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