Bagwell v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 02-11129

JOSHUA LUKE BAGWELL,

Petitioner - Appellant,

versus

DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee.

Appeal from the United States District Court
for the Northern District of Texas

Before HIGGINBOTHAM, SMITH, and WIENER, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Joshua Bagwell appeals the district court’s dismissal of his

habeas petition under the fugitive disentitlement doctrine. We

conclude that the doctrine is applicable in a federal habeas

proceeding, but vacate the district court’s dismissal of his

petition and remand for further proceedings.

I

In 1988, Joshua Bagwell was convicted of capital murder and

conspiracy to commit capital murder and sentenced to life in

prison. His conviction was affirmed on direct appeal, and the

state courts denied his petition for habeas relief. Bagwell
subsequently filed his habeas petition in federal district court,

raising claims of ineffective assistance of counsel and

insufficiency of evidence. While his petition was pending,

however, Bagwell escaped from custody with three other inmates. He

eluded authorities for ten days before surrendering to police

following a six-hour hostage standoff at a convenience store.

While Bagwell was at large, the state moved to dismiss his

habeas petition under the fugitive disentitlement doctrine.

Bagwell surrendered before the court ruled on the state’s motion,

but the state urged the court to grant the motion nonetheless,

noting that a fugitive’s return to custody does not preclude a

court from dismissing a direct appeal under the fugitive

disentitlement doctrine. The court eventually agreed, dismissing

his petition on September 20, 2002, over seven months after Bagwell

was recaptured. The district court then denied Bagwell’s request

for a certificate of appealability.

Shortly thereafter, Bagwell sought a COA from this court on

the procedural dismissal of his habeas petition. In his motion,

however, Bagwell failed to indicate what constitutional claims he

brought in his habeas petition. We granted Bagwell’s request for

a COA, but ordered briefing on two issues: “(1) whether the

fugitive disentitlement doctrine can or should be applied in the

habeas corpus context in general and under the facts of this case

in particular, and (2) whether a petitioner who seeks to challenge

a procedural dismissal of his 28 U.S.C. § 2254 petition must state,

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in his COA application to the appellate court, the constitutional

claims he sought to raise in that petition or, if the

constitutional claims are not stated in the appellate COA

application, whether this court may look to the pleadings filed in

the district court to determine if the proper ‘showing’ has been

made under Slack v. McDaniel as to the merits of the constitutional

claim.”1

II

The State first argues that Bagwell’s petition must be

dismissed because Bagwell failed to identify his underlying

constitutional claims as required by 28 U.S.C. § 2253(c)(2)2 and

Slack v. McDaniel.3 Bagwell, however, has since filed a motion

seeking leave to amend his COA application, and the State offers no

persuasive reason why this motion should be denied. His motion is

GRANTED.

III

Bagwell’s primary argument is that the district court erred in

dismissing his habeas petition under the fugitive disentitlement

doctrine. He argues, first, that the doctrine cannot be used in a

1
See Amended Order, Bagwell v. Cockrell, No. 02-11129 (May
23, 2003).
2
Section 2253(c)(2) specifies that a “certificate of
appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.”
3
529 U.S. 473 (2000).

3
§ 2254 proceeding because the habeas writ is of constitutional

dimension. Second, even if the doctrine is available in the habeas

context, he urges that the district court abused its discretion in

this case by dismissing his petition seven months after he returned

to custody.

A

The question whether the fugitive disentitlement doctrine may

be used to dismiss a habeas petition is one of first impression in

this circuit.

In general, the fugitive disentitlement doctrine limits a

criminal defendant’s access to the judicial system whose authority

he evades. The Supreme Court first recognized the doctrine over

100 years ago,4 and the doctrine has since been used by both

district and appellate courts to enter judgment against a fugitive

defendant or to dismiss the defendant’s appeal.5 This power stems

not from any statute, but rather from a court’s inherent power “to

protect [its] proceedings and judgments in the course of

discharging [its] traditional responsibilities.”6

4
Smith v. United States, 94 U.S. 97, 97 (1876) (“It is
clearly within our discretion to refuse to hear a criminal case in
error, unless the convicted party, suing out the writ, is where he
can be made to respond to any judgment we may render.”).
5
See, e.g., Magluta v. Samples, 162 F.3d 662, 664 (11th Cir.
1998) (citing Prevot v. Prevot, 59 F.3d 556, 564-65 (6th Cir.
1995)).
6
Degen v. United States, 517 U.S. 820, 823 (1996); see also
United States v. Delagarza-Villarreal, 141 F.3d 133, 136 (5th Cir.

