Bell v. Mississippi Department of Corrections , 118 F. App'x 874 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 5, 2005
Charles R. Fulbruge III
Clerk
No. 03-60309
CHARLES SYLVESTER BELL,
Petitioner-Appellant,
versus
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
(2:00-CV-85-GR)
Before BARKSDALE, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
Seeking federal habeas relief, and pursuant to a certificate
of appealability (COA) issued by our court, Charles Sylvester Bell,
Mississippi prisoner # 30115, appeals the dismissal of his double
jeopardy claim. Convicted in Mississippi state court of two counts
of murder and one count of armed robbery, Bell claims his armed
robbery conviction violates the Fifth Amendment’s Double Jeopardy
Clause because it was a lesser-included offense in one of his
murder convictions. The issue for which we granted a COA is
whether the district court erred by dismissing Bell’s double
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
jeopardy claim as procedurally barred under MISS. CODE ANN. § 99-39-
21 (stating, inter alia, that claims not raised either at trial or
on direct appeal are waived, except upon a showing of cause for the
default and actual prejudice). The Mississippi Supreme Court never
made the requisite clear and express statement that Bell’s double
jeopardy claim was procedurally barred. REVERSED and REMANDED.
I.
In 1977, Bell was convicted in Mississippi state court of the
murder of D.C. Haden while engaged in the commission of armed
robbery and kidnapping and was sentenced to death. See MISS. CODE
ANN. § 97-3-19(2)(e). On appeal, his conviction and sentence were
upheld. Bell v. State, 360 So. 2d 1206 (Miss. 1978), cert. denied,
440 U.S. 950 (1979).
Bell sought federal habeas relief, challenging his conviction
and sentence on numerous grounds. The district court denied the
petition. Our court reversed the district court’s ruling that the
state trial court’s sentencing instructions were constitutionally
adequate and “direct[ed] the district court to issue the writ of
habeas corpus unless the State of Mississippi decide[d] within a
reasonable time to conduct a new sentencing proceeding or to impose
a sentence less than death”. Bell v. Watkins, 692 F.2d 999, 1014
(5th Cir. 1982), cert. denied, 464 U.S. 843 (1983). As discussed,
infra, Bell was re-sentenced to life imprisonment.
2
After the death sentence was overturned, Bell was indicted as
a habitual offender for the armed robbery of D.C. Haden. See MISS.
CODE ANN. § 99-19-81 (any person convicted of a felony, who (1) has
been previously convicted of two or more felonies arising out of
separate incidences and (2) has been sentenced to a year or more in
any state or federal penal institution, shall be, inter alia,
sentenced to the maximum term of imprisonment for that felony). In
August 1984, Bell pleaded guilty to the armed robbery charge as a
habitual offender and was sentenced to the maximum term of 25
years. At that same time, he was also re-sentenced for the murder
conviction of D.C. Haden; the new sentence was life imprisonment.
In addition, Bell had been convicted previously of a separate
capital murder charge and sentenced to life imprisonment. The life
sentence for the murder of D.C. Haden was to run consecutively to
the other life sentence, with the 25-year term for the armed
robbery consecutive to that second life sentence.
In December 1984, Bell moved in state court to vacate his
armed robbery conviction, claiming, inter alia, that it violated
the Double Jeopardy Clause because the armed robbery was a lesser-
included offense of capital murder under MISS. CODE ANN. § 97-3-
19(2)(e) and a necessary element to his conviction. (As noted,
supra, § 97-3-19(2)(e) provides that the killing of any human
being, whether intentional or not, while engaged in, inter alia,
kidnapping or robbery is a capital murder.) The motion was denied,
3
and Bell appealed to the Mississippi Supreme Court. It dismissed
the appeal for lack of prosecution. Bell v. State, Trial Court No.
11,351 (Miss. 11 August 1986) (Mem.).
Between 1986 and 1995, Bell filed motions and petitions in
state and federal court, challenging his armed robbery conviction
on various grounds. All were denied. His habeas petition in
federal court was dismissed without prejudice because he had failed
to exhaust his state post-conviction remedies.
