Jackson v. Anderson ( 1997 )

REVISED
United States Court of Appeals,
Fifth Circuit.
No. 95-60789.
Frank JACKSON, Petitioner-Appellant,
v.
James V. ANDERSON, Superintendent, Mississippi State
Penitentiary, Respondent-Appellee.
May 20, 1997.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before BARKSDALE, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Frank Jackson, a Mississippi state prisoner, appeals the
denial of federal habeas corpus relief. He argues that he was
illegally sentenced to life imprisonment as an habitual offender
because the prosecution failed to prove that he had served separate
terms of at least one year on each of his two prior felony
convictions as required by Miss.Code Ann. § 99-19-83.1 We affirm.
1
In pertinent part, § 99-19-83 provides that:
Every person convicted in this state of a felony who
shall have been convicted twice previously of any felony
or federal crime upon charges separately brought and
arising out of separate incidents at different times and
who shall have been sentenced to and served separate
terms of one (1) year or more in any ... penal
institution ... and where any one (1) of such felonies
shall have been a crime of violence shall be sentenced to
life imprisonment, and such sentence shall not be reduced
or suspended nor shall such person be eligible for parole
or probation.
1
In 1972, Jackson was convicted of mayhem and received a
three-year suspended sentence with five years of probation. In
1976, while still on probation, Jackson pleaded guilty to
manslaughter and was sentenced to 20 years imprisonment.2
Subsequently, during his incarceration for manslaughter, Jackson's
probation (for mayhem) was revoked. He was sentenced to three
years to run consecutively to his 20-year manslaughter sentence.
After serving a total of six years, nine months, and twenty-eight
days for the manslaughter and mayhem convictions, Jackson was
released on parole in 1981. In 1983, he was convicted of the
instant offense of burglary of a dwelling and sentenced to life
imprisonment without parole as an habitual offender.
On Jackson's direct criminal appeal he argued that the prison
records "showed the time he served covered one period of
confinement" and therefore he had been illegally sentenced as a
violent habitual offender under § 99-19-83. The Mississippi
Supreme Court opined:
that § 99-19-83 was not violated [because Jackson] was
convicted twice previously of felonies which were brought and
arose out of separate incidents at different times and was
sentenced to and did serve one or more years on each offense,
one of which (in this instance both crimes) was a crime of
violence.
Jackson v. State, 483 So. 2d 1353, 1356-57 (Miss.1986) (emphasis
added). To make this determination, the Mississippi Supreme Court
relied on the testimony of Christine Houston, the Director of
2
Initially, Jackson was convicted of capital murder and was
sentenced to death. The Mississippi Supreme Court reversed and
remanded, establishing procedures for a bifurcated hearing in
capital cases. Jackson v. State, 337 So. 2d 1242 (Miss.1976).
2
Records for the Department of Corrections. Houston testified that
Jackson served five years of his twenty-year sentence for
manslaughter and one year, nine months, and twenty-eight days for
his three-year sentence for mayhem. Id. at 1356. The newly
amended federal habeas statute "retain[s] the traditional
presumption of correctness afforded to state court factual
determinations." Childress v. Johnson, 103 F.3d 1221, 1225 (5th
Cir.1997) (28 U.S.C. § 2254(e)(1)). The amended statute apparently
places a more onerous burden on the petitioner in that the
petitioner must now rebut the presumption of correctness by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).3 Further,
section 2254(d)(2) prohibits granting the writ in regard to any
claim adjudicated on the merits in state court unless the
adjudication of that claim "resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding."
Jackson challenges the conclusion that he became eligible for
parole after he had served five years or one-fourth of his 20-year
manslaughter sentence, arguing that under the version of the parole
statute in effect at the time of his parole,4 a prisoner was
required to serve at least one-third of his sentence before
becoming eligible for parole. Jackson contends that he was
3
The previous statute provided that "the burden shall rest
upon the applicant to establish by convincing evidence that the
factual determination by the State court was erroneous." 28 U.S.C.
§ 2254(d).
4
Miss.Code Ann. § 47-7-3 (1981).
