Holland v. Anderson , 230 F. App'x 374 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 23, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-70034
))))))))))))))))))))))))))
GERALD JAMES HOLLAND
Petitioner–Appellant
v.
JAMES V. ANDERSON, Superintendent,
Mississippi State Penitentiary
Respondent–Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
No. 1:98-CV-0562
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Before the court is a motion for issuance of a certificate
of appealability (“COA”) filed by Petitioner Gerald James Holland
(“Holland”), who was convicted in Mississippi of capital murder
during the course of a rape and subsequently sentenced to death.
In his motion, Holland raises five issues that he asserts should
be heard by this court. For the following reasons, we GRANT a
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
COA with respect to Holland’s claim that he was not permitted to
introduce rebuttal evidence at his re-sentencing. We deny a COA
on the remainder of the issues.
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 17, 1986, Holland was indicted by a grand jury
in Harrison County, Mississippi, for murdering fifteen-year-old
Krystal D. King while “engaged in the commission of the crime and
felony of Rape . . . .” Venue was transferred to Adams County,
Mississippi, where Holland was tried before a jury in November
and December 1987. Following the twelve-day trial, the jury
convicted Holland of capital murder, making Holland eligible for
the death penalty. See MISS. CODE ANN. § 97-3-19(2)(e) (2006)
(defining capital murder to include murder while engaged in the
commission of the crime of rape); § 97-3-21 (authorizing death
penalty for those convicted of capital murder). Immediately
after the jury returned its guilty verdict, the judge sent the
jury out of the room so he could discuss with the attorneys how
the penalty phase would proceed. Approximately twenty-two
minutes later, the jury sent out a note stating, “We, the jury,
sentence Gerald James Holland to death.” The judge then
admonished the jury to refrain from deliberations, and the
penalty phase proceeded with the same jury. At the conclusion of
the sentencing phase, the jury sentenced Holland to death.
On direct appeal, the Mississippi Supreme Court affirmed
2
Holland’s conviction, but reversed the death sentence on the
ground that the jury’s premature deliberations regarding the
death penalty had prejudiced Holland. Holland v. State, 587 So.
2d 848, 872-74 (Miss. 1991) (Holland I). Holland was then re-
sentenced by a new jury (“the re-sentencing jury”). On April 3,
1993, that jury also sentenced Holland to death, and the
Mississippi Supreme Court upheld the sentence on direct appeal.
Holland v. State, 705 So. 2d 307, 357 (Miss. 1997), cert. denied,
525 U.S. 829 (1998) (Holland II).
Prior to seeking post-conviction relief in Mississippi state
court, Holland filed a pro se application for stay of execution
and a motion for appointment of counsel with the United States
District Court for the Southern District of Mississippi in
December 1998. The district court granted both motions, but
stayed further action in Holland’s case, pending the exhaustion
of his state court remedies. Holland then filed a petition for
post-conviction relief with the Mississippi Supreme Court, which
the court denied. Holland v. State, 878 So. 2d 1, 10 (Miss.
2004), cert. denied, 544 U.S. 906 (2005) (Holland III).
After Holland III was announced, the district court lifted
the stay and Holland filed an amended petition for writ of habeas
corpus1 in which he raised twelve claims for habeas relief. In a
thorough opinion, the district court denied the amended petition
1
There was no “original” petition for habeas corpus relief
in this case other than Holland’s initial pro se filings.
3
and subsequently denied Holland’s request for a certificate of
appealability. Holland then filed the instant motion for
certificate of appealability with this court, raising five
issues. We now address his claims.
II. LEGAL STANDARD
Pursuant to 28 U.S.C. § 2253, a petitioner such as Holland
has no absolute entitlement to appeal the district court’s denial
of his petition for writ of habeas corpus. Miller-El v.
Cockrell, 537 U.S. 322, 335 (2003). Rather, he must first seek
and obtain a certificate of appealability (“COA”) from a circuit
justice or judge on the issues he desires to appeal. 28 U.S.C.
§ 2253(c)(1). This is a jurisdictional requirement without which
this court lacks the authority to hear the merits of Holland’s
appeal. See Miller-El, 537 U.S. at 336.
