Magwood v. WARDEN, ALABAMA DEPT. OF CORRECTIONS, 664 F.3d 1340

Magwood, a death-row inmate, sought habeas relief under 28 U.S.C. § 2254 claiming his death sentence violated the fair-warning requirement because it was based on Kyzer, a post-offense Alabama decision, which was retroactively applied.
The district court granted relief on the fair-warning claim; the State appealed and this court initially held Kyzer’s effect was successive, limiting review under 28 U.S.C. § 2244(b).
The Supreme Court reversed, remanding for proceedings consistent with its decision, and on remand the State argued again that the fair-warning claim was procedurally defaulted and meritless.
The Alabama Court’s interpretation in Kyzer allowed using the indictment charge as the aggravating circumstance for death, even though no corresponding aggravating factor existed in § 13-11-6, creating an anomaly in Magwood’s case.
Ex parte Stephens (Ala. 2006) held Kyzer’s discussion of aggravating circumstances was dicta and not controlling, undermining Kyzer’s applicability to Magwood.
The court concluded Magwood was not eligible for the death penalty under Alabama law when Kyzer is viewed as unforeseeable and retroactive, and that applying Kyzer retroactively violated fair warning; thus habeas relief was warranted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Kyzer’s interpretation of the statute violated fair warning.	Kyzer was unforeseeable, retroactive, and dicta later rejected by Stephens.	Kyzer was a valid interpretation at the time and properly applied retroactively under existing law.	Kyzer retroactively violated fair warning; Magwood entitled to relief.
Whether procedural default is excused by actual innocence.	Magwood’s claim was procedurally defaulted but actual innocence excuses default.	The default should bar relief regardless of innocence.	Procedural default excused under Sawyer actual-innocence exception; relief granted on fair-warning ground.
Whether Magwood was eligible for the death penalty at the time of offense given the statutory framework.	Rule that the jury’s death determination could be fixed if aggravated by § 13-11-4 findings; Kyzer allowed indictment-based aggravation.	Under Kyzer and Stephens, the indictment-based charge could substitute for an aggravating factor only if properly authorized.	Magwood was not eligible for the death penalty under the statute; Kyzer’s interpretation was improper.

Bouie v. City of Columbia, 378 U.S. 347 (1964) (fair-warning retroactivity standard for judicial expansions of law)
Rogers v. Tennessee, 532 U.S. 451 (2001) (limits on retroactive application of judicial decisions; fair warning context)
Sawyer v. Whitley, 505 U.S. 333 (1992) (actual innocence exception to procedural default in capital sentencing)
Ex parte Kyzer, 399 So.2d 330 (Ala. 1981) (indictment charge used as aggravating circumstance; dicta later repudiated)
Ex parte Stephens, 982 So.2d 1148 (Ala. 2006) (Kyzer dicta incorrect; aggravating-circumstance interpretation rejected)
Dobbert v. Florida, 432 U.S. 283 (1977) (ex post facto considerations in capital sentencing context)
Gardner v. Florida, 430 U.S. 349 (1977) (death penalty as a unique punishment; due-process considerations)