IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 91-6060
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JAMES MICHAEL BRIDDLE,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director,
Texas Department of Criminal
Justice Institutional Division,
Respondent-Appellee.
S))))))))))))))))))))))))Q
Appeal from the United States District Court for the
Southern District of Texas
S))))))))))))))))))))))))Q
(August 23, 1995)
Before GARWOOD, DAVIS and WIENER, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant James Michael Briddle (Briddle), a Texas
death row inmate, appeals the district court's denial of his habeas
corpus petition under 28 U.S.C. § 2254. We affirm.
Facts and Procedural Background
Briddle was indicted by a Texas grand jury on March 1980, and
reindicted in October 1980, on two counts of capital murder
committed in Harris County, Texas, February 23, 1980, namely the
capital murder of Robert Skeens while committing robbery and the
capital murder of Robert Banks while committing robbery. The state
elected to proceed only on the count concerning Banks. Pre-trial
motions were heard on January 19 and 20, 1982, voir dire lasted
from January 21, 1982, through February 10, 1982, and the trial
proper commenced February 17, 1982. The jury returned a verdict of
guilty of the capital murder of Banks on February 24, 1982. On
February 25, 1982, after the separate punishment hearing, the jury
answered affirmatively the two special issues submitted pursuant to
Tex. Code Crim. P. Ann. art. 37.071 as then in effect,1 and
thereafter the state district court accordingly sentenced Briddle
to death. Judge Perry Pickett presided at all trial proceedings.
In the state trial court, Briddle was represented by attorney
Mark Vela until approximately October 6, 1981, when his
representation was taken over by attorneys Al Thomas and Jim Sims.2
On his direct appeal to the Texas Court of Criminal Appeals,
Briddle was represented by attorney Allen Isbell.
On September 23, 1987, the Court of Criminal Appeals affirmed
1
These issues were:
"(1) whether the conduct of the defendant that
caused the death of the deceased was committed
deliberately and with the reasonable expectation that the
death of the deceased or another would result;
"(2) whether there is a probability that the
defendant would commit criminal acts of violence that
would constitute a continuing threat to society;" Id.
2
Thomas has been licensed to practice since May 1965, served as
a prosecutor in the Harris County District Attorney's office until
1969, and since then had practiced as a criminal defense attorney.
Prior to Briddle's trial, he had defended four capital murder
cases. Sims was licensed to practice in May 1969. He was an
Assistant District Attorney in Harris County until 1975, when he
went into private practice, primarily in criminal law. He had
defended two capital murder cases, one with Thomas, before
Briddle's trial.
2
Briddle's conviction and sentence without dissent. Briddle v.
State, 742 S.W.2d 379 (Tex. Crim. App. 1987). The opinion of the
Court of Criminal Appeals accurately describes the circumstances of
the offense as reflected by the record evidence as follows:
"The State's chief witness was Linda Joyce Fletcher,
appellant's former wife. The record reflects the couple
married in California. On February 14, 1980, the couple
began hitchhiking to Florida with a few clothes and
$30.00. They were joined in Arizona by Pamela Perillo.
On February 22, 1980, after reaching Houston the three
were hitchhiking near the Astrodome when they were picked
up by the alleged deceased, Robert Banks. Banks was in
the process of moving to another house and the three
hitchhikers assisted him in moving some of his
belongings. Banks treated them to dinner. When Banks
paid for the meal, Fletcher and Perillo observed he had
several hundred dollars in his wallet, and Perillo told
appellant about the money.
Appellant, his wife (Fletcher) and Perillo spent the
night at Banks' house and then helped him move other
belongings the next day. In the process the appellant
discovered Banks had some guns. When Banks took a shower
appellant telephone a friend in California and invited
him to come to Texas as he (appellant) 'had a pigeon out
here with lots of money and guns.' Appellant proposed a
robbery, but the California friend declined.
Banks then took his three guests to a carnival and
rodeo at the Astrodome. There Perillo told appellant she
wanted to kill Banks and appellant answered 'Okay.' He
then went off to do some 'planning,' telling Perillo to
relax when she agitated to 'do it tonight.' After the
rodeo Banks and his guests went to dinner and returned to
Banks' house where they met Bob Skeens, Banks' friend
from Louisiana, who had arrived there in his green
Volkswagen.
On Sunday, February 24, Banks and Skeens left the
house to get coffee and doughnuts for everyone. While
they were gone appellant armed himself with a shotgun and
Perillo got a handgun. While awaiting the return of the
two men appellant jumped up and down with excitement.
When Banks and Skeens returned Perillo hid in the bedroom
and appellant got inside a closet. He began to make a
tapping sound. When Banks reached to open the closet
door the appellant jumped out announcing 'This is a
robbery.'
3
Skeens got down on the floor and pleaded for mercy.
Banks came toward the appellant, who struck him in the
face with the butt end of the shotgun. Perillo came out
of her hiding place and told Banks to get on the floor,
'that it wasn't any joke.' Perillo obtained a machete
and cut up some rope and then she and appellant tied
Banks and Skeens with rope. After they were bound
appellant and Perillo took the wallets from the two.
Appellant took $800.00 from Banks' wallet and waved it
around saying 'he had it.' Appellant ransacked the
bedroom, taking clothes and a backpack. Perillo found a
cassette recorder and camera. Appellant took Skeens into
the bedroom and told Skeens that he (appellant) had
killed five people and two more didn't matter. Fletcher,
appellant's wife, did not see what happened to Skeens,
but she did see appellant loop a rope around Banks' neck.
Fletcher was then ordered to wait in Skeens' green
Volkswagen. About 20 minutes later Perillo came to the
car with the shotgun wrapped in a blanket. She also
brought out a machete, handgun and other items.
Appellant brought out the backpack and a rifle. They
drove in the Volkswagen to Dallas, where they abandoned
it and took a bus to Colorado.
When Banks failed to appear for work for two days,
his supervisor want to Banks' house to investigate. A
man with the supervisor looked in a window and saw a
body. The police who arrived at the scene found the
bodies of Banks and Skeens, each bounded [sic] and with
a rope around the neck. Dr. Joseph Jachimczyk, the Chief
Medical Examiner, testified that each died from asphyxia
due to strangulation with a rope.
On March 3, 1980, Perillo gave a statement to
Denver, Colorado police and a description of appellant.
With her consent they entered a room at a hotel in Denver
and found appellant, his wife and two boys. The backpack
was found in the room.
A Houston detective went to Denver and interviewed
appellant and obtained an oral confession in which he
told of his participation in the alleged offense. He
admitted putting a rope around Banks' neck and pulling on
it with Perillo until Banks was unconscious. He admitted
he took the wallets, several hundred dollars, the machete
and shotgun. He maintained his wife (Fletcher) was
outside the house during the entire incident." Id. at
381-82.
On October 28, 1987, the Court of Criminal Appeals granted
Briddle's motion, filed by attorney Isbell, to stay issuance of the
4
mandate for sixty days to allow for the filing on Briddle's behalf
of a petition for writ of certiorari in the United States Supreme
Court. No such petition having been filed, the Court of Criminal
Appeals issued its mandate January 15, 1988. On February 1, 1988,
Briddle, whose representation had by then been taken over by
attorney Alton Stephens, moved the Court of Criminal Appeals to
recall its mandate, so that a petition for certiorari on Briddle's
behalf could be filed in the Supreme Court, asserting an inability
to locate five volumes of the record. The Court of Criminal
Appeals denied the motion, and thereafter, on February 4, 1988, the
Texas trial court scheduled Briddle's execution for March 21, 1988.
On March 11, 1988, Stephens, on behalf of Briddle, moved the Court
of Criminal Appeals for a stay of execution pending filing of a
petition for certiorari, representing that he had received the
missing portions of the record on February 26, 1988. On March 15,
1988, the Court of Criminal Appeals granted the motion and stayed
Briddle's execution for sixty days.