A COA may issue only when a petitioner has made a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). This means that the petitioner must
“sho[w] that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were ‘adequate
to deserve encouragement to proceed further.’” Miller-El, 537
U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)); Foster v. Quarterman, 466 F.3d 359, 364 (5th Cir. 2006),
petition for cert. filed, __ U.S.L.W. __ (U.S. Jan. 24, 2007)
4
(No. 06-9253).
A COA determination requires an overview of the claims in
the habeas petition and a general assessment of their merits.
Miller-El, 537 U.S. at 336. However, this threshold inquiry does
not require full consideration of the factual or legal bases of
the claim, nor does it require a showing that the appeal will
succeed. Id. at 336-37; see also Foster, 466 F.3d at 364 (noting
that the court is limited to a “threshold inquiry” into the
underlying merit of the claims). Rather, the petitioner must
only demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or
wrong. Slack, 529 U.S. at 484.
In making this threshold inquiry, we are mindful of the
deference owed to state court decisions in habeas cases which,
like this one, are subject to the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110
Stat. 1214 (1996). Post-AEPDA, federal courts assessing a
petition for writ of habeas corpus from a state prisoner must
defer to the state court’s resolution of those claims, with few
exceptions. See 28 U.S.C. § 2254(d); see also Foster, 466 F.3d
at 365. Deference is mandated both for questions of law and for
mixed questions of law and fact, unless the state court’s
decision was contrary to, or involved an unreasonable application
of, clearly established federal law, as determined by the Supreme
Court of the United States. Hill v. Johnson, 210 F.3d 481, 485
5
(5th Cir. 2000). A state court’s decision is “contrary to”
clearly established federal law if it reaches a legal conclusion
in direct conflict with a prior decision of the Supreme Court or
if it reaches a different conclusion than the Supreme Court on
materially indistinguishable facts. Williams v. Taylor, 529 U.S.
362, 412-13 (2000). A state court’s decision involves an
“unreasonable application” of clearly established federal law if
the state court identifies the correct legal principle but
unreasonably applies that principle to the facts of the
petitioner’s case. Id. at 413.
Deference is also required unless the state court’s decision
was based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding. 28
U.S.C. § 2254(d)(2). Pursuant to AEDPA, the state court’s
factual findings are presumed correct unless rebutted by clear
and convincing evidence. Id. § 2254(e)(1); Foster, 466 F.3d at
365.
While Holland need not prove that his appeal would succeed
under the AEDPA standard in order to receive a COA, see Miller-
El, 537 U.S. at 337, we recognize that the district court’s
consideration of his claims (as well as our analysis in the event
we grant a COA) is limited by the deference mandated under AEDPA.
With that standard in mind, we turn to Holland’s motion for a
COA.
6
III. DISCUSSION
A. Denial of Fair and Impartial Jury at Guilt/Innocence Phase
Holland first asserts that he was denied the right to a fair
and impartial jury at the guilt/innocence phase of his trial
because (1) the coroner stated in the presence of some venire
members that Holland should be “strung up;” and (2) venire
members were “joking” that they should convict Holland so they
could go home. The State argues, and the district court held,
that Holland did not exhaust this claim before the state court as
required under 28 U.S.C. § 2254(b). Because his habeas claim was
denied on exhaustion grounds, we may not issue a COA unless
Holland demonstrates that “‘jurists of reason would find it
debatable whether the petition states a valid claim of a denial
of a constitutional right and that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling.’” Ruiz v. Quarterman, 460 F.3d 638, 642 (5th
Cir. 2006), cert. denied, __ S. Ct. __, 2007 WL 789132 (Mar. 19,
2007) (quoting Slack, 529 U.S. at 484).
Pursuant to § 2254(b)(1), an application for writ of habeas
corpus shall not be granted unless the petitioner “has exhausted
the remedies available in the courts of the State . . . .”2 A
2
ADEPA excuses the exhaustion requirement if “there is an
absence of available State corrective process” or “circumstances
exist that render such process ineffective to protect the rights”
of the petitioner. 28 U.S.C. § 2254(b)(1). No such allegations
have been made in this case.
7
petitioner has not exhausted his state court remedies if “he has
the right under the law of the State to raise, by any available
procedure, the question presented.” Id. § 2254(c). Federal
courts retain the power, however, to deny a petition on its
merits even in the absence of state court exhaustion. Id.
