IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 88-4790

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WILLIE ALBERT SMITH,

Petitioner-Appellant,

v.

LEE ROY BLACK, Commissioner, Mississippi

Department of Corrections, et al.,

Respondents-Appellees.

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Appeal from the United States District Court for the

Southern District of Mississippi

_________________________________________________________________

(August 20, 1992)

On Remand from the Supreme Court of the United States

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

KING, Circuit Judge:

The United States Supreme Court has vacated the judgment in

this case and remanded for further consideration in light of

Stringer v. Black, --- U.S. ---, 112 S. Ct. 1130 (1992). The

facts and procedural history are set forth in great detail in the

panel opinion, Smith v. Black, 904 F.2d 950 (5th Cir. 1990), and

we will repeat them here only as necessary for an understanding

of the issues presented on remand.

I. BACKGROUND
2

Smith was convicted of the murder of Shirley Roberts, the

manager of a convenience store in Jackson, Mississippi. The jury

found three aggravating circumstances: the murder was committed

in the course of a robbery, the murder was committed for

pecuniary gain, and the murder was especially heinous, atrocious

and cruel. See Miss. Code Ann. § 99-19-101(5) (1972 & Supp.

1991). After weighing the aggravating circumstances against the

mitigating evidence, see id., the jury returned a death sentence. 

The Mississippi Supreme Court affirmed. Smith v. State, 419 So.

2d 563 (Miss. 1982), cert. denied, 460 U.S. 1047 (1983) (Smith

I). Smith next initiated proceedings for post-conviction relief

in the Mississippi Supreme Court. He raised a multitude of

claims, nearly all of which the court found procedurally barred. 

Among these were the claim that there was constitutional error at

trial in the jury's use of the "especially heinous, atrocious,

and cruel" aggravating circumstance. The Mississippi Supreme

Court responded to this claim as follows:

At trial there was no objection to the instruction on the

aggravating circumstance set forth in Mississippi Code

Annotated § 99-19-101(5)(h) as to the heinous, atrocious, or

cruel nature of the murder. Likewise, the giving of this

instruction was not raised on direct appeal, barring

petitioner from raising it in post-conviction proceedings. 

See Mississippi Supreme Court Rule 42.

Smith v. State, 434 So. 2d 212, 218 (Miss. 1983) (Smith II). The

court denied all relief.

Smith then sought habeas corpus relief in federal court. 

The proceedings were stayed for some time while he exhausted

additional state remedies, but eventually the district court
3

denied all relief. Smith v. Thigpen, 689 F. Supp. 644 (S.D.

Miss. 1988). On appeal, we affirmed the district court in its

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

III). One of the claims we rejected was a constitutional

challenge to the jury's use of the "especially heinous"

aggravating circumstance. Smith had based this claim on the

Supreme Court's invalidation in Maynard v. Cartwright, 486 U.S.

356 (1988), of Oklahoma's use of that aggravating circumstance

without a limiting instruction. Smith also argued, in a

supplemental brief, that after Clemons v. Mississippi, 494 U.S.

738 (1990), his death sentence could not be salvaged as a result

of the fact that two valid aggravating circumstances (robbery and

pecuniary gain) remained. The State contended, however, that

Smith could not raise a challenge to the "especially heinous"

circumstance in federal habeas because the Mississippi Supreme

Court, on collateral review, had held it procedurally barred. 

Smith III, 904 F.2d at 981.

Although we held against Smith, we relied not on a state

procedural bar, but on Smith's inability under Teague v. Lane,

489 U.S. 288 (1989), to take advantage of the Maynard and Clemons

decisions. Teague, of course, prohibits the application of "new"

rules of constitutional procedure in federal habeas proceedings

unless the rule falls within one of two narrow exceptions. We

determined that the "better practice" was to decide the Teague

retroactivity question before reaching the procedural bar

question. Smith III, 904 F.2d at 982. We then determined that
4

an essential element of Clemons on which Smith relied -- its

rejection of Mississippi's automatic affirmance rule in cases

where at least one valid aggravating circumstance remains -- was

a new rule for purposes of Teague and did not fall within either

of the Teague exceptions. Smith III, 904 F.2d at 983-86.

In Stringer, the Supreme Court unambiguously decided that

Maynard and Clemons did not announce new rules for the purposes

of Teague; hence, the Court vacated the judgment in Smith III. 