Nothing further having been filed in any court by or on behalf
of Briddle, the state trial court, Judge C.V. Milburn, on October
26, 1988, set Briddle's execution for December 1, 1988. The next
day, October 27, 1988, Stephens, on Briddle's behalf, filed a
petition for certiorari with the Supreme Court, and moved the
Supreme Court for stay of execution. On November 22, 1988, Justice
White entered an order that Briddle's execution was "stayed pending
the disposition by this Court of the petition for a writ of
certiorari. Should the petition for a writ of certiorari be
denied, this stay terminates automatically." On December 8, 1988,
5
the Supreme Court denied the petition for certiorari. Briddle v.
Texas, 109 S.Ct. 543 (1988).
On December 15, 1988, the state trial court, Judge Michael
McSpadden, entered an order resetting Briddle's execution date for
February 14, 1989, and ordering "that Mr. Alton L. Stephens,
counsel for James Michael Briddle, file any Application for Writ of
Habeas Corpus concerning the instant conviction on or before
January 17, 1989, raising any and all arguable claims known to
counsel." However, nothing was filed by or on behalf of Briddle
until February 2, 1989, when Stephens, and co-counsel Foy, joined
by attorney Eden Harrington, filed, both in the state trial court
and in the Texas Court of Criminal Appeals, Briddle's petition for
habeas corpus, request for evidentiary hearing, and application for
stay of execution. On February 13, 1989, Judge McSpadden reset
Briddle's execution date for April 21, 1989, and, in a separate
order, directed that the state file its answer by not later than
March 8 and that by not later than March 5 Briddle's trial
attorneys Thomas and Sims file affidavits, with copies thereof to
counsel for Briddle and counsel for the state, "summarizing their
actions taken to represent Applicant, including trial preparation
. . . and responding to the allegations of ineffective assistance
of counsel contained in the application for writ of habeas corpus."
On March 8, 1989, the state filed its original answer; on March 17,
1989, the affidavits of attorneys Thomas and Sims were filed; and,
on March 27, 1989, the state filed its amended answer.
Subsequently, on March 27, 1989, State District Judge Ted Poe
issued an order stating that after reviewing the file, including
6
the habeas petition and request for evidentiary hearing, the
affidavits of Thomas and Sims and the state's amended answer, "
there are no controverted, previously unresolved facts material to
the legality of Applicant's confinement which require an
evidentiary hearing" and directing each of the parties to submit by
not later than April 5, 1989, "any findings of fact and conclusions
of law which they wish to propose to this court for its
consideration."
The state and Stephens on behalf of Briddle each submitted
their respective proposed findings of fact and conclusions of law
on April 5, 1989, and on April 11, 1989, Judge McSpadden adopted
the state's proposed findings of fact and conclusions of law and
recommended that the Court of Criminal Appeals deny relief. On
April 14, 1989, the Court of Criminal Appeals issued its order
denying relief "on the basis of the trial court's findings of fact
and conclusions of law."3
Meanwhile, on February 10, 1989, Briddle, through attorneys
3
The order states:
"In the instant cause, applicant presents nine
allegations in which he seeks to challenge the validity
of his conviction. The trial court has entered findings
of fact and conclusions of law and recommended the relief
sought be denied. This Court has reviewed the record
with respect to the allegations now made by applicant and
finds that the findings of fact and conclusions of law
entered by the trial court are supported by the record.
The relief sought is denied on the basis of the
trial court's findings of fact and conclusions of law."
The order contains at its foot the notation: "Clinton, J.,
would stay further proceedings pending disposition of Penry v.
Lynaugh, No. 87-6177, cert. granted U.S. (1988)."
7
Stephens, Foy, and Harrington, filed the instant petition under
section 2254 in the district court below, together with a motion
for stay of execution and motion for evidentiary hearing. After
the state trial court, on February 13, 1989, reset Briddle's
execution date for April 21, 1989, Briddle, through Stephens, on
March 3, 1989, moved the district court below to "hold the matter
in abeyance pending subsequent reapplication," should that be
necessary. On April 17, the state filed its answer to the federal
habeas petition, relying, among other things, on the state habeas
court findings and conclusions, and also asserting procedural bar.
On April 18, 1989, Briddle moved the district court below for stay
of the execution set for April 21, 1989, and to reinstate and
supplement the previously filed section 2254 petition. The same
day the district court below stayed Briddle's execution. Also on
April 18, 1989, the district court below entered an order that
included the following provisions:
"1. Counsel for Petitioner shall review the state
court records and interview the Petitioner within twenty-
one (21) days of the date of this Order.
At this conference, counsel will: (a) advise the
Petitioner that, if there are grounds existing at the
time of the conference for the granting of a writ, all
such grounds must be forthwith stated in appropriate
pleadings and any failure to do so will constitute a
waiver of omitted grounds; (b) review with Petitioner the
Rules Governing Section 2254 Cases in the United States
District Courts; and (c) explore as fully as possible all
potential grounds for relief. [emphasis added]
3. Within thirty (30) days of the date of this
Order, counsel for Petitioner shall file an Amended
Petition for Writ of Habeas Corpus, which shall include
the following:
a. All claims, contentions, and arguments asserted
in previous state or federal petitions, stating whether
8
or not those claims were exhausted or decided. If
counsel determines that there exists any unexhausted
claim for which a state remedy is still available,
counsel shall immediately notify the Court and counsel
for Respondent of the claim and the available remedy.
b. All current claims of a constitutional violation
or deprivation upon which Petitioner bases his
application for writ of habeas corpus, and
c. Statement as to whether Petitioner is entitled
to an evidentiary hearing on any issue concerning the
ineffective assistance of counsel.
Each claim shall be set forth in a separately
numbered section of the amended petition.
All claims not asserted in the Amendment Petition
for Writ of Habeas Corpus shall be deemed and are forever
waived, unless predicated upon new evidence or changes in
the law [emphasis in original]."
On May 18, 1989, counsel Stephens and Harrington reported
that, pursuant to the Court's April 18 order they had personally
met with Briddle, who had reviewed the April 18 order, and advised
him concerning it and discussed with Briddle "all potential grounds
for relief and fully advised him of the present states of
proceedings." Then, on May 19, 1989, Briddle, through attorneys
Stephens, Foy, and Harrington, filed his amended habeas petition
with the district court below and his request for evidentiary
hearing "to cross examine" attorneys Sims and Thomas "on their
affidavits" and to inquire into "Linda Briddle's [Linda Fletcher's]
annulment" in April 1981 of her marriage to Briddle. The amended
petition alleged that all claims made in it had been presented and
exhausted in the state courts. It further sought a stay pending
the Supreme Court's decision in Penry v. Lynaugh, cert. granted,
108 S.Ct. 2896 (1988).
The state, on June 21, 1989, filed its amended answer, motion
9
for summary judgment, and brief. It relied, among other things, on
the Court of Criminal Appeals' opinion on direct appeal, the
findings and conclusions of the state trial court and Court of
Criminal Appeals in the state habeas proceeding (including the
procedural bars found therein), the affidavits of attorneys Thomas
and Sims, and the state record.
No response to this motion for summary judgment was ever
filed.
The district court below, on July 20, 1989, entered an
"interim order" denying the requested evidentiary hearing. As to
attorneys Thomas and Sims, the court noted that the state "process
is adequate and no allegation is made that the process failed." As
to Linda Fletcher's annulment, the court found that the annulment
documents were "regular on their face, and admitted so" and that
"[a]dequate opportunity to set aside the alleged void judgment of
annulment between the petitioner and Fletcher has existed."4
Thereafter, Stephens, on August 18, 1989, again moved for a
stay until the Texas Court of Criminal Appeals, in another case
then pending before it, determined whether as a matter of law a
Penry claim would be waived by failure to assert it at trial, where
trial took place before Penry was handed down. The state filed an
opposition thereto.