4
 The Supreme Court has recognized a number of different

rationales justifying the use of the doctrine. First, if a

defendant is a fugitive when the court considers his case, it may

be impossible for the court to enforce any judgment that it

renders.7 Second, courts have advanced a waiver or abandonment

theory: by fleeing custody, the defendant is thought to have waived

or abandoned his right to an appeal.8 Third, allowing a court to

dismiss a fugitive’s case is thought to “‘discourage[] the felony

of escape and encourage[] voluntary surrenders.’”9 Fourth, because

a litigant’s escape impedes the ability of a court to adjudicate

the proceedings before it, dismissal of the case furthers the

court’s “interest in efficient practice.”10 Finally, the criminal

defendant’s escape is thought to represent an affront to the

dignity and authority of the court. As the Court wrote over one

hundred years ago, the defendant’s escape is—–

practically a declaration of the terms upon
which he is willing to surrender, and a
contempt of its authority, to which no court

1997) (recognizing the courts’ “authority to fashion procedural
rules governing the management of litigation before them”).
7
See Degen, 517 U.S. at 824; Smith, 94 U.S. at 97; Bohanan v.
Nebraska, 125 U.S. 692 (1887); United States v. Shelton, 482 F.2d
848, 849 (5th Cir. 1973) (per curiam).
8
Ortega-Rodriguez v. United States, 507 U.S. 234, 240 (1993).
9
Id. at 241 (quoting Estelle v. Dorrough, 420 U.S. 534, 537
(1975)).
10
Ortega-Rodriguez, 507 U.S. at 242; Loyd v. State, 19 Tex.
Ct. App. 137, 155 (1885).

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 is bound to submit. It is much more becoming
to its dignity that the court should prescribe
the conditions upon which an escape convict
should be permitted to appear and prosecute
his writ, than that the latter should dictate
the terms upon which he will consent to
surrender himself to its custody.11

Bagwell accepts that courts have the authority to dismiss the

direct appeal of a prisoner who escapes custody. However, he urges

that the doctrine cannot be used to dismiss a habeas petition

because the writ of habeas corpus is “constitutionally based.” To

this end, he points to the Suspension Clause, which provides that

the “Privilege of the Writ of Habeas Corpus shall not be suspended,

unless when in Cases of Rebellion or Invasion the public Safety may

require it.”12

We are not persuaded. First, Bagwell cites no cases,

statutes, or other authority to support his argument that

dismissing a habeas petition works an unconstitutional “suspension”

of the right. Moreover, it is well established that the habeas

writ is not an absolute right under the Constitution; numerous

statutes have limited prisoners’ access to habeas relief without

running afoul of the Suspension Clause.13

11
Allen v. Georgia, 166 U.S. 138, 141 (1897).
12
U.S. CONST. art. I, § 9, cl.2.
13
See Felker v. Turpin, 518 U.S. 651, 664 (1996) (“The added
restrictions which the [AEDPA] places on second habeas petitions
are well within the compass of this evolutionary process, and we
hold that they do not amount to a ‘suspension’ of the writ contrary
to Article I, § 9.”). The COA requirement, the exhaustion
requirement, and the limitation on successive habeas petitions are

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 Court procedural rules, moreover, routinely act to deny habeas

relief, and habeas courts have often pointed to a defendant’s

escape from custody during the state criminal proceedings to

justify denial of habeas relief. It is well established that a

federal court may not review a prisoner’s federal constitutional

claims in habeas when the prisoner failed to satisfy a state

procedural requirement that would serve as an independent and

adequate state ground to support the conviction.14 When a convicted

state prisoner flees from custody, the state appeals court may

dismiss his appeal under the fugitive disentitlement doctrine, and

numerous federal courts have held that any such dismissal bars

federal habeas review.15 The district court’s use of the doctrine

in this case is not substantively different.