§ 2254(b)(2).
In order to exhaust his claim in state court, Holland must
have “fairly presented the substance of his claim to the state
courts.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001)
(citations and quotation marks omitted). In other words, Holland
must have presented the state court with the same facts and legal
theories upon which he bases his current assertions. See Ruiz,
460 F.3d at 643.
Turning to Holland’s claim that he was not given a fair and
impartial jury during the guilt/innocence phase of his trial (as
opposed to the original sentencing or re-sentencing phases), the
only state court pleading in which that claim was arguably raised
is Holland’s direct appeal of his conviction and initial death
sentence. His first argument in that direct appeal was that the
trial court erred when it refused to grant a mistrial after
learning that the jurors had deliberated on punishment prior to
the sentencing phase. As the evidentiary basis for his claim,
Holland described how the jury sent out the note sentencing him
to death before the sentencing phase even took place. Although
he did not specify that he was referring only to the sentencing
8
phase of his trial, he did not reference or include any facts
that would suggest his argument pertained to the guilt/innocence
phase, as well.
That Holland’s first direct appeal was only directed at the
impartiality of the jury during the sentencing phase is born out
in later briefing. In response to the direct appeal, the State
argued as if Holland was only challenging the impartiality of the
jury during the sentencing phase. In reply, Holland did not
argue that the State misunderstood the scope of his claim but,
again, only referenced the jury’s deliberations on his sentence.
In sum, Holland has not directed this court to any pleading
or argument that he made before the state court that the jury was
not fair and impartial during the guilt/innocence phase of his
trial. Further, we have found no reference to the specific
evidentiary basis for his argument here--the comments of the
coroner and the “joking” of the venire members--in any of his
state court briefing. As a result, we can only conclude that
reasonable jurists would agree that Holland did not exhaust this
claim before the state court. See Ruiz, 460 F.3d at 643 (stating
that exhaustion requires that “all the grounds of the claim be
first and ‘fairly represented’ to the state courts”).
We further conclude, as did the district court, that
reasonable jurists would agree that Holland’s claim is also
procedurally barred. When a petitioner has failed to exhaust a
claim in state court, and that failure would now also result in
9
the state procedurally rejecting that claim, the petitioner has
procedurally defaulted on the claim and it is barred.3 Id.(citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
Exceptions to the procedural bar exist when the petitioner can
show “cause and actual prejudice” or that the bar will result in
a “fundamental miscarriage of justice.” Id. “Cause” requires a
showing that an external force prevented the petitioner from
complying with the state’s procedural rules, while a “miscarriage
of justice” requires a colorable showing of factual innocence.
Bagwell v. Dretke, 372 F.3d 748, 756-57 (5th Cir. 2004).
Here, under Mississippi law in effect at the time the
Mississippi Supreme Court ruled on Holland’s direct appeal of his
re-sentencing, an application for post-conviction collateral
relief must have been made within three years after conviction.
MISS. CODE ANN. § 99-39-5(2).4 Conviction is defined as the date
that the mandamus pertaining to a direct appeal is issued. See
Puckett v. State, 834 So. 2d 676, 677-78 (Miss. 2002). The
mandamus for Holland’s second and last direct appeal was issued
in February 1998, well over three years ago, meaning Mississippi
3
Absent a procedural bar, a petitioner could conceivably
return to state court and attempt to exhaust his remedies. See,
e.g., Fuller v. Johnson, 158 F.3d 903, 905-06 (5th Cir. 1998)
(holding that court was not required to dismiss unexhausted claim
without prejudice because it was procedurally barred).
4
Section 99-39-5(2) has since been amended to require that
motions for post-conviction relief in capital cases be filed
within one year of conviction.
10
courts would find his claim barred by limitations. Holland has
made no attempt to demonstrate that his claim is not procedurally
barred or that he falls within one of the exceptions. As a
result, reasonable jurists would find it beyond debate that
Holland’s jury impartiality claim is now barred by limitations.
Holland also argues that his claim that the guilt/innocence
jury was not fair and impartial is “a structural defect in the
trial mechanism” that permits review of his claim regardless of
exhaustion. It is unclear whether Holland intends this argument
to fit somewhere in the AEDPA analysis or whether he believes it
is independent from AEDPA and requires reversal of conviction
regardless of his compliance with AEDPA. Either way, his
argument lacks merit.