Nothing thereafter happened in the case until August 3, 1990,
when the district court issued its memorandum opinion denying all
4
It also determined that the request for stay pending Penry was
moot. Penry was handed down June 26, 1989. Penry v. Lynaugh, 109
S.Ct. 2934 (1989).
10
relief. It held that state trial court habeas findings adopted by
the Court of Criminal Appeals were "entitled to the statutory
presumption of correctness [28 U.S.C. § 2254(d)]." It discussed
and rejected each of Briddle's asserted bases for relief. It also
noted that "the evidence of the petitioner's guilt is
overwhelming." The court concluded that Briddle's claims about
failure to develop mitigating evidence were appropriately rejected
based on the state habeas court's fact findings adopted by the
Court of Criminal Appeals. The court further noted "[n]othing that
has been proffered by the petitioner since the trial indicates that
the petitioner was or is mentally ill or was unable to conform his
conduct or how, if at all, any drug use the day before the murder
was committed prevented the petitioner from conforming his
conduct." It concluded that Briddle's Penry type claims and his
similar challenges to the Texas statutory sentencing scheme were
procedurally barred and were in any event without merit, and that
nothing in the Texas statutes prevented Briddle from offering the
mitigating evidence he claimed should have been offered.
On August 15, 1990, Briddle, through Stephens, filed a timely
motion to reconsider. This motion was entirely directed to the
district court's ruling that the Penry claim was procedurally
barred, and sought in the alternative a stay until disposition of
the then pending case of Selvage v. Collins, 897 F.2d 745 (5th Cir.
1990), in which this Court had, on March 6, 1990, certified to the
Texas Court of Criminal Appeals the question whether, in a case
tried prior to Penry, the failure at the punishment stage of trial
to request special instructions or to object to the form of the
11
special issues respecting Penry-type evidence constituted a
procedural bar under Texas law. The Texas Court of Criminal
Appeals had not then answered that question, although it ultimately
did so on May 29, 1991, finding no procedural default. Selvage v.
Collins, 816 S.W.2d 390 (Tex. Crim. App. 1991).
Thereafter, nothing further transpired until on August 8,
1991,5 attorney Jane Disko filed a motion, also signed personally
by Briddle, to be substituted for Stephens as Briddle's counsel.
On September 20, 1991, attorney Disko, joined by attorney Schaffer
of the same firm, filed a motion entitled "Supplement to
Petitioner's Motion to Alter and Amend Judgment," together with a
memorandum in support thereof. The motion recited:
"Present counsel's review of the record reveals
additional issues that are not presently before the
court. Intervening case law requires that petitioner
file this supplement to protect his substantive and
procedural rights. McCleskey v. Zant, 113 L.Ed.2d 5
(1991)."
The motion then summarized the reasons assertedly supporting the
relief it requested into the following three:
"1. Petitioner was denied due process because the state
district judge who denied his request for an
evidentiary hearing and selected another judge to
decide the habeas corpus application was initially
his prosecutor. This court should . . . dismiss
the petition without prejudice and remand the
proceedings to state court to present all issues to
an unbiased judge.
2. There are federal issues not previously raised in
state or federal court. In light of McCleskey v.
Zant, supra, this court should . . . allow
petitioner to properly raise all issues in his
5
A single exception is that on October 19, 1990, attorney
Stephens filed his "motion to set appointed counsel's
compensation."
12
initial federal petition, or in the alternative, to
dismiss the petition without prejudice and remand
the proceedings to state court to present all
issues to an unbiased judge.
3. This court declined to consider petitioner's claim
under Penry v. Lynaugh, 492 U.S. 302 (1989), ruling
that it was procedurally barred. In Selvage v.
Collins, No. 71,024 (Tex. Crim. App.-May 29, 1991),
the Court of Criminal Appeals held that a Penry
claim such as petitioner's is not barred. As a
result, this court should alter and amend its
judgment and consider the Penry claims on the
merits."
The motion concluded with a prayer for relief:
"that this court . . . vacate the judgment, dismiss the
petition without prejudice, and allow petitioner to
return to state court to present all issues before an
unbiased judge. In the alternative, petitioner requests
that the court alter and amend its judgment, . . . grant
leave to amend the Petition For Writ Of Habeas Corpus,
grant an evidentiary hearing regarding unresolved issues
of fact, and grant his Petition For Writ Of Habeas
Corpus."
The memorandum in support of the motion was in five parts
(parts I through V). Part I urges that in light of McCleskey v.
Zant, 111 S.Ct. 1454 (1991), the court should "allow leave to amend
the petition," asserting that McCleskey indicated "all possible
issues must be raised in the initial petition," that "[i]n view of
McCleskey, petitioner seeks to leave to redraft certain issues . .
. and to add federal constitutional issues." This part concludes
by stating that the court should "alter and amend the judgment" and
"allow petitioner to amend his petition."
Part II of the memorandum contains the five "proposed
amendments." The first of these is that the state habeas
proceedings denied Briddle due process because Judge Poe, who
signed the March 27, 1989, order denying an evidentiary hearing in
13
the state habeas case, had been a prosecutor in the original case
until sometime in September 1981, and that his said order was thus
void under state law. These allegations were based on a copy of
the March 27, 1989, order and on copies of portions of the state
record attached to the motion showing that Judge Poe, then as
prosecutor, announced the state ready in March 1980 and January
1981, presented the case to the grand jury in October 1980, and
agreed to a resetting in August 1981.6 There is no allegation that
any of these facts were unknown, or unavailable, to either Stephens
(or Harrington) or Briddle either at the time of the state habeas
proceedings or thereafter during Stephens' (or Harrington's)
representation of Briddle. It was also alleged that Judge Poe
"asked Judge Michael McSpadden to rule on the [habeas]
application." There is no allegation of any factual basis for this
assertion, nor for the similar assertion that Judge McSpadden was
a "long time friend of Judge Poe" and "Judge Poe personally asked
Judge McSpadden to rule on this case, and Judge McSpadden agreed as
a favor," and no affidavit, or tendered evidence, or any part of
the record, even tends to support any of these assertions. It is
also asserted that because of the foregoing the adoption by the
court below of the state court habeas findings "likewise denied
petitioner due process." No aspect of this claim had ever
previously been raised either in state court or previously in this
federal habeas proceeding.
6
These documents are the only documents or "evidence" offered
or submitted in support of the motion; no affidavits or the like
were submitted with or in support of it, and neither the motion nor
the memorandum was verified.
14
The next two proposed amendments consist of a total of
fourteen different assertions of ineffective assistance of counsel
at, respectively, the guilt-innocence stage and at the punishment
stage of the trial.7 All of these are based on the face of the
state trial record, and none is claimed to be supported by any
matter not previously before both the federal district court and
the state habeas court. At least several of these claims were
never previously raised in either this federal habeas or in the
state court at any stage.8 No claim of ineffective assistance of
7
These are: failures to object to two different parts of
Fletcher's testimony; failure to object to three different parts of
the prosecution's closing argument; failure to request a mistrial
after objection was sustained to another portion of the
prosecutor's argument; failure to properly object to Briddle's
confession as a whole on the grounds that it was the product of an
illegal arrest and to object under state law to the part of it
stating it did not bother him (Briddle) to get the death penalty
because he had not made much of his life; failure to adequately
show that the 1981 annulment (which counsel challenged at trial) of
Fletcher's marriage to Briddle was "invalid" under California law
because some of the grounds were not legally sufficient and all had
been waived by continued cohabitation; advising Briddle that he
would waive his spousal privilege claim if he testified (based
solely on a somewhat ambiguous passage in the state record at which
Briddle explains to the judge, outside of the jury's presence, why
he was not going to testify; there is no allegation of what
Briddle's testimony would have been); arguing to the jury, after
urging that the victims may have been strangled by Fletcher and
Perillo, that Briddle "certainly may be guilty of ordinary murder
but not this capital murder"; specific instances of improper
punishment phase jury argument by defense counsel; and failure to
object to three different parts of the prosecutor's punishment
phase jury argument.