3
required to serve one-third (six years and eight months) of the 20-
year sentence, which left only one month and twenty-eight days to
be attributed to the consecutive mayhem sentence. He therefore
argues that he could not have served one year on the mayhem
conviction.5
It is undisputed that Jackson served a total of six years,
nine months, and twenty-eight days before he was paroled from his
imprisonment for the manslaughter and mayhem convictions. The
obvious flaw in Jackson's analysis is that if he served six years
and eight months on the manslaughter conviction, then he would have
served only one month and twenty-eight days on his mayhem
conviction at the time he was actually paroled. If Jackson's
analysis is applied to the mayhem sentence, then he would have had
to serve one year (one-third) of his three-year manslaughter
sentence before being eligible for parole. In other words,
Jackson's calculations would have required him to serve a total of
seven years and eight months6 before being eligible for parole.
Because he was paroled prior to serving that amount of time,
Jackson's argument is unavailing. Indeed, his argument highlights
the fact that the question is not how much time he should have
served under the applicable parole statute, but rather, how much
5
The State has not raised the procedural default bar on
appeal. Because the State waived this bar, we decline to reach it.
See Reddix v. Thigpen, 805 F.2d 506, 512 (5th Cir.1986).
6
Manslaughter time of six years and eight months plus mayhem
time of one year equals seven years eight months.
4
time he actually served (emphasis in original).7
In any event, we need not determine exactly how the
Mississippi Corrections Department computed the time attributed to
each of Jackson's sentences because "[w]e will take the word of the
highest court on criminal matters of [Mississippi] as to the
interpretation of its law." Seaton v. Procunier, 750 F.2d 366, 368
(5th Cir.), cert. denied, 474 U.S. 836, 106 S. Ct. 110, 88 L. Ed. 2d
90 (1985). "[W]e do not sit to review that state's interpretation
of its own law." Id. Because the state court's finding that
Jackson served "one or more years on each offense" was not based on
an unreasonable determination of the facts presented at the state
court proceeding, we are prohibited from granting relief.
Jackson also argues that he was denied effective assistance
of counsel because counsel allowed Houston to erroneously testify
regarding the time he served on the manslaughter and mayhem
7
The dissent determines that, as a matter of law, Jackson
actually served six years and eight months on the manslaughter
conviction, the first period of confinement, and one month and
twenty-seven days on the mayhem conviction, the second period of
confinement. The dissent's analysis proves too much. If this is
a legal question, as opposed to a fact question, then that legal
determination would also mean that Jackson served at least one year
on the mayhem conviction. Of course, because Jackson served only
six years, nine months, and twenty-eight days, both of those
conclusions cannot be correct. Under the dissent's analysis, one
of those conclusions must be false. In light of the burden that is
on Jackson, it is puzzling that the dissent assumes that the
mistake occurred with respect to the calculation of parole
eligibility on the second period of confinement. It is equally
plausible that such a mistake could have occurred in calculating
Jackson's parole eligibility for his manslaughter conviction, the
first period of confinement. Because either scenario is equally
plausible, it cannot be said that the state court's decision was
based on an unreasonable determination of the facts presented at
the state court proceeding.
5
sentences. Trial counsel was not responsible for the testimony of
Houston and was not unprofessional with respect thereto. Moreover,
Jackson failed to establish that Houston's testimony was erroneous.
Because we have rejected Jackson's claim on the merits, we likewise
reject Jackson's claim of ineffective assistance that is based on
the same argument.8
AFFIRMED.
EMILIO M. GARZA, Circuit Judge, dissenting:
In this case, a Mississippi circuit court relied on an
unambiguous legal error by a prison system official to make an
incorrect factual finding, and thus sentenced Jackson under the
wrong penal statute. Because Jackson's illegal sentence violates
his rights under the Due Process Clause of the Fourteenth
Amendment, he is entitled to habeas relief unless the state court
resentences him under the correct provision of the Mississippi
Code. Accordingly, I dissent.
I
Jackson could only have been sentenced to life without
possibility of parole under § 99-19-83 for his burglary conviction
if he had previously been "sentenced to and served separate terms
of one (1) year or more" for two different felonies. MISS.CODE ANN.
§ 99-19-83 (1983) (emphasis added).
Before his burglary conviction, Jackson had been convicted of
manslaughter and mayhem, both felonies, and was sentenced to twenty
8
Jackson also argues that his illegal sentence constitutes an
ex post facto violation. Because he raises this for the first time
on appeal, we will not review it.
