that charge”). The case cited by the

State purporting to show that Magwood should have had fair warning states: “An aggravating

circumstance is implicit in the statute and necessarily is considered by the jury when fixing

punishment.” Harris v. State, 352 So. 2d 479, 284 (Ala. 1977). Magwood is not arguing he did

not have fair warning that the jury would consider his charge for murdering a police officer in

fixing his punishment at death, Ala. Code §13-11-2. His argument is that he did not have fair

warning that this statutory provision could be used in lieu of an aggravating circumstance in

§ 13-11-6 for purposes of the ultimate sentence of death by the judge. 

20