8
Among the totally new claims were the following: that defense
counsel should have objected to the confession as the product of an
illegal arrest; defense counsel wrongly advised Briddle not to
testify because of possible waiver of spousal privilege; defense
counsel's handling of the annulment (the annulment had been
challenged in the state habeas and previously in the federal
habeas, but it had not been asserted as a grounds of ineffective
assistance of counsel); the failure to object to the prosecutor's
argument that the jury paid his salary; the failure to object to
15
counsel was made respecting any failure to develop, present, or
argue mitigating evidence or any failure of counsel to object to
the punishment charge or to request punishment phase instructions
or definitions.
The fourth proposed amendment is a claim, not previously
raised in the instant proceeding or in state court, that the
prosecutor intentionally violated the trial court's order granting
defense counsel's motion in limine as to evidence that Perillo had
confessed so as to implicate Briddle, by asking Fletcher "is not it
a fact that Pam Perillo never said that you had anything to do with
any of these murders."9
The fifth, and last, proposed amendment is that the Texas
statutory sentencing procedure, by precluding consideration of
Briddle's diminished culpability "due to an abnormal childhood and
an absence of the usual internal controls on aggressive or
impulsive behavior," deprived Briddle of his Sixth Amendment right
to the effective assistance of counsel in that under "the law at
the time of petitioner's trial, a reasonably competent lawyer could
not risk presenting evidence of this nature" and deprived Briddle
of his Eighth Amendment right to have the jury consider any
the prosecutor's argument that Briddle showed no remorse on the
ground that the argument was a comment on his failure to testify;
the failure to move for a mistrial after objection was sustained to
the prosecutor's asserted vouching for Fletcher's credibility; and
defense counsel's punishment phase argument that the jury's verdict
was "not any of my business" and that while trading the
perpetrators' lives for the victims' lives might have been
desirable, it was no longer possible.
9
Fletcher replied, "Yes, that's true." Defense counsel's
objection was sustained and the jury was instructed to disregard,
but defense counsel's motion for mistrial was denied.
16
"mitigating circumstances that may be relevant." Nothing in the
state trial record is claimed to constitute evidence (either
offered, conditionally offered, or admitted) of Briddle's abnormal
childhood or absence of usual internal controls, and nothing
outside of the trial record is pointed to in this respect.
However, this contention is somewhat similar to ineffective
assistance of counsel and counsel "chilling" contentions raised in
the state habeas and previously in the federal habeas which each
relied on the same January 1989 affidavits of Briddle's mother,
father, and brother10 and the January 1989 affidavit of a
10
These affidavits each contained the following statements
(though their order was slightly different in each):
"7. Mike was a poor student and was learning
disabled with dyslexia [this was not in the brother's
affidavit].
8. From about the age of 12 years Mike was in and
out of various California State Institutions where he was
medicated with Thorazine and Prolyxin, which are heavy
psychotropic drugs [this was not in the father's
affidavit; the brother's did not have the word "about"].
10. When Mike was sixteen years old he was involved
in a motorcycle/train accident, when his friend, a
passenger on Mike's motorcycle lost both arms and a leg.
Mike was extremely emotionally upset and disturbed
because of the injury to his friend.
11. Mike was always taking in stray animals to care
for them, and on one occasion found a great dane and
brought it home on his motorcycle and cared for it.
12. I am in touch with Mike and we correspond
regularly. I visit Mike whenever possible.
13. Although I did not reside in Texas during the
time of Mike's capital murder trial in 1982, I was aware
of his trial, but I was never contacted by his trial
counsel.
14. Had I been contacted by Mike's trial counsel I
17
psychologist who (at the request of Stephens) examined him for the
first (and only) time on January 20, 1989.11
would have informed him of the facts stated herein and
would have testified at trial."
The father's and brother's affidavits (but not the mother's)
also included the statement that "Mike has a daughter Renee, age 13
years, has expressed his concern for her on many occasions." The
mother's affidavit, but not the others, also stated she was in an
automobile accident when pregnant with Briddle, and that Briddle's
birth in April 1955 was four to six weeks overdue, required
forceps, and he "received severe bruises of the head," and that:
"Because Mike's father was severely injured when
Mike was twelve years old, it was necessary for me to
work outside of the home. During this period Mike would
clean the house without being asked and would cook many
of the family meals."
The brother's affidavit (but not the others) also stated
"[b]efore age twelve, Mike and I participated in organized sports
at school and in the area of our home"; "[i]n 1968 Mike had a brick
wall collapse on him causing severe injury to his face and head";
and "[w]hile growing up Mike was a friendly person who was known
and liked by all our neighbors." The father's affidavit (but not
the others) also stated "Mike worked with me on the docks and was
a very good worker. I got Mike a job in a warehouse and his
employer told me he was an excellent worker."
11
This document basically concluded that Briddle was not
psychotic, but suffered from some variety of personality disorder,
and had been diagnosed as Borderline Personality Disorder,
Antisocial Personality Disorder, and Schizotypal Personality
Disorder, and "to appear delusional, but not psychotic." It
observes that "[m]ost literature indicates that there can be some
success with the Schizotypal Personality Disorder through therapy."
It notes that Briddle "speaks with a relatively good vocabulary,"
"was oriented to time, place, and person," "was cooperative,"
showed "good attention and concentration," functioned "in at least
an Average range intellectually," and had "reading level for
comprehension to late eleventh grade." It states that "personality
evaluation does not indicate any form of psychotic condition at
this time, nor is there a pattern that suggests psychosis, even
though symptoms may be controlled by medication." It states that
Briddle reported having "had psychiatric evaluation numerous times"
but "states that he has never been diagnosed as being psychotic."
It refers to "one screening test" on which "his performance is
defective, suggesting that there may be some neurological
impairment" and states that "there is the possibility of minimal
brain injury."
18
Part III of the September 20, 1991, memorandum contends that
the May 29, 1991, decision of the Texas Court of Criminal Appeals
in Selvage v. Collins renders erroneous the district court's
holding that Briddle's Penry claim was procedurally barred, and
that the court should thus "consider the Penry claim on the
merits."
The memorandum's part IV, relying on the cumulative error
language in the panel opinion in Derden v. McNeel, 938 F.2d 605
(5th Cir. 1991),SQwhich was subsequently vacated when we took the
case en banc and affirmed the district court's denial of habeas
History given by Briddle is recited, including the following:
"The first time he was in a juvenile facility was at age
15 for three years. At age 17, he had an assault case in
the California youth system, having pushed another youth
under a train, causing him to lose several limbs.
Mike reports a tonsillectomy, hepatitis from drug abuse,
and a head injury, including concussion when he was
kicked in the head by a sheriff in Los Angeles County
Jail. . . .
Mike said that he started doing marijuana probably before
his teens, 'but it didn't do nothin for me.' Around the
age of 12, he started doing downers . . . . He said he
had experimented with every drug available and really
liked heroin, but usually used speed because heroin was
too expensive. He also started drinking while he was
young, stating that it probably was peer pressure, as he
ran with an older group of boys. . . . He also noted
that he had been given massive amounts of Thorazine and
Prolixin on an alternating basis for several years while
he was in juvenile facilities in California.
. . . .
Mike reports convictions for robbery and interstate
transportation of a vehicle in California, after which he
spent three years in San Quentin and was paroled. He was
returned to San Quentin for check fraud as his second
conviction as an adult."
