United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 17, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 05-50239
_______________________
In Re: Dennis Wayne Bagwell,
Movant,
On Motion for Authorization to File
Successive Petition for Writ of Habeas
Corpus in the United States District Court
Before the Western District of Texas
Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Bagwell, who is scheduled for execution on February 17,
2005, filed this Motion for Authorization to File Successive
Petition for Writ of Habeas Corpus and Stay of Execution. We DENY
the motion and DENY the stay request.
In brief summary, Bagwell was convicted of capital murder
for the murders of Leona McBee, Libby Best, Reba Best, and Tassy
Boone. He was sentenced to death in 1996. On appeal, the Texas
Court of Criminal Appeals (“TCCA”) affirmed both his conviction and
sentence. Bagwell filed a state application for writ of habeas
corpus in Texas trial court, which conducted an evidentiary
hearing. Adopting the state court’s findings, the TCCA denied
Bagwell’s habeas petition. Bagwell then filed a writ of habeas
corpus in the United States District Court for the Western District
of Texas, San Antonio Division, which, without a hearing, denied
Bagwell habeas relief and a certificate of appealability (“COA”).
Bagwell, subsequently, sought a COA from this Court,
arguing, inter alia, denial of his Sixth Amendment right to
effective assistance of counsel and denial of his Fifth Amendment
right to testify on his own behalf. We denied Bagwell’s COA
requests on both issues, finding, in relevant part, that his Fifth
Amendment claim was procedurally defaulted for failure to exhaust
state remedies without cause. Bagwell v. Dretke, 372 F.3d 748 (5th
Cir.), cert. den., Bagwell v. Dretke, 125 S.Ct. 498, 160 L.Ed.2d
374, 73 USLW 3297 (2004).
Bagwell filed a successor application for writ of habeas
corpus in Texas state court on February 15, 2005, which denied him
relief on February 16, 2005 finding that Bagwell failed to meet the
requirements for a subsequent application under Tex. Code Crim.
Proc. art. 11.071, § 5(a)(1).
The instant motions, for successive habeas and stay of
execution, came to this Court on February 16, 2005, the day before
Bagwell’s scheduled execution. Bagwell seeks permission to file a
successive habeas petition pursuant to 28 U.S.C. § 2244(b)(2),
averring this Court’s jurisdiction under 28 U.S.C. §§ 2244 and 2254
and Rule 60(b)(5) of the Federal Rules of Civil Procedure.1
1
This court lacks authority to enforce Rule 60(b) in the first
instance.
2
In relevant part, § 2244(b)(2) provides that “[a] claim
presented in a second or successive habeas corpus application under
section 2254 that was not presented in a prior application shall be
dismissed unless . . . (B)(i) the factual predicate for the claim
could not have been discovered previously through the exercise of
due diligence; and (ii) the facts underlying the claim, if proven
and reviewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but
for the constitutional error, no reasonable fact finder would have
found Mr. Bagwell guilty of the underlying offense.” 28 U.S.C. §
2244(b)(2)(i), (ii).
Bagwell argues that he was denied his right to testify on
his own behalf in violation of the Fifth, Sixth, and Fourteenth
Amendments to the Constitution of the United States. Bagwell
maintains that his counsel coerced him into not testifying, despite
his pleas to the contrary. Bagwell finds error not only by defense
counsel, but also by the trial court for not specifically inquiring
whether he waived his Sixth Amendment right to testify;2 by his
state habeas counsel for not raising this claim in his state habeas
writ; and by the state habeas court for not passing on the claim in
its written findings of fact and conclusions of law, even though
2
We presume from the State’s Brief, p. 10, that Bagwell did not
expressly raise this error by the trial court in Bagwell I. If correct, this
claim is time-barred pursuant to 28 U.S.C. § 2244(d), which prescribes a one-year
statute of limitations for raising new claims in habeas, and we find no basis for
tolling. See Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (noting
that the statutory time bar should be tolled only in “rare and exceptional
circumstances”).
3
Bagwell, testifying at his own evidentiary hearing, made statements
regarding counsel’s denial of his right to testify.3
We were presented with nearly identical arguments in
Bagwell I, wherein we found Bagwell’s claim procedurally defaulted
for failure to exhaust state remedies without cause. Bagwell I,
372 F.3d at 755-57. Finding the district court’s procedural
default determination not debatable, we did not reach the merits of
Bagwell’s right-to-testify claim for want of jurisdiction.
Bagwell I, 372 F.3d at 757. Presently, Bagwell characterizes his
Fifth Amendment claim as an “unassigned error” reviewable under
state law upon remand to develop post-conviction claims. Bagwell
contends that the otherwise applicable procedural bar exacted by
§ 11.071 should be excused from the Court’s calculus as conflicting
with his procedural and substantive due process rights. Bagwell
further maintains that because we did not reach the merits of his
Fifth Amendment claim in Bagwell I, we should not consider the
instant petition “successive.” For reasons stated herein, we
reject these arguments.
First, as we noted in Bagwell I, the unassigned error
argument upon which Bagwell’s § 11.071 contention rests, and the
cases cited in furtherance thereof,4 are inapplicable because those
3
We have previously deemed Bagwell’s assertion that he was acting “pro
se” on this claim as of the state evidentiary hearing meritless. Bagwell I, 372
F.3d at 756, n.6.