just a few examples of the statutory restrictions placed on a
prisoner’s access to habeas. It cannot be disputed that these
limitations are far more restrictive than the fugitive
disentitlement doctrine, which cannot be invoked unless a prisoner
escapes from custody.
14
Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
15
See, e.g., Wood v. Hall, 130 F.3d 373, 378 (9th Cir. 1997)
(“ We conclude that Oregon’s fugitive disentitlement rule was
clear, consistently applied, and well-established at the time Wood
fled from the state. Thus, it constitutes an independent and
adequate state ground sufficient to support a finding of
procedural default.”); Schleeper v. Groose, 36 F.3d 735, 736-37
(8th Cir. 1994); Feigley v. Fulcomer, 833 F.2d 29, 30-31 (3d Cir.
1987); Potter v. Davis, 519 F. Supp. 621, 621-23 (E.D. Tenn. 1981)
(barring habeas review because state criminal appeal validly
dismissed for fugitivity under state law), aff’d, 701 F.2d 180 (6th
Cir. 1982) (table).

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 Moreover, several federal courts have invoked the fugitive

disentitlement doctrine to dismiss habeas petitions. In Lopez v.

Malley, for example, the Tenth Circuit considered whether it could

dismiss the defendant’s habeas petition because the defendant

escaped from custody shortly after appealing the district court’s

decision.16 The court noted that the fugitive disentitlement

doctrine had historically been applied in direct criminal appeals

but found that it could draw no relevant distinction between

appeals in habeas corpus cases and direct criminal appeals: “The

reasons for dismissing the appeal of an escaped prisoner are

equally applicable to both.”17 Since the defendant was not in

custody and any grant or denial of habeas relief would effectively

be moot, the court dismissed the habeas petition. Numerous other

courts have reached the same conclusion.18

16
552 F.2d 682 (10th Cir. 1977).
17
Id. at 683.
18
See, e.g., Arana v. United States Immigration & Nat. Serv.,
673 F.2d 75 (3d Cir. 1982); Gonzales v. Stover, 575 F.2d 827 (10th
Cir. 1978); Bailey v. U.S. Commanding Officer of the Office of
Provost Marshal, U.S. Army, 496 F.2d 324, 326 (1st Cir. 1974)
(refusing to sanction the petitioner’s “Janus-like conduct in
seeking to invoke the processes of the law while flouting them”);
Johnson v. Laird, 432 F.2d 77 (9th Cir. 1970) (district court
dismissed petition for habeas corpus, litigant went AWOL pending
his appeal, appeal dismissed); United States v. Collins, 651
F.Supp. 1177 (S.D. Fla. 1987); Clark v. Dalsheim, 663 F.Supp. 1095
(S.D. N.Y. 1987); Lewis v. Delaware State Hospital, 490 F.Supp. 177
(D. Del. 1980); Crawford v. Varner, 2002 WL 229898 (D. Del. 2002)
(unpublished).

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 Finally, the justifications underlying the fugitive

disentitlement doctrine apply in full in the habeas context, at

least in appropriate circumstances. A federal habeas court cannot

enforce its judgment if the prisoner is a fugitive. Similarly, a

prisoner who absconds while his petition is pending intentionally

waives his control over the proceedings. And a prisoner’s escape

is no less an affront to the dignity of a federal court sitting in

habeas than it is to a court reviewing a direct appeal.

We conclude that the fugitive disentitlement doctrine may be

applied in the habeas context.

