Bell v. Lynbaugh

• Decision Date: 03 June 1987
• Docket Number: No. B-87-401-CA.,B-87-401-CA.
• Citation: 663 F. Supp. 405
• Parties: Walter BELL, Jr., Petitioner, v. James A. LYNBAUGH, Interim Director, Texas Department of Corrections, Respondent.
• Court: U.S. District Court — Eastern District of Texas

663 F. Supp. 405

Walter BELL, Jr., Petitioner, v. James A. LYNBAUGH, Interim Director, Texas Department of Corrections, Respondent.

No. B-87-401-CA.

United States District Court, E.D. Texas, Beaumont Division.

June 3, 1987.

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Edward M. Chikofsky, New York City, for petitioner.

Paula C. Offenhauser, Asst. Atty. Gen., Enforcement Div., Austin, Tex., for respondent.

MEMORANDUM OPINION AND ORDER

HALL, District Judge.

Walter Bell, Jr., by way of Petition For Writ Of Habeas Corpus, contends that his incarceration for the murder of Ferd Chisum is unlawful, under the Fifth, Sixth, Eighth and Fourteenth Amendments to The United States Constitution. Specifically, Bell challenges his detention based on: the admission of his second confession; the exclusion of a prospective juror in violation of Witherspoon; the inclusion of two (2) jurors who were strikable for cause; the denial of a change of venue; the denial of further voir dire regarding mid-trial publicity; violations of his speedy trial rights; improper prosecutorial argument; and ineffective assistance of counsel. After having meticulously reviewed the pleadings, briefs, and the state court record, and after holding an evidentiary hearing, the Court concludes that Bell's restraint is constitutional, and that the Petition For Writ Of Habeas Corpus should therefore be denied.

I.

Ferd and Irene Chisum were found dead in the bathtub of their home on the morning of Friday, July 19, 1974. A District Attorney's investigation led to the arrest of Walter Bell, Jr., at approximately 1 a.m., on Saturday, July 20, 1974, at which time Miranda warnings were given. Bell confessed to the murders after officials confronted him with certain physical evidence found at his home pursuant to an authorized search. The District Attorney's investigator then made a typewritten statement of the confession, which Bell signed. Subsequently, Bell was charged with capital murder.

On Sunday morning, July 21, 1974, shortly after Bell had visited with his parents, he initiated contact with the District Attorney's investigator, and gave a second confession. The second confession contained admissions that he had robbed the Chisums and raped Mrs. Chisum.

The record reflects that:

"Petitioner 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 his former employer 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. Petitioner next found Mrs. Chisum and attempted to gag her and tie her up, but when Mr. Chisum escaped from the closet, Petitioner stabbed him in the chest and retied him. After that, he untied Mrs. Chisum's legs, made her remove her brassiere and panties, and raped her. He then forced her to write out some checks, 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. Petitioner then returned to Mr. Chisum, choked him, dragged him to the bathtub and stabbed him again in the abdomen."

Bell v. State, 724 S.W.2d 780, 804 (Tex. Crim.App.), cert. denied, ___ U.S. ___, 107 S.Ct. 910, 93 L.Ed.2d 860 (1987).

Bell was indicted in July of 1974 for both murders. He was first tried and convicted of Irene Chisum's murder in December, 1974. On March 11, 1982, after an eight (8) day trial, a jury found Bell guilty of Ferd Chisum's murder (Tr. I 273; SOF. XVIII 4472, 1.4-5) and answered affirmatively the special issues necessary for the imposition of the death penalty under TEX.CODE CRIM.PROC.ANN., art. 37.071(b) (Vernon Supp.1987).¹ (Tr. I 276; SOF. XVIII 4545-4546). Written findings of fact and conclusions of law were filed by the Trial Court on May 31, 1983. (Tr.Supp. I 13-18). The conviction was affirmed by the Texas Court of Criminal Appeals in Bell, id.

Bell was scheduled to be executed on March 25, 1987. After the state courts had denied Bell a stay of execution, the instant habeas corpus action was filed on March 20, 1987. This Court entered a stay of execution on March 23, 1987, in order to thoroughly review Petitioner's petition for a habeas relief.

II. Habeas Guidelines

Federal habeas courts are not empowered to review every issue raised by a state prisoner. Federal courts do not sit as courts of appeal and error for state court convictions Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir.1986) but may intervene in state criminal judicial process only to correct errors that offend the laws, treaties or Constitution of the United States. Wainwright v. Goode, 464 U.S. 78, 104 S.Ct. 378, 382, 78 L.Ed.2d 187 (1983); 28 U.S.C.A. § 2254(a) (1977).

