Young v. Herring

We consider this case en banc in order to determine whether a vaguely worded state court decision rejecting a federal habeas petitioner’s constitutional claim must contain a Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), plain statement that it relied upon state law even though the state court decision clearly rested, as two panels of this court concluded, on a state procedural bar. The United States Supreme Court recently resolved this question in Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), in which the Supreme Court held that “the relevant state court decision” must include a Harris plain statement only when it “fairly appear[s] to rest primarily on federal law or [is] interwoven with federal law.” Id. Because the relevant state court decision in the instant case rests on an adequate and independent state procedural bar, and does not fairly appear to rest primarily on federal law, we may not review the merits of the federal claim absent a showing of cause and prejudice for the procedural default, or a showing that our failure to review the claim would result in a complete miscarriage of justice. Id. at -, 111 S.Ct. at 2560-61.

I. BACKGROUND AND PROCEDURE

On March 17, 1980, a man wearing a mask and carrying a sawed-off shotgun robbed the Bank of Mississippi in Tupelo, Mississippi. At trial, one of the tellers, Barbara Hoard (Hoard), identified the petitioner, Jerry Lynn Young (Young), in court as the robber. On cross-examination, Hoard testified that prior to trial the police showed her a six-person photographic array and that she identified Young’s photograph as that of the robber. Nothing in Hoard’s testimony indicated that this procedure was impermissibly suggestive, and the photographs were not before the court. At the conclusion of Hoard’s testimony, the trial recessed for the day.

When trial resumed, Young's attorney moved to strike Hoard’s testimony and for a mistrial “on the grounds that Mrs. Hoard made an alleged identification of the defendant from the photograph before she came into court and made an in-court identification.” The trial court promptly denied these motions, but granted Young’s motion to order the state to produce the six photographs. At the end of the state’s case-in-chief, the state produced the photographs, and the photographs were put in evidence with the stipulation that they were shown to Hoard prior to trial; the defense then put on its evidence, and the case was submitted to the jury, which returned a verdict of guilty. Young did not object again to Hoard’s identification testimony until after the jury returned its verdict. At that time, Young moved for a new trial for the reason that Hoard based her in-court identification on an impermissibly suggestive out-of-court identification. The trial court denied the motion.

On appeal to the Mississippi Supreme Court, Young asserted that because of the “unduly suggestive pretrial photographic show up,” the trial court committed reversible error by overruling his motion to strike Hoard’s testimony and for a mistrial. Young v. State, 420 So.2d 1055, 1059 (Miss.1982). The Mississippi Supreme Court declined to rule on whether the pre-trial identification procedure was unduly suggestive because “Young’s motion to strike the testimony and for a mistrial dealt not with an allegation that the in-court identification was gained as the result of a suggestive or improper pre-trial identification procedure, but was on the sole basis that the witness’ in-court identification came after a pre-trial photographic identification.” Id. at 1059.

Young subsequently filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Mississippi. He once again urged that he was deprived of due process of law because Hoard’s in-court identification was based upon an impermissibly suggestive pre-trial photographic array. The district court found a due process violation, granted the writ, and the state appealed. Because the district court found the due process violation sufficient to grant the writ, it did not reach other issues in Young’s petition. On appeal, a panel of this court reversed, stating:

[Young] does not show adequate cause why he failed to raise the improperly suggestive pre-trial identification process claim during trial, and because his failure to so raise it was the reason the Mississippi Supreme Court refused to grant relief in respect thereto, that claim is not reviewable in a federal habeas proceeding.

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The Mississippi Supreme Court decided that Young did not timely object to the identification procedure, providing an adequate and independent state procedural ground for refusal to consider his due process claim.

