Bagwell v. Dretke

United States Court of Appeals

Fifth Circuit

F I L E D

REVISED June 9, 2004

June 7, 2004

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III

Clerk

_______________________

No. 03-51060

_______________________

DENNIS WAYNE BAGWELL,

Petitioner - Appellant,

versus

DOUGLAS DRETKE, Director,

Texas Department of Criminal Justice - Correctional

Institutions Division,

Respondent - Appellee.

Appeal from the United States District Court

for the Western District of Texas

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In 1996, a Texas jury convicted and sentenced to death

Dennis Wayne Bagwell for the exceedingly brutal murders of his

mother, half-sister, four-year-old niece, and another young woman.

After direct appeal and petition for state habeas corpus were

unsuccessful, Bagwell raised seventeen grounds for relief in a

§ 2254 petition before the federal district court. The district

court rejected all of the claims, dismissed Bagwell’s petition, and

declined to grant a certificate of appealability (“COA”) on any

issue raised.

Bagwell seeks a COA from this court on two issues:

(1) whether he was denied due process and the presumption of

innocence as a result of being shackled in the courtroom throughout

the trial, and (2) whether trial counsel coerced him into waiving

his right to testify in violation of his Fifth, Sixth, and

Fourteenth Amendment rights to a fair trial. For the reasons set

forth below, we deny a COA on both claims.

I. BACKGROUND

On November 21, 1995, Bagwell was indicted for the

capital murders of Leona McBee, Libby Best, Reba Best, and Tassy

Boone.1 Before trial, the prosecution moved to have Bagwell

restrained while in the courtroom. At this hearing, Wilson County

Deputy Sheriff Johnny Deagan testified that: (1) Bagwell had made

numerous threats against law enforcement personnel during his

pretrial detention; (2) unidentified members of the victims’

families had threatened Bagwell; and (3) restraining Bagwell

through the use of a leg brace would aid court security personnel

in the event Bagwell needed to be removed from the courtroom and

would reduce Bagwell’s ability to retaliate against anyone who

attacked him. Calvin Pundt, an investigator for the Wilson County

Sheriff’s Department, testified Bagwell threatened several law

1

Ron Boone, Leona McBee’s common-law husband, discovered the victims’

bodies. Bagwell was related to three of the four victims. Leona McBee was

Bagwell’s mother, Libby Best was his half-sister, and Reba Best was Leona’s four-

year-old granddaughter. Tassy Boone was the teenage granddaughter of Ron Boone.

Under Texas law, murdering more than one person during the same criminal

transaction is a capital offense. See TEX. PEN. CODE § 19.03(a)(7)(Vernon 2003).

2

enforcement personnel, vowing to “take one of you out before we hit

the floor.” While Bagwell had not physically assaulted anyone

during his pretrial detention, the defense did not rebut the

testimony concerning Bagwell’s threats against law enforcement.

The state trial court granted the motion and directed

that (a) the leg restraints must be worn beneath Bagwell’s

clothing, (b) Bagwell must not be shown to the jury or any

prospective juror in any restraint, and (c) Bagwell’s legs must be

concealed while he was seated in the courtroom. Bagwell did not

object to the leg restraints throughout the pendency of the trial

or on direct appeal.

At trial, the state offered several witnesses, including

Victoria Wolford, Bagwell’s girlfriend, who testified that she was

with Bagwell when he committed the gruesome murders, and she had

led police to various locations along the getaway route where

Bagwell had discarded incriminating evidence. Law enforcement

officers and scientific experts linked significant physical

evidence from the murders to Bagwell.2 The defense countered with

witnesses of their own.3 However, Bagwell did not testify.

2

Specifically, law enforcement officers testified that they recovered,

based on information Wolford provided, numerous items taken from the Boone

residence, including a pair of tennis shoes and a pair of shorts. An expert

witness testified that one of the tennis shoes matched a bloody shoe print found

at the crime scene under the body of Tassy Boone. Other witnesses testified that

the tennis shoes in question belonged to Bagwell. Furthermore, a firearms expert

testified that the bullet fragments removed from Libby Best’s cranium matched the

shattered rifle the law enforcement officers recovered.

3

The defense’s psychiatric expert testified that cocaine ingestion can

raise a person’s energy level, increase aggressiveness, lead to manic episodes

3

According to Bagwell, trial counsel concluded that his testimony

would unduly risk the introduction of Bagwell’s extensive criminal

history.

