Briddle v. Scott

• Decision Date: 23 August 1995
• Docket Number: No. 91-6060,91-6060
• Citation: 63 F.3d 364
• Parties: James Michael BRIDDLE, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 364

63 F.3d 364

32 Fed.R.Serv.3d 707

James Michael BRIDDLE, Petitioner-Appellant, v. Wayne SCOTT, Director, Texas Department of Criminal Justice Institutional Division, Respondent-Appellee.

No. 91-6060.

United States Court of Appeals Fifth Circuit.

Aug. 23, 1995.

Jane C. Disko, Randy Schaffer, Schaffer, Lambright, Odom & Sparks, Houston, TX, for Briddle.

Dana Parker, Asst. Atty. Gen., Austin, TX, for Collins.

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

Before GARWOOD, DAVIS and WIENER, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant James Michael Briddle (Briddle), a Texas death row inmate, appeals the district court's denial of his habeas corpus petition under 28 U.S.C. Sec. 2254. We affirm.

Facts and Procedural Background

Briddle was indicted by a Texas grand jury on March 1980, and reindicted in October 1980, on two counts of capital murder committed in Harris County, Texas, February 23, 1980, namely the capital murder of Robert Skeens while committing robbery and the capital murder of Robert Banks while committing robbery. The state elected to proceed only on the count concerning Banks. Pre-trial motions were heard on January 19 and 20, 1982, voir dire lasted from January 21, 1982, through February 10, 1982, and the trial proper commenced February 17, 1982. The jury returned a verdict of guilty of the capital murder of Banks on February 24, 1982. On February 25, 1982, after the separate punishment hearing, the jury answered affirmatively the two special issues submitted pursuant to Tex.Code Crim.P.Ann. art 37.071 as then in effect, ¹ and thereafter the state district court accordingly sentenced Briddle to death. Judge Perry Pickett presided at all trial proceedings.

In the state trial court, Briddle was represented by attorney Mark Vela until approximately October 6, 1981, when his representation was taken over by attorneys Al Thomas and Jim Sims. ² On his direct appeal to the Texas Court of Criminal Appeals, Briddle was represented by attorney Allen Isbell.

On September 23, 1987, the Court of Criminal Appeals affirmed Briddle's conviction and sentence without dissent. Briddle v. State, 742 S.W.2d 379 (Tex.Crim.App.1987). The opinion of the Court of Criminal Appeals accurately describes the circumstances of the offense as reflected by the record evidence as follows:

"The State's chief witness was Linda Joyce Fletcher, appellant's former wife. The record reflects the couple married in California. On February 14, 1980, the couple began hitchhiking to Florida with a few clothes and $30.00. They were joined in Arizona by Pamela Perillo. On February 22, 1980, after reaching Houston the three were hitchhiking near the Astrodome when they were picked up by the alleged deceased, Robert Banks. Banks was in the process of moving to another house and the three hitchhikers assisted him in moving some of his belongings. Banks treated them to dinner. When Banks paid for the meal, Fletcher and Perillo observed he had several hundred dollars in his wallet, and Perillo told appellant about the money.

Appellant, his wife (Fletcher) and Perillo spent the night at Banks' house and then helped him move other belongings the next day. In the process the appellant discovered Banks had some guns. When Banks took a shower appellant telephoned a friend in California and invited him to come to Texas as he (appellant) 'had a pigeon out here with lots of money and guns.' Appellant proposed a robbery, but the California friend declined.

Banks then took his three guests to a carnival and rodeo at the Astrodome. There Perillo told appellant she wanted to kill Banks and appellant answered 'Okay.' He then went off to do some 'planning,' telling Perillo to relax when she agitated to 'do it tonight.' After the rodeo Banks and his guests went to dinner and returned to Banks' house where they met Bob Skeens, Banks' friend from Louisiana, who had arrived there in his green Volkswagen.

On Sunday, February 24, Banks and Skeens left the house to get coffee and doughnuts for everyone. While they were gone appellant armed himself with a shotgun and Perillo got a handgun. While awaiting the return of the two men appellant jumped up and down with excitement. When Banks and Skeens returned Perillo hid in the bedroom and appellant got inside a closet. He began to make a tapping sound. When Banks reached to open the closet door the appellant jumped out announcing 'This is a robbery.'