Young v. Herring, 777 F.2d 198, 204 (5th Cir.1985) (footnote omitted) (Young I). The panel remanded for the district court to consider Young’s other claims. Id. at 205. On remand, the district court found that the law of the case doctrine precluded reconsideration of the identification issue, that the remainder of Young’s claims lacked merit, and denied Young’s petition. Young appealed from this decision. Young v. Herring, 917 F.2d 858 (5th Cir.1990) (Young II). On this second appeal, the panel concluded that the law of the case doctrine did not foreclose review of Young’s due process claim because the United States Supreme Court’s decision in Harris v. Reed amounted to an intervening change in controlling authority. Id. 917 F.2d at 861-62. The panel decided that the Mississippi Supreme Court’s decision was “ambiguous on its face,” and concluded that its failure to include a plain statement that it relied upon state law permitted federal habeas review. The panel therefore reached the merits of Young’s due process claim, reversed the district court, and granted the writ. Id. at 863-64. We granted rehearing en banc, 925 F.2d 827, and now affirm the district court’s denial of Young's petition.

II. ANALYSIS

Because the United States Supreme Court had not yet decided Harris v. Reed, the panel in Young I did not consider whether the Mississippi Supreme Court’s failure to include a plain statement permitted federal review of Young’s due process claim. Although the law of the case doctrine “operates to foreclose reexamination of decided issues either on remand or on a subsequent appeal,” Pegues v. Morehouse Parish School Bd., 706 F.2d 735, 738 (5th Cir.1983), an issue nevertheless may be reexamined if “the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issue[ ], or the decision was clearly erroneous and would work a manifest injustice.” White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). The panel in Young II properly concluded that the Supreme Court’s decision in Harris amounted to a change of controlling authority concerning when a federal court may reach the merits of a state prisoner’s federal habeas claim despite a state procedural bar.

The Harris decision, however, did not change the law on the question when a state law ground of decision is adequate and independent of federal law, or when a petitioner demonstrates cause and prejudice for failing to comply with a state procedural bar, or when a state court reaches the merits of a federal claim. The panel in Young I determined all of these questions adversely to Young, and these questions may not, and were not, reconsidered under the change in controlling authority exception to the law of the case doctrine. The sole issue that we must determine on rehearing, therefore, is whether a state court decision that rests on an adequate and independent state procedural bar, and that does not reach the merits of the petitioner’s due process claim, nevertheless may require a plain statement that it relied upon state law in rejecting the federal claim.

In Harris, the Supreme Court applied the plain statement rule of Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983), to federal habeas petitions from state court convictions. The Harris Court explained:

Under Long, if “it fairly appears that the state court rested its decision primarily on federal law," this Court may reach the federal question on review unless the state court’s opinion contains a “ ‘plain statement’ that [its] decision rests upon adequate and independent state grounds.”

489 U.S. at 261, 109 S.Ct. at 1042 (quoting Long, 463 U.S. at 1042, 103 S.Ct. at 3477) (emphasis added). The Supreme Court determined that the Illinois Appellate Court’s decision in Harris was ambiguous because, after making a statement that laid the basis for the imposition of a procedural bar, the court went on to consider and reject the petitioner’s federal claim on the merits. Harris, 489 U.S. at 266 & n. 13, 109 S.Ct. at 1045 & n. 13. The Court reasoned that “[i]t is precisely with regard to such an ambiguous reference to state law in the context of clear reliance on federal law that Long permits federal review of the federal issue.” Id. at n. 13 (citing Long, 463 U.S. at 1040-41, 103 S.Ct. at 3476-77) (emphasis added). In the instant case, however, no reliance on federal law existed that may have made the Mississippi Supreme Court’s decision ambiguous.