After deliberating for three hours, the jury returned a

guilty verdict. The case then proceeded to the punishment phase.

The state presented, inter alia, evidence and testimony concerning

Bagwell’s past convictions, his violence during pretrial detention,

his bad disciplinary record during previous incarcerations, and his

parole records. The defense offered five witnesses, including

Bagwell’s ex-wife and former parole officer, who each testified

that Bagwell should receive a sentence of life imprisonment rather

than the death penalty. Bagwell did not testify during the penalty

phase. After a four-hour deliberation, the jury sentenced Bagwell

to death.

Bagwell appealed both his conviction and sentence of

death to the Texas Court of Criminal Appeals. Bagwell v. State,

No. 72,699 (Tex. Crim. App. March 31, 1999). The Court of Criminal

Appeals affirmed Bagwell’s conviction in all respects. Bagwell

involving hyperactivity and unclear thought, and cause psychotic, paranoid

behavior. Other witnesses testified to Bagwell’s depressed and upset demeanor

in the days following the murders. Further, in their effort to suggest that

Monica Boone, Tassy Boone’s mother, committed the crime, the defense offered

evidence to show that Monica and Tassy had a difficult relationship, that Monica

physically abused Tassy, and, on the night of the murders, a woman who bore a

resemblance to Monica appeared at a bar near the crime scene intoxicated and

mumbling about having lost her hammer. On rebuttal, the state called Monica

Boone to establish that she had been in California at the time of the murders.

The state also presented testimony to establish that law enforcement officers had

identified the woman at the bar, determined that she was not Monica Boone, and

ruled the woman out as a suspect.

4

then filed a state habeas application in the trial court. Based on

the trial court’s findings of facts and conclusions of law, and its

own review, the Court of Criminal Appeals denied habeas relief. Ex

Parte Bagwell, No. 42,341-01 (Tex. Crim. App. September 29, 1999)

(unpublished). Bagwell then filed a petition for writ of habeas

corpus in the federal district court. The district court rejected

Bagwell’s seventeen assignments of error and declined to grant

Bagwell’s request for a COA. Bagwell v. Cockrell, No. SA-99-1133-

OG, 2003 WL 22723006 (W.D. Tex. August 19, 2003). Thereafter,

Bagwell appealed the denial of the COA on two of his habeas claims

to this court.

II. STANDARD OF REVIEW

Bagwell’s § 2254 habeas petition is subject to the Anti-

terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See

Penry v. Johnson, 532 U.S. 782, 792, 121 S. Ct. 1910, 1918 (2001).

AEDPA requires Bagwell obtain a COA before he can appeal the

district court’s denial of habeas relief. 28 U.S.C. § 2253(c)(1)

(2000). Hence, “until a COA has been issued federal courts of

appeals lack jurisdiction to rule on the merits of appeals from

habeas petitioners.” Miller-El v. Cockrell, 537 U.S. 322, 336, 123

S. Ct. 1029, 1039 (2003).

A COA will issue only if the petitioner makes “a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2) (2000); Miller-El, 537 U.S. at 336, 123 S. Ct.

5

at 1039. More specifically, the petitioner must demonstrate that

“reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000). Likewise, when

the district court has rejected a claim on a procedural ground,

“the petitioner must also demonstrate that ‘jurists of reason would

find it debatable whether the district court was correct in the

procedural ruling.’” Henry v. Cockrell, 327 F.3d 429, 431 (5th

Cir. 2003) (quoting Slack, 529 U.S. at 484, 120 S. Ct. at 1604).

The Supreme Court counseled that “a COA ruling is not the occasion

for a ruling on the merit of petitioner’s claim[.]” Id. at 331.

Instead, this court should engage in an “overview of the claims in

the habeas petition and a general assessment of their merits.” Id.

at 336. “[A] claim can be debatable even though every jurist of

reason might agree, after the COA has been granted and the case has

received full consideration, that petitioner will not prevail.”

Id. at 338.

Ultimately, “[t]o prevail on a petition for writ of

habeas corpus, a petitioner must demonstrate that the state court

proceeding ‘resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States.’” Robertson v. Cockrell, 325 F.3d 243, 247-48 (5th Cir.

6

2003) (en banc) (quoting 28 U.S.C. § 2254(d)(1)(2000)).4 However,

“[w]e have no authority to grant habeas corpus relief simply

because we conclude, in our independent judgment, that a state

supreme court's application of [federal law] is erroneous or

incorrect.” Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002)

(citation and quotation omitted).

