Magwood v. Warden, Comm'r, Alabama Dep't of Corr.

• Decision Date: 19 December 2011
• Docket Number: No. 07–12208.,07–12208.
• Citation: 23 Fla. L. Weekly Fed. C 655,664 F.3d 1340
• Parties: Billy Joe MAGWOOD, Petitioner–Appellee, Cross–Appellant, v. WARDEN, Commissioner, ALABAMA DEPARTMENT OF CORRECTIONS, Attorney General of Alabama, Respondents–Appellants, Cross–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 655

664 F.3d 1340

Billy Joe MAGWOOD, Petitioner–Appellee, Cross–Appellant,

v.WARDEN, Commissioner, ALABAMA DEPARTMENT OF CORRECTIONS, Attorney General of Alabama, Respondents–Appellants, Cross–Appellees.

No. 07–12208.

United States Court of Appeals, Eleventh Circuit.

Dec. 19, 2011.

Corey Landon Maze, Attorney General, Beth Jackson Hughes, Attorney General's Office, State of Alabama, Montgomery, AL, for Respondents–Appellants.

Jeffrey L. Fisher, Stanford Law School, Stanford, CA, James A. Power, Jr. (Appointed by District Court), Marguerite Del Valle (Appointed by District Court), Power Del Valle LLP, New York, NY, for Petitioner–Appellee.

Appeal from the United States District Court for the Middle District of Alabama.ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before DUBINA, Chief Judge, TJOFLAT and BLACK, Circuit Judges.

BLACK, Circuit Judge:

Alabama death-row inmate Billy Joe Magwood's 28 U.S.C. § 2254 petition was partially granted by the district court on his claim that his death sentence violated the fair-warning requirement of the Due Process Clause because it was based on Ex parte Kyzer, 399 So.2d 330 (Ala.1981), which was decided after he committed his offense and was retroactively applied to his case. Magwood v. Culliver, 481 F.Supp.2d 1262, 1287 (M.D.Ala.2007). The State of Alabama then appealed the district court's grant of relief on the fair-warning issue,¹ asserting the district court erred when it granted relief on Magwood's claim that Kyzer deprived him of due process of law because the claim was (1) procedurally defaulted, (2) precluded under 28 U.S.C. § 2244(b), and (3) meritless. We reversed the district court's grant of relief on Magwood's fair-warning claim, holding the claim was successive and governed by 28 U.S.C. § 2244(b)(2).² Magwood v. Culliver, 555 F.3d 968, 976 (11th Cir.2009). The Supreme Court granted certiorari, reversed our decision that the fair-warning claim was successive, and remanded for further proceedings consistent with its opinion. Magwood v. Patterson, –––U.S. ––––, 130 S.Ct. 2788, 2803, 177 L.Ed.2d 592 (2010).

In its supplemental briefing on remand, the State again contends the district court erred in granting relief on the fair-warning claim because the claim is (1) procedurally defaulted, and (2) meritless. Magwood asserts this claim is not procedurally defaulted and that Kyzer unforeseeably suggested that Magwood's crime was a death-eligible offense. Magwood further contends the Alabama Supreme Court has subsequently made clear that Kyzer's dicta, on which Magwood's death sentence was based, was never the law.

This case presents a unique situation. The Alabama Supreme Court's interpretation of its death penalty statute in Kyzer—that the charge averred in the indictment can be used as the aggravating circumstance for a judge to impose the death penalty—provided the required, and only, “aggravating circumstance” for Magwood to receive the death penalty when he was resentenced in 1986. See Kyzer, 399 So.2d at 337–38. In 2006, however, the Alabama Supreme Court held the pertinent language in Kyzer was both (1) incorrect and never the law of Alabama, and (2) dicta. Ex parte Stephens, 982 So.2d 1148, 1152–53 (Ala.2006). Magwood is an anomaly on Alabama's death row. According to Magwood's counsel, Magwood is the sole person on Alabama's death row without an aggravating circumstance for his crime, and is the only person on Alabama's death row whose case is affected by Stephens.

Based on a clear reading of Alabama law, we conclude that Magwood was not eligible for the death penalty. Magwood is entitled to habeas relief because his death sentence violated the fair-warning requirement of the Due Process Clause ³ as it was based on Kyzer, which was an “unforeseeable and retroactive judicial expansion of narrow and precise statutory language.” Bouie v. City of Columbia, 378 U.S. 347, 352, 84 S.Ct. 1697, 1702, 12 L.Ed.2d 894 (1964).

