Magouirk v. Phillips

• Decision Date: 18 June 1998
• Docket Number: No. 96-31049,96-31049
• Parties: Kenneth Wayne MAGOUIRK, Petitioner-Appellant, v. Michael PHILLIPS, Warden, Winn Correctional Center; and Richard P. Ieyoub, Attorney General, State of Louisiana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 348

144 F.3d 348

Kenneth Wayne MAGOUIRK, Petitioner-Appellant, v. Michael PHILLIPS, Warden, Winn Correctional Center; and Richard P. Ieyoub, Attorney General, State of

Louisiana, Respondents-Appellees.

No. 96-31049.

United States Court of Appeals, Fifth Circuit.

June 18, 1998.

Peter J. Black, Shreveport, LA, for Petitioner-Appellant.

Madeleine Mary Slaughter, Asst. Dist. Atty., Monroe, LA, for Respondents-Appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Kenneth Wayne Magouirk appeals from the district court's order dismissing his 28 U.S.C. § 2254 petition for habeas corpus relief. Magouirk raised five claims for federal review. The district court, acting on the recommendation of a Magistrate Judge who raised Magouirk's procedural default of three claims sua sponte, applied Magouirk's default to bar federal litigation of those three claims. Magouirk maintains that the Magistrate Judge and the federal district court were without authority to raise procedural default sua sponte. We hold that a federal district court has discretion to raise and apply a habeas petitioner's procedural default sua sponte. We therefore affirm the district court's holding that Magouirk's procedural default barred federal litigation of three of his five claims.

Magouirk also appeals the district court's determination that he is not entitled to relief with respect to his two remaining claims. Finding no basis for meaningful review of Magouirk's remaining claims in the record, we vacate the district court's dismissal of those claims and remand to the district court with instructions to supplement the record, and if necessary, to conduct an evidentiary

hearing on the merits of Magouirk's two remaining claims. Accordingly, the judgment is affirmed in part, reversed in part, and remanded with instructions for further proceedings.

BACKGROUND

I. Introduction

Louisiana convicted Magouirk of manslaughter for the death of Katherine Thomas in 1987. Thomas was abducted from her mobile home, killed and thrown into the Ouachita River. See generally State v. Magouirk, 539 So.2d 50, 52-54 (La.Ct.App.1989) (describing offense), writ denied, 566 So.2d 983 (La.1990). Police attention was drawn to Magouirk after they received a tip that Magouirk had a fetish for women's underwear, and that Magouirk had some of Thomas' underwear in his possession. Id. at 53. Near the spot of Magouirk's arrest, police found a bag of women's clothing, which included items belonging to Thomas and at least two other women, Karen Cloyd and Kaye Rothwell. Id. at 54, 59-60.

II.

"Other Crimes" Evidence

Prior to trial, the state provided notice that it wanted to introduce evidence relating to five other burglaries in which women's underwear was stolen. Specifically, the state wanted to use evidence of an earlier burglary from Thomas, and similar burglaries from four other women. See id. at 58. The trial court excluded evidence of the prior Thomas burglary, and two other burglaries, but allowed evidence relating to burglaries of Karen Cloyd and Kaye Rothwell. Id. Evidence from the Cloyd and Rothwell burglaries was allowed because Cloyd's clothing and Rothwell's clothing were found in the bag with Thomas' clothing. Id. at 58-60. Thus, evidence relating to the Cloyd and Rothwell burglaries was demonstrably related to the Thomas homicide, and tended to establish that Thomas was killed in the course of one of Magouirk's signature burglaries. Id.

Both Magouirk and the state challenged the trial court's evidentiary ruling, seeking discretionary writs for interlocutory review. Id. at 58 n. 1. Those writs were denied by both the Louisiana Court of Appeal and the Louisiana Supreme Court. Id.; see also State v. Magouirk, 503 So.2d 481 (La.1987) (denying state's application for writ of certiorari); State v. Magouirk, 503 So.2d 476 (La.1987) (denying Magouirk's application for writ of certiorari).

III. Magouirk's Confession

In July 1986, about one year before trial, Magouirk allegedly confessed to his jailhouse roommate, Alfred Durbyn, that he was responsible for Thomas' murder. Durbyn reported the confession to his lawyer, who arranged for Durbyn to make a recorded statement for the Sheriff. Durbyn's statement to the Sheriff recounts Magouirk's jailhouse confession; says that Magouirk told Durbyn that Magouirk had taken Thomas from her home, forced her to perform oral sex in his truck and then "wasted her," and says that Magouirk threatened to kill him (Durbyn) if he (Durbyn) revealed Magouirk's confession. In August 1986, Magouirk filed a "Motion for Preliminary Examination for the Perpetuation of Testimony and for the Fixing of Bail." Magouirk, 539 So.2d at 54; see also LA.CODE CRIM.P. art. 296. In September 1986, the state disclosed the content of Durbyn's recorded statement to Magouirk's defense counsel in answers to discovery. Shortly thereafter, Magouirk moved to suppress Durbyn's inculpatory statement. Magouirk, 539 So.2d at 54.