6
years for the first conviction and three years for the second. The
three-year mayhem sentence was to run consecutively to the
manslaughter sentence. At the time the state released Jackson on
parole from these two convictions, Mississippi law required any
prisoner who was sentenced "for a definite term or terms of one (1)
year or over" to "serve[ ] not less than one-third (1/3) of the
total of such term or terms." MISS.CODE ANN. § 47-7-3 (1981).1
Upon his release, Jackson had served a total of six years,
nine months, and twenty-eight days for the two convictions.
Christine Houston, the Director of Records for the Department of
Corrections ("DOC"), testified at the sentencing hearing after
Jackson's August 1983 burglary conviction as to the allocation of
this time between the convictions. The following colloquy occurred
between Houston and the district attorney:
Q: And how long did [Jackson] actually serve in the custody of the
State Department of Corrections?
A: He served six years, 9 months and 28 days prior to being
released on parole on September 24, 1981.
Q: And what credit on each one of these charges, the manslaughter
and the mayhem, did he obtain?
A: He was required to serve five years on the 20 year sentence of
manslaughter prior to parole eligibility. He served one year,
nine months and 28 days on the three year sentence.
Q: That would be on the mayhem?
A: On the mayhem charge.
Q: So, is it your testimony that he served more than one year in
the Department of Corrections on each of these charges,
manslaughter and mayhem?
1
This provision took effect April 3, 1981. Jackson was
paroled on September 24, 1981.
7
A: Yes, sir.
Houston's testimony that Jackson "was required to serve five
years on the 20 year sentence" was an unambiguous legal error.
Houston (or perhaps the person at the DOC who had prepared the
records from which she was reading) had confused the current
version of § 47-7-3 with the one that had been in effect at the
time Jackson was released on parole. At the time of Houston's
testimony, § 47-7-3 mandated that prisoners who had been sentenced
for fewer than thirty years "serve[ ] not less than one-fourth
(1/4) of the total of such term or terms." MISS.CODE ANN. § 47-7-3
(1982).2 Under this 1/4 ratio, someone like Jackson would be
required to serve at least five years of a twenty-year sentence.
When Jackson was released on parole, though, a 1/3 ratio was in
effect. Under the 1/3 ratio, Jackson was required to serve at
least six years, eight months, and a day for manslaughter and at
least one year for mayhem, for a total of seven years, eight
months, and a day. However, he served some ten months less than
this. Thus, the DOC released Jackson in violation of Mississippi
law.
In addition, it is crucial that Jackson was sentenced to serve
his three-year mayhem sentence consecutively to the twenty-year
manslaughter sentence. Under applicable Mississippi law, when a
court sentences a person to imprisonment on two convictions, the
sentence that runs consecutively (that is, the second sentence),
"shall commence at the termination of the imprisonment for the
2
This provision became effective July 1, 1982.
8
preceding conviction...." MISS.CODE ANN. § 99-19-21 (1977).3 In
other words, Jackson could not serve any time for mayhem (let alone
be paroled from his mayhem conviction) until after he had served
the minimum required time for manslaughter. Indeed, Houston
herself testified to this point at the sentencing hearing. She
noted that
[Jackson] would have to serve the minimum amount of time
required for parole on the 20 years first. It would be the
first sentence imposed and he would have to serve the
subsequent time required on the 3 years [sic] sentence before
he could be considered for release.
This means that only after Jackson had served six years, eight
months, and a day for manslaughter could he have served any time
for mayhem. It also means that the most he could have served for
mayhem is one month and twenty-seven days. Thus, clearly, Jackson
has not "served separate terms of one (1) year or more" for two
different convictions, MISS.CODE ANN. § 99-19-83 (1983), and the
court could not have legally sentenced him under § 99-19-83 to life
imprisonment without possibility of parole. Rather, as discussed
below, the court should have sentenced him to the maximum term for
burglary, without possibility of parole, as required by § 99-19-81
of the Mississippi Code.
II
It is difficult to see how the majority can avoid the force of
this argument. However, it offers two contentions. First, the
majority asserts that because Jackson was released on parole too
3
Mississippi amended this provision in 1983 to permit courts
to sentence people to concurrent sentences, rather than just
consecutive ones.