Our task on remand is not, however, simply to apply Maynard and

Clemons, for the State continues vigorously to advance the

procedural bar as an alternative means of preventing

consideration of the merits of this claim. In addition, Smith

has asked us to consider two issues never before raised in his

briefs.

II. ANALYSIS

A. Procedural Bar of the Aggravating Circumstance Claim

It is by now well-established that federal habeas courts

will not consider claims a petitioner has defaulted in state

court absent a showing of cause for the default and resulting

prejudice, or a showing that failure to consider the claim will

result in a fundamental miscarriage of justice. Murray v.

Carrier, 477 U.S. 478 (1986); Wainwright v. Sykes, 433 U.S. 72

(1977). As this doctrine rests on the notion that a state

court's reliance on a procedural bar functions as an adequate and

independent state ground supporting the judgment, Coleman v.
5

Thompson, --- U.S. ---, 111 S. Ct. 2546, 2554 (1991), federal

courts must first determine whether the state court judgment

rests on state law. In this task we are aided by Harris v. Reed,

489 U.S. 255 (1989), which holds that habeas courts will presume

that there is an independent and adequate state ground when "the

last state court rendering a judgment in the case 'clearly and

expressly' states that its judgment rests on a state procedural

bar." Id. at 263 (internal quotation omitted).

We have little difficulty concluding that the last state

court to consider this claim "clearly and expressly" relied on a

state procedural rule to bar review. In the first postconviction proceeding, the Mississippi Supreme Court pointed out

that Smith did not object to the giving of the "especially

heinous" instruction at the sentencing phase and did not raise it

on direct appeal, barring him from raising it in post-conviction

proceedings. (For the sake of clarity, we will refer to these as

the "contemporaneous objection" and "direct appeal" bars,

respectively). For support, the court cited Mississippi Supreme

Court Rule 42. Smith II, 434 So. 2d at 218. Our statement in

Smith III, 904 F.2d at 981, that "[t]he court's opinion is

ambiguous only as to whether it regarded the claim to be barred

independently for failure to object at trial" does not undermine

this conclusion. We were not stating that the state court's

opinion was ambiguous as to whether it relied on federal or state

law, but instead that it was not clear whether the court was

relying on the contemporaneous objection bar or the the direct
6

appeal bar. Regardless of whether its decision rested on trial

or appellate default, it is clear that the court rested

exclusively on state procedural rules and not federal law.

Smith primarily argues that Mississippi's failure

consistently to invoke the contemporaneous objection and direct

appeal bars in cases in which the petitioner defaulted on a

challenge to the "especially heinous" aggravating circumstance

should cause this court to disregard the procedural bars

altogether and reach the merits of the claim. We agree.

A state procedural rule will not function as an adequate and

independent state ground supporting the judgment if it is not

"strictly or regularly followed." Hathorn v. Lovorn, 457 U.S.

255, 262-63 (1982) (citation omitted); see also Johnson v.

Mississippi, 486 U.S. 578, 587 (1988); Wheat v. Thigpen, 793 F.2d

621, 624 (5th Cir. 1986), cert. denied, 480 U.S. 930 (1987). 

"State courts may not avoid deciding federal issues by invoking

procedural rules that they do not apply evenhandedly to all

similar claims." Hathorn, 457 U.S. at 263. In Johnson, for

example, the Court, after reviewing a series of state cases,

found that the Mississippi Supreme Court inconsistently applied

the direct appeal bar where the defendant failed on direct appeal

to challenge a conviction that formed the basis for an enhanced

sentence or supported an aggravating circumstance in a capital

sentencing. The Court therefore refused to find the bar an

adequate and independent state ground supporting the state

court's failure to grant relief. Id. at 587. Smith wisely
7

disputes the consistency of both the contemporaneous objection

and direct appeal bars -- wisely, we say, because there is some

ambiguity about which bar the Mississippi Supreme Court invoked. 

As to the former, Smith argues that the Mississippi Supreme Court

inconsistently applies the bar in cases involving constitutional

challenges to the "especially heinous" aggravating circumstance,

and as to the latter he argues that this circuit has conclusively

determined that that bar is inadequate when applied at the time

of Smith's collateral review.

