Bell v. Cockrell

• Citation: 310 F.3d 330
• Decision Date: 17 October 2002
• Docket Number: No. 01-40340.,01-40340.
• Parties: Walter BELL, Jr., Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice — Institutional Division, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

310 F.3d 330

Walter BELL, Jr., Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice — Institutional Division, Respondent-Appellee.

No. 01-40340.

United States Court of Appeals, Fifth Circuit.

October 17, 2002.

Kenneth Bruce Florence, Huntsville, TX, for Petitioner-Appellant.

Carla Elaina Eldred, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Pending before this court on remand from the U.S. Supreme Court is the question what to do with a capital habeas case in which the petitioner has consistently offered clinical evidence of mental retardation since his first trial, which took place in the 1970's. We conclude that this habeas petition must be dismissed without prejudice so that the State of Texas can reconsider Bell's case in light of Atkins v. Virginia, ___ U.S. ___, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).

A brief explanation of this disposition is appropriate. Bell killed his former employer Ferd Chisum and Chisum's wife Irene in 1974. He was indicted and convicted of the capital murder of Ferd Chisum, a conviction affirmed on direct appeal. Bell v. State, 724 S.W.2d 780 (Tex. Crim.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). On state habeas corpus review, however, the Texas Court of Criminal Appeals reversed Bell's conviction and death sentence pursuant to Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Ex parte Bell, No. 70,946 (Tex. Crim.App., Nov. 6, 1991). Bell was tried a second time for the capital murder of Ferd Chisum and was again convicted and sentenced to death in 1994. After exhausting direct appeal remedies, see Bell v. State, 938 S.W.2d 35 (Tex.Crim.App.1996), he filed an unsuccessful application for state habeas corpus relief. Ex parte Bell, No. 10898-05.

In the federal habeas petition attacking this second conviction, Bell averred that it was unconstitutional for him, as a mentally retarded individual, to be executed. During both trials for the murder of Ferd Chisum, Bell offered clinical evidence of mild mental retardation. Both the federal district court and this court rejected Bell's claim as foreclosed by then-existing Supreme Court precedent. He had the good fortune to file a certiorari petition in the same Term in which the Supreme Court ruled, based on the evolving standards of decency, that execution of the mentally retarded has indeed become unconstitutional. Atkins, 122 S.Ct. at 2252.

The Supreme Court remanded Bell's case to this court for reconsideration in light of Atkins. We sought briefing from the parties on the proper mode of proceeding. Both parties acknowledge that Atkins constitutes an exception to the non-retroactivity rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and therefore applies retroactively to his habeas case. We agree. See Penry v. Lynaugh, 492 U.S. at 330, 109 S.Ct. at 2953 ("[I]f we held, as a substantive matter, that the Eighth Amendment prohibits the execution of mentally retarded persons ... such a rule would fall under the first exception to [Teague's] general rule of non-retroactivity and would be applicable to defendants on collateral review.").

From this point, the parties' positions diverge. Bell urges this court to reverse the judgment of the federal district court denying habeas corpus relief, vacate the judgment of the Texas trial court and remand for a jury determination of his mental retardation. Even more aggressively, he asserts that this court could resolve the issue of mental retardation based upon the existing state court record in which, he states, the prosecution never contested the evidence of his mental retardation. The state, on the other hand, suggests that we should affirm the federal district court's denial of habeas relief, inasmuch as the state courts' prior decisions were not based on an "unreasonable" application of then-existing federal law. 28 U.S.C. § 2254(d). The state suggests that Bell could then file a successive state habeas petition raising the Atkins issue. Alternatively, the state would have us remand Bell's Eighth Amendment claim to the federal district court with orders to dismiss it without prejudice.