9
early he cannot argue that the court illegally sentenced him to
life imprisonment. However, it is precisely because Jackson was
released on parole too early that he can make this argument. By
ending Jackson's imprisonment for his mayhem conviction after he
had served less than two months, the state effectively ensured that
Jackson would be legally barred from being sentenced under § 99-19-
83. In a similar vein, the majority claims that "the question is
not how much time he should have served under the applicable parole
statute, but rather how much time he actually served." But, in
fact, the two questions work in tandem in this case. Since we know
how much time Jackson should have served, we can calculate the
maximum time he actually could have served on the mayhem
conviction—and this maximum time is less than two months.
Second, quoting a 1985 Fifth Circuit opinion, Seaton v.
Procunier, 750 F.2d 366, 368 (5th Cir.), cert. denied, 474 U.S.
836, 106 S. Ct. 110, 88 L. Ed. 2d 90 (1985), the majority contends
that it will assume that Houston's allocation is correct because
"[w]e will take the word of [the Mississippi Supreme Court] as to
the interpretation of its law." It then asserts that Jackson has
failed to overcome the presumption of correctness afforded the
finding that Jackson had served "one or more years on each
offense." However, the state court's finding that Jackson had
served "one or more years on each offense" is not a legal
conclusion (though, of course, it indirectly stems from Houston's
erroneous application of state law); rather, it is a factual
finding. Seaton is not relevant. Moreover, the standard of review
10
of a state court factual finding is no longer just presumptive
correctness. Rather, it can be found in § 2254(e)(1) and §
2254(d)(2) of the Antiterrorism and Effective Death Penalty Act
("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (1996).4
Section § 2254(e)(1) retains the old presumptive correctness
standard of § 2254. It states that "[i]n a proceeding instituted
by an application for a writ of habeas corpus by a person in
custody pursuant to a judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be
correct." However, it then adds a new burden of proof and
persuasion on the prisoner—"[t]he applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing
evidence." In addition, § 2254(d)(2) states that
[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim ...
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
The record indicates that the only evidence presented in state
4
Jackson filed his notice of appeal before the president
signed the AEDPA into law. However, § 2254(d)(2) applies
retroactively to the appeal. See Moore v. Johnson, 101 F.3d 1069,
1074 (5th Cir.1996) (applying § 2254(d)(2) retroactively); cf.
Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.1996) (applying
§ 2254(d)(1) retroactively).
This circuit has yet to decide whether the amended §
2254(e)(1) applies retroactively. But, because I believe that
Jackson can prevail regardless of whether the old or amended
§ 2254(e)(1) pertains here, I will assume that the amended
provision applies retroactively.
11
court regarding the allocation of time between Jackson's
manslaughter and mayhem convictions is Houston's testimony.
However, it cannot be denied that Houston's allocation is
incorrect. Her statement that Jackson "was required to serve five
years on the 20 year sentence" is an unambiguous legal error.
Moreover, her claim that Jackson "served one year, nine months and
28 days on the three year sentence" is a pure factual error. To be
released on parole for mayhem, Jackson could not have served more
than one month and twenty-seven days for that conviction. Hence,
her conclusion that Jackson served at least a year on both
convictions is false.
Both the state circuit court and the Mississippi Supreme Court
blindly relied on Houston's erroneous testimony. By examining the
evidence before them and the applicable law, and using some
elementary logic and arithmetic, they could have easily determined
that she was wrong. The state circuit court's factual finding that
Jackson served one or more years for each conviction, then, was
obviously "unreasonable." Certainly, Jackson has shown clearly and
convincingly that the finding is incorrect. Moreover, the state
courts' decisions to uphold Jackson's life sentence without
possibility of parole were based on this unreasonable and incorrect
finding. The state circuit court did not cite any evidence other
than Houston's testimony in making this finding, and the
Mississippi Supreme Court did not mention any proof other than this
testimony in upholding this finding. Thus, I believe that §
12
2254(d) does not bar us from granting habeas relief.5
III
While the majority's arguments in favor of affirming the
district court are unpersuasive, that does not mean that the
district court judgment should perforce be reversed. Jackson faces
two other potential obstacles to habeas relief, both of which I
5
In footnote 7 of the majority opinion, the majority asserts
that I treat the question of how much time Jackson served as a
"legal" one. However, as I have tried to make clear, the amount of
time Jackson served for each offense is a fact, just as the total
amount of time he served is a fact.