We recently had occasion to discuss Mississippi's

contemporaneous objection bar in Wiley v. Puckett, No. 90-1599,

slip op. 6500 (5th Cir. Aug. 5, 1992). There, the petitioner

raised in federal habeas a claim based on Batson v. Kentucky, 476

U.S. 79 (1986), and a claim that the prosecutor made improper

remarks in his closing argument. The petitioner did not lodge

appropriate objections at trial, and the Mississippi Supreme

Court held on collateral review that the claims were procedurally

barred. Wiley v. State, 517 So. 2d 1373, 1378 (Miss. 1987),

cert. denied, 486 U.S. 1036 (1988). We upheld the bar on the

authority of Hill v. Black, 887 F.2d 513 (5th Cir. 1989), vacated

on other grounds, --- U.S. ---, 111 S. Ct. 28 (1990), stating: 

In Hill, we found that "the Supreme Court [of Mississippi]

regularly applies the contemporaneous objection rule to the

cases before it." 887 F.2d at 516. It is true, as Wiley

points out, that the Mississippi Supreme Court may disregard

the procedural bar rule when plain error exists. But we

acknowledged this practice in Hill and did not find that it

detracted from the consistency of Mississippi's application

of the rule. Hill, 887 F.2d at 516.
8

Wiley, slip op. at 6521 (footnote omitted) (brackets in

original). Wiley and Hill do not require that we defer to the

contemporaneous objection rule in this case, however, because it

is apparent that at the time of Smith's post-conviction review

the Mississippi Supreme Court enforced the rule only sporadically

in cases in which the defendant raised a challenge to the

"especially heinous" aggravating circumstance.

In our original opinion, we recognized that Hill had settled

the question of Mississippi's application of its contemporaneous

objection rule. Smith III, 950 F.2d at 987. However, in a

footnote to the citation of Hill we stated: "Because we decide

that Smith's claim that the 'especially heinous' aggravating

circumstance is unconstitutional [is] precluded by Teague, . . .

we do not separately consider his potentially distinct argument

that Mississippi has not regularly enforced its procedural bars

with regard to such claims." Id. at 987 n.18. We thus

recognized that there might be some classes of claims to which

the contemporaneous objection bar had not been consistently

applied. Now that Teague has no effect here, we must determine

whether constitutional challenges to the "especially heinous"

factor are one of those classes of claims.

We have little trouble finding inconsistent application of

the contemporaneous objection bar in this context. In at least

eight cases spanning a period of time before and after Smith's

collateral review, the Mississippi Supreme Court reached the

merits of a claim based on the "especially heinous" aggravator
 

1 In 1984, Mississippi enacted the Uniform Post-Conviction

Collateral Relief Act, Miss. Code Ann. §§ 99-39-1 et seq. (Supp.

1991). As of April 17, 1984, the default rule for cases on

collateral review is found at § 99-39-21(1). See, e.g., Wiley v.

State, 517 So. 2d 1373, 1378 (Miss. 1987), cert. denied, 486 U.S.

1036 (1988). Like Supreme Court Rule 42, it provides that

failure to raise objections at trial bars further review. As the

state court opinion reflects, Supreme Court Rule 42 provided the

applicable procedural bar at the time of Smith's post-conviction

review.

9

despite the lack of an objection to the jury instructions. 

Washington v. State, 361 So. 2d 61 (Miss. 1978), cert. denied,

441 U.S. 916 (1979); King v. State, 421 So. 2d 1009 (Miss. 1982),

cert. denied, 461 U.S. 919 (1983); Leatherwood v. State, 435 So.

2d 645 (Miss. 1983), cert. denied, 465 U.S. 1984 (1984); Tokman

v. State, 435 So. 2d 664 (Miss. 1983); Irving v. State, 441 So.

2d 846 (Miss. 1983), cert. denied, 467 U.S. 1256 (1984); Billiot

v. State, 454 So. 2d 445 (Miss. 1984), cert. denied, 469 U.S.

1230 (1985); Mhoon v. State, 464 So. 2d 77 (Miss. 1985); Faraga

v. State, 514 So. 2d 295 (Miss. 1987), cert. denied, 487 U.S.

1210 (1988). The State's suggestion that we must look solely to

the Mississippi Supreme Court's application of the rule in postconviction review cases misconstrues the rule, for the rule as

written makes no distinction between direct appeals and postconviction review proceedings. See Miss. Sup. Ct. Rule 42 ("no

assignment of error based on the giving of an instruction to the

jury will be considered on appeal unless specific objection was

made to the instruction in the trial court. . . .").1 Thus, to

the extent the state court in Smith II relied on the fact that

Smith failed to object at trial, he is not barred from obtaining
 

2 Our statement in Smith III that "[Smith's] clemency [from

Mississippi's procedural bar rules] does not extend to claims

raised neither at trial nor on direct appeal" does not conflict

with our holding. This statement was dicta, as we did not hold

in Smith III that any claims were barred for this reason. 