If the Mississippi Supreme Court had rejected Young’s claim on the merits while making an ambiguous reference to a state procedural bar, we could review Young’s federal claim absent a plain statement that the Mississippi Supreme Court relied upon state law. The Illinois Appellate Court’s opinion in Harris was ambiguous because of just “such an ambiguous reference to state law in the context of clear reliance on federal law.” Harris, 489 U.S. at 266 n. 13, 109 S.Ct. at 1045 n. 13. If the Mississippi Supreme Court had relied upon its state constitution’s due process provisions, but had cited federal due process cases, the opinion would have been ambiguous because the state court’s interpretation of its law was intertwined with its understanding of federal law. Precisely this kind of ambiguity spurred the Supreme Court to require a plain statement in Long, 463 U.S. at 1040, 103 S.Ct. at 3476. The Mississippi Supreme Court’s opinion in the instant case, however, is ambiguous for none of these reasons because, as the panel in Young I determined, and the panel in Young II apparently agreed, the Mississippi Supreme Court did not reach the merits of Young’s due process claim and based its decision on an adequate and independent state procedural bar. Young I, 777 F.2d at 203 n. 9 (“the Mississippi Supreme Court never reached the merits because of the procedural default”); Young II, 917 F.2d at 863 (“the [Mississippi Supreme] Court did not consider [Young’s due process] issue, asserting failure to object on that basis”).

Young argues, however, that a state court decision need not discuss the merits of the federal claim in order for the decision to be ambiguous for purposes of the Harris plain statement requirement. See Harris, 489 U.S. at 265 n. 12, 109 S.Ct. at 1044 n. 12 (plain statement requirement applies to one line pro forma orders); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990) (applying the Harris plain statement requirement to a state court’s rejection of the petitioner’s federal claim without written opinion). Although a state court decision may be ambiguous for purposes of the plain statement requirement because we cannot ascertain whether the state court based its decision on the merits of the federal claim or on a state procedural bar, the Mississippi Supreme Court’s opinion was not silent on the basis for its decision.

If the Mississippi Supreme Court had reached the merits of Young’s due process claim, perhaps the infirmities that Young observes in the Mississippi Supreme Court’s opinion would have made its invocation of its state procedural bar inadequate. In such circumstances, the state must make a stronger showing that it relied on its rules of procedure and not on the merits of the federal claim. In Harris, for example, the Supreme Court explained that the Illinois Appellate Court’s statement that “most of petitioner’s allegations ‘could have been raised [on] direct appeal’ ” might have sufficed to prevent federal habeas review “had the state court never reached the [merits of the] federal claim.” Harris, 489 U.S. at 266, 109 S.Ct. at 1045 (citing to the state court’s unpublished decision, see 71 Ill.App.3d 1113, 30 Ill.Dec. 341, 392 N.E.2d 1386 (1979)). “[T]he state court,” however, as the Supreme Court noted, “clearly went on to reject the federal claim on the merits.” Harris, 489 U.S. at 266 n. 13, 109 S.Ct. at 1045 n. 13.

In the instant case, however, no “clear reliance on federal law” existed that might have made the Mississippi Supreme Court’s opinion ambiguous for purposes of the Harris plain statement requirement. Because the Mississippi Supreme Court did not reach the merits of Young’s due process claim, any ambiguity that may have existed in its opinion was only on the question of precisely what state procedural ground the court relied upon in failing to reach the merits of Young’s claim. Because such an ambiguity is not relevant to a Harris analysis, we conclude that the district court’s denial of Young’s petition must be affirmed. See Harris, 489 U.S. at 261, 109 S.Ct. at 1041 (quoting Long, 463 U.S. at 1042, 103 S.Ct. at 3477). In order to make our own decision as clear and unambiguous as possible, however, we explain why the panel in Young I correctly decided that the Mississippi Supreme Court did not reach the merits of Young’s due process claim and that Mississippi based its decision on an adequate and independent state procedural bar.