In May 1995, Bell moved in state court for rehearing and to
vacate the armed robbery conviction. In February 1996, the court
conducted an evidentiary hearing and denied the motion as
procedurally barred. Bell appealed to the Mississippi Supreme
Court, which held: Bell’s conviction for armed robbery as a
habitual offender violated the Ex Post Facto Clauses of the United
States and Mississippi Constitutions because the habitual offender
statute was enacted in 1977, subsequent to Bell’s 1976 armed
robbery offense. Bell v. State, 726 So. 2d 93, 94 (Miss. 1998)
(Bell I). The court remanded for the trial court to determine
whether Bell knowingly waived his ex post facto rights as part of
a plea agreement to avoid the death penalty. Id. at 95. The state
supreme court declined, however, to rule on Bell’s double jeopardy
claim, stating: “The issue is not germane to these proceedings”.
Id. at 94 (emphasis added).
4
On remand, the state trial court found Bell did waive his ex
post facto rights as part of the plea agreement by which he was re-
sentenced to life for the murder of D.C. Haden. Bell appealed
again to the Mississippi Supreme Court, which stated in the two-
sentence introduction to its opinion: “Bell knowingly waived his
double jeopardy and ex post facto rights”, Bell v. State, 751 So.
2d 1035, 1036 (Miss. 1999) (Bell II), despite the court, in Bell I,
having ruled that, as quoted above, the double jeopardy issue was
not germane to the proceedings. In the analysis portion of the
opinion, the court ruled that Bell’s ineffective assistance of
counsel (IAC) claim was procedurally barred because he had raised
it in 1984 in a previous proceeding. Id. at 1038. The double
jeopardy issue was referenced only in ruling on the IAC claim.
In April 2000, Bell filed the instant habeas petition
concerning the armed robbery offense, claiming: (1) a double
jeopardy violation; (2) an ex post facto violation; (3) IAC; and
(4) an invalid guilty plea. The magistrate judge’s report and
recommendation recommended Bell’s petition being dismissed because,
inter alia, Bell’s double jeopardy claim was procedurally barred.
In September 2001, over Bell’s written objections, the
district court adopted the report and recommendation and dismissed
the habeas petition. It also denied Bell’s FED. R. CIV. P. 59(e)
motion to alter or amend judgment, as well as his COA request.
5
II.
For his four habeas claims, Bell briefed only the double
jeopardy issue in seeking a COA from our court. As noted, our
court granted a COA on whether Bell’s double jeopardy claim was
procedurally barred by MISS. CODE ANN. § 99-39-21(1), which provides:
Failure by a prisoner to raise objections,
defenses, claims, questions, issues or errors
either in fact or law which were capable of
determination at trial and/or on direct
appeal, regardless of whether such are based
on the laws and the Constitution of the state
of Mississippi or of the United States, shall
constitute a waiver thereof and shall be
procedurally barred, but the court may upon a
showing of cause and actual prejudice grant
relief from the waiver.
(Procedural waiver under § 99-39-21(1) is, of course, distinct from
the knowing waiver of certain rights as part of a plea agreement.)
Our court reviews de novo a habeas-denial based on a state
procedural ground. E.g., Martin v. Maxey, 98 F.3d 844, 847 (5th
Cir. 2000). “[A] procedural default does not bar consideration of
a federal claim on either direct or habeas review unless the last
state court rendering a judgment in the case ‘clearly and
expressly’ states that its judgment rests on a state procedural
bar”. Harris v. Reed, 489 U.S. 255, 263 (1989) (emphasis added)
(applying the Michigan v. Long, 463 U.S. 1032, 1042, n.7 (1983),
“plain statement” rule to federal habeas review). This rule serves
to prevent a federal habeas court, when faced with an ambiguous
state court ruling concerning a procedural default, from having to
6
“examine the state-court record to determine whether procedural
default was argued to the state court, or ... undertak[ing] an
extensive analysis of state law to determine whether a procedural
bar was potentially applicable to the particular case”. Id. at
264-65.
If the last reviewing state court “clearly and expressly”
states that its judgment rests on a state procedural bar, then,
“[u]nder the procedural default doctrine, a federal court may not
consider a state prisoner’s federal habeas claim when the state
based its rejection of that claim on an adequate and independent
state ground”. Martin, 98 F.3d at 847 (citing Coleman v. Thompson,
501 U.S. 722, 750 (1991)). If the state court decision is based on
an independent and adequate state ground, then a federal habeas
court is barred from considering the claim, unless the petitioner
can show both cause for the default and prejudice. Murray v.
