HOWELL, aka COX v. MISSISSIPPI

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Syllabus
HOWELL, aka COX v. MISSISSIPPI
certiorari to the supreme court of mississippi
No. 03–9560. Argued November 29, 2004—Decided January 24, 2005
Petitioner appealed his capital murder conviction and death sentence,
claiming, inter alia, that the trial court erred by failing to give a lesser-
included-offense instruction on simple murder or manslaughter. The
State Supreme Court affirmed. In granting certiorari, this Court
asked the parties to address the question whether petitioner properly
raised in the State Supreme Court the federal claim that his death sen-
tence is unconstitutional under Beck v. Alabama, 447 U. S. 625, 638.
Held: Because petitioner did not properly raise his federal claim in the
State Supreme Court, the writ of certiorari is dismissed as improvi-
dently granted. Petitioner’s argument that he presented his federal
claim by citing a state case, which cited another state case, which in
turn cited Beck, presents a daisy chain too lengthy to meet this Court’s
standards for proper presentation of a federal claim. Nor was his fed-
eral claim raised by implication under a state-law rule similar to the
constitutional rule articulated in Beck, because the state and federal
standards are not identical. Finally, even if this Court’s requirement
that a federal claim be raised in state court is prudential rather than
jurisdictional, “the circumstances here justify no exception.” Adams
v. Robertson, 520 U. S. 83, 90 (per curiam).
Certiorari dismissed. Reported below: 860 So. 2d 704.
Ronnie Monroe Mitchell argued the cause for petitioner.
With him on the briefs were Andre´ de Gruy, Duncan Lott,
and William Odum Richardson, by appointment of the
Court, 543 U. S. 977.
Jim Hood, Attorney General of Mississippi, argued the
cause for respondent. With him on the brief was Judy
Thomas Martin, Special Assistant Attorney General.*
*Kent S. Scheidegger filed a brief for the Criminal Justice Legal Founda-
tion as amicus curiae.

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Per Curiam.
Petitioner Marlon Howell contends that the Mississippi
courts violated his rights under the Eighth and Fourteenth
Amendments to the United States Constitution by refusing
to require a jury instruction about a lesser included offense
in his capital case. He did not, however, raise this claim in
the Supreme Court of Mississippi, which unsurprisingly did
not address it. As a result, we dismiss the writ of certiorari
as improvidently granted.
Petitioner was convicted and sentenced to death for killing
Hugh David Pernell. Shortly after 5 a.m. on May 15, 2000,
Pernell was delivering newspapers from his car when the
occupants of another car motioned for him to stop. The evi-
dence at trial indicated that, when both cars had pulled over,
petitioner got out of the trailing car and approached the driv-
er’s side of Pernell’s car. After a brief conversation and per-
haps some kind of scuffle, petitioner pulled out a pistol, shot
Pernell through the heart, got back in the other car, and fled
the scene. See 860 So. 2d 704, 712–715, 738–739 (Miss. 2003).
At trial, petitioner argued both that he was in another city
at the time of the killing and that the evidence was insuffi-
cient to prove that Pernell was killed during an attempted
robbery (which would deprive the State of an element of cap-
ital murder). As part of his nonalibi defense, petitioner
sought to supplement the State’s proposed jury instruction
on capital murder with instructions on manslaughter and
simple murder. The trial court refused the additional in-
structions. The jury found petitioner guilty of capital mur-
der and separately concluded that he should be sentenced
to death.
On appeal to the State Supreme Court, one of petitioner’s
28 claims of error was the trial court’s failure “to give the
defendant an instruction on the offense of simple murder
or manslaughter.” App. 39. In that argument, petitioner
cited three cases from the State Supreme Court about