A conviction violates due process and must be set aside if a witness bases an in-court identification on a pre-trial photographic identification procedure that is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The assertion that an in-court identification merely followed a pre-trial photographic identification, however, does not in itself allege a due process violation. If identification testimony does not involve a due process violation, Mississippi allows the jury to determine the proper weight and credibility to be given that testimony. York v. State, 413 So.2d 1372, 1374 (Miss.1982) (quoting Passons v. State, 239 Miss. 629, 124 So.2d 847 (1960)); McNeal v. State, 405 So.2d 90 (Miss.1981); Chambers v. State, 402 So.2d 344, 347 (Miss.1981). In the instant case, the Mississippi Supreme Court reasoned:

Young’s motion to strike the testimony and for a mistrial, dealt not with an allegation that the in-court identification was gained as the result of a suggestive or improper pre-trial identification procedure, but was on the sole basis that the

witness’ in-court identification came after a pre-trial photographic identification. Under this circumstance the lower court did not err in ruling the credibility of Mrs. Hoard’s identification was for the jury to weigh. McNeal v. State, 405 So.2d 90 (Miss.1981). We reiterate as we stated in Chambers v. State, 402 So.2d 344, 347 (Miss.1981), “We are content to rely upon the good sense and judgment of juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.”

Young v. State, 420 So.2d 1055, 1059 (Miss.1982).

In this passage, the Mississippi Supreme Court rejected Young’s due process claim because Young failed to raise that objection at trial. Because Young objected solely on the “basis that the witness’ in-court identification came after a pre-trial photographic identification,” and such an objection does not implicate due process, the Mississippi Supreme Court concluded that the trial court properly left the credibility of Hoard’s identification testimony to the jury-

In Young I, the panel had no difficulty concluding that the Mississippi Supreme Court failed to reach the merits of Young’s claim because of Young’s failure to object. The panel stated:

That Young’s objection was insufficient under Mississippi law has been conclusively determined by the Mississippi Supreme Court_ [T]he Mississippi Supreme Court never reached the merits because of the procedural default.

777 F.2d at 203 (footnote omitted).

In Young II, the panel majority apparently agreed with this assessment. It stated:

The Mississippi Supreme Court conceded in its opinion that Young was asserting before it the due process issue of an unduly suggestive pretrial photo identification. But the Court did not consider this issue, asserting failure to object on that basis. The Court interpreted Young’s objection to be that a valid courtroom identification could not be based upon a pretrial photo identification.

917 F.2d at 863 (emphasis added).

In fact, Young did not contend in his first appeal to this court that the Mississippi Supreme Court ruled on the merits of his constitutional claim; nor did he argue that the Mississippi Supreme Court failed to apply a state procedural bar. Rather, he asserted only that the Mississippi Supreme Court should not have applied such a bar because he adequately raised the issue in the trial court, because he included it in a post-verdict motion for new trial, and because he did not have the photographs when he made his mid-trial motions to strike and for a mistrial. In essence, he argued cause under the Wainwright v. Sykes cause and prejudice standard, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Young I panel rejected that argument, in part, because Young failed to raise a proper objection even after he had seen the photographs and had the information necessary to object on the basis of a due process violation. Young I, 777 F.2d at 204.

The Mississippi Supreme Court decision nevertheless is ambiguous, the Young II panel concluded, because the Mississippi Supreme Court did not state explicitly that it relied on its contemporaneous objection rule and did not cite authority for that rule. “It follows therefore,” the panel reasoned, “that the Court was acting ambiguously and by implication in finding a failure to object to the due process issue.” Id.

Although the Mississippi Supreme Court failed to use the words “contemporaneous objection,” it clearly relied on that rule, as both panels apparently agreed. In Young I, in fact, the panel found that the Mississippi Supreme Court’s reliance on its contemporaneous objection rule was so clear that it could treat the Mississippi Supreme Court’s decision as if it expressly stated that Young raised his due process argument too late to preserve it for appeal. Young I, 777 F.2d at 204 n. 11. The panel reasoned:

Although the Mississippi Supreme Court did not expressly state that Young’s motion for new trial came too late, that is obviously implicit in its holding that Young procedurally defaulted, and in its refusal, for that reason, to rule on the merits of his claim of improperly suggestive pre-trial identification. As indicated in the Court’s opinion, it clearly determined that Young was afforded ample opportunity to go into the matter during trial. Likewise, ... the state argued in its brief to the Mississippi Supreme Court that Young had waived the claim by not raising it until after verdict. Further, the law of Mississippi is clear that, where the matter could have been raised during trial, raising it for the first time by motion after verdict is too late. In these circumstances, we treat the Mississippi Supreme Court’s opinion as if it had expressly stated that raising the matter for the first time by motion for new trial was, under these facts, too late to preserve it.