The Supreme Court has divided constitutional errors into two
categories--“trial errors” and “structural defects.” United
States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2563-64 (2006). Trial
errors occur during the presentation of the case to the jury and
are subject to the harmless error analysis. Id. Structural
defects, however, “defy analysis by harmless-error standards
because they affect the framework within which the trial
proceeds . . . .” Id. at 2364 (internal citations, quotation
marks, and modifications omitted); see also Burgess v. Dretke,
350 F.3d 461, 471 (5th Cir. 2003) (stating structural defects
infect the entire trial process). Structural errors include
denial of counsel, denial of the right to self-representation,
11
denial of the right to public trial, and denial of an impartial
decisionmaker. Gonzalez-Lopez, 126 S. Ct. at 2564 (denial of
counsel, self-representation, and public trial); Virgil v.
Dretke, 446 F.3d 598, 607 (5th Cir. 2006) (denial of impartial
decisionmaker).
Assuming arguendo that Holland’s claim of the denial of a
fair and impartial jury is a structural defect that would require
reversal, we must consider whether Holland has demonstrated that
his jury at the guilt/innocence phase was not fair and impartial.
As noted above, Holland focuses on two events during voir dire:
(1) the local coroner telling several venire members that Holland
should be “strung up;” and (2) several venire members joking that
they should convict Holland so they could go home. We consider
each in turn.
Review of the record shows that, after it was discovered
that the coroner had made his comments in the presence of several
venire members, the trial court asked the venire members if any
of them had heard the coroner’s comments. Only venire member
Marion responded that he had heard the coroner’s comments.5
Marion also stated that he had read a recently published article
in the newspaper regarding the case, as had many venire members.
The trial court subsequently dismissed all the venire members who
had read the newspaper article. Therefore, Marion did not serve
5
At least two other venire members saw the coroner but did
not hear what the coroner said.
12
on the jury, and there is no evidence that the coroner’s comments
were heard by or relayed to any member of the jury.
Consequently, this incident is not sufficient to show that the
jury was not fair and impartial. See United States v. Davis, 393
F.3d 540, 549 (5th Cir. 2004) (noting that juries are presumed to
be impartial, absent evidence to the contrary).
Turning to Holland’s other argument, it was revealed during
voir dire that venire member Mitchell had joked that perhaps they
should vote to convict the defendant so they could all go home.
At the time Mitchell’s comments came up in voir dire, Mitchell
had already been stricken for cause, having read a newspaper
article on the crime and formed an opinion. Holland points to no
evidence in the transcript that any of the venire members who
heard the joke ended up on the jury and somehow were influenced
by Mitchell’s comments. Again, this is an insufficient showing
to demonstrate a structural defect in the trial mechanism that
would warrant a new trial on the ground that the jury was not
fair and impartial. As a result, we decline to issue a COA on
Holland’s first claim.
B. Prosecutor’s Use of Peremptory Challenges During Selection
of Re-Sentencing Jury
Holland next alleges that the State’s use of its peremptory
challenges to exclude jurors with misgivings about the death
penalty violated his Fifth, Sixth, Eighth, and Fourteenth
Amendment rights. Holland specifically identifies venire members
13
Bradley and Tammen as having been excused by the State through
its peremptory challenges. During voir dire, Bradley stated she
had strong reservations about the death penalty and was unsure
whether she could vote for it. Tammen stated she was “not crazy
about dealing with the death penalty.” Holland’s counsel did not
object to the State’s use of peremptory challenges on these
venire members at the time.
The State makes three arguments in response: (1) Holland
failed to exhaust this contention in state court; (2) Holland
waived this claim by failing to object at trial; and (3) the
Mississippi Supreme Court’s decision was not contrary to, or an
unreasonable application of, clearly established federal law. We
choose to address this claim under the State’s third argument.
See 28 U.S.C. § 2254(b)(2) (stating the court may deny a habeas
petition even if it has not been exhausted).