B

It remains to be seen, however, whether the district court

acted properly in applying the doctrine in this case. The fugitive

disentitlement doctrine is an equitable doctrine that a court

exercises in its discretion.19 Accordingly, we review a district

court’s application of the doctrine for abuse of discretion.20

Bagwell urges that the district court erred by applying the

fugitive disentitlement doctrine on the facts of this case. He

19
Ortega-Rodriguez, 507 U.S. at 250 n.23 (“[D]ismissal of
fugitive appeals is always discretionary, in the sense that
fugitivity does not ‘strip the case of its character as an
adjudicable case or controversy.’" (quoting Molinaro v. New Jersey,
396 U.S. 365, 366 (1970))).
20
See, e.g., Bano v. Union Carbide Corp., 273 F.3d 120, 125
(2d Cir. 2001); Barnett v. Young Men's Christian Ass'n, Inc., 268
F.3d 614, 617 (8th Cir. 2001); F.D.I.C. v. Pharaon, 178 F.3d 1159,
1162 (11th Cir. 1999).

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notes that his § 2254 petition was pending in the district court

for eleven months before he escaped from prison and that he was out

of custody for only ten days. The court invoked the doctrine and

dismissed his complaint over seven months after he surrendered to

the police. Under these circumstances, Bagwell contends that the

district court’s decision to dismiss his petition represented an

abuse of its discretion. In response, the State notes that many

courts have applied the doctrine after a prisoner’s recapture and

that the district court’s decision to follow suit was a valid

exercise of its inherent authority.

Although the decision to dismiss lies within the discretion of

the district court, the doctrine must be applied in accordance with

its underlying justifications. In Ortega-Rodriguez v. United

States, the Court rejected the use of the doctrine by the Eleventh

Circuit against a defendant who had escaped during the district

court proceedings but was in custody during the appeal. The Court

emphasized that none of the doctrine’s underlying justifications

supported the Eleventh Circuit’s decision: there was no risk that

the appellate court’s judgment would be rendered unenforceable; the

“efficient operation” of the appeal was not interrupted by the

prisoner’s disappearance during the district court proceedings; and

the prisoner’s escape did not affront the dignity of the appellate

court. The Court concluded that there must be some nexus between

10
the prisoner’s fugitive status and the appeal before the

disentitlement doctrine may properly be invoked.

In Degen v. United States, the Supreme Court reinforced this

approach by holding that the disentitlement doctrine does not allow

“a court in a civil forfeiture suit to enter judgment against a

claimant because he is a fugitive from, or otherwise is resisting,

a related criminal prosecution.”21 In deciding that the doctrine

could not be used, the Court again focused on the commonly

articulated justifications for the doctrine: 1) the risk of delay

or frustration in determining the merits of the claim; 2) the

unenforceability of the judgment; 3) the compromising of a criminal

case by the use of civil discovery mechanisms; 4) the indignity

visited on the court; and 5) deterrence.22 After examining whether

these justifications applied to a civil forfeiture suit, the Court

concluded that dismissal based on disentitlement was inappropriate.

In this case, the district court did not address whether the

doctrine’s underlying justifications support dismissal on the facts

of this case. In its brief order, the court offered no substantive

explanation for its decision, save its observation that “[e]ven

where the fugitive is captured during the pendency of his appeal,

dismissal of the case remains as an acceptable sanction.” While

this may be true, it does not necessarily follow that the court

21
517 U.S. 820, 823-24 (1996).
22
Id. at 825-28.

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should have applied the doctrine on these facts. We have specified

that a fugitive’s recapture is only “a factor to be considered in

determining whether [a court] should exercise [its] discretion to

dismiss the appeal.”23 The doctrine, ultimately, must be analyzed

in accord with its justifying principles.

The brevity of the district court’s order makes it difficult

for us to discharge our duty to determine whether the dismissal was

a proper exercise of discretion. We therefore vacate the dismissal

of the petition and remand the case to the district court to

consider its application of the fugitive disentitlement doctrine in

light of the doctrine’s historical justifications and the unique

facts of this case.

We recognize that these traditional factors may apply

differently in the habeas context. However, because dismissal of

a habeas petition is an extreme sanction, the court must engage the

facts of the case and weigh the articulated factors to ensure that

dismissal is proper. In particular, the court on remand should

evaluate whether Bagwell’s escape significantly interfered with the

court’s consideration of his claims and whether the government

demonstrated sufficient prejudice as a result of his absence.

VACATED and REMANDED.

23
United States v. DeValle, 894 F.2d 133, 136 n.1 (5th Cir.
1990).

12