Id. (citations omitted). Furthermore, any ambiguity that may have existed pertained only to the precise state law ground on which Mississippi based its rejection of Young’s claim, and such an ambiguity is not relevant to a Harris plain statement analysis. See Harris, 489 U.S. at 261, 109 S.Ct. at 1042 (quoting Long, 463 U.S. at 1042, 103 S.Ct. at 3477).

The Young II panel also based its conclusion that the Mississippi Supreme Court’s decision was ambiguous on the Mississippi Supreme Court’s citation of two Mississippi cases addressing the issue of impermissibly suggestive pre-trial identifications. In both of these cases, the Mississippi Supreme Court rejected a claim that an identification was impermissibly suggestive and concluded that the credibility of the identification testimony properly was left to the jury. Had the Mississippi Supreme Court cited these cases for their discussion of federal law, we might agree with the Young II panel’s conclusion that these cases made the decision ambiguous. The Mississippi Supreme Court cited these cases, however, solely for the state law proposition that, when the identification testimony does not violate due process, the weight and credibility of such testimony is for the jury. In the first of the two cases, the Mississippi Supreme Court concluded:

Short of finding that under all the circumstances, there is a very substantial likelihood of irreparable misidentification from the identification of an accused made under suggestive and unnecessary police identification procedures, evidence of such an identification is for the jury to weigh.

McNeal v. State, 405 So.2d 90, 93 (Miss.1981). The statement supports the Mississippi Supreme Court’s proposition, stated just prior to the citation, that the trial court properly left the credibility of Hoard’s testimony to the jury because Young had not objected on the basis of due process at trial. Young v. State, 420 So.2d at 1059. In the second case, Chambers v. State, the Mississippi Supreme Court quoted the proposition for which it cited the case. The court explained:

We reiterate as we stated in Chambers v. State, 402 So.2d 344, 347 (Miss.1981), “We are content to rely upon the good sense and judgment of juries, for evidence with some element of untrustwor-thiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.”

402 So.2d at 347.

Young makes much of the fact that this passage from Chambers quotes without attribution a United States Supreme Court case that discusses unduly suggestive pretrial identifications. See Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Young’s argument might be more convincing if the quoted passage elaborated upon the United States Supreme Court’s standard for determining a due process violation rather than merely stating that juries ordinarily can be entrusted with weighing the credibility “of identification testimony that has some questionable feature.” Chambers, 402 So.2d at 347. Because the context of these two citations indicates clearly that the Mississippi Supreme Court cited these cases solely for the state law proposition that the weight and credibility of identification testimony ordinarily is for the jury to determine, their citation does not make the opinion ambiguous on whether it is based on state or federal law.

Young also argues that the Mississippi Supreme Court did not rely on an independent state law ground for its decision because it cites the above-mentioned cases. We reject this argument for the reasons just stated — the Mississippi Supreme Court did not cite these cases for their discussion of federal law. Finally, Young argues that to the extent that the Mississippi Supreme Court ruled on the competency of the identification testimony it must have relied on federal law because Mississippi has no independent law regarding the competency of identification testimony. See York v. State, 413 So.2d at 1374-83. Because it found a procedural bar, however, the Mississippi Supreme Court made no ruling on the competency of the evidence. It stated merely that the trial court did not err in allowing the jury to determine the credibility of the testimony.