Because Holland did not object to the State’s use of
peremptory challenges on Bradley and Tammen at the time, we can
only speculate as to whether the State struck them for their
views on the death penalty or for unrelated reasons. Regardless,
this court has “‘consistently held that in capital cases
peremptory challenges may be used to exclude those [prospective
jurors] who express hesitancy about imposing the death penalty
but whose exclusion for cause is forbidden by Witherspoon.’”6
6
Witherspoon is the Supreme Court case Witherspoon v.
Illinois, in which the Court held that it is permissible to
14
Andrews v. Collins, 21 F.3d 612, 628 (5th Cir. 1994); see also
Sonnier v. Maggio, 720 F.2d 401, 406 (5th Cir. 1983) (stating
that the exercise of peremptory challenges does not implicate
Witherspoon). As a result, even if the State struck Bradley and
Tammen for their hesitancy regarding the death penalty, such a
decision would be permissible under our precedent.
Holland cites no case law to the contrary. The only binding
Supreme Court authority he cites deals either with challenges for
cause under Witherspoon, see Adams v. Texas, 448 U.S. 38, 47-48
(1980), or the use of peremptory challenges on the basis of race,
see Powers v. Ohio, 499 U.S. 400, 411 (1991), neither of which
contradicts our prior precedent noted above. As a result,
Holland has not met his burden of demonstrating a substantial
showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2). Therefore, we deny a COA on this issue.
C. Denial of Fair and Impartial Jury at Re-Sentencing
Holland next claims that he was denied the right to a fair
and impartial jury at his re-sentencing in violation of the
Fifth, Sixth, Eighth, and Fourteenth Amendments. Specifically,
Holland claims that the jury was affected by “prejudicial
exclude jurors for cause when they make unmistakably clear “(1)
that they would automatically vote against the imposition of
capital punishment without regard to any evidence that might be
developed at the trial of the case before them, or (2) that their
attitude toward the death penalty would prevent them from making
an impartial decision as to the defendant’s guilt.” 391 U.S. 510,
522 n.21 (1968).
15
extraneous facts and information not introduced into evidence”
when several venire members admitted to prior knowledge of the
case and one venire member stated he was in agreement with
Holland’s first sentence. The State contends that Holland’s
arguments are either unexhausted or lack merit.
We begin with the initial presumption that a jury is
impartial. United States v. Ruggiero, 56 F.3d 647, 652 (5th Cir.
1995). This presumption, however, may be rebutted and prejudice
may be shown by evidence that extrinsic factual matter tainted
the jury’s deliberations. Id. A court must investigate any
asserted impropriety when “a colorable showing of extrinsic
influence appears . . . .” United States v. Martinez, 151 F.3d
384, 394 (5th Cir. 1998); Ruggiero, 56 F.3d at 652.
Here, Holland points to the statements of several venire
members made in front of the entire panel to support his claim
that extrinsic evidence influenced the jury. Venire members
Barney and Hall both stated they had a fixed opinion about the
case and could not be impartial. Venire members Carrier, Tammen,
and Scarbrough all stated that they remembered the case, but none
of them was selected for the jury. Juror Larson also stated she
remembered the case and would start the case thinking the death
penalty was appropriate; however, upon further questioning, she
stated that she could set her opinion aside and follow the law.
She was not challenged by Holland and served on the re-sentencing
jury.
16
Holland further places great emphasis on the statement of
venire member Joseph during voir dire. Joseph, a deputy sheriff,
stated he had some professional knowledge of the case and could
not be impartial. Joseph then stated, “I was in complete
agreement with the first sentence that he got and feel-” at which
point counsel objected. Joseph was excused for cause.
In sum, the “extrinsic evidence” introduced to the jury was
that (1) some people had heard of the case before; (2) some
people had fixed opinions about the case; and (3) at least one
person agreed with the initial sentence, although there was no
indication of what that sentence was.7 Reasonable jurists would
not find that this is a “colorable showing” that extrinsic
evidence actually tainted the jury’s deliberations. See United
States v. Leahy, 82 F.3d 624, 630 n.6 (5th Cir. 1996) (rejecting
claim of outside influence on jury because there was no colorable
showing of influence). As stated by the Supreme Court, “[t]o
hold that the mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more, is sufficient to
rebut the presumption of a prospective juror’s impartiality would
be to establish an impossible standard. It is sufficient if the
7
In Romano v. Oklahoma, the Supreme Court held that it was
not impermissible to introduce evidence that the defendant had
been sentenced to death in another case. 512 U.S. 1, 13-14
(1994). Although not directly on point with the facts here, it
does lend support to the State’s position that no improper
influence occurred when jurors were made aware that Joseph agreed
with the “first sentence.”
