Bigby v. Cockrell

• Decision Date: 28 July 2003
• Docket Number: No. 99-11262.,99-11262.
• Citation: 340 F.3d 259
• Parties: James Eugene BIGBY, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

340 F.3d 259

James Eugene BIGBY, Petitioner-Appellant, v. Janie COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 99-11262.

United States Court of Appeals, Fifth Circuit.

July 28, 2003.

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Danny D. Burns (argued), Fort Worth, TX, for Petitioner-Appellant.

Edward Larry Marshall (argued), Austin, TX, for Respondent-Appellee.

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

Before HIGGINBOTHAM, DeMOSS and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Petitioner-Appellant, Gary Eugene Bigby ("Bigby"), appeals the district court's denial of his Petition for Writ of Habeas Corpus regarding his claim that, by declining to recuse himself after Bigby assaulted him, the trial judge denied Bigby his constitutional right to due process. Prominent among other claims raised by Bigby is his Penry claim that punishment phase jury instructions prevented the jury from acting upon mitigating evidence submitted in his behalf. For the reasons assigned herein, we affirm the conviction, reverse the district court's denial of a COA on Bigby's Penry claim, grant the COA, vacate Bigby's sentence, and remand to the district court with instructions.

FACTUAL AND PROCEDURAL HISTORY

During the early morning hours of December 24, 1987, Grace Kehler returned from work to the trailer home she shared with Michael Trekell and their infant son, Jayson Kehler. Upon entering the trailer, Kehler found Michael Trekell's body on the kitchen floor. Initially thinking Trekell was unconscious, Kehler phoned "9-1-1" for assistance. In response to questions asked by the 9-1-1 operator, Kehler remembered that Trekell was caring for Jayson. She then began looking for her son and discovered him lying dead in a face down position in a sink full of water. When questioned as to possible suspects by the police, Kehler implicated Bigby. She noted that there were three steaks upon the table that were not there when she left for work and recalled frequent visits by Bigby at the residence.

Arlington Police Officer James Greenwell arrived at the scene at approximately 5:10 a.m. to perform various duties as a crime scene investigator. He took photos, developed a diagram of the layout of the trailer, performed a gunshot residue test on both the infant and Trekell, and obtained postmortem fingerprints from Trekell. Officer Greenwell also collected beer cans and a wine cooler bottle from the trash which he thereafter had checked for fingerprints.

Dr. Charles Harvey, Deputy Tarrant County Medical Examiner, performed the autopsies. Dr. Harvey ruled that the manner of both deaths was homicide. He determined that the cause of Trekell's death was craniocerebral trauma due to a gunshot wound by a .357 Magnum revolver. He determined that the infant died as the result of drowning.

On December 26, 1987, Fort Worth Police Detective Larry Ansley was summoned to act as a negotiator to defuse a man's standoff with police at a Tarrant County motel. The person inside the motel room was Bigby. Shortly after Detective Ansley made contact, Bigby cracked the door and said to the detective, "I know that I am guilty and so do you." Bigby surrendered without incident, and was taken to Fort Worth's John Peter Smith Hospital.

The following morning, Fort Worth Police Homicide Detective Curtis D. Brannan interviewed Bigby after advising him of his Miranda rights. At about 3:00 a.m. on December 27, 1987, Bigby provided the police a written statement in which he confessed to killing Trekell and the infant. The fingerprints found on the wine cooler bottle at the crime scene were later matched to the fingerprints of Bigby.

Bigby was tried for capital murder. During a trial recess, Bigby approached the unoccupied bench of Judge Don Leonard ("Judge Leonard"), found a gun, and took it. In an apparent attempt to escape, Bigby proceeded to Judge Leonard's chambers and pointed the gun to the judge's head stating: "Let's go." He was ultimately subdued. Bigby's counsel then moved for a mistrial, which the judge denied.

In response to Bigby's motion for Judge Leonard's recusal, the matter was referred to the presiding administrative judge, who held a hearing. During the hearing, Judge Leonard testified that Bigby's assault had not prejudiced or biased him toward the defendant. After cross-examination, the presiding judge concluded that Judge Leonard did not have to recuse himself, and the trial continued.