Moreover, as noted above, footnote 18 (which appears at the end

of the sentence after the sentence quoted above) specifically

recognizes that there may a distinct argument about Mississippi's

enforcement of its procedural bars to challenges to the

"especially heinous" aggravating factor.

 

3 We found that, although the Mississippi Supreme Court

announced its intention in 1983 to invoke the direct appeal bar

on a regular basis, its failure to do so in a 1985 case rendered

application of the rule inconsistent. Wheat, 793 F.2d at 626.

10

federal review of his challenge to the "especially heinous"

aggravating circumstance.2

Smith also is safe from any bar due to his failure to raise

a challenge to the "especially heinous" aggravator on direct

appeal. We found in Wheat that the Mississippi Supreme Court did

not regularly follow the direct appeal bar at the time of Smith's

direct appeal and post-conviction review. Wheat, 793 F.2d at

626.3 We adhered to this precedent in Reddix v. Thigpen, 805

F.2d 506, 510 (5th Cir. 1986); Edwards v. Scroggy, 849 F.2d 204,

209 n.4 (5th Cir. 1988), cert. denied, 489 U.S. 1059 (1989); and

our earlier opinion in this case, Smith III, 904 F.2d at 971. We

are bound by these decisions, and so hold that to the extent the

state court invoked the direct appeal bar on the "especially

heinous" circumstance claim, Smith is not barred.

Having determined that we may reach the merits of the Eighth

Amendment challenge to the use of the "especially heinous"

aggravating circumstance, we hold that, insofar as the district

court denied habeas relief on this claim, the judgment must be
 

4 This is not surprising, since direct review in this case

occurred long before Maynard and Clemons, at a time when the

Mississippi Supreme Court consistently rejected all challenges to

the "especially heinous" factor.

 

5 We note that the Mississippi Supreme Court, in postClemons cases, has held that state law precludes it from

reweighing, but that harmless error analysis is permissible. 

Clemons v. State, 593 So. 2d 1004 (Miss. 1992) (on remand from

the Supreme Court); Shell v. State, 595 So. 2d 1323 (Miss. 1992);

Jones v. State, No. 03-DP-601, 1992 WL 124774 (Miss. June 10,

1992); Pinkney v. State, No. 03-DP-761, 1992 WL 146776 (Miss.

July 1, 1992); see also Wiley, slip op. at 18-19. However, in

none of the four state cases cited above has the Mississippi

Supreme Court found the error harmless beyond a reasonable doubt.

11

vacated and the case remanded to the district court with

instructions 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. 

Under Clemons and Maynard, the use of the "especially heinous"

aggravating circumstance without a limiting instruction clearly

was error. Clemons, of course, holds that the death sentence may

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 use of

the invalid factor was harmless beyond a reasonable doubt. But

it is plain that the Mississippi Supreme Court neither reweighed

nor performed harmless error analysis, and the State has not

suggested that it did.4 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.

5
12

B. Additional Claims

In his brief on remand, Smith raises two new claims. First,

he argues that Eighth Amendment error occurred when the jury was

instructed that they could consider as aggravating circumstances

the facts that the murder was committed in the course of a

robbery and for pecuniary gain. Second, he contends that his

trial and sentencing were unconstitutionally tainted by

"cumulative error."

The Supreme Court vacated the judgment in this case and

remanded for further consideration in light of Stringer. 

Although it is true, as Smith points out, that this court

considered a claim beyond the scope of the Supreme Court's remand

order in Hill v. Black, 920 F.2d 250 (5th Cir. 1990), modified on

other grounds, 932 F.2d 369 (5th Cir. 1991), that claim had been

properly raised in the habeas petition. 920 F.2d at 250. Smith,

however, did not raise either of his two new claims in his

petition for habeas corpus in the district court. Accordingly,

we do not consider them in this appellate proceeding. See

Johnson v. Puckett, 930 F.2d 445, 448 (5th Cir. 1991).

III. CONCLUSION

For the reasons set forth above, the judgment of the

district court is vacated insofar as it holds that there was no

constitutional error in the jury's use of the "especially

heinous, atrocious or cruel" aggravating circumstance. The case

is REMANDED to the district court with instructions to issue the
13

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. In all other respects, the

judgment of the district court is again AFFIRMED.