17
juror can lay aside his impression or opinion and render a
verdict based on the evidence presented in court.” Dobbert v.
Florida, 432 U.S. 282, 302 (1977) (internal quotations marks
omitted). Without a showing of extrinsic influence, reasonable
jurists would not find debatable Holland’s claim that the re-
sentencing jury was not fair and impartial. Therefore, we deny a
COA on this issue.
D. Inability to Rebut Evidence at Re-Sentencing
Holland next asserts that his rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments were violated when he was not
allowed to rebut the State’s evidence at his re-sentencing that
he murdered King while engaged in the commission of the crime of
rape. Holland claims that, at the re-sentencing and in order to
show an aggravating circumstance under Mississippi law, the State
put on evidence that he raped and killed King, but that he was
not allowed to put on evidence to the contrary.8 The State
argues that Holland should not be allowed to relitigate the issue
of his guilt at his re-sentencing, as it is res judicata, and
that recent Supreme Court precedent forecloses Holland’s claim.
See Oregon v. Guzek, 546 U.S. 517, 126 S. Ct. 1226 (2006).
Analysis of this issue requires a brief overview of
Mississippi’s capital sentencing system. Holland was charged
with and found guilty of capital murder under Mississippi law,
8
It appears that Holland primarily wished to challenge the
finding that he raped King prior to killing her.
18
which provides that murder committed while engaged in the
commission of the crime of rape is capital murder. MISS. CODE ANN.
§ 97-3-19(2)(e). Individuals found guilty of capital murder are
eligible for the death penalty. Id. § 97-3-21. The procedure
for sentencing in a death penalty case is described in section
99-19-101. In order to sentence an individual to death, the jury
must unanimously find the following:
(a) That sufficient factors exist as enumerated in
subsection (7) of this section;
(b) That sufficient aggravating circumstances exist as
enumerated in subsection (5) of this section; and
(c) That there are insufficient mitigating circumstances,
as enumerated in subsection (6), to outweigh the
aggravating circumstances.
Id. § 99-19-101(3).
Subsection (7) requires the jury to find the defendant
actually killed, attempted to kill, intended that a killing take
place, or contemplated that lethal force would be used. Id.
§ 99-19-101(7). Subsection (5) lists eight aggravating
circumstances, three of which were argued in this case: (1) the
capital offense was committed while the defendant was engaged in
the commission of a rape; (2) the capital offense was committed
for the purpose of avoiding or preventing a lawful arrest; and
(3) the capital offense was especially heinous, atrocious, or
cruel. Id. § 99-19-101(5). Here, the jury found that all three
aggravating factors had been proven by the State.
As should be evident from the above discussion, the fact
19
that Holland murdered King while engaged in the act of the
commission of the crime of rape is both an element of the
guilt/innocence finding on the capital murder charge and an
aggravating circumstance militating toward imposition of the
death penalty. It is this dual function that raises a
constitutional question in this case.
In Holland II, the Mississippi Supreme Court addressed
Holland’s claim that he should be allowed to put on evidence at
his re-sentencing to rebut the State’s evidence, also used at
Holland’s re-sentencing, that he killed King while committing the
crime of rape. 705 So. 2d at 320-29. The court held that
Holland was not allowed to put on such evidence because the issue
of his guilt as to the crimes of rape and murder was res judicata
at the re-sentencing phase. Id. at 323-24. The court also held
that, although Mississippi permits a capital defendant to argue
residual or whimsical doubt, Holland had no constitutional right
to put on evidence in support of such a doubt. Id. at 324-26.
Three justices dissented in Holland II on this issue. They
argued that Holland had a right to rebut any and all evidence
used against him at the re-sentencing hearing. Id. at 358-60
(Prather, J., dissenting).