In October 1986, and while Magouirk's motion to suppress Durbyn's statement was pending, the trial court held a hearing on Magouirk's motion to perpetuate testimony. Id. at 54. The state did not call any witnesses. Magouirk called Durbyn, who repeated the details of Magouirk's confession for the record. Id. After eliciting the damaging testimony, Magouirk's counsel claimed surprise and requested permission to treat Durbyn as a hostile witness. Id. The state argued there was no surprise because the content of Durbyn's testimony had been disclosed At a subsequent hearing on Magouirk's motion to suppress Durbyn's testimony, Durbyn's lawyer testified that Durbyn's plea bargain was not affected by his testimony against Magouirk. Id. at 55. Magouirk's counsel again attempted to call Durbyn as a hostile witness, and that request was denied. Id. Magouirk's counsel then called Durbyn on direct examination, at which point Durbyn stated the details of Magouirk's confession for a third time, and Magouirk's motion to suppress Durbyn's testimony was denied. Id.

in discovery. The trial court expressed its dismay that Magouirk was claiming surprise, and denied Magouirk's request to treat his own witness as hostile. Id. at 54-55.

IV. Durbyn's Aborted Trial Testimony

Trial was scheduled to begin on June 15, 1987. In early June, Ouachita Parish jail officials reported that Magouirk and Durbyn had crossed paths in the jail and engaged in a brief physical altercation. The assistant district attorney prosecuting Magouirk's case was informed of this attack shortly thereafter by the investigating jail officer, who also happened to be the prosecuting attorney's wife. Thereafter, and shortly before trial, the prosecuting attorney reinterviewed Durbyn about his potential trial testimony against Magouirk. Durbyn told the prosecuting attorney and the district attorney's investigator about the fight with Magouirk.

Trial began as scheduled on June 15, 1987. While Durbyn was being transferred from the jail to testify, Durbyn told the district attorney's investigator that he had decided not to testify. When the state called Durbyn, Durbyn took the stand and testified that his earlier statements at the hearing to perpetuate testimony were true. Id. Durbyn then refused to testify further, stating that he wanted to exercise his Fifth Amendment rights. Id. Outside the presence of the jury, the trial court warned Durbyn that the Fifth Amendment did not justify his refusal to testify against Magouirk. Id. When Durbyn continued to refuse to testify, the trial court held Durbyn in contempt. Id.

The state moved to have Durbyn declared "unavailable," so that Durbyn's testimony at the perpetuation hearing could be introduced. ¹ Magouirk objected, arguing that he had no opportunity to cross-examine Durbyn in the earlier hearing. Id. The trial court rejected Magouirk's argument and allowed Durbyn's recorded testimony from the preliminary hearing to be played for the jury in its entirety. Id. Later in the trial, Magouirk attempted to call Durbyn as a hostile witness. Id. The trial court refused to have Durbyn brought before the jury again. When Durbyn was examined outside the presence of the jury, he stated that he would "like to stay out of this altogether." Id.

Magouirk was charged with second degree murder, but the jury was also instructed on lesser included offenses. After deliberation, the jury returned a guilty verdict on the lesser included responsive verdict of manslaughter. Id. at 52.

V. Magouirk's First Appeal to the Louisiana Court of Appeal

Magouirk appealed, raising a number of issues, including (1) that he was denied the opportunity to cross-examine Durbyn, in violation of his Sixth Amendment confrontation right; (2) that the trial court erroneously admitted evidence of the Cloyd and Rothwell burglaries, as well as evidence of the prior Thomas burglary that had been excluded by court order; and (3) that the evidence against him was insufficient to support his conviction. In September 1988, the Louisiana Court of Appeal issued an opinion reversing and remanding the matter for a new trial. Id. at 54-57. The Court of Appeal found that the admission of Durbyn's perpetuated testimony denied Magouirk his constitutional In October 1988, after the Court of Appeal entered its initial decision, the state filed a petition for rehearing, arguing that Magouirk waived his confrontation right by engaging in misconduct that caused Durbyn to be unavailable for cross-examination at trial. See United States v. Thevis, 665 F.2d 616, 630 (5th Cir. Unit B 1982) ("We conclude that a defendant who causes a witness to be unavailable for trial for the purpose of preventing that witness from testifying also waives his right to confrontation."); see also United States v. White, 116 F.3d 903, 911 (D.C.Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 390, 139 L.Ed.2d 305 (1997)...