UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-40340
_______________________
WALTER BELL, JR.,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, Texas
Department of Criminal Justice -
Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
October 17, 2002
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Pending before this court on remand from the U.S. Supreme
Court is the question what to do with a capital habeas case in
which the petitioner has consistently offered clinical evidence of
mental retardation since his first trial, which took place in the
1970’s. We conclude that this habeas petition must be dismissed
without prejudice so that the State of Texas can reconsider Bell’s
case in light of Atkins v. Virginia, ___ U.S. ___, 122 S.Ct. 2242
(2002).
A brief explanation of this disposition is appropriate.
Bell killed his former employer Ferd Chisum and Chisum’s wife Irene
in 1974. He was indicted and convicted of the capital murder of
Ferd Chisum, a conviction affirmed on direct appeal. Bell v.
State, 724 S.W.2d 780 (Tex. Crim App. 1986), cert. denied, 479
U.S. 1046 (1987). On state habeas corpus review, however, the
Texas Court of Criminal Appeals reversed Bell’s conviction and
death sentence pursuant to Penry v. Lynaugh, 492 U.S. 302, 109
S.Ct. 2934 (1989). Ex parte Bell, No. 70,946 (Tex. Crim. App.,
Nov. 6, 1991). Bell was tried a second time for the capital murder
of Ferd Chisum and was again convicted and sentenced to death in
1994. After exhausting direct appeal remedies, see Bell v. State,
938 S.W.2d 35 (Tex. Crim. App. 1996), he filed an unsuccessful
application for state habeas corpus relief. Ex parte Bell, No.
10898-05.
In the federal habeas petition attacking this second
conviction, Bell averred that it was unconstitutional for him, as
a mentally retarded individual, to be executed. During both trials
for the murder of Ferd Chisum, Bell offered clinical evidence of
mild mental retardation. Both the federal district court and this
court rejected Bell’s claim as foreclosed by then-existing Supreme
Court precedent. He had the good fortune to file a certiorari
petition in the same Term in which the Supreme Court ruled, based
2
on the evolving standards of decency, that execution of the
mentally retarded has indeed become unconstitutional. Atkins, 122
S.Ct. at 2252.
The Supreme Court remanded Bell’s case to this court for
reconsideration in light of Atkins. We sought briefing from the
parties on the proper mode of proceeding. Both parties acknowledge
that Atkins constitutes an exception to the non-retroactivity rule
of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), and
therefore applies retroactively to his habeas case. We agree. See
Penry v. Lynaugh, 492 U.S. at 330, 109 S.Ct. at 2953 (“[I]f we
held, as a substantive matter, that the Eighth Amendment prohibits
the execution of mentally retarded persons . . . such a rule would
fall under the first exception to [Teague’s] general rule of non-
retroactivity and would be applicable to defendants on collateral
review.”).
From this point, the parties’ positions diverge. Bell
urges this court to reverse the judgment of the federal district
court denying habeas corpus relief, vacate the judgment of the
Texas trial court and remand for a jury determination of his mental
retardation. Even more aggressively, he asserts that this court
could resolve the issue of mental retardation based upon the
existing state court record in which, he states, the prosecution
never contested the evidence of his mental retardation. The state,
on the other hand, suggests that we should affirm the federal
district court’s denial of habeas relief, inasmuch as the state
3
courts’ prior decisions were not based on an “unreasonable”
application of then-existing federal law. 28 U.S.C. § 2254(d).
The state suggests that Bell could then file a successive state
habeas petition raising the Atkins issue. Alternatively, the state
would have us remand Bell’s Eighth Amendment claim to the federal
district court with orders to dismiss it without prejudice.
What this divergence of views exhibits is the welter of
uncertainty following Atkins, which declared that execution of
mentally retarded persons is now an unconstitutional cruel and
unusual punishment. The Supreme Court neither conclusively defined
mental retardation nor provided guidance on how its ruling should
be applied to prisoners already convicted of capital murder.
Instead, the Court held,
Not all people who claim to be mentally
retarded will be so impaired as to fall within
the range of mentally retarded offenders about
whom there is a national consensus. As was
our approach in Ford v. Wainwright, with
regard to insanity, “we leave to the State[s]
the task of developing appropriate ways to
enforce the constitutional restriction upon
its execution of sentences.” 477 U.S. 399,
405, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 385
(1986).