4
See Wright v. State, 981 S.W.2d 197, 199 n.2 (Tex. Cr. App. 1998)
(recognizing discretionary authority to address an unassigned error); Carter v.
State, 656 S.W.2d 468, 469 (Tex.Cr.App. 1983) (same); Howeth v. State, 645 S.W.2d
4
cases involved instances where the petitioners explicitly raised
the claims before the TCCA, which remanded said cases for, inter
alia, further factual development of claims instead of disposing of
them on the merits. In contrast, here, the TCCA ruled on the
merits of Bagwell’s case, triggering the § 11.071 bar, and
Bagwell, concededly, failed to raise this Fifth Amendment claim, in
any fashion, in his original state post-conviction habeas petition.
Although Bagwell argues that this error should not be determinative
because the Texas Code of Criminal Procedure and the TCCA have not
established pleading requirements for post-conviction habeas
petitions, Bagwell does not go so far as to plead ignorance of
state and federal habeas requirements as regards procedural bars
triggered by a petitioner’s utter failure to raise a claim before
the state trial court. In any event, this argument does not
circumvent the TCCA and federal court determinations of procedural
default. Absent cause, the courts’ prior dismissal on this basis
constitutes an adequate and independent state ground that strips
this Court of jurisdiction to resolve Bagwell’s Fifth Amendment
claim on federal habeas review. Kunkle v. Dretke, 352 F.3d 980,
989 (5th Cir. 2003); Coleman v. Thompson, 501 U.S. 722, 729 (1991).
See also Bagwell, supra, (discussing Bagwell’s failure to establish
cause).
787, 788 (Tex.Cr.App. 1983) (same); Ex parte Mowbray, 943 S.W.2d 461, 467
(Tex.Cr.App. 1996) (same); Ex parte Halliburton, 755 S.W.2d 131, 137 (Tex.Cr.App.
1988)(same); Ex Parte Alanniz, 583 S.W.2d 380, 381 (Tex. Cr. App. 1979)(remanding
for further factual development of claim).
5
Second, Bagwell’s § 2244(b) argument also fails. Bagwell
contends that the instant habeas petition should not be treated as
“successive” because, citing Rose v. Lundy, 455 U.S. 509 (1982),
his Fifth Amendment claim in Bagwell I was part of a “mixed” habeas
petition. So contending, he charges the district court and this
Court with error for failing to dismiss his “mixed” petition
pursuant to Lundy. However, contrary to Bagwell’s argument,
neither the district court nor this Court was obligated to dismiss
his petition as “mixed.” We addressed a similar argument on habeas
in Crone v. Cockrell, wherein we held that the petitioner’s
failure to raise a claim of which he had knowledge in his initial
habeas application renders, under the abuse-of-the-writ doctrine,
a successor application “successive” within the meaning of
§ 2244(b). 324 F.3d 833, 838 (5th Cir. 2003). With respect to
Crone’s claim under Lundy, we held that “that mixed petitions,
meaning those containing both exhausted and unexhausted claims,
should be dismissed without prejudice would have little meaning if
it could be avoided by withholding unexhausted claims.” Id. at
837-38 (internal citation and marks omitted). That rationale
applies with full force to the instant case where Bagwell had
knowledge of the claim before filing his first application and the
TCCA dismissed the claim as an abuse-of-the-writ. Thus, we find
that Bagwell’s petition is also “successive” within the meaning of
§ 2244(b).
6
Treating Bagwell’s petition as successive, we dismiss his
petition because the factual predicate for his Fifth Amendment
claim could have been discovered though the exercise of due
diligence, and the facts underling the claim, viewed through the
lens of § 2244(b)(ii), would be insufficient to establish Bagwell’s
actual innocence by clear and convincing evidence. 28 U.S.C.
§ 2244(b)(2)(i), (ii). Bagwell’s asserted Due Process claim (i.e.,
the state courts’ failure to address “unassigned error”) is
inextricably tied to our determination with regard to his Fifth
Amendment claim. Both the Fifth Amendment claim and the new Due
Process claim were available to him prior to the time that he filed
his initial federal petition.
Moreover, Bagwell has failed to make the requisite prima
facie showing of actual innocence. First, Bagwell does not contend
that his testimony would have gone to innocence. Rather, as we
discern from his petition, his intended testimony would have gone
to his state of mind before and after the murders, e.g., how
distraught he had been at his mother passing and a possible link
between his distress and his murderous rampage. Bagwell cedes that
his counsel advised him against taking the stand for fear that his
extensive criminal record would come to light before the jury.
Already before the jury was the testimony of Bagwell’s girlfriend,
Victoria Wolford, that she was with Bagwell when he committed the
murders, and that she helped the police locate incriminating
evidence that Bagwell had discarded along his getaway route. Also
7
in evidence was the testimony of the police officers who worked the
case, and that of scientific experts who linked significant pieces
of physical evidence from the murders to Bagwell. The evidence at
trial against Bagwell was by no means weak, and Bagwell does not
contend that any testimony that he could have given would have
been, by clear and convincing evidence, sufficient to prove his
actual innocence.
For the aforementioned reasons, we DENY Bagwell’s Motion
for Authorization to File Successive Petition for Writ of Habeas
Corpus and DENY his Motion for Stay of Execution.
8