United States Court of Appeals

Fifth Circuit



## FILED

February 17, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

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 Au thorization 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 District1 This court lacks authority to enforce Rule 60(b) in the first

instance.

2 of Texas, San Antonio Division, which, without a hearing, denied

Bagwell habeas relief and a certificate of appealability (“COA”).

Bagwell, subsequent ly, 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 b ehalf. 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. B agwell 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 un der Tex. Code Crim.

Proc. art. 11.071, § 5(a)(1).

The instant m otions, 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. 12 W e 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. S ee F elder v. Johnson , 204 F.3d 168, 170-71 (5th Cir. 2000) (noting

that the statutory time bar shou ld be tolled only in “rare and exceptional

circumstances”).

3

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 b e

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

Amen dments 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 though3 We have previously deemed Bagwell’s assertion that he was acting “pro

se” on this claim as of the state evidentiary hearing meritless. B agwell 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 Bagwell, testifying at his own evidentiary hearing, made statements

regarding counsel’s denial of his right to testify. 3

We were presented w ith nearly identical arguments in

Bagwell I

, wherein we found Bagwell’s claim procedurally defaulted

for failure to exhaust state remedies without cause. B agwell 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 cl aim 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

w ith 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.

Fir st, as we noted in B agwell I

, the unassigned error

argument upon which Bagwell’s § 11.071 contention rests, and the

cases cited in furtherance thereof, 4 are inapplicable because those787, 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 c ases involved instances where the petitioners explicitly raise d

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 fed eral 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 ind ependent state ground that strips

this Court of jurisdiction to resolve Bagwell’s Fifth Amendment

claim on federal habeas review. K unkle 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).6 Second, Bagwell’s § 2244(b) argument also fails. Bagwell

contends that the instant habeas petition should not be treated as

“successive” becaus e, citing R ose 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 Lun dy . 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 C rone 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.” I d. 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).7 Treating Bagwell’s petition as successive, we dismiss his

p etition because the factual predicate for his Fifth Amendment

claim could have been discovered though the exercise of due

d iligence, 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’ failur e 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 innoce nce. 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

distraugh t 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. Also8

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 evide nce, sufficient to prove his

actual innocence.

For the aforementioned reasons, we DENY Bagwell’s Motion

for Authorizati on to File Successive Petition for Writ of Habeas

Corpus and DENY his Motion for Stay of Execution.