Atkins, 122 S.Ct. at 2250. In these circumstances, inferior
federal courts have no useful role to play until and unless
following Atkins, a death sentence is reaffirmed or again imposed
on Bell by the state courts. Just how the state courts will
implement Atkins, we cannot say. Clearly, however, the state must
be given the first opportunity to apply the Supreme Court’s holding
4
in order to insure consistency among state institutions and
procedures and to adjust its prosecutorial strategy to the hitherto
unforeseen new rule.
For these reasons, we VACATE the district court’s
judgment denying habeas relief only on Bell’s Eighth Amendment
Atkins claim, and we REMAND with instructions to dismiss that claim
without prejudice.
VACATED in PART and REMANDED with INSTRUCTIONS.
5
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-40340
Civil Docket #5:99-CV-00209
_______________________
WALTER BELL, JR.,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director,
Texas Department of Criminal Justice - Institutional Division,
Respondent-Appellee.
_________________________________________________________________
6
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
December 13, 2001
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
By EDITH H. JONES:*
Petitioner Walter Bell was denied habeas corpus relief by
the federal district court on his conviction for the capital murder
of Ferd Chisum, his former employer, in Port Arthur, Texas, in
1974. Bell presents two contentions in this court. First, he
argues that evidence of mild mental retardation presented at his
trial disqualifies him from the death penalty by virtue of an
alleged evolving national consensus against executing the mentally
retarded. The district court granted a certificate of
appealability (COA) on this contention. Bell applies for a COA,
however, after being turned down on his second contention, that
newly discovered evidence demonstrates his confession was coerced
by police brutality. Finding no merit in either contention under
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
7
the standards of review adopted by AEDPA 1, we affirm the judgment
on the first contention and deny COA on the second.2
1. Whether the Constitution prohibits execution of the
mentally retarded.
Under AEDPA, we review the state court decision denying
relief on this claim to determine (1) whether it was contrary to or
involved an unreasonable application of clearly established Federal
law as expressed by the Supreme Court, 28 U.S.C. § 2254(d)(1), or
(2) whether the facts found by the state courts were unreasonable
in light of the record. 28 U.S.C. § 2254(d)(2). Relief is not
barred on this claim by the Teague non-retroactivity doctrine. See
Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 2953 (1989).
Bell’s initial conviction was reversed, and he received
a second trial for capital murder of Ferd Chisum so that the state
courts could apply the then-new Supreme Court decision in Penry v.
Lynaugh. Penry held that a jury must be permitted to find that a
defendant’s mental retardation mitigates against infliction of the
death penalty because his condition limits his culpability. 492
1
The Antiterrorism and Effective Death Penalty Act of
1996.
2
Both the district court and the magistrate judge analyzed
Bell’s claims de novo, without reference to the substantive
limitations imposed by AEDPA. While we need not question our
brethren’s analysis, it is important to recognize that AEDPA’s
standards reflect the deference that Congress has ruled we must pay
to state court convictions.
8
U.S. at 320-28, 109 S.Ct. at 2947-52. Penry refused to hold that
the Eighth Amendment requires a categorical exclusion of mentally
retarded defendants from receiving the death penalty. 492 U.S. at
331-35, 109 S.Ct. at 2953-55. The Texas Court of Criminal Appeals
so applied Penry to Bell’s second appeal. Bell v. State, 938
S.W.2d 35, 55 (1996).
Penry has not been subsequently overturned by the U.S.
Supreme Court. Until it is, the standard for granting habeas
relief under AEDPA, which requires state court decisions to conform
to Federal law articulated by the Supreme Court, will not be
satisfied. Bell’s argument, formulated on a still evolving
national consensus made up of over a dozen states that have
legislatively decided to place limits on executions of the mentally
retarded, is thus irrelevant in the lower federal courts.