19
relief, Derden v. McNeel, 978 F.2d 1453 (5th Cir. 1992), cert.
denied, 113 S.Ct. 2928 (1993),SQcontends in entirely conclusory
fashion, and without identifying any one specific or particular
claimed error, that "the combination of the errors is such that
petitioner was denied due process and a fair trial." This claim
had not previously been made in the instant federal habeas
proceeding.12
The part V of the memorandum is its conclusion and prayer,
which states:
"Petitioner requests that the court alter and amend its
order, vacate the judgment, dismiss the petition without
prejudice, and allow petitioner to return to state court
to present all issues to an unbiased judge. In the
alternative, petitioner requests that the court alter and
amend the judgment, allow leave to amend the petition,
and grant an evidentiary hearing to fully and fairly
resolve all fact issues in dispute."
In sum, the motion and memorandum requested vacation of the
judgment and only two other items of relief: (1) dismissal without
prejudice, or (2) amendment of the petition to include the new
claims and have a hearing thereon.
Nowhere in either the motion or memorandum of September 20,
1991, is there any explanation of why it was not sooner filed, or
why any of the new claims therein were not raised in the amended
federal habeas petition or in the state habeas petition, nor is
12
In the state habeas petition's initial "summary statement of
the case," the tenth ground listed is that "[t]he cumulative effect
of the ineffective assistance of trial counsel, prosecutorial
misconduct, and improper evidentiary rulings by the trial court,
served to deprive the petitioner of a fair trial . . . ." This
contention was not, however, separately argued or addressed in the
body of the petition which separately addressed the several claims
raised.
20
there any factual allegation tending to show that it could not
reasonably have been sooner filed, or that any of the new claims
therein could not have been included in the amended federal habeas
petition and in the state habeas petition, or that any of the
contentions raised therein were not known or reasonably available
both to Briddle and his former counsel Stephens (and Harrington).
In a brief order dated September 26, 1991, the district court,
without stating reasons, denied both the August 15, 1990, motion to
reconsider and the September 20, 1991, supplemental motion.13
Briddle filed a timely notice of appeal.14
Discussion
In this appeal Briddle, through counsel Disko, presents a
total of four points of error. We discuss these seriatim.
Briddle's first point of error is that "[t]he district court
erred in denying petitioner's supplemental motion to alter and
amend judgment because the state district judge who denied
petitioner's request for an evidentiary hearing and selected
another judge to decide the habeas corpus application was initially
his prosecutor." Briddle contends in this connection that because
until September 1981 Judge Poe had been Briddle's prosecutor,
13
The September 26, 1991, order states: "Pending before the
Court is the petitioner's motion and supplement to alter and amend
judgment and the Court having considered same is of the opinion
that the relief sought should be denied. The Court previously
lifted the stay in this case and nothing remains for this Court's
consideration. Through inadvertence the motion to alter and amend
judgment was overlooked." On September 20, 1991, the court had
granted the August 8, 1991, motion to substitute counsel.
14
The district court subsequently granted a certificate of
probable cause (without stating any reasons or identifying any
issues).
21
therefore his March 27, 1989, order denying an evidentiary hearing
on Briddle's state habeas was void under Texas law, as was his
asserted order assigning the case (at an unspecified time) to Judge
McSpadden, and hence the district court erroneously accorded the
presumption of correctness under 28 U.S.C. § 2254(d) to the state
court findings on Briddle's state habeas proceedings.15 We reject
this contention.
Even laying aside its unexcused belatedness,16 Briddle's
contention is wholly without merit. The April 11, 1989, findings
were made by Judge McSpadden, not by Judge Poe. The only action
taken by Judge Poe in the habeas case was his order of March 27,
1989. Prior to that time, Judge McSpadden had already taken the
following actions in the case: on December 15, 1988, he reset
Briddle's execution for February 14, 1989, and ordered that Briddle
file any habeas by January 17, 1989; on February 13, 1989, Judge
15
We observe that this is the only challenge made to the
findings made in the state court habeas proceedings.
16
It has not been alleged that either attorney Stephens (or
Harrington) or Briddle was unaware, prior to filing Briddle's state
habeas, that Judge Poe had served as a prosecutor in the initial
stages of Briddle's murder prosecution, or was unaware prior to
April 5, 1989, that the March 27, 1989, order was issued by Judge
Poe, or was unaware prior to April 5, 1989, of the alleged
assignment by Judge Poe to Judge McSpadden. The only evidence
claimed to indicate that Judge Poe acted as prosecutor consists of
portions of the state record in Briddle's murder prosecution, and
the March 27, 1989, order reflects that it was signed by Judge Poe,
and on April 5 Briddle, through Stephens, responded thereto by
submitting proposed findings and conclusions. Nothing in the state
record even suggests an assignment of the habeas case by Judge Poe
to Judge McSpadden, there are no allegations indicating any basis
for the unverified assertion that such an assignment by Judge Poe
occurred, and there is no affidavit or other evidence tending to
indicate that it did. Nor is there anything to support the bare,
unverified allegation that Judges Poe and McSpadden were long time
friends.
22
McSpadden again ordered Briddle's execution reset for April 21,
1989; and in another February 13, 1989, order Judge McSpadden
directed that Briddle's trial attorneys, Thomas and Sims, file by
March 5 affidavits explaining their representation of Briddle and
responding to his allegations of ineffective assistance of counsel,
and that the state file its answer by March 8. There is absolutely
nothing in the state record, or otherwise, indicating or tending to
support the unverified allegation that Judge Poe assigned the
habeas matter to Judge McSpadden. Moreover, that allegation (made
by an attorney who did not come into the case until sometime in
1991) is wholly conclusory in that there is no indication or
statement of any facts which have caused the pleader to believe
that Judge Poe so assigned the matter. And, Judge McSpadden was
clearly free to order a full scale evidentiary hearing, had he
deemed such appropriate.17 Moreover, under Texas law the only
ultimate decision in a post-conviction habeas case is that made by
the Texas Court of Criminal Appeals.18 The Court of Criminal
Appeals "is not bound by the findings, conclusions, or
recommendations of the trial court in reaching decisions on post-
17
See Tex. Code Crim. Proc. Ann. art. 11.07 § 2(d) ("the court
may order affidavits, depositions, interrogatories, and hearings"
to resolve "previously unresolved facts which are material to the
legality of the applicant's confinement").
18
Tex. Code Crim. Proc. Ann. art. 11.07, sec. 3; Ex parte
Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985) ("[i]t is well
established that only the Court of Criminal Appeals possesses the
authority to grant relief in a post-conviction habeas corpus
proceeding where there is a final felony conviction").
23
conviction applications for writ of habeas corpus relief,"19 and can
itself order an evidentiary hearing.20 Here, the Court of Criminal
Appeals itself "reviewed the record," determined that the trial
court's findings were supported thereby, and denied relief on the
basis of such findings. The findings in substance became those of
the Court of Criminal Appeals. There is simply nothing before us
to support the contention that Judge Poe's having acted as
prosecutor in the early pre-trial stages of Briddle's murder case
in any way caused either the April 11, 1989, order of Judge
McSpadden or the April 14, 1989, order of the Court of Criminal
Appeals to be void under Texas law, or in any way affected either
such order, or deprived Briddle of due process, or prevented
application of the section 2254(d) presumption of correctness. We
reject Briddle's first point of error.
The second point of error presented by Briddle in this appeal
is that "the district court abused its discretion in denying
petitioner's motion to amend his petition for writ of habeas corpus
to comply with McCleskey v. Zant," 111 S.Ct. 1454 (1991). The
argument under this point makes it clear that the contention is
19
Ex parte Ramirez, 577 S.W.2d 261, 263 (Tex. Crim. App. 1979).
See also Ex parte Adams, 707 S.W.2d 646, 648 (Tex. Crim. App. 1986)
(same); Ex parte Acosta, 672 S.W.2d 470, 472 n.2 (Tex. Crim. App.
1984) (same); Ex parte Campos, 613 S.W.2d 745, 746 (Tex. Crim. App.
1981) (same).
20
See Ex parte Campos, 613 S.W.2d 745, 746 (Tex. Crim. App.