Carrier, 477 U.S. 478, 485 (1986); see also MISS. CODE ANN. § 99-39-
21(4)-(5) (defining the terms “cause” and “actual prejudice” as
used in § 99-39-21(1), quoted supra). (An exception to the “cause
and prejudice” requirement is that a federal habeas court may
entertain a procedurally barred claim if a failure to do so would
result in a fundamental miscarriage of justice. E.g., Romero v.
Collins, 961 F.2d 1181, 1183 (5th Cir. 1992). This exception is
extremely narrow and requires establishing a “colorable claim of
factual innocence”. Sawyer v. Whitley, 505 U.S. 333, 339 (1992).)
7
In the two-sentence introduction to its opinion in Bell II,
the Mississippi Supreme Court stated: “This matter is before the
Court on appeal from the denial of Charles Sylvester Bell’s motion
for post-conviction relief by the Circuit Court of Forrest County,
Mississippi. Because Bell knowingly waived his double jeopardy and
ex post facto rights, we affirm”. 751 So. 2d at 1036 (emphasis
added). Later in the opinion, however, it is unclear which of
Bell’s claims the court found procedurally barred under MISS. CODE
ANN. § 99-39-21. Therefore, a closer examination of Bell II is
necessary.
Part I of Bell II recites the facts and procedural history of
the case. Part II discusses only Bell’s ex post facto claim. Part
III states:
Bell argues that he received ineffective
assistance of counsel when his attorneys
advised him to plead guilty to armed robbery,
which Bell contends is barred by the
constitutional provisions of double jeopardy.
When reviewing claims of ineffective
assistance of counsel, this Court utilizes the
standard set forth in Strickland v.
Washington, 466 U.S. 668 (1990) .... The
defendant claiming ineffective assistance of
counsel must show, by a preponderance of the
evidence, that there is a reasonable
probability that had counsel's assistance been
effective, he would not have pled guilty, but
would have insisted on going to trial. One
who claims that counsel was ineffective must
overcome the presumption that counsel's
performance falls within the range of
reasonable professional assistance ....
8
Bell's claim must be viewed in light of
the fact that we clearly have a plea bargain
to avoid the death penalty. There is simply
no evidence that this claim, like the ex post
facto claim[,] was not waived in order to
avoid a second sentence of death.
Additionally, this claim was raised in
1984. It was rejected by the trial court[,]
and Bell failed to prosecute his appeal
resulting in dismissal. The claim is therefore
procedurally barred by MISS. CODE ANN. §
99-39-21.
Bell II, 751 So. 2d at 1038 (emphasis added; internal citations and
quotations omitted). In the concluding Part IV, the court stated:
“We hold the lower court’s findings are supported by the record and
should be upheld. Accordingly, the judgment of the Forrest County
Circuit Court is affirmed.” Id.
As the above quotation from Part III shows, Bell’s double
jeopardy claim is only mentioned in connection with whether his
counsel’s performance was ineffective. Furthermore, the state
supreme court discusses only legal principles applicable to an IAC
claim. Applicable law pertaining to a double jeopardy claim is not
mentioned. In addition, the court states that “this claim”, not
claims, is procedurally barred, without specifying the claim to
which it is referring. Given that only legal standards for an IAC
claim are discussed, that may be the claim which the court found
procedurally barred. Moreover, both the IAC and the double
jeopardy claim were raised in Bell’s 1984 motion to vacate
judgment, which was dismissed for lack of prosecution in 1986.
9
Accordingly, there is no “clear and express” statement by the
Mississippi Supreme Court that Bell’s double jeopardy claim was
procedurally barred under MISS. CODE ANN. § 99-39-21. Our holding is
consistent with the purpose of the “plain statement” rule – to
prevent a federal habeas court from undertaking a detailed review
of the state court record to determine whether the procedural
default was argued to the state court, or conducting an extensive
analysis of state law to determine whether § 99-39-21 was
applicable. See Harris, 489 U.S. at 264-65. Therefore, the
district court erred in denying Bell’s double jeopardy claim as
procedurally barred. Because there is no “clear and express”
statement holding Bell’s double jeopardy claim procedurally barred,
it is unnecessary for us to determine whether § 99-39-21 is an
“independent and adequate” state ground that would preclude federal
habeas review.
III.
For the foregoing reasons, the district court’s ruling that
Bell’s double jeopardy claim is procedurally barred is REVERSED.
This case is REMANDED for further proceedings consistent with this
opinion.
REVERSED and REMANDED
10