What this divergence of views exhibits is the welter of uncertainty following Atkins, which declared that execution of mentally retarded persons is now an unconstitutional cruel and unusual punishment. The Supreme Court neither conclusively defined mental retardation nor provided guidance on how its ruling should be applied to prisoners already convicted of capital murder. Instead, the Court held,

Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, with regard to insanity, "we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences." 477 U.S. 399, 405, 416-17, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

Atkins, 122 S.Ct. at 2250. In these circumstances, inferior federal courts have no useful role to play until and unless following Atkins, a death sentence is reaffirmed or again imposed on Bell by the state courts. Just how the state courts will implement Atkins, we cannot say. Clearly, however, the state must be given the first opportunity to apply the Supreme Court's holding in order to insure consistency among state institutions and procedures and to adjust its prosecutorial strategy to the hitherto unforeseen new rule.

For these reasons, we VACATE the district court's judgment denying habeas relief only on Bell's Eighth Amendment Atkins claim, and we REMAND with instructions to dismiss that claim without prejudice.

VACATED in PART and REMANDED with INSTRUCTIONS.

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-40340

Civil Docket # 5:99-CV-00209

WALTER BELL, JR., Petitioner-Appellant,

versus

JANIE COCKRELL, Director, Texas Department of Criminal Justice — Institutional Division, Respondent-Appellee.

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

December 13, 2001

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

By EDITH H. JONES:^*

Petitioner Walter Bell was denied habeas corpus relief by the federal district court on his conviction for the capital murder of Ferd Chisum, his former employer, in Port Arthur, Texas, in 1974. Bell presents two contentions in this court. First, he argues that evidence of mild mental retardation presented at his trial disqualifies him from the death penalty by virtue of an alleged evolving national consensus against executing the mentally retarded. The district court granted a certificate of appealability (COA) on this contention. Bell applies for a COA, however, after being turned down on his second contention, that newly discovered evidence demonstrates his confession was coerced by police brutality. Finding no merit in either contention under the standards of review adopted by AEDPA¹, we affirm the judgment on the first contention and deny COA on the second.²

1. Whether the Constitution prohibits execution of the mentally retarded.

Under AEDPA, we review the state court decision denying relief on this claim to determine (1) whether it was contrary to or involved an unreasonable application of clearly established Federal law as expressed by the Supreme Court, 28 U.S.C. § 2254(d)(1), or (2) whether the facts found by the state courts were unreasonable in light of the record. 28 U.S.C § 2254(d)(2). Relief is not barred on this claim by the Teague non-retroactivity doctrine. See Penry v. Lynaugh, 492 U.S. 302, 331, 109 S.Ct. 2934, 2953, 106 L.Ed.2d 256 (1989).

Bell's initial conviction was reversed, and he received a second trial for capital murder of Ferd Chisum so that the state courts could apply the then-new Supreme Court decision in Penry v. Lynaugh. Penry held that a jury must be permitted to find that a defendant's mental retardation mitigates against infliction of the death penalty because his condition limits his culpability. 492 U.S. at 320-28, 109 S.Ct. at 2947-52. Penry refused to hold that the Eighth Amendment requires a categorical exclusion of mentally retarded defendants from receiving the death penalty. 492 U.S. at 331-35, 109 S.Ct. at 2953-55. The Texas Court of Criminal Appeals so applied Penry to Bell's second appeal. Bell v. State, 938 S.W.2d 35, 55 (1996).

Penry has not been subsequently overturned by the U.S. Supreme Court. Until it is, the standard for granting habeas relief under AEDPA, which requires state court decisions to conform to Federal law articulated by the Supreme Court, will not be satisfied. Bell's argument, formulated on a still evolving national consensus made up of over a dozen states that have legislatively decided to place limits on executions of the mentally retarded, is thus irrelevant in the lower federal courts.

In addition, Bell's case exemplifies the wisdom behind Penry's decision to allow juries to examine the impact of mental retardation on culpability on a case-by-case basis. While Bell has scored at a level of mild mental retardation throughout his life, an expert also testified that he was competent to stand trial and knew the difference between right and wrong. He carefully planned the murders of Ferd and Eileen Chisum, assembling papers, a knife, handcuffs, and extension cords from which he had removed the ends, and he tricked the Chisums into letting him into their house on the pretext that he wanted their advice about attending school. He forced Eileen Chisum to write a false name on several checks before he killed her, and he then tried to cash one of those checks the day after the...