Bagwell v. Dretke, No. 02-11129.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Patrick E. Higginbotham
• Citation: 376 F.3d 408
• Parties: Joshua Luke BAGWELL, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Docket Number: No. 02-11129.
• Decision Date: 30 June 2004

376 F.3d 408 Joshua Luke BAGWELL, Petitioner-Appellant,
v.
Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. No. 02-11129. United States Court of Appeals, Fifth Circuit. June 30, 2004.

Page 409

Randy Schaffer, Josh Barrett Schaffer (argued), The Schaffer Firm, Houston, TX, for Bagwell.

Amy Warr, Melanie P. Sarwal, Asst. Sol. Gen. (argued), Austin, TX, for Dretke.

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.

Page 410

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, 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 § 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

Page 411

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 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

Page 412

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...