Upon the defense resting after the guilt/innocence phase of trial, Judge Leonard allowed the state, in its rebuttal, to introduce testimony about Bigby's attempted escape as evidence of his "consciousness of guilt" for the Trekell murders. After the trial was completed, a jury ultimately rejected Bigby's asserted defense of insanity. Furthermore, they found him guilty of the offense of capital murder and imposed the death penalty. The trial court entered judgment on March 25, 1991, in conformity therewith.

The Texas Court of Criminal Appeals affirmed the conviction and death sentence on direct appeal, and the United States Supreme Court denied Bigby's petition for a writ of certiorari. Bigby v. State, 892 S.W.2d 864 (Tex.Crim.App.1994), cert. denied, 515 U.S. 1162, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995). Bigby then filed a state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied. Ex parte Bigby, No. 34-970 (Tex.Crim.App. filed Feb. 4, 1998).

On August 10, 1998, court-appointed counsel then filed a federal Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Texas, Fort Worth Division. Adopting the findings of United States Magistrate Judge Charles Bleil, the district court denied Bigby's Petition for Habeas Corpus on October 18, 1999. On December 7, 1999, however, the court granted Bigby a Certificate of Appealability ("COA") on the sole question of "[w]hether Petitioner was denied the right to a trial presided over by a fair and impartial judge after he assaulted the state trial judge." Thereafter, all issues in the petition were fully briefed and oral argument was held in November 2000. Because of developing case law regarding the Penry claim, i.e. Penry v. Johnson, 532 U.S. 782, 121 S.Ct. 1910, 1922, 150 L.Ed.2d 9 (2001) (Penry II) and Robertson v. Cockrell, 325 F.3d 243 (5th Cir.2003), the parties have filed comprehensive supplemental briefing. We now address the COA granted issue and Bigby's remaining claims for which the district court did not grant a COA.

DISCUSSION

I. Standard of Review

To obtain a COA, a petitioner must demonstrate "that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1034, 154 L.Ed.2d 931 (2003). "Because the present case involves the death penalty, any doubts as to whether a COA should [be] issue[d] must be resolved in [the petitioner's] favor." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000). When determining if a petitioner is entitled to a COA, we must apply the "deference scheme laid out in 28 U.S.C. § 2254(d)." Moore, 225 F.3d at 501. Under this scheme, "we review pure questions of law and mixed questions of law and fact under § 2254(d)(1), and review questions of fact under § 2254(d)(2), provided that the state court adjudicated the claim on the merits." Id. at 501 (citation omitted).

Because Bigby's federal petition for habeas review was filed in 1998, we review it under the standards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2254. Under that statute, a federal court may only grant a state prisoner's application for a writ of habeas corpus if his incarceration was the product of a state court adjudication that "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(1). "A decision is contrary to clearly established federal law `if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts.'" Gardner v. Johnson, 247 F.3d 551, 557 (5th Cir.2001) (alterations in original)(quoting Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). "`[I]f the state court identifies the correct governing legal principle... but unreasonably applies the principle to the facts of the prisoner's case[,]'" the court's decision represents an unreasonable application of federal law. Id. (quoting Williams, 529 U.S. at 413, 120 S.Ct. 1495). We presume that a state court's factual findings are correct and defer to them "unless they were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. (internal quotation and citation omitted); 28 U.S.C. § 2254(d)(2).

II. Due Process: Fair Tribunal

While this case involves novel yet disturbing facts, the fundamental underlying policies and law that these facts implicate are much less unique. Stated succinctly, the cornerstone of the American judicial system is the right to a fair and impartial process. See, e.g., Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). Therefore, any judicial officer incapable of presiding in such a manner violates the due process rights of the party who suffers the resulting effects of that judicial officer's bias. See id.

"The Due Process Clause of the Fourteenth Amendment establishes a constitutional floor, [however,] not a uniform standard." Id. at 904, 117...