Bell v. Lynaugh

• Decision Date: 13 October 1988
• Docket Number: No. 88-2966,88-2966
• Citation: 858 F.2d 978
• Parties: Walter BELL, Jr., Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 978

858 F.2d 978

Walter BELL, Jr., Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections,

Respondent- Appellee.

No. 88-2966.

United States Court of Appeals, Fifth Circuit.

Oct. 13, 1988.

Edward M. Chikofsky, New York City, Eden Harrington, Capital Punishment Clinic, Univ. of Texas School of Law, Austin, Tex., for petitioner-appellant.

Jim Mattox, Atty. Gen., Robert Walt, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

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

Before POLITZ, WILLIAMS, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Less than one week before his scheduled execution date of October 14, 1988, petitioner Walter Bell has commenced his third attempt to secure a writ of habeas corpus in the state courts (the second such petition in our Court). The federal district court denied relief principally for abuse of the writ. Further, it refused to issue a certificate of probable cause to appeal, which may only be granted if a petitioner makes a "substantial showing of the denial of a federal right." Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983). For the reasons set forth below, we grant Bell leave to proceed in forma pauperis, and we deny the motions for certificate of probable cause and stay of execution.

I. FACTS AND PROCEDURAL BACKGROUND

Petitioner worked at an appliance store owned by Ferd and Irene Chisum for seven weeks in mid-1974. He was fired. Approximately two weeks later, the Chisums were found murdered in the bathtub of their Port Arthur, Texas home. Irene Chisum showed evidence of sexual assault. Bell was arrested the next morning and shortly thereafter confessed to killing the Chisums after officials confronted him with incriminating physical evidence lawfully found at his home. The Texas Court of Criminal Appeals, affirming his conviction, succinctly describes the facts of the case as follows:

The evidence at the guilt stage demonstrates that appellant's crime was planned in advance, with violence anticipated beforehand; it also shows that the violence escalated in stages, with several opportunities for appellant to desist. Appellant carried with him to the Chisums' house an "equipment kit," with a sharpened knife, handcuffs, and an electrical cord with the ends cut off. He gained entry to their home under a pretext, and discussed with Mr. Chisum the possibility of getting into mechanic's school. He then pulled a knife on Chisum, put the cuffs on him, bound his feet and put him in a closet. Appellant next found Mrs. Chisum and attempted to gag her and tie her up, but when Mr. Chisum escaped from the closet, appellant stabbed him in the chest and retied him. After that, he The next day appellant spent the spoils of his crime on clothing and beer, attempted to cash the checks, played pool, and generally enjoyed himself. There was no hint of remorse or contrition prior to his arrest. There was also no evidence that he was provoked by the victims, or was acting under the domination of anyone else.

untied Mrs. Chisum's legs, made her remove her brassiere and panties, and raped her. He then forced her to write out some checks [to the fictitious payee "Bobby Williams"], hit her in the jaw, and attempted to choke her to death with a towel. He dragged her into the bathroom, where she struggled, but he succeeded in killing her. Appellant then returned to Mr. Chisum, choked him, dragged him to the bathtub and stabbed him again in the abdomen. This sequence of events indicates a propensity, perhaps even an appetite, for violence.

Bell v. State, 724 S.W.2d 780, 804 (Tex.Crim.App.1986), cert. denied, 479 U.S. 1046, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987). ¹ Bell's second written confession, in which he admitted honing a butter knife into a weapon and preparing carefully for the murder before he went to the Chisums' house, was admitted during his trial in 1982 and is recited in Bell v. State, 582 S.W.2d at 803-04 n. 2.