Under 28 U.S.C.A. § 2254(d) (1977), the factual findings of a state's trial and appellate courts "shall be presumed to be correct" (absent one of eight (8) statutory conditions negating the presumption) "if they are `fairly supported' by the record". (Emphasis added). Marshall v. Lonberger, 459 U.S. 422, 432, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983); Peek v. Kemp, 784 F.2d 1479, 1483 (11th Cir.1986); Woods v. Armontrout, 787 F.2d 310, 313 (8th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 890, 93 L.Ed.2d 842 (1987). The presumption of correctness requires that federal courts accord a "high measure of deference" to the state courts' factual findings. Marshall, 459 U.S. at 432, 103 S.Ct. at 850; Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Dunn v. Maggio, 712 F.2d 998, 1001 (5th Cir.), cert. denied, 465 U.S. 1031, 104 S.Ct. 1297, 79 L.Ed.2d 697 (1984). A federal court is not permitted to disregard a state courts' factual finding based on mere disagreement. Rather, for the presumption to dissolve, the federal habeas statute requires a determination that the state's findings "lacked even `fair support' in the record". Marshall, 459 U.S. at 432, 103 S.Ct. at 850. This rule of deference to factual findings is undoubtedly rooted in a recognition that a state court's predominant function in determining facts often rests on credibility judgments whose basis cannot be discerned from a cold record. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 854-855, 83 L.Ed.2d 841 (1985); Wicker v. McCotter, 783 F.2d 487, 493 (5th Cir.), cert. denied, ___ U.S. ___, 106 S.Ct. 3310, 92 L.Ed.2d 723 (1986); Branch v. Estelle, 631 F.2d 1229, 1233 (5th Cir.1980).

Professors LaFave and Israel note the following additional rationales for applying the presumption of correctness to factual findings as opposed to legal conclusions:

"It has been argued that there is less need for independent federal factfinding because the trial judge's `guilt determining momentum' and `judicial loyalty to state institutional interests' are not as likely to influence the accuracy of his factfindings as they are to impair his application of constitutional standards. Arguably also, any value that federal procedures and federal judges would bring to the accuracy of the factfinding process is more than offset by the timing advantage of the state court hearing, as compared to a federal habeas hearing typically held long after the events in question occurred. Finally, it is generally agreed that independent federal factfinding exacerbates many of the costs of habeas review, extending substantially the call on scarce judicial resources and increasing the friction between state and federal courts". W.R. LaFave and J.H. Israel, Criminal Procedure § 27.6(a), p. 1056 (1985).

To overcome the presumption of correctness, it is the Petitioner's burden to show, by convincing evidence, that the state courts' factual finding is in error. Sumner, 449 U.S. at 550, 101 S.Ct. at 770; 28 U.S.C.A. § 2254(d) (1977).

The presumption of correctness does not attach to state court findings that are pure legal conclusions or involve mixed questions of law and fact. Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir.1986); DeAngelo v. Wainwright, 781 F.2d 1516, 1518 (11th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 444, 93 L.Ed.2d 392 (1986). Federal courts must engage in an independent and non-deferential review of a state courts' conclusions of law. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 450-453, 88 L.Ed.2d 405 (1985); Brantley v. McKaskle, 722 F.2d 187, 189 (5th Cir.1984).

However, as to the "subsidiary factual questions" found by the state court in support of its conclusions of law, the presumption of correctness applies. Miller, 106 S.Ct. at 451; Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982). For example, some subsidiary factual findings entitled to the presumption of correctness regarding the voluntariness of a confession might include: determinations as to the length and circumstances of the interrogation; whether or not Miranda warnings had been given to the defendant; and whether or not a drug administered to the defendant had the properties of a truth serum. Miller, supra; Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Ahmad v. Redman, 782 F.2d 409, 413 (3rd Cir.1986). An issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question. Miller, 106 S.Ct. at 451.

Applying the abovementioned limiting principles, the Court has found the state courts' factual findings to be more than "fairly supported by the record". Furthermore, Petitioner has not shown by convincing evidence that any of the state courts' factual findings is in error. Accordingly, as required, those findings, which constitute the factual underpinnings of the state courts' conclusions of law, have been presumed to be correct. Upon independent consideration of said conclusions of law, this Court is in full agreement with the state courts' position: that none of the alleged...