Hodges v. Epps, 2011 U.S. App. LEXIS 15795

Hodges, convicted of capital murder and kidnapping in Mississippi, sentenced to death and 20 years' imprisonment.
Trial involved sentencing instructions allowing life with parole, though under Mississippi law Hodges was not parole-eligible for a capital offense.
Mississippi Supreme Court on direct appeal deemed parole-instruction issue procedurally barred and, alternatively, harmlessly resolved the merits.
State post-conviction proceedings again addressed the claim; court referenced res judicata but did not reiterate a procedural bar.
Hodges filed federal habeas petition after AEDPA; district court granted relief on the sentencing phase for due-process violation, denied other claims.
State appealed; issue focuses on whether erroneous parole instruction violated due process and whether error was harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Procedural bar status in state court	Mississippi court barred claim (res judicata) and later addressed merits.	Procedural bar foreclosed federal review; court treated merits appropriately.	No procedural bar; last state decision reached merits and removed bar.
Whether parole-instruction error violated due process	Erroneous instruction misled jurors about parole eligibility affecting future dangerousness.	Instruction harmless because jury could still impose death or life without parole; parole option acknowledged but inapplicable by law.	Concluded due-process violation occurred due to erroneous parole option and the related closing argument.
Harmfulness of the instructional error	Error had substantial and injurious effect on verdict given prosecutorial emphasis on future dangerousness.	Harmless error under state approach because jury could still choose death without parole option and evidence did not affect outcome.	Error was not harmless; it had substantial and injurious influence on the jury's verdict.

Simmons v. South Carolina, 512 U.S. 154 (U.S. 1994) (parole ineligibility bears on future dangerousness in capital sentencing)
Hedgpeth v. Pulido, 555 U.S. 57 (U.S. 2008) (harmlessness standard for instructional error in capital cases)
Brecht v. Abrahamson, 507 U.S. 619 (U.S. 1993) (harmless-error standard for habeas cases)
Williams v. Taylor, 529 U.S. 362 (U.S. 2000) (clearly established federal law; unreasonable application standard)
Cone v. Bell, 129 S. Ct. 1769 (U.S. 2009) (state court findings do not bar federal review when merits addressed)
Ylst v. Nunnemaker, 501 U.S. 797 (U.S. 1991) (procedural default may be overcome if state court addressed merits later)
Kelly v. South Carolina, 534 U.S. 246 (U.S. 2002) (jury need not manifest confusion on the record; closing arguments may matter)
Moody v. Johnson, 139 F.3d 477 (5th Cir. 1998) (evidence of escapes can show future dangerousness)
White v. Johnson, 153 F.3d 197 (5th Cir. 1998) (lack of remorse as evidence of future dangerousness)
Holland v. Anderson, 583 F.3d 267 (5th Cir. 2009) (procedural and substantive due-process considerations in habeas review)