II. DISCUSSION

On appeal, Bagwell asserts that he was denied due process

and the presumption of innocence as a result of being shackled in

the courtroom throughout the trial and that his trial counsel

coerced him into waiving his right to testify in violation of his

Fifth, Sixth and Fourteenth Amendment rights to a fair trial.

A. Use Of Shackles During Trial

Bagwell argues that the state trial court’s decision to

shackle him was not the “least restrict alternative” and therefore

constitutionally infirm. This claim is without merit. “We begin

with the threshold premise than an accused is presumed innocent

and, as such, is entitled to all of the trappings of innocence

during trial.” United States v. Nicholson, 846 F.2d 277, 279 (5th

Cir. 1988) (citations omitted). Thus, the shackling of a defendant

during trial, a practice that potentially threatens the defendant’s

4

A state court’s decision is “contrary to . . . clearly established

Federal law, as determined by the Supreme Court of the United States . . . if the

state court arrives at a conclusion opposite to that reached by the Court on a

question of law or if the state court decides a case differently than the Court

has on a set of materially indistinguishable facts.” Williams v. Taylor, 529

U.S. 362, 412-13, 120 S.Ct. 1495, 1523 (2000).

7

presumption of innocence, bears close scrutiny. Holbrook v. Flynn,

475 U.S. 560, 106 S. Ct. 1340, 1345 (1986) (citing Estelle v.

Williams, 425 U.S. 501, 503-04, 96 S. Ct. 1691, 1692-93 (1976));

Marquez v. Collins, 11 F.3d 1241, 1244 (5th Cir. 1994) (“Restraint

at trial may carry a message that a defendant continues to be

dangerous.”).

These important due process concerns “must be balanced

against the court’s obligation to protect the court and its

processes, and to attend to the safety and security of those in the

courtroom.” Nicholson, 846 F.2d at 279 (citations omitted);

Marquez, 11 F.3d at 1244. “While a defendant is entitled to the

physical indicia of innocence, a court is justified in ordering him

handcuffed and shackled during trial [when] there is a danger of

escape or injury to the jury, counsel, or other trial partici-

pants.” Wilkerson v. Whitley, 16 F.3d 64, 67 (5th Cir. 1994).

Most importantly, this inquiry “does not trigger a type of ‘least

means’ analysis. That in retrospect some lesser restraint might

have sufficed is not determinative.” Marquez, 11 F.3d at 1244.

Bagwell has failed to make a substantial showing that the

use of leg restraints violated his constitutional due process

rights. The state trial court determined that several factors,

including Bagwell’s overt threats against law enforcement officers

during his pre-trial detention, warranted shackling. Bagwell did

not rebut the evidence of his threats. Moreover, the trial judge

had Bagwell wear the restraints underneath his clothing and took

8

significant measures to ensure that the restraints would not be

visible to the jury. No reasonable jurist could conclude that the

state court’s rejection of Bagwell’s claim constituted an

unreasonable application of federal law.5

What’s more, Bagwell’s entire rejoinder consists of a

hearsay affidavit from his investigator. In the affidavit, the

investigator asserts that a juror correctly deduced that Bagwell

was restrained, which led the juror to believe Bagwell was

dangerous. The state court rejected the proffer because Bagwell

failed to offer an affidavit directly from the juror. However,

even if Bagwell had secured direct testimony, such evidence does

not rise to a constitutional dimension; under proper circumstances

the trial court could have placed Bagwell in visible restraints and

remained within constitutional bounds. See Allen, 397 U.S. at

343-44, 90 S. Ct. at 1061 (permitting “obstreperous” defendants to

be “bound and gagged” in the jury’s presence under certain

circumstances). One juror’s supposition concerning the use of leg

restraints did not violate Bagwell’s constitutional right to the

presumption of innocence. See Chavez, 310 F.3d at 809-10

(inadvertent activation of stun-belt was not a constitutional

5

See, e.g., Bigby v. Cockrell, 340 F.3d 259, 277-78 (5th Cir.

2003)(citations and quotations omitted) Use of shackles permissible when

defendant posed a danger to those in courtroom); Chavez v. Cockrell, 310 F.3d

805, 809 (5th Cir. 2002) (use of stun-belt was not abuse of discretion where

defendant was a flight risk); Marquez, 11 F.3d at 1244 (court has discretion in

determining whether restraints are needed to ensure safety of trial participants

or sanctity of trial). Also, the trial court’s mitigation of any potential

prejudicial effect on the jury amplifies the reasonableness of the decision. See

Chavez, 310 F.3d at 809.