The United States Supreme Court has held that “[t]he Due
Process Clause does not allow the execution of a person ‘on the
basis of information which he had no opportunity to deny or
explain.’” Simmons v. South Carolina, 512 U.S. 154, 161 (1994)
20
(plurality) (quoting Gardner v. Florida, 430 U.S. 349, 362
(1977)). Holland asserts that the trial court’s prohibition on
his rebuttal evidence violated this rule of law. In essence,
Holland was not allowed to challenge one of the aggravating
circumstances the State used to argue that the death penalty was
appropriate. The lack of rebuttal evidence makes it much more
likely that a jury would find that the State met its burden with
respect to that aggravating circumstance. We believe reasonable
jurists would find the resolution of this argument debatable.
In its opinion on Holland’s amended petition for writ of
habeas corpus, the district court in this case found the Supreme
Court’s decision in Oregon v. Guzek, 546 U.S. 517, 126 S. Ct.
1226 (2006), dispositive as to Holland’s claim.9 In Guzek, the
Supreme Court held that, in a sentencing proceeding in a death
penalty case, a state may limit the defendant’s introduction of
innocence-related evidence to that evidence that was used in the
guilt/innocence phase of the trial. 126 S. Ct. at 1228.
Prompting the appeal in Guzek was Guzek’s desire to introduce new
alibi evidence at his re-sentencing after he was convicted of
capital murder. Id. at 1229. While Oregon law permitted Guzek
to introduce innocence-related evidence from the guilt/innocence
phase, it did not allow for the introduction of new innocence-
9
Because Guzek was not issued until after the Mississippi
Supreme Court ruled on Holland’s appeals, that court did not have
the opportunity to examine the effect of Guzek on Holland’s
claim.
21
related evidence at the re-sentencing phase. OR. REV. STAT.
§ 138.012(2)(b) (2003).
While part of the rationale in Guzek supports the State’s
position in this case, there are several key distinctions that
cause us to want to consider the issue in more detail. First,
one of the circumstances listed by the Supreme Court as
persuasive in its decision was that the Oregon statute permitted
Guzek to put on innocence-related evidence that had been used at
the guilt/innocence phase. Id. at 1233. The Court stated that
this fact minimized the negative impact of the rule prohibiting
the introduction of new innocence-related evidence. Id. That
circumstance, however, is absent in Holland’s case, as the trial
court did not permit any evidence challenging Holland’s guilt,
regardless of whether it was introduced in the guilt/innocence
phase. Second, there do not appear to have been any overlapping
issues between the guilt/innocence phase and the re-sentencing
phase in Guzek. Here, as noted above, both the guilt/innocence
jury and the re-sentencing jury were asked to find, and did find,
that Holland killed King while committing the crime of rape.
Consequently, while Guzek is instructive, it is not binding in
this instance.
“While the nature of a capital case is not of itself
sufficient to warrant the issuance of a COA, in a death penalty
case any doubts as to whether a COA should issue must be resolved
in [the petitioner’s] favor.” Ramirez v. Dretke, 398 F.3d 691,
22
694 (5th Cir. 2005) (internal citations and quotation marks
omitted). We believe reasonable jurists would find this issue
debatable and that Holland “deserve[s] encouragement to proceed
further.” See Miller-El, 537 U.S. at 336 (internal quotation
marks omitted). Therefore, we grant a COA on this issue.
E. Ineffective Assistance of Counsel at Re-Sentencing
Finally, Holland argues that his rights under the Fifth,
Sixth, Eighth, and Fourteenth Amendments were violated when he
received ineffective assistance of counsel during his re-
sentencing. The State argues that some of Holland’s ineffective
assistance claims are meritless and that some were not exhausted.
In order to demonstrate that his counsel was ineffective,
Holland must show that (1) his counsel’s performance was
deficient; and (2) the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); St.
Aubin v. Quarterman, 470 F.3d 1096, 1101 (5th Cir. 2006),
petition for cert. filed, __ U.S.L.W. __ (U.S. Feb. 19, 2007 (No.
06-9680). Under the first prong, Holland must show that his
counsel made errors so serious that he was no longer functioning
as “counsel” under the Sixth Amendment. Strickland, 466 U.S. at
687. To meet this test, counsel’s performance must fall below an
objective standard of reasonableness. St. Aubin, 470 F.3d at
1101. Under Strickland’s second prong, Holland must demonstrate
that there is a reasonable probability that, but for his
23
counsel’s unprofessional errors, the result of the proceeding
would have been different. Id. Again, while Holland need not
prove that his counsel was actually ineffective under the
Strickland standard in order to receive a COA, he must at least
demonstrate that reasonable jurists would find the issue
debatable. See Miller-El, 537 U.S. at 336.
