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.




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