9

violation). Reasonable jurists could not debate whether the state

courts erred in concluding that the use of leg restraints, under

these facts, violated Bagwell’s constitutional rights.

B. Right to Testify

Bagwell next argues that his trial counsel

unconstitutionally coerced him into not testifying at trial. The

district court determined that Bagwell procedurally defaulted and

failed to exhaust available state remedies. On appeal, Bagwell

argues that he fairly presented his claim to the state courts. We

disagree.

“[P]rocedural default . . . occurs when a prisoner fails

to exhaust available state remedies and the court to which the

petitioner would be required to present his claims in order to meet

the exhaustion requirement would now find the claims procedurally

barred.” Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997)

(citations and quotations omitted); Elizalde v. Dretke, 363 F.3d

323, 328-39 (5th Cir. 2004); 28 U.S.C. § 2254(b)(1). However, a

court may resurrect a defaulted claim, and consider its merits, if

“the prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.

722, 750, 111 S. Ct. 2546, 2565 (1991); see also Styron v. Johnson,

262 F.3d 438, 454 (5th Cir. 2001).

10

First, Bagwell’s failure to exhaust state remedies is

beyond debate. “To exhaust, a petitioner must have fairly

presented the substance of his claim to the state courts.” Wilder

v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (citations and

quotations omitted); see also Castille v. Peoples, 489 U.S. 346,

351, 109 S. Ct. 1056, 1060 (1989). “It is not enough that all the

facts necessary to support the federal claim were before the state

courts or that a somewhat similar state-law claim was made.”

Anderson v. Harless, 459 U.S. 4, 6, 103 S. Ct. 276, 277 (1982); see

also Moore v. Cain, 298 F.3d 361, 364 (5th Cir. 2002). Rather, the

petitioner must afford the state court a “fair opportunity to apply

controlling legal principles to the facts bearing upon his

constitutional claim.” Anderson, 459 U.S. at 6, 103 S. Ct. at 277.

“Indeed, where petitioner advances in federal court an argument

based on a legal theory distinct from that relied upon in the state

court, he fails to satisfy the exhaustion requirement.” Wilder,

274 F.3d at 259 (quoting Vela v. Estelle, 708 F.2d 954, 958 n.5

(5th Cir. 2001)); Henry, 327 F.3d at 432.

Bagwell’s state habeas application did not allege that he

was denied the right to testify at his capital murder trial or even

an ineffective assistance of counsel claim raising a similar

concern. At no time during the pendency of the state habeas

proceeding did Bagwell seek permission to amend his petition to

include such a claim. In fact, Bagwell’s state habeas proposed

factual findings and conclusions of law, which included several

11

ineffective assistance of counsel claims, did not set forth a claim

that he was denied the right to testify. Bagwell concedes as

much.6 Nevertheless, Bagwell contends that his testimony, during

the state habeas evidentiary hearing, concerning his desire to

testify sufficiently presented the issue for review. Bagwell’s

factual testimony regarding his dissatisfaction with trial counsel

does not satisfy our exhaustion requirement. See Gray v.

Netherland, 518 U.S. 152, 162, 116 S. Ct. 2074, 2081 (1996)

(concluding that petitioner does not satisfy the § 2254(b)

exhaustion requirement “by presenting the state courts only with

the facts necessary to state a claim for relief”). Since Bagwell

“advance[d] in federal court an argument based on a legal theory

distinct from that relied upon in state court . . . [he] therefore

failed to satisfy the exhaustion requirement.” Nobles, 127 F.3d at

422 (citations and quotations omitted).

Second, Texas courts would find Bagwell’s claim

procedurally barred. Texas does not generally permit successive

habeas applications. See TEX. CODE CRIM. PROC. ANN. art. 11.071, § 5

(Vernon Supp. 2003). Article 11.071 does, however, provide three

6

Although Bagwell concedes on appeal that no such claim was presented

in his writ application before the Texas courts, he argues that the omission of

the right to testify claim was the result of strategic conflict with his state

habeas counsel. As discussed infra, Bagwell does not have a constitutional right

to habeas counsel and he therefore bears the burden of his counsel’s decisions.