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lesser-included-offense instructions, and the only opinion
whose original language he quoted was a noncapital case.
Ibid. (quoting, with modifications, Conner v. State, 632 So. 2d
1239, 1254 (Miss. 1993) (a capital case), in turn quoting
McGowan v. State, 541 So. 2d 1027, 1028 (Miss. 1989) (a non-
capital case), in turn quoting Harper v. State, 478 So. 2d 1017,
1021 (Miss. 1985) (a noncapital case)). Petitioner argued
that, because the jury “could have found and returned the
lesser included offense of simple murder or manslaughter,”
the failure to give instructions on those offenses was “error”
that left the jury no “choice but either to turn [him] loose or
convict him of [c]apital [m]urder.” App. 40. In the course
of affirming petitioner’s conviction and death sentence, the
State Supreme Court found that “[t]he facts of this case
clearly do not support or warrant” the instruction for man-
slaughter or simple murder. 860 So. 2d, at 744. The court
cited and quoted a prior noncapital decision, which construed
a state statute and concluded that an instruction should be
refused if it would cause the jury to “ ‘ignore the primary
charge’ ” or “ ‘if the evidence does not justify submission of
a lesser-included offense.’ ” Ibid. (quoting Presley v. State,
321 So. 2d 309, 310–311 (Miss. 1975)). The court also cited
Grace v. State, 375 So. 2d 419 (Miss. 1979), an aggravated-
assault case rejecting an instruction for simple assault.
Petitioner sought certiorari from this Court, arguing that
his death sentence is unconstitutional under that rule of our
capital jurisprudence set forth in Beck v. Alabama, 447 U. S.
625, 638 (1980) (“[I]f the unavailability of a lesser included
offense instruction enhances the risk of an unwarranted con-
viction, [the State] is constitutionally prohibited from with-
drawing that option from the jury in a capital case”). See
Pet. for Cert. 5. We granted certiorari, but asked the
parties to address the following additional question: “ ‘Was
petitioner’s federal constitutional claim properly raised be-
fore the Mississippi Supreme Court for purposes of 28
U. S. C. § 1257?’ ” 542 U. S. 936 (2004). Our answer to that

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question prevents us from reaching petitioner’s constitu-
tional claim.
Congress has given this Court the power to review “[f]inal
judgments or decrees rendered by the highest court of a
State in which a decision could be had . . . where any . . . right
. . . is specially set up or claimed under the Constitution or
the treaties or statutes of . . . the United States.” 28 U. S. C.
§ 1257(a) (emphasis added). Under that statute and its pred-
ecessors, this Court has almost unfailingly refused to con-
sider any federal-law challenge to a state-court decision
unless the federal claim “was either addressed by or properly
presented to the state court that rendered the decision we
have been asked to review.” Adams v. Robertson, 520 U. S.
83, 86 (1997) (per curiam); see also Illinois v. Gates, 462
U. S. 213, 218 (1983) (tracing this principle back to Crowell
v. Randell, 10 Pet. 368, 392 (1836), and Owings v. Norwood’s
Lessee, 5 Cranch 344 (1809)).
Petitioner’s brief in the State Supreme Court did not prop-
erly present his claim as one arising under federal law.1 In
the relevant argument, he did not cite the Constitution or
even any cases directly construing it, much less any of this
Court’s cases. Instead, he argues that he presented his fed-
eral claim by citing Harveston v. State, 493 So. 2d 365 (Miss.
1986), which cited (among other cases) Fairchild v. State, 459
So. 2d 793 (Miss. 1984), which in turn cited Beck, but only
by way of acknowledging that Mississippi’s general rule re-
quiring lesser-included-offense instructions “takes on con-
stitutional proportions” in capital cases. 459 So. 2d, at 800.
Assuming it constituted adequate briefing of the fed-
eral question under state-law standards, petitioner’s daisy
chain—which depends upon a case that was cited by one of
the cases that was cited by one of the cases that petitioner
cited—is too lengthy to meet this Court’s standards for
1 Petitioner argues not that the State Supreme Court actually addressed
his federal claim, but rather that it “had an adequate opportunity to ad-
dress” it. Brief for Petitioner 19.