1981) (ordering hearing); Ex parte Acosta, 672 S.W.2d 470, 472
(Tex. Crim. App. 1984) ("this Court ordered the trial court to hold
an evidentiary hearing to allow the applicant to more fully develop
his allegations"). See also Tex. Code. Crim. Proc. Ann. art.
11.07(c) sec. 3 ("The Court of Criminal Appeals . . . may direct
that the cause be docketed and heard as though originally presented
to said court or as an appeal").
24
that Briddle should have been allowed to raise the new claims
asserted for the first time in his September 20, 1991, motion, and
either have his petition dismissed without prejudice or amended and
the new claims addressed on the merits, in order to avoid having to
raise such new claims in a subsequent federal habeas that would be
subject to dismissal for abuse of the writ pursuant to McCleskey
(which Briddle's brief describes as having "held that a successive
federal habeas corpus petition may be denied for abuse of the writ
if the petitioner raises federal claims that could have been raised
in the initial petition"). We reject this point of error.
As of September 20, 1991, Briddle had no absolute right to
dismiss his petition without prejudice or to amend it. See Fed. R.
Civ. P. 15, 41(a).21 He had been represented by the same counsel
throughout his state and federal habeas proceedings (and that
counsel had represented him on his application for certiorari, and
had had the full record in his case since before October 1988), and
has never alleged that such counsel was incompetent. Briddle had
already amended his federal habeas petition once, following an
order of the district court expressly advising him that claims not
included would be deemed forever waived; the state had already
answered and moved for summary judgment; and more than a year
previously the district court had rendered judgment on the merits
dismissing the petition for writ. Briddle presented absolutely
21
Under Rule 11 of the Rules Governing Section 2254 Proceedings,
"The Federal Rules of Civil Procedure, to the extent that they are
not inconsistent with these rules, may be applied, when
appropriate, to petitions filed under these rules." See also,
e.g., Randle v. Scott, 43 F.3d 221, 226 (5th Cir. 1995).
25
nothing below or on this appeal to explainSQand he has not even
attempted to explainSQthe thirteen-month delay in seeking amendment
or dismissal without prejudice. All of the "new" issues were based
on matters reflected by the face of the record and no change in the
law was asserted, apart from McCleskey itself.22
We have ruled that "McCleskey is applied retroactively."
Hudson v. Whitley, 979 F.2d 1058, 1063 (5th Cir. 1992). Thus,
McCleskey affords no valid basis for Briddle's September 20, 1991,
motion. And, we have likewise held that McCleskey may not be
avoided by motions under Fed. R. Civ. P. 60(b). Ward v. Whitley,
21 F.3d 1355, 1360 & n.4 (5th Cir. 1994) ("A habeas petitioner may
not add new constitutional claims to a petition after the district
court has entered judgment").23 Moreover, we observe that McCleskey
did not change the law in this Circuit applicable to Briddle's
situation. Long prior to Briddle's filing of either his state or
federal habeas, we had held that a prisoner represented by counsel
(as Briddle has consistently been) was bound to raise all available
claims in his initial federal habeas, or face Rule 9(b) dismissal
22
Briddle also relied on Selvage v. Collins, 816 S.W.2d 390
(Tex. Crim. App. 1991), as new law, but this merely provided an
additional authority for his argument that his previously raised
Penry claims were not procedurally barred (a contention previously
made in both the state and federal habeas proceedings); Selvage v.
Collins provides no excuse for raising any new claims. Moreover,
as reflected in the text infra, Selvage v. Collins does avail
Briddle as to his Penry claims.
23
See also the authorities cited in Williams v. Whitley, 994
F.2d 226, 230-31 n.2 (5th Cir. 1993), as supporting our statement
there that "we are inclined to agree with the state that Fulford's
motion for reconsideration is best viewed as yet another habeas
petition and thus subject to Rule 9(b)'s constraints." Rehearing
en banc was subsequently granted, id. at 236, but thereafter
Fulford's case was dismissed as moot due to his death.
26
in a subsequent habeas. Moore v. Butler, 819 F.2d 517, 519-20 (5th
Cir. 1987); Jones v. Estelle, 722 F.2d 159, 167, 169 (5th Cir.
1983) (en banc), cert. denied, 104 S.Ct. 2356 (1984).24 Indeed, the
district court here had explicitly warned Briddle and his counsel
that the to-be-filed amended petition would have to include all
claims, and those not included would be waived.
We reject the contention that McCleskey required the district
court to grant Briddle's September 20, 1991, motion.25 Briddle's
second point of error is without merit.
We turn now to Briddle's third point of error, which asserts
that "[t]he district court abused its discretion in denying
petitioner's motion to alter and amend the judgment because it
failed to apply Selvage v. Collins," 816 S.W.2d 390 (Tex. Crim.
App. 1991). Briddle's argument under this point is that the
district court erred in applying the procedural bar to Briddle's
Penry-type claim because Briddle's case was tried before Penry, and
24
While Jones indicated there would be an exception for
instances in which prior federal habeas counsel was incompetent (or
where the prior habeas was pro se), Briddle (just as the petitioner
in Jones) has never asserted that any of his habeas counsel was
incompetent.
Subsequent to McCleskey, we removed both the incompetent
counsel and pro se petitioner exceptions to Jones. See Johnson v.
Hargett, 978 F.2d 855, 859 (5th Cir. 1992), cert. denied, 113 S.Ct.
1652 (1993); Sahir v. Collins, 956 F.2d 115, 119 (5th Cir. 1992).
25
We note that nothing in Briddle's September 20, 1991, motion
and memorandum tends to establish, or is even claimed to establish,
"cause" under McCleskey for failure to sooner raise the new claims
sought to be thereby injected into the case (nor does Briddle
contend otherwise on this appeal). Similarly, at no time has
Briddle made any "colorable showing of factual innocence,"
McCleskey at 1471, or even claimed such (or that he was not
"eligible" for the death penalty, Sawyer v. Whitley, 112 S.Ct.
2514, 2517 (1992)).
27
in Selvage the Court of Criminal Appeals held that in cases tried
before Penry, where Penry-type mitigating evidence26 was presented
at trial, the failure to object to the punishment charge or to
request special instructions or issues did not waive or bar a claim
that the punishment phase special issues were not adequate to allow
constitutionally- mandated consideration of the mitigating
evidence. Briddle's claim in this respect presents no reversible
error, and we reject it.
To begin with, while the district court did apply the
procedural bar in this respect, it also, alternatively, considered
and rejected the Penry claim on the merits. We agree that there
was no valid Penry claim to begin with.
Of all the evidence introduced (or proffered) at any stage of
the trial, only two items are claimed to constitute Penry evidence.
The first is the evidence that Briddle and the others drank
alcoholic beverages, smoked marihuana, and became intoxicated the
night before the murders. There is no evidence of the quantity of
alcohol or marihuana consumed, and no evidence that Briddle was
intoxicated the next day when the murders were committed. In any
event, "evidence of intoxication may be considered as favorable to
a negative answer to both the first and second punishment special
issues, and hence is not Penry evidence. See Nethery v. Collins,
993 F.2d 1154, 1161 (5th Cir. 1993); James v. Collins, 987 F.2d
1116, 1121 (5th Cir. 1993); Cordova v. Collins, 953 F.2d 167, 170
26
By Penry-type evidence, we mean mitigating evidence that is of
a kind that under Penry (and its progeny) requires modification of
or addition to (or special instructions respecting) the former
statutory punishment phase special issues in Texas capital cases.
28
(5th Cir. 1992), cert. denied, U.S. , 112 S.Ct. 959, 117
L.Ed.2d 125 (1992)." Anderson v. Collins, 18 F.3d 1208, 1214-15
n.5 (5th Cir. 1994). See also Lackey v. Scott, 28 F.3d 486, 487
(5th Cir. 1994), cert. denied, 115 S.Ct. 743 (1995). The second
and only other asserted item of Penry evidence is testimony by a
woman whose son knew Briddle when both were confined in jail while
Briddle was awaiting trial on the instant offense, that Briddle had
befriended and counseled her son and effected "a complete change"
for the better in the son's "attitude toward life," and,
inferentially, indicating remorse on Briddle's part for having
"failed in his life." We have repeatedly held that evidence of
this sort is not Penry evidence. Crank v. Collins, 19 F.3d 172,
175 (5th Cir.), cert. denied, 114 S.Ct. 2699 (1994); Graham v.