Skeens got down on the floor and pleaded for mercy. Banks came toward the appellant, who struck him in the face with the butt end of the shotgun. Perillo came out of her hiding place and told Banks to get on the floor, 'that it wasn't any joke.' Perillo obtained a machete and cut up some rope and then she and appellant tied Banks and Skeens with rope. After they were bound appellant and Perillo took the wallets from the two. Appellant took $800.00 from Banks' wallet and waved it around saying 'he had it.' Appellant ransacked the bedroom, taking clothes and a backpack. Perillo found a cassette recorder and camera. Appellant took Skeens into the bedroom and told Skeens that he (appellant) had killed five people and two more didn't matter. Fletcher, appellant's wife, did not see what happened to Skeens, but she did see appellant loop a rope around Banks' neck. Fletcher was then ordered to wait in Skeens' green Volkswagen. About 20 minutes later Perillo came to the car with the shotgun wrapped in a blanket. She also brought out a machete, handgun and other items. Appellant brought out the backpack and a rifle. They drove in the Volkswagen to Dallas, where they abandoned it and took a bus to Colorado.

When Banks failed to appear for work for two days, his supervisor went to Banks' house to investigate. A man with the supervisor looked in a window and saw a body. The police who arrived at the scene found the bodies of Banks and Skeens, each bounded [sic] and with a rope around the neck. Dr. Joseph Jachimczyk, the Chief Medical Examiner, testified that each died from asphyxia due to strangulation with a rope.

On March 3, 1980, Perillo gave a statement to Denver, Colorado police and a description of appellant. With her consent they entered a room at a hotel in Denver and found appellant, his wife and two boys. The backpack was found in the room.

A Houston detective went to Denver and interviewed appellant and obtained an oral confession in which he told of his participation in the alleged offense. He admitted putting a rope around Banks' neck and pulling on it with Perillo until Banks was unconscious. He admitted he took the wallets, several hundred dollars, the machete and shotgun. He maintained his wife (Fletcher) was outside the house during the entire incident." Id. at 381-82.

On October 28, 1987, the Court of Criminal Appeals granted Briddle's motion, filed by attorney Isbell, to stay issuance of the mandate for sixty days to allow for the filing on Briddle's behalf of a petition for writ of certiorari in the United States Supreme Court. No such petition having been filed, the Court of Criminal Appeals issued its mandate January 15, 1988. On February 1, 1988, Briddle, whose representation had by then been taken over by attorney Alton Stephens, moved the Court of Criminal Appeals to recall its mandate, so that a petition for certiorari on Briddle's behalf could be filed in the Supreme Court, asserting an inability to locate five volumes of the record. The Court of Criminal Appeals denied the motion, and thereafter, on February 4, 1988, the Texas trial court scheduled Briddle's execution for March 21, 1988. On March 11, 1988, Stephens, on behalf of Briddle, moved the Court of Criminal Appeals for a stay of execution pending filing of a petition for certiorari, representing that he had received the missing portions of the record on February 26, 1988. On March 15, 1988, the Court of Criminal Appeals granted the motion and stayed Briddle's execution for sixty days.

Nothing further having been filed in any court by or on behalf of Briddle, the state trial court, Judge C.V. Milburn, on October 26, 1988, set Briddle's execution for December 1, 1988. The next day, October 27, 1988, Stephens, on Briddle's behalf, filed a petition for certiorari with the Supreme Court, and moved the Supreme Court for stay of execution. On November 22, 1988, Justice White entered an order that Briddle's execution was "stayed pending the disposition by this Court of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay terminates automatically." On December 8, 1988, the Supreme Court denied the petition for certiorari. Briddle v. Texas, 488 U.S. 986, 109 S.Ct. 543, 102 L.Ed.2d 573 (1988).

On December 15, 1988, the state trial court, Judge Michael McSpadden, entered an order resetting Briddle's execution date for February 14, 1989, and ordering "that Mr. Alton L. Stephens, counsel for James Michael Briddle, file any Application for Writ of Habeas Corpus concerning the instant conviction on or before January 17, 1989, raising any and all arguable claims known to counsel." However, nothing was filed by or on behalf of Briddle until February 2, 1989 when Stephens, and co-counsel Foy, joined by attorney Eden Harrington, filed, both in the state trial court and in the Texas Court of Criminal Appeals, Briddle's petition for habeas corpus, request for evidentiary hearing, and application for stay of execution. On February 13, 1989, Judge McSpadden reset Briddle's execution date for April 21, 1989, and, in a separate order, directed that the state file its answer by not later than March 8 and that by not later than March 5 Briddle's trial attorneys Thomas and Sims file affidavits, with copies thereof to counsel for Briddle and counsel for the state, "summarizing their actions taken to represent Applicant, including trial preparation ... and responding to the allegations of...