Houston testified as to both of these facts. However,
her testimony on the first fact is wrong because that supposed
"fact" was calculated using a statute that did not apply to
Jackson. That means we do not know exactly how much time
Jackson served for each offense (though obviously he served
some amount of time for manslaughter and some amount of time
for mayhem, otherwise he would not have been released). But
our lack of knowledge of this fact does not matter. Using
controlling state law, we can calculate the minimum time that
Jackson could have served for manslaughter (the offense that
must be counted first); in other words, we can figure out the
lower "limit" for this fact. Then, based on this minimum
amount of time for the first offense and the total amount of
time Jackson served for both offenses, we can then determine
that the maximum time Jackson could have served for the mayhem
offense is less than one year; we can establish an upper
limit for this fact. The state court's factual finding (based
on Houston's testimony) that Jackson served at least one year
on the mayhem offense exceeds this upper limit. This factual
finding can only be correct if we ignore controlling
Mississippi law and basic mathematics. Therefore, because the
state court's finding cannot be correct, it must be
unreasonable.
In response, the majority suggests that it is "equally
plausible" that Jackson "mistake[nly]" served some amount of
time less than six years, eight months, and a day for
manslaughter and more than a year for mayhem. However, this
suggestion is actually implausible. Under § 99-19-21, Jackson
could not even begin his mayhem sentence until he had served
at least six years, eight months, and a day for manslaughter.
He could not, mistakenly or otherwise, have served at least a
year for mayhem.
13
must address. See Pongetti v. General Motors Acceptance Corp., 101
F.3d 435, 442 (5th Cir.1996) (stating that "reversal is
inappropriate if the ruling of the district court can be affirmed
on any grounds"). First, the Mississippi Supreme Court has
determined that Jackson is procedurally barred under state law from
seeking post-conviction relief. Assuming this procedural bar is
independent and adequate, a federal court can only entertain
Jackson's habeas petition if he meets the
cause-and-prejudice/miscarriage-of-justice standard set forth in
Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640
(1991). Second, Jackson must demonstrate that he is, as his
petition alleges, in custody in violation of either the Due Process
Clause of the Fourteenth Amendment or the Ex Post Facto Clause. I
examine these two issues in turn.
A
In spite of Jackson's procedural default, the district court
addressed the merits of his petition because, in part, "the
Mississippi Supreme Court considered the substance and merits of
all of the claims in the direct appeal...." However, in his direct
appeal, Jackson did not make the 1/3-ratio argument. Rather, he
merely asserted, among other things, that the entire six years,
nine months, and twenty-eight days he served was "one period of
confinement" for purposes of § 99-19-83. In rejecting this
contention, the state circuit court and Mississippi Supreme Court
relied on Houston's testimony and found that Jackson had served at
least one year on each conviction.
14
Unlike the district court and apparently the majority, I do
not think that the Mississippi Supreme Court (or, for that matter,
the state circuit court) considered the "substance and merits" of
the 1/3-ratio argument in Jackson's direct appeal. Moreover, when
he raised this specific contention for the first time in his
application for post-conviction relief, the Mississippi Supreme
Court denied it on the grounds that it was procedurally barred by
§ 99-39-5 of the Mississippi Code. Where a state prisoner has
defaulted on his federal claims in state court pursuant to an
independent and adequate state procedural rule and the prisoner
then pursues federal habeas relief, a federal court may not
consider such relief unless the prisoner can demonstrate cause for
the default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. We have previously
determined that § 99-39-5 represents an independent and adequate
procedural rule. Lott v. Hargett, 80 F.3d 161, 165 (5th Cir.1996).
Jackson does not attempt to explain why he did not raise the
1/3-ratio argument earlier. Rather, he simply asserts that it
would be a fundamental miscarriage of justice to require him to
serve a sentence of which he is actually innocent. I agree.
The actual innocence exception set forth in Coleman extends to
the sentencing phase of a trial. See Mills v. Jordan, 979 F.2d
1273, 1279 (7th Cir.1992) (ruling that the "actual innocence
exception applies to habitual offender proceedings ... whether or
15
not they involve the possibility of capital punishment"); Jones v.
Arkansas, 929 F.2d 375, 381 & n. 16 (8th Cir.1991) (holding that
defendant was actually innocent of sentence under habitual offender
statute where that statute did not apply); cf. United States v.