Collins, 950 F.2d 1009, 1032-33 (5th Cir. 1992) (en banc), aff'd on
other grounds, 113 S.Ct. 892 (1993); James v. Collins, 987 F.2d
1116, 1122 (5th Cir.), cert. denied, 114 S.Ct. 30 (1993); Barnard
v. Collins, 958 F.2d 634, 640 (5th Cir. 1992), cert. denied, 113
S.Ct. 990 (1993); Wilkerson v. Collins, 950 F.2d 1054, 1061-62 (5th
Cir. 1992). See also Johnson v. Texas, 113 S.Ct. 2658, 2669-72
(1993); Graham v. Collins, 113 S.Ct. 892, 902 (1993).
There was no Penry evidence introduced or offered
(conditionally or otherwise) at any stage of Briddle's trial.
Accordingly, there is no basis for any Penry claim. "This Court
has held that a petitioner cannot base a Penry claim on evidence
that could have been, but was not, proffered at trial." Anderson,
18 F.2d at 1214-15 (citing cases). To the same effect are Allridge
v. Scott, 41 F.2d 213, 223 (5th Cir.) (". . . capital defendants
29
cannot base a Penry claim on evidence that could have been, but was
not, proffered at trial"), cert. denied, 115 S.Ct. 1959 (1995);
Crank, 19 F.3d at 176; Callins v. Collins, 998 F.2d 269, 275 (5th
Cir. 1993), cert. denied, 114 S.Ct. 1127 (1994). We have likewise
consistently rejected the related argument that the Texas statutory
capital sentencing scheme is invalid as preventing or chilling
defense counsel's development of mitigating evidence. Thus, in
Lackey we stated:
"Appellant argues that the Texas capital sentencing
statute unconstitutionally interfered with his trial
counsel's ability to make decisions about his defense.
Specifically, Lackey argues that because mental health
evidence could be considered in aggravation of the second
special issue, the statutory scheme prevented his trial
counsel from developing and presenting mitigating
evidence about his mental condition. We have considered
and rejected this precise argument in previous cases.
See Black v. Collins, 962 F.2d 394, 407 (5th Cir.), cert.
denied, U.S. , 112 S.Ct. 2983, 119 L.Ed.2d 601
(1992); May v. Collins, 948 F.2d 162, 166-68 (5th Cir.
1991), cert. denied, U.S. , 112 S.Ct. 907, 116
L.Ed.2d 808 (1992)." Id. 28 F.3d at 490.
See also Crank, 19 F.2d at 176.27
27
Moreover, the state habeas court found, on the basis of the
affidavits of trial attorneys Thomas and Sims, that they were in no
way "chilled" by the Texas statutory scheme. These affidavits
stand wholly unrebutted in this respect (and also in all other
respects, with the single exception that Briddle's mother's
affidavit states "I was never contacted by his trial counsel,"
while Thomas' affidavit states "contrary to Mrs. Briddle's
affidavit, we did contact Mike's mother . . . she had little good
to say about Mike, explaining that he had had continual problems
with law enforcement since he was a youngster" and Sims' affidavit
states "we contacted Mr. Briddle's mother against his wishes . . .
the information provided by Mrs. Briddle was not at all helpful and
generally damaging"). In this appeal, the only challenge to any of
the state habeas court's factual findings is that concerning Judge
Poe as above discussed and rejected in connection with Briddle's
first point of error; this was likewise the only challenge to the
state court findings made in the September 20, 1991, memorandum and
motion; prior to that time there was no claim that the findings
were not entitled to the presumption of correctness under section
30
Accordingly, there was no Penry error, and hence application
of the procedural bar thereto was irrelevant. We thus reject
Briddle's third point of error.
The fourth and final point of error presented by Briddle is
that "the district court abused its discretion in summarily denying
petitioner's motion and supplemental motion to alter and amend
judgment."
So far as concerns the original motion to alter and amend,
filed by attorney Stephens August 15, 1990, it was directed solely
to the district court's ruling that Briddle's Penry claim was
2254(d).
We have many times held that a state habeas court's findings
based on affidavits may be entitled to the section 2254(d)
presumption of correctness. See Carter v. Collins, 918 F.2d 1198,
1202 (5th Cir. 1990) (citing cases).
We note that Thomas' affidavit states that Briddle was
"insistent" that none of his family be involved, and that they
(Thomas and Sims) made a conscious decision not to call family
members, knowing that as "the prosecutor . . . would find it
difficult, if not impossible, to secure admissible evidence
concerning Mike's California juvenile record and prior bad acts,"
there was "everything to lose by subjecting Mike's family members
to the prosecutor's cross-examination," and that, as it was, they
kept out a 1975 extraneous robbery offense. Sims' affidavit is
essentially to the same effect. Thomas also stated "I always found
Mike to be smart, lucid and cogent," and "we saw no need to have
Mr. Briddle undergo a psychiatric examination. In fact, we were
certain that a psychiatric examination might produce damaging
evidence which could be used against Mr. Briddle at his trial."
Sims' affidavit states "I did ask Mr. Briddle whether he had ever
had psychological problems or suffered from any mental illness . .
. he denied any such problems . . . His denial of mental problems
was consistent with my observations . . . I found Mike to be
reasonably intelligent, lucid and sophisticated with regard to
institutional environments." There is no contrary evidence. The
state habeas court credited these affidavits, and determined that
there was no ineffective assistance of counsel. Neither the August
15, 1990, motion nor the September 20, 1991, motion and memorandum,
nor this appeal, asserts any claim of ineffective assistance of
counsel in respect to not developing or presenting mitigating
evidence or not objecting to the punishment charge or special
issues or not requesting further instructions in that respect.
31
procedurally barred (alternatively urging that the case should be
stayed until Selvage resolved the procedural bar issue). As
previously discussed in connection with Briddle's third point of
error, as a matter of law there was no valid Penry claim, so the
lack of procedural bar of such a claim was immaterial and afforded
no valid basis on which to alter or amend the judgment.
So far as concerns the September 20, 1991, supplemental motion
to alter or amend the judgment, Briddle's brief on appeal presents
no argument as to the merits of any ground for relief raised in the
September 20, 1991, motion.28 Briddle merely argues in conclusory
fashion that "[c]ounsel's evaluation of the record revealed that
certain issues were not raised in the district court, nor did the
court consider relevant intervening case law. On September 20,
1991, pursuant to McCleskey v. Zant, supra, petitioner filed a
supplemental motion to alter and amend to protect his substantive
and procedural rights" (emphasis added), and "[p]etitioner's
motions, supported by memorandum of law, raised significant issues,
addressed intervening and controlling case law, and sought
alternative forms of relief. The motions did not seek
reconsideration of previously litigated issues" (emphasis added).29
Briddle urges, again in conclusory fashion, that the supplemental
28
To the extent that Briddle's brief may be regarded as
impliedly incorporating into the argument under its fourth point of
error the arguments it makes in support of its first, second, and
third points of error, we have already rejected those arguments for
the reasons previously stated in this opinion.
29
The only "intervening case law" cited was Selvage and
McCleskey, neither of which, as discussed above in connection with
Briddle's second and third points of error, justified any relief
for Briddle.
32
motion should have been granted "in the interest of justice and
judicial economy."
What Briddle is essentially arguing is that the district court
abused its discretion by not vacating its judgment so as to allow
Briddle to amend his complaint to assert new claims raised for the
first time more than a year after the judgment. We reject this
contention.
