Bell v. Cockrell ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-40340
Civil Docket #5:99-CV-00209
_______________________
WALTER BELL, JR.,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director,
Texas Department of Criminal Justice - Institutional Division,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
December 13, 2001
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
By EDITH H. JONES:*
Petitioner Walter Bell was denied habeas corpus relief by
the federal district court on his conviction for the capital murder
of Ferd Chisum, his former employer, in Port Arthur, Texas, in
1974. Bell presents two contentions in this court. First, he
argues that evidence of mild mental retardation presented at his
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
trial disqualifies him from the death penalty by virtue of an
alleged evolving national consensus against executing the mentally
retarded. The district court granted a certificate of
appealability (COA) on this contention. Bell applies for a COA,
however, after being turned down on his second contention, that
newly discovered evidence demonstrates his confession was coerced
by police brutality. Finding no merit in either contention under
the standards of review adopted by AEDPA 1, we affirm the judgment
on the first contention and deny COA on the second.2
1. Whether the Constitution prohibits execution of the
mentally retarded.
Under AEDPA, we review the state court decision denying
relief on this claim to determine (1) whether it was contrary to or
involved an unreasonable application of clearly established Federal
law as expressed by the Supreme Court, 28 U.S.C. § 2254(d)(1), or
(2) whether the facts found by the state courts were unreasonable
in light of the record. 28 U.S.C. § 2254(d)(2). Relief is not
barred on this claim by the Teague non-retroactivity doctrine. See
1
The Antiterrorism and Effective Death Penalty Act of
1996.
2
Both the district court and the magistrate judge analyzed
Bell’s claims de novo, without reference to the substantive
limitations imposed by AEDPA. While we need not question our
brethren’s analysis, it is important to recognize that AEDPA’s
standards reflect the deference that Congress has ruled we must pay
to state court convictions.
2
Penry v. Lynaugh, 492 U.S. 302, 331, 109 S. Ct. 2934, 2953 (1989).
Bell’s initial conviction was reversed, and he received
a second trial for capital murder of Ferd Chisum so that the state
courts could apply the then-new Supreme Court decision in Penry v.
Lynaugh. Penry held that a jury must be permitted to find that a
defendant’s mental retardation mitigates against infliction of the
death penalty because his condition limits his culpability. 492
U.S. at 320-28, 109 S.Ct. at 2947-52. Penry refused to hold that
the Eighth Amendment requires a categorical exclusion of mentally
retarded defendants from receiving the death penalty. 492 U.S. at
331-35, 109 S.Ct. at 2953-55. The Texas Court of Criminal Appeals
so applied Penry to Bell’s second