In addition, Bell’s case exemplifies the wisdom behind
Penry’s decision to allow juries to examine the impact of mental
retardation on culpability on a case-by-case basis. While Bell has
scored at a level of mild mental retardation throughout his life,
an expert also testified that he was competent to stand trial and
knew the difference between right and wrong. He carefully planned
the murders of Ferd and Eileen Chisum, assembling papers, a knife,
handcuffs, and extension cords from which he had removed the ends,
and he tricked the Chisums into letting him into their house on the
pretext that he wanted their advice about attending school. He
9
forced Eileen Chisum to write a false name on several checks before
he killed her, and he then tried to cash one of those checks the
day after the murder. The murders were executed ruthlessly and
brutally. There was, in short, plenty of evidence to support the
jury’s post-Penry weighing of Bell’s mental retardation against his
moral culpability.
As a footnote, we, like the state courts, reject the
argument that the federal Americans with Disabilities Act somehow
entitles Bell to exoneration from the death penalty. The ADA
neither addresses the imposition of criminal penalties, nor does it
suggest that mentally disabled Americans should be treated
differently from other Americans who commit crimes.
The state courts did not render an unreasonable decision
in rejecting Bell’s contentions concerning his mental retardation.
2. Whether Bell made a substantial showing that he was
denied any constitutional right regarding newly
discovered evidence.
Under AEDPA, a COA will issue only if Bell makes “a
substantial showing” that he was denied a federal constitutional
right. 28 U.S.C. § 2253(c)(2). A substantial showing means that
reasonable jurists would find the state courts’ assessment of
Bell’s claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
478, 120 S.Ct. 1595, 1600 (2000). The federal court’s assessment
10
of Bell’s claim depends, in turn, on the “reasonableness” of the
state court’s decision. 28 U.S.C. § 2254(d) and (e).
To obtain relief from a judgment based on newly
discovered evidence, a petitioner generally must demonstrate that
(1) the evidence is newly discovered and was unknown to the
defendant at the time of trial; (2) the defendant’s failure to
detect the evidence was not due to a lack of due diligence; (3) the
evidence is material, not merely cumulative or impeaching; and (4)
the evidence would probably produce an acquittal at a new trial.
Lucas v. Johnson, 132 F.3d 1069, 1076 n.3 (5th Cir.), cert dism’d.,
524 U.S. 965 (1998).
Bell contends that affidavits procured in 1997 from his
mother, his cousin, and most prominently, his former co-defendant
Sheppard Watson, would have demonstrated that Bell was beaten by
law enforcement officers to induce him to confess. He goes on to
argue that based on this evidence, his confession would have been
excluded, and he would not have been convicted of capital murder.
In his appellate brief, Bell focuses on Watson’s affidavit, which
described Watson’s alleged beating by the police and Watson’s
suspicion that Bell was beaten and, somehow, is supposed to fortify
Bell’s claim that he was physically forced to confess.
The state habeas court rejected this claim, finding both
that Bell did not prove that the “new evidence” was unknown to him
at the time of trial and that his attorneys at the second trial
11
conceded the admissibility of Bell’s confession, which had been
admitted at the first trial despite a claim of police brutality.
Bell disagrees only with the former finding, but he does not make
a substantial showing, by clear and convincing evidence, to rebut
it.3 See 28 U.S.C. § 2254(e)(1). The state court findings are
thus presumed correct.
Bell hopes to circumvent the adverse findings by alleging
that his attorneys were constitutionally ineffective for not
“discovering” the “new evidence” and for not moving to suppress his
confession at the second trial. See generally Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). The
state courts responded that Bell had to know about evidence
bolstering his coerced confession claim. His attorneys were not
defective if he failed to communicate with them. The state courts
alternatively found that the attorneys’ performance could not have
prejudiced Bell, because even if the cousin’s and Watson’s
testimony had been offered at trial, it would have been cumulative
and, from such biased sources, not very credible. We agree. There
was substantial incriminating evidence even apart from Bell’s
confession. Bell was not prejudiced by his attorneys’ conduct.
3
Bell’s mother’s evidence could not be “new,” as she
testified similarly in both of his trials. And Bell knew that his
cousin had seen him in jail.
12
The state courts’ analysis of Strickland reasonably applies the
relevant constitutional law in light of the state court record.
Bell has failed to make a substantial showing that his
constitutional rights were violated by his attorneys’ errors or by
the absence at his second trial of newly discovered evidence.
CONCLUSION
For the foregoing reasons, the judgment of the district
court denying habeas corpus relief on Bell’s first contention is
AFFIRMED. We DENY a certificate of appealability on Bell’s second
contention.
13