A district court's decision to grant or deny leave to amend
after answer is reviewed only for abuse of discretion. See Little
v. Liquid Air Corp., 952 F.2d 841, 846-47 (5th Cir. 1992), aff'd on
this point en banc, 37 F.3d 1069, 1073 & n.8 (5th Cir. 1994) (en
banc) (no abuse of discretion in denying leave to amend to assert
new theories after opposite party filed motion for summary
judgment); 6 Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2d § 1486 at 604 ("Rule 15(a) gives the court extensive
discretion to decide whether to grant leave to amend after the time
for amendment as of course has passed"). Similarly, denial of a
motion for reconsideration is reviewed under an abuse of discretion
standard. See, e.g., Batterton v. Texas General Land Office, 783
F.2d 1220, 1225 (5th Cir. 1986) ("A district court's decision to
deny a motion to alter or amend judgment may be reviewed only for
an abuse of discretion"); Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 355 (5th Cir. 1993). We have consistently recognized
undue delay as justifying denial of leave to amend, Little,
particularly where leave to amend is sought to raise new matters
after the trial court has ruled on the merits or entered judgment.
In such circumstances, we have consistently upheld the denial of
33
leave to amend where the party seeking to amend has not clearly
established that he could not reasonably have raised the new matter
prior to the trial court's merits ruling. This is explained in 6
Wright, Miller & Kane, Federal Practice and Procedure, § 1478, as
follows:
"Most courts faced with the problem have held that once
a judgment is entered the filing of an amendment cannot
be allowed until the judgment is set aside or vacated
under Rule 59 or Rule 60. . . . This approach appears
sound. To hold otherwise would enable the liberal
amendment policy of Rule 15(a) to be employed in a way
that is contrary to the philosophy favoring finality of
judgments and the expeditious termination of litigation.
. . .
The fact that a party desiring to amend after
judgment has been entered is obliged first to obtain
relief from the judgment imposes some important
restrictions on the ability to employ Rule 15(a). For
example, a judgment generally will be set aside only to
accommodate some new matter that could not have been
asserted during the trial . . . ." Id. at 692-694
(footnotes omitted).
. . .
"A number of courts, exercising their discretion
under Rule 15(a), have refused to allow a postjudgment
amendment when the moving party had an opportunity to
assert the amendment during trial but waited until after
judgment before requesting leave; these courts based
their conclusions on the moving party's unreasonable
delay. For example, in Freeman v. Continental Gin
Company [381 F.2d 459 (5th Cir. 1967)], a seller sued a
buyer for the purchase price under a contract of sale.
The district court granted summary judgment for the
seller . . . . Although the case was substantially
disposed of, a formal judgment was not entered. Nine
months after the grant of summary judgment and
approximately eighteen months after the filing of the
original answer, defendant attempted to amend to charge
plaintiff with fraud. The district court denied leave to
vacate the summary judgment and amend. The Fifth Circuit
affirmed the lower court's decision, stating:
A busy district court need not allow itself to
be imposed upon by the presentation of
theories seriatim. Liberality in amendment is
34
important to assure a party a fair opportunity
to present his claims and defenses, but 'equal
attention should be given to the proposition
that there must be an end finally to a
particular litigation.' * * * Much of the
value of summary judgment procedure in the
cases in which it is appropriateSQand we have
held this to be such a caseSQwould be
dissipated if a party were free to rely on one
theory in an attempt to defeat a motion for
summary judgment and then, should that theory
prove unsound, come back long thereafter and
fight on the basis of some other theory." Id.
at 696-97 (footnotes omitted).
We have consistently followed Freeman. Thus in Union Planters
Nat. Leasing v. Woods, 687 F.2d 117 (5th Cir. 1982), we sustained
a district court's denial of leave to amend (to assert a new
defense) asserted in a motion for rehearing directed to an order
granting the opposite party's motion for summary judgment, stating:
"'A busy district court need not allow itself to be
imposed upon by the presentation of theories seriatim.'
Freeman, 381 F.2d at 469. Further, after summary
judgment has been granted, the court has "even more
reason for refusing to allow amendment." Id.; Gregory
[v. Mitchell], 634 F.2d [199] at 203 [(5th Cir. 1981)].
"Then, the concerns of finality in litigation become more
compelling, and the litigant has had the benefit of a day
in court, in some fashion, on the merits of his claim,"
Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 598
n.2 (5th Cir. 1981).'" Id. at 121.
In numerous other instances we have applied the same rationale.
See, e.g., Waltman v. International Paper Co., 875 F.2d 468, 473-74
(5th Cir. 1989) (no abuse of discretion in denying motion for
reconsideration of order granting partial summary judgment where
materials relied on for reconsideration "were available to" movant
"when she opposed . . . [the] summary judgment motion . . . and she
did not give any explanation why she did not include the materials
with her motion in opposition to summary judgment"); Savers Federal
35
Sav. & Loan Ass'n v. Reetz, 888 F.2d 1497, 1508-09 (5th Cir. 1989)
(no abuse of discretion in denying Rule 59(e) motion, seeking to
raise new theories why summary judgment not proper, where facts
were known to movant in advance of summary judgment); Southern
Constructors Group v. Dynalectric Co., 2 F.3d 606, 612 & n.25 (5th
Cir. 1993) (no abuse of discretion in denying Rule 59(e) motion
that sought to amend to raise new theory, noting that denials of
leave to amend are sustained "when the moving party engaged in
undue delay or attempted to present theories of recovery seriatim,"
citing Union Planters). See also Batterton at 1225.
Here, when the district court rendered judgment, the case had
been pending for nearly eighteen months; indeed, more than a year
had elapsed both since the state's motion for summary judgment was
filed (no response thereto ever having been made) and since Briddle
had filed his amended petition in response to the district court's
order to do so and to be sure to raise all claims therein on pain
of waiving any not raised. Briddle was represented by counsel
throughout. Yet it was not until over a year after the district
court's judgment that the supplemental motion to alter or amend was
filed. No reasons are advanced in the motion or in its supporting
memorandum why any of the new claims raised therein could not have
been raised when the amended petition was filed more than two years
previously, nor are any such reasons advanced on appeal. It is
obvious that there are no such reasons, because everything relied
on in the supplemental motion to alter or amend is reflected in the
state record (either the original record or the state habeas
record). Indeed, the supplemental motion asserts (as does Briddle
36
on appeal) that "counsel's review of the record reveals additional
issues that are not presently before the court" (emphasis added).
Plainly, there was no abuse of discretion in denying the
supplemental motion to alter or amend.
Briddle asserts that the district court's order denying the
supplemental motion to alter or amend must be reversed because it
states no reasons. There is no requirement that reasons be stated
for the denial of a motion for reconsideration under Rule 59(e).
Cf. Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663,
666-667 (5th Cir. 1981) (sustaining purely implicit denial of
plaintiff's motion for leave to amend which "attempted to establish
a new factual and legal theory" but was not filed until "more than
a year after . . . institution of suit, after discovery had been
terminated and after the defendant's motion for summary judgment").
Briddle relies on Midland West Corp. v. Federal Deposit Ins. Corp.,
911 F.2d 1141, 1145 (5th Cir. 1990), where we reversed the district
court's denial of a joint motion of the parties to modify an agreed
judgment "to reflect their intent accurately," stating "because the
district court's order offers no reason or basis for denying the
timely filed motion to reform for a conceded mutual mistake and
none is apparent to us, we find error" (emphasis added). Plainly
Midland West is not remotely on point. Here there is not only no
joint motion nor conceded mistake, but validSQindeed
compellingSQreasons for denying the motion are obvious and apparent
on the face of the record.
We reject Briddle's fourth and final point of error.
37
Conclusion
Having fully considered and rejected each of Briddle's points
of error, the judgment of the district court is accordingly
AFFIRMED.30
30
Any and all outstanding stay orders heretofore issued by this
Court (or the district court) are hereby vacated.
38