Although the Harris Court clearly intended to ease the burden of determining whether a state court based its decision on state or federal law, the plain statement requirement comes into play only when the state court may have based its decision on the merits of the federal claim. The Supreme Court in Coleman explained that Harris created a presumption that no adequate and independent state law ground for a decision exists “when the decision ‘fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.’” Coleman, — U.S. at -, 111 S.Ct. at 2556 (quoting Long, 463 U.S. at 1040-41, 103 S.Ct. at 3476-77). “A predicate to the application of the Harris presumption,” the Court emphasized, “is that the decision of the last state court to which the petitioner presented his federal claims must fairly appear to rest primarily on federal law or to be interwoven with federal law.” Id. The Court explicitly rejected Coleman’s contention that the Harris rule should apply whenever the state court decision does not contain a plain statement that it relied on a state procedural bar. Id. “Any efficiency gained by applying” such a conclusive presumption, the Court reasoned, “is simply not worth the cost in the loss of respect for the State that such a rule would entail.” Id.

Because the Mississippi Supreme Court’s decision does not provide the predicate for the application of the Harris plain statement rule (because it does not fairly appear to rest primarily on federal law), we may not ignore the state’s adequate and independent state law grounds for decision simply because it lacks a Harris plain statement. As the Supreme Court stated in Coleman:

[W]e have no power to tell state courts how they must write their opinions. We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which its judgment rests, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.

Id. at -, 111 S.Ct. at 2559. To review Young’s due process claim despite the Mississippi Supreme Court’s adequate and independent state law grounds for decision bar would slight the sovereignty of the state and impinge on the finality of state court judgments. See id. at -, 111 S.Ct. at 2562-63; Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The key is not the clarity of the state court’s language, or even whether the state court addressed the merits of the federal claim, but whether the state court may have based its decision on its understanding of federal law. Because the Mississippi Supreme Court’s decision does not fairly appear to rest primarily on federal law, we may not reach the merits of Young’s due process claim absent a showing of cause and prejudice.

III. CONCLUSION

Because the panel’s decision on the identification issue pretermitted the necessity of addressing Young’s other claims, we remand to the panel in Young II so that it may now consider those claims.

. Young argued that the pre-trial photographic identification was impermissibly suggestive because Hoard knew that Jerry Lynn Young was a suspect in the crime before she examined the photographs and one of the photographs had "Jerry Young” printed on it. In addition,

[Young] was thirty-seven, gray-haired, clean-shaven and wore glasses. No evidence suggests that he looked any different at the time of the crime. Four of the other five photos were of men in their early twenties; the fifth man also was not close to Jerry Young's age. Only one of the other five men wore glasses, and he had a beard.

Young v. Herring, 917 F.2d 858, 860 (5th Cir.1990).

. The Mississippi Supreme Court also observed that "Young was provided all of the photographs prior to the presentation of his version of the case” and this afforded him "enablement to fully examine the entire identification procedure in his case in chief." 420 So.2d at 1060.

. The panel’s decision to grant the writ on the basis of an impermissibly suggestive photographic array pretermitted the necessity of reaching any of Young's other claims.

. We note that judgment had never become final in Young’s § 2254 action. We are thus not dealing with a petition which is successive under Rule 9(b) of the rules following § 2254.

. In order for a state procedural bar to prevent federal habeas review, it must be "independent” of the merits of the federal claim and "adequate” in the sense of not being unconstitutional, or arbitrary, or pretextual. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Even if the state procedural bar is an adequate and independent state law ground, however, we may review the federal claim if the petitioner demonstrates cause and prejudice for failing to comply with the procedural bar. Id. The panel in Young I concluded that the state procedural bar was adequate and independent and that Young failed to demonstrate cause for failing to comply with the procedure. The panel reasoned:

Plainly, the procedural ground in question was a state ground, and was "independent" in the Sykes sense, that is independent of the merits, as the Mississippi Supreme Court never reached the merits because of the procedural default.... Plainly, the requirement for a correct contemporaneous objection is an "adequate” state ground. We have upheld similar requirements many times.