I. BACKGROUND

A. Factual background

The facts of Magwood's offense are not in dispute. They are set forth in an opinion by the Alabama Court of Criminal Appeals, as follows:

Thomas Weeks, a Coffee County Deputy Sheriff, testified he was employed as the county jailer on March 1, 1979, under Coffee County Sheriff Neil Grantham. The witness stated he observed [Magwood], whom he recognized as a former jail inmate, sitting in a car parked in Sheriff Grantham's parking space at approximately 6:45 a.m. Shortly before 7:00 a.m., he observed Sheriff Grantham drive up and park his vehicle. He got out of the automobile, walked to some garbage cans and deposited a trash bag, and then walked towards the jail door. [Magwood] got out of his automobile with something in his hand and met Sheriff Grantham at the rear of the car. At that point, Deputy Weeks heard three gunshots and saw Sheriff Grantham fall. The witness then turned back into the jail and obtained a gun. He observed [Magwood] get back into his car and saw that he held a pistol in his hand. He exchanged fire with [Magwood] as he drove away. Deputy Weeks then went over to where Sheriff Grantham lay on the ground and observed that the Sheriff's face was blue and that he appeared not to be breathing, having apparently been hit in the face and neck. Deputy Weeks stated he observed no one else in the area at the time the Sheriff was killed.

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

B. Procedural background

Magwood murdered Sheriff Grantham on March 1, 1979. Id. Magwood was convicted and sentenced to death for the murder in June 1981. Id. at 920 n. 1. On direct appeal, the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Magwood's conviction and death sentence. Id. at 929, aff'd Ex parte Magwood, 426 So.2d 929, 932 (Ala.1983), cert. denied 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983).

On July 13, 1983, Magwood filed a petition for writ of error coram nobis in the Circuit Court of Coffee County. Magwood v. State, 449 So.2d 1267, 1267 (Ala.Crim.App.1984). This petition was denied and on March 20, 1984, the Alabama Court of Criminal Appeals affirmed the denial of the coram nobis petition. Id. at 1268.

Magwood then filed a 28 U.S.C. § 2254 petition for writ of habeas corpus in the United States District Court for the Middle District of Alabama. On March 26, 1985, the district court upheld Magwood's conviction but conditionally granted the writ as to the sentence, based on the failure of the sentencing court to find two mitigating circumstances. Magwood v. Smith, 608 F.Supp. 218, 225–26 (M.D.Ala.1985). This Court affirmed the district court's decision. Magwood v. Smith, 791 F.2d 1438, 1450 (11th Cir.1986).

A resentencing hearing was conducted on September 17, 1986. Magwood v. State, 548 So.2d 512, 513 (Ala.Crim.App.1988). On October 2, 1986, the Alabama trial court, after considering the additional mitigating circumstances as ordered by the federal district court, again sentenced Magwood to death. Id. The Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Magwood's resentencing. Id. at 516, aff'd, 548 So.2d 516 (Ala.1988), cert. denied 493 U.S. 923, 110 S.Ct. 291, 107 L.Ed.2d 271 (1989).

Magwood filed an application in this Court for permission to file a second habeas corpus petition in the district court challenging his conviction, which we denied. In re Magwood, 113 F.3d 1544, 1553 (11th Cir.1997). Magwood filed a second habeas petition challenging his resentencing on April 23, 1997. The district court granted in part and denied in part Magwood's second habeas petition. Magwood v. Culliver, 481 F.Supp.2d 1262, 1295 (M.D.Ala.2007).

II. ANALYSIS

To determine whether the application of Kyzer to Magwood's case was a violation of the fair-warning requirement of the Due Process Clause we must first set out the relevant portions of Alabama's death penalty statute at the time of Magwood's offense. We then discuss the effect of Kyzer and Stephens on Magwood's eligibility for the death penalty. Finally, we conclude Magwood can overcome any procedural default and that the application of Kyzer violated the fair-warning requirement of the Due Process Clause.

A. The 1975 Act

Magwood murdered Sheriff Grantham on March 1, 1979. At that time, Alabama's death penalty statute provided in Alabama Code § 13–11–2(a)(5) (1975): ⁴

(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses:

(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job-related act or performance of such officer or guard.

Alabama Code § 13–11–4, entitled “Determination of sentence by court; court not bound by punishment fixed by jury” provided:

Notwithstanding the fixing of the punishment at death by the jury, the court, after weighing the aggravating and mitigating circumstances, may refuse to accept the death penalty as fixed by the jury and sentence the defendant to life imprisonment without parole, which shall be served without parole; or the court, after weighing the aggravating and mitigating circumstances, and the fixing of the punishment at death by the jury, may accordingly sentence the defendant to death. If the court imposes a sentence of death, it shall set forth in writing, as the basis for the sentence of death, findings of fact from the trial and the sentence hearing, which shall at least include the following:

(1) One or more of the aggravating circumstances enumerated in section 13–11–6, which it finds exists in the case and which it finds sufficient to support the sentence of death....

(emphasis added).

Magwood's crime, the...