See Coleman, 501 U.S. at 752, 111 S. Ct. at 2566. Bagwell also contends that his

testimony equates to a pro se or at least “quasi-pro se” appearance before the

state habeas courts. Bagwell’s assertion is without merit and not relevant to

the issues before this court. See Smith v. Collins, 977 F.2d 951, 962 (5th Cir.

1992) (petitioner has no right to “hybrid representation”) (citations and

quotations omitted).

12

exceptions: (1) the claim could not have been presented in the

initial application because the factual or legal basis of the claim

was unavailable at that time; (2) the petitioner would not have

been convicted absent the constitutional violation; or (3) the jury

would not have answered in the state’s favor on a special issue

absent the constitutional violation. Id. at § 5(a)(1)-(3).

Bagwell does not qualify for any of these limited exceptions.

Bagwell was able to (and argues to this court that he in fact did)

present the factual basis for his right to testify claim in a

timely initial application. Likewise, the legal right to testify

in one’s own defense certainly pre-dates Bagwell’s initial habeas

petition. See Rock v. Arkansas, 483 U.S. 44, 49, 107 S. Ct. 2704,

2708 (1987). Furthermore, as discussed infra, Bagwell does not

even argue that his testimony would have produced an aquittal or

non-capital sentence.7

Last, Bagwell does not qualify for § 2254(b)’s narrow

exceptions: “cause and actual prejudice” or “miscarriage of

justice.” See 28 U.S.C. § 2254(b)(1)(B). To prove “cause” Bagwell

must establish that some “external force” impeded the defense’s

7

Bagwell, in his effort to establish that Texas does not regularly

adhere to article 11.071's successive habeas prohibition, argues that Texas

appellate courts have discretion to consider unassigned error or order remand for

additional fact-finding. See Ex Parte Jordon, 879 S.W.2d 61, 62 (Tex. Crim. App.

1994); Ex Parte Davis, 818 S.W.2d 64, 65 (Tex. Crim. App. 1991). Those cases are

inapposite for two reasons. First, the Court of Criminal Appeals remanded those

cases in lieu of ruling on the merits. Here, the court ruled on the merits, thus

triggering article 11.071’s successive petition bar. Second, those cases were

remanded for further factual development of explicitly raised legal claims.

Here, as Bagwell concedes, he failed to raise a legal claim concerning his right

to testify. This failure is determinative.

13

efforts to comply with the procedural rule. Coleman, 501 U.S. at

753, 111 S. Ct. at 2566. The only argument that we can charitably

glean from Bagwell’s appeal, in this regard, refers to errors made

by his state habeas counsel. “Attorney ignorance or inadvertence

is not ‘cause’ because the attorney is the petitioner’s agent when

acting, or failing to act, in furtherance of the litigation, and

the petitioner must bear the risk of attorney error.” Id. at 753.

Bagwell has not offered any argument that a genuine external force

caused the procedural violation. See Murray v. Carrier, 477 U.S.

478, 488, 106 S. Ct. 2639, 2645 (1986) (“external forces” include,

inter alia, objective factors external to the defense that impeded

counsel’s compliance or “some interference by officials [that] made

compliance impractical”).

Bagwell also cannot establish that procedural default

would occasion a miscarriage of justice. To meet the “miscarriage

of justice” test, Bagwell needed to supplement his constitutional

claim with a colorable showing of factual innocence, i.e., “a fair

probability that, in light of all the evidence, including that

. . . evidence tenably claimed to have been wrongly excluded or to

have become available only after the trial, the trier of the facts

would have entertained a reasonable doubt of his guilt.” Sawyer v.

Whitley, 505 U.S. 333, 339 & n.5, 112 S. Ct. 2514, 2518-19 (1992)

(citations and quotations omitted); see also Callins v. Johnson,

89 F.3d 210, 213-214 (5th Cir. 1996) (“This miscarriage of justice

exception is concerned with actual as compared with legal

14

innocence[.]”) (citations and quotations omitted). Bagwell has not

raised a “factual innocence” argument.

In sum, Bagwell failed to present this claim to the state

courts, would be barred under Texas law from raising it in a

successive habeas petition, and does not qualify for the equitable

exceptions carved out in § 2254(b). Because the district court’s

procedural default ruling is not debatable, we do not reach the

question whether the merits of Bagwell’s underlying right-to-

testify claim are debatable.

IV. CONCLUSION

Because we DENY Bagwell’s application for COA on both

issues raised, we lack jurisdiction to review the district court’s

denial of habeas relief.

COA DENIED.

15