Young I, 777 F.2d at 203 n. 9. The panel also concluded:

Because [Young] does not show adequate cause why he failed to raise the improperly suggestive pretrial identification due process claim during trial, and because his failure to so raise it was the reason the Mississippi Supreme Court refused to grant relief in respect thereto, that claim is not reviewable in a federal habeas proceeding.

Id. at 204. The panel in Young II did not question these conclusions.

. The Supreme Court recently has applied a “look through” presumption to state court decisions that uphold or reject a lower state court decision without explanation. Ylst v. Nunne-maker, — U.S. -, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). If the last reasoned state court decision "fairly appears to rest primarily upon federal law,” we presume that the state did not rely upon a procedural default unless the state court opinion included a Harris plain statement. If the earlier opinion imposes a procedural default, however, we do not presume that a silent later opinion disregarded the procedural default and considered the federal claim on the merits unless strong evidence exists to the contrary. Id.

. In order for a decision to be ambiguous, not only must the language be unclear, it must be susceptible to more than one interpretation by a person of competent skill and understanding. Professor Dickerson explains:

Whereas ambiguity in its classical sense refers to equivocation, vagueness refers to the degree to which, independently of equivocation, language is uncertain in its respective applications to a number of particulars. Whereas the uncertainty of ambiguity is central, with an "either-or” challenge, the uncertainty of vagueness lies in marginal questions of degree.

R. Dickerson, The Interpretation of Statutes, 48-49 (1975). Although the Mississippi Supreme Court’s failure to use the words “contemporaneous objection" might make its opinion somewhat vague, its signification apparently was not doubtful to either panel of this court.

. As the panel in Young I explained, Young could not have objected that the pre-trial identification was impermissibly suggestive immediately after Mrs. Hoard testified. Neither Young nor the trial judge had yet seen the photographs upon which Mrs. Hoard based her pre-trial identification. Young did not make any further objections to Mrs. Hoard’s identification, however, until after the jury returned a guilty ver-diet. Once Young’s attorney had a chance to review the photographs, however, he no longer had good cause for failing to object. Young I, 777 F.2d at 202.

. See MISS.CODE ANN. § 99-39-21(1) for the statutory formulation of Mississippi's contemporaneous objection rule.

. In Coleman, the Supreme Court rejected the argument that the Virginia Supreme Court needed to include a Harris plain statement because of a slight ambiguity in the state court opinion relating to whether it was based on state law or the merits of the federal claim. The Supreme Court acknowledged that the state court decision undoubtedly contained some ambiguity because the Virginia Supreme Court stated that it was issuing its decision upon consideration of all the filed papers, including papers that discussed the merits of Coleman’s federal claims. The Supreme Court reasoned, however, that this ambiguity did not suffice to override the Virginia Supreme Court's clear reliance on an independent state procedural bar. Coleman, — U.S. at -, 111 S.Ct. at 2559.

. Our concern for comity with the state courts, however, would not have been so seriously implicated if the Mississippi Supreme Court itself had waived the procedural bar by reaching the merits of Young's federal claim. See Franks v. Delaware, 438 U.S. 154, 161-63, 98 S.Ct. 2674, 2679-80, 57 L.Ed.2d 667 (1978); County Court of Ulster County v. Allen, 442 U.S. 140, 152-53, 99 S.Ct. 2213, 2222-23, 60 L.Ed.2d 777 (1979); United States ex rel. Williams v. Franzen, 687 F.2d 944, 951 (7th Cir.1982). In the instant case, however, the Mississippi Supreme Court did not waive its adequate and independent state procedural bar, and we cannot review Young’s claim despite that bar without showing disrespect for the state’s sovereignty, impinging on the finality of its criminal convictions, and undermining the integrity of the state’s accepted procedures.

. Although we may infer a waiver of a state procedural bar if the state court addresses the merits of a federal claim, this factor is not conclusive. In Harris, for example, the Supreme Court made clear that a state court may address the merits of a federal claim in an alternative holding without permitting federal review. 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.