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proper presentation of a federal claim.2 As we recently
explained in a slightly different context, “[a] litigant wishing
to raise a federal issue can easily indicate the federal law
basis for his claim in a state-court petition or brief . . .
by citing in conjunction with the claim the federal source of
law on which he relies or a case deciding such a claim on
federal grounds, or by simply labeling the claim ‘federal.’ ”
Baldwin v. Reese, 541 U. S. 27, 32 (2004). In the context of
§ 1257, the same steps toward clarity are just as easy to take
and are generally necessary to establish that a federal ques-
tion was properly presented to a state court. Petitioner did
none of these things.
Petitioner also contends that he raised his federal claim by
implication because the state-law rule on which he relied was
“identical,” Tr. of Oral Arg. 17, or “virtually identical,” Brief
for Petitioner 17–18, to the constitutional rule articulated in
Beck. Assuming, without deciding, that identical standards
might overcome a petitioner’s failure to identify his claim as
federal, Mississippi’s rule regarding lesser-included-offense
instructions is not identical to Beck—or at least not identical
to the Mississippi Supreme Court’s interpretation of Beck.
Mississippi’s rule applies even when the jury is not choosing
only between acquittal and death. The Mississippi Supreme
2 See, e. g., Adams v. Robertson, 520 U. S. 83, 89, n. 3 (1997) (per curiam)
(concluding that “passing invocations of ‘due process’ ” that “fail to cite the
Federal Constitution or any cases relying on the Fourteenth Amendment”
do not “meet our minimal requirement that it must be clear that a federal
claim was presented”); Webb v. Webb, 451 U. S. 493, 496 (1981) (finding a
reference to “full faith and credit” insufficient to raise a federal claim with-
out a reference to the U. S. Constitution or to any cases relying on it);
New York Central R. Co. v. New York, 186 U. S. 269, 273 (1902) (“[I]t is well
settled in this court that it must be made to appear that some provision of
the Federal, as distinguished from the state, Constitution was relied upon,
and that such provision must be set forth”); Oxley Stave Co. v. Butler
County, 166 U. S. 648, 655 (1897) (a party’s intent to invoke the Federal
Constitution must be “unmistakably” declared, and the statutory require-
ment is not met if “the purpose of the party to assert a Federal right is
left to mere inference”).

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Court’s interpretation of Beck, on the other hand, holds that
case inapplicable where the jury has the additional option of
life imprisonment, see Jackson v. State, 684 So. 2d 1213, 1228
(1996)—a conclusion that finds some support in our cases, see
Hopkins v. Reeves, 524 U. S. 88, 98 (1998) (“In Beck, the
death penalty was automatically tied to conviction, and
Beck’s jury was told that if it convicted the defendant of the
charged offense, it was required to impose the death pen-
alty”); Schad v. Arizona, 501 U. S. 624, 646 (1991) (“Our fun-
damental concern in Beck was that a jury . . . might . . . vote
for a capital conviction if the only alternative was to set the
defendant free with no punishment at all”). Moreover, un-
like Beck, see 447 U. S., at 638, n. 14, Mississippi’s rule on
lesser-included-offense instructions applies in noncapital
cases (as shown by the cases petitioner did cite). Thus, one
opinion of the Mississippi Supreme Court appears to have
treated a claim under Beck as distinct from one arising under
the Mississippi rule. See Goodin v. State, 787 So. 2d 639,
656 (2001) (“Having found no [federal] constitutional flaws in
the jury instruction given, we must now determine whether
our practice entitles Goodin to a manslaughter instruction.
We have held that there must be some evidentiary support
to grant an instruction for manslaughter”).
Petitioner suggests that we need not treat his failure to
present his federal claim in state court as jurisdictional.
Reply Brief for Petitioner 4, and n. 1. Notwithstanding the
long line of cases clearly stating that the presentation
requirement is jurisdictional, see, e. g., Exxon Corp. v.
Eagerton, 462 U. S. 176, 181, n. 3 (1983); Cardinale v. Louisi-
ana, 394 U. S. 437, 438–439 (1969) (citing cases), a handful of
exceptions (discussed in Gates, supra, at 219) have pre-
viously led us to conclude that this is “an unsettled ques-
tion.” Bankers Life & Casualty Co. v. Crenshaw, 486 U. S.
71, 79 (1988). As in prior cases, however, we need not
decide today “whether our requirement that a federal claim
be addressed or properly presented in state court is jurisdic-

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tional or prudential, because even treating the rule as purely
prudential, the circumstances here justify no exception.”
Adams, 520 U. S., at 90 (citations omitted); accord, Yee v.
Escondido, 503 U. S. 519, 533 (1992); Bankers Life, supra, at
79; Heath v. Alabama, 474 U. S. 82, 87 (1985); Gates, 462
U. S., at 222.3
Accordingly, we dismiss the writ of certiorari as improvi-
dently granted.
It is so ordered.
3 In Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engi-
neering, P. C., 476 U. S. 877, 883 (1986), the Court chose to reach a question
that had not been presented in state court for two reasons that are inappli-
cable here: because the other party had no objection to reaching the ques-
tion, and because the case had previously been remanded to the state court
on other grounds.