The specific instances identified by Holland as
demonstrating an ineffective assistance of counsel are:
• Failing to properly raise the issue that Holland’s
right to testify and present a closing argument was
“chilled” when the state court disallowed rebuttal
testimony;
• Failing to create a record of prejudice when
counsel did not ask the trial judge to question the
venire members after Joseph’s statement regarding
his agreement with Holland’s first sentence;
• Failing to object to “certain prosecutorial
misconduct” during the cross-examination of Dr.
Zimmerman;
• Failing to object to prosecutorial comments
regarding Holland’s failure to testify;
• Failing to object to the prosecutor’s misstatements
of the law; and
• Failing to object to the prosecutor’s expression of
his personal feelings and opinions.
In his motion for COA, Holland simply lists these issues.
He does not brief them, cite to portions of the record, or cite
to any precedent indicating that the Mississippi state courts
erred in their determination of his ineffective assistance claim.
Typically, issues that are not briefed are waived. Parr v.
24
Quarterman, 472 F.3d 245, 253 (5th Cir. 2006), petition for cert.
filed, __ U.S.L.W. __ (U.S. Mar. 7, 2007) (No. 06-1086) (citing
Yohey v. Collins, 985 F.3d 222, 224-25 (5th Cir. 1993)); Summers
v. Dretke, 431 F.3d 861, 881 n.12 (5th Cir. 2005), cert. denied,
127 S. Ct. 353 (2006). In this instance, however, by not
adequately briefing these issues, Holland has not met his burden
of demonstrating the substantial denial of a constitutional
right, which is required before we may issue a COA. See 28
U.S.C. § 2253(c)(2).
Considering Holland’s claims, we note that the first issue--
failing to raise the chilling of Holland’s right to testify–-is
unexhausted, having never been raised before the Mississippi
state courts. For the reasons discussed in Section III.A, supra,
this claim is not only unexhausted, but also procedurally barred.
With respect to Holland’s claim that his counsel failed to
object to the prosecutor’s comments on Holland’s failure to
testify, the Mississippi state court determined that the
prosecutor’s comments were not improper.10 Holland II, 705 So.
2d at 344-45. Holland has made no attempt to argue that this
ruling was incorrect. As a result, he cannot show that his
counsel’s performance in failing to object to the prosecutor’s
10
Although his motion for COA does not specify what the
prosecutor said, review of Holland II shows Holland was concerned
with the prosecutor’s statement that the forensic evidence was
without question and that the “witness to the rape was killed and
that’s Krystal.” Holland II, 705 So. 2d at 344.
25
comments was deficient, as the prosecutor’s comments were not
objectionable. See Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th
Cir. 1995) (“Counsel cannot be deficient for failing to press a
frivolous point.”).
The remainder of the issues Holland raises in his
ineffective assistance of counsel claim also do not meet the
standard for issuance of a COA. Other than a conclusory
statement, Holland makes no argument that counsel’s performance
fell below an objective standard of reasonableness or that, had
counsel’s performance not been deficient, the outcome of the
proceeding would have been different. There is a strong
presumption in favor of counsel’s competency. Martinez v.
Dretke, 404 F.3d 878, 885 (5th Cir. 2005). “Mere conclusory
allegations in support of a claim of ineffective assistance of
counsel are insufficient to raise a constitutional issue.”
United States v. Holmes, 406 F.3d 337, 361 (5th Cir. 2005)
(internal quotation marks omitted). Holland has clearly not met
his burden of demonstrating the substantial denial of a
constitutional right with respect to his ineffective assistance
of counsel claim. We, therefore, deny a COA on this issue.
IV. CONCLUSION
For the reasons above, we GRANT a COA on the single issue of
whether Holland’s rights were violated at his re-sentencing when
he was not permitted to rebut the State’s evidence that he killed
26
King while engaged in the commission of the crime of rape. We
DENY a COA on all of Holland’s other claims. The Clerk of Court
will set out a briefing schedule for the single issue on which we
granted a COA.
27