After exhausting state remedies, appellant petitioned for a federal writ of habeas corpus. The federal district court held an evidentiary hearing on May 11, 1987, following which it denied relief in a comprehensive and well-reasoned opinion. This Court affirmed the denial of relief in its opinion published September 23, 1987. Bell v. Lynaugh, 828 F.2d 1085 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 310, 98 L.Ed.2d 268 (1987). That opinion addressed at least eight principal grounds for relief urged by Bell, foremost of which was his contention that his defense counsel in the 1982 trial was constitutionally deficient for failing to raise or explore psychiatric evidence of his mental retardation as a mitigating factor during the penalty phase of the trial. Our earlier opinion focused on the fact that, during his 1974 trial, Bell had challenged his competency, guilt and death sentence on the grounds of mild mental retardation, expert testimony was introduced, and the jury had sentenced him to death nevertheless. Prior to the 1982 trial, his attorney, having reviewed the 1974 professional testimony thoroughly, made a calculated, strategic decision not to defend based on professional evidence of Bell's allegedly deficient mental state. We concluded that this strategic decision was soundly based and did not fall below that objective standard of reasonableness required to sustain a constitutional challenge to the adequacy of counsel. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674, 694, 698 (1984).

Bell's execution was then set for October 14, 1987. On October 8, 1987, Bell filed his second application for habeas corpus in the state court, raising three contentions: (1) that the Texas Death Penalty Statute denies him due process because Question 1 of Article 37.071(b)(1) merely duplicates the elements of the underlying crime; (2) that the state court failed to specifically instruct the jury on the proper impact of mitigating factors in their deliberations; and (3) that the execution of the mentally retarded is cruel and unusual punishment. That same day, the state court issued an opinion denying consideration of this petition as an abuse of the writ. ² The trial court concluded None of the present issues were contained in that [prior] application nor is there any showing why such issues were not timely presented. Such abuse should not be rewarded with the relief sought.

On October 12, 1987, the Texas Court of Criminal Appeals granted a stay of execution, issuing no reasons for its decision. Perhaps not coincidentally, that was also the date on which the United States Supreme Court granted certiorari in Franklin v. Lynaugh, --- U.S. ----, 108 S.Ct. 221, 98 L.Ed.2d 180, to consider whether the Texas trial court's refusal to give certain jury instructions on mitigating circumstances violated a petitioner's eighth amendment right to present mitigating evidence at his capital sentencing trial.

Ultimately, the Texas Court of Criminal Appeals denied relief in an order entered June 27, 1988, which stated that, "The findings and conclusions entered by the trial court are supported by the record." The Franklin opinion, which rejected Franklin's contentions, had been issued by the Supreme Court on June 22. --- U.S. ----, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988). On June 30, however, the Court granted certiorari in Penry v. Lynaugh, 832 F.2d 915 (5th Cir.1987), agreeing to consider whether the execution of a mentally retarded person is unconstitutional and whether failure to instruct the jury as to the impact of mental retardation on its consideration of mitigating circumstances violated the eighth amendment rule of Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Penry, --- U.S. ----, 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988).

The state court re-set Bell's execution date several times during the following months, at request of various counsel, but finally settled on the date of October 14, 1988. Counsel for petitioner, Mr. Chikofsky, in connection with obtaining the final extension of time, represented in writing, both to the state court and the Texas Attorney General, that he would file any state court petition no less than 14 days before an execution date. He did not do so. His "petition for rehearing," addressed to the Texas Court of Criminal Appeals, was filed Friday, October 7, ³ and was dismissed.

The federal district court, again performing admirably in a short period of time, found that petitioner failed to comply with local rules of the Eastern District of Texas upon filing a successive petition for habeas corpus. For this reason, and because petitioner did not explain or excuse the successive filing and because the court found petitioner "has been used and abused by the filing of meritless appeals on behalf of this Petitioner," the court refused relief. The district court also found Bell's claims procedurally barred and, alternatively, lacking in merit.

Petitioner now raises only two issues that he contends should prevent the infliction of capital punishment. These are whether the Texas statute affords sufficient consideration of mental retardation as a mitigating circumstance, and whether execution of the mentally retarded is unconstitutionally cruel and unusual punishment.

II. ABUSE OF THE WRIT

The State of Texas moves to dismiss this petition for abuse of habeas corpus. Rule 9(b) of the Rules Governing Section 2254 Cases provides:

A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits, or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert Our court, elaborating on this rule, holds that the proper standard for abuse of the writ is not whether a petitioner intentionally bypassed an issue at the time of the...