Maybeck, 23 F.3d 888, 894 (4th Cir.1994) (finding petitioner was
actually innocent of being a career offender because he had only
one relevant prior felony conviction instead of the required two),
cert. denied, --- U.S. ----, 116 S. Ct. 1555, 134 L. Ed. 2d 657
(1996); Smith v. Collins, 977 F.2d 951, 959 (5th Cir.1993)
(assuming, without deciding, that actual innocence exception is
available in non-capital sentencing case), cert. denied, 510 U.S.
829, 114 S. Ct. 97, 126 L. Ed. 2d 64 (1993). As I have shown above,
§ 99-19-83, by its own terms, does not apply to Jackson. Moreover,
"[i]t would be difficult to think of one who is more "innocent' of
a sentence than a defendant sentenced under a statute that by its
very terms does not even apply to the defendant." Jones, 929 F.2d
at 381.
In this circuit, though, Jackson must also show that he could
not have received a sentence of life imprisonment without
possibility of parole under a provision other than § 99-19-83. See
Smith, 977 F.2d at 959 (noting that "for a defendant to demonstrate
actual innocence of the sentence imposed he would have to show that
but for the constitutional error he would not have been legally
eligible for the sentence he received"). Jackson can do so. If
the state courts had recognized that Jackson could not have served
at least one year for the mayhem charge, he would have been
16
sentenced pursuant to § 99-19-81, not § 99-19-83. Under § 99-19-
81, any person who has been convicted of two different felonies and
"who shall have been sentenced to separate terms of one (1) year or
more ... shall be sentenced to the maximum term of imprisonment
prescribed for such felony, and such sentence shall not be reduced
or suspended nor shall such person be eligible for parole or
probation" (emphasis added). At the time of sentencing, the
maximum term for burglary of a dwelling in violation of § 97-17-19,
with which Jackson was charged and convicted, was ten years.6
Thus, the most Jackson could have been required to serve after his
third conviction was a decade, not life.
Therefore, I would determine that Jackson is actually innocent
of his term of life in prison, without possibility of parole, and
thus it would be a fundamental miscarriage of justice to require
him to serve such a term. Accordingly, I find that we can consider
granting Jackson habeas relief.
B
Another issue the majority does not raise, but which was
suggested by the district court, is that Jackson's habeas claims
are not cognizable under § 2254(a). Section 2254(a) requires that
a prisoner allege that he "is in custody in violation of the
Constitution or laws or treaties of the United States." However,
Jackson does assert that illegally sentencing him to life
imprisonment without possibility of parole violates his
constitutional due process rights and the Ex Post Facto Clause. I
6
Mississippi repealed § 97-17-19 in 1996.
17
believe that Jackson's allegation that he was sentenced under the
wrong state statutory provision, thereby jailing him for the rest
of his life rather than for a lesser term, presents a reviewable
claim under the Due Process Clause of the Fourteenth Amendment.
See, e.g., Hill v. Estelle, 653 F.2d 202, 204 (5th Cir. Unit A)
(noting that "[v]iolation of state sentencing statutes can in
certain circumstances invoke the due process protections of the
Constitution"), cert. denied, 454 U.S. 1036, 102 S. Ct. 577, 70
L. Ed. 2d 481 (1981). Indeed, I find that he has met his burden in
showing such a violation. See Burge v. Butler, 867 F.2d 247, 250
(5th Cir.1989) (holding that prisoner who was sentenced to life
imprisonment without possibility of parole pursuant to a statute
that under state law did not apply to his crime and who could not
have been given this penalty under any applicable statute, was
sentenced in violation of the Due Process Clause of the Fourteenth
Amendment).
IV
In conclusion, I would hold that Jackson's sentence of life
imprisonment without possibility of parole under § 99-19-83
violated his constitutional due process rights, and I would vacate
the district court's opinion. I would then grant Jackson's
application for a writ of habeas corpus in ninety days if, by then,
the state had failed to resentence him for the maximum term for
burglary of a dwelling, without possibility of parole, as mandated
18
by § 99-19-81.7
7
I note that Jackson has already served more than thirteen
years under § 99-19-83. Resentencing Jackson to a ten-year term
under § 99-19-81 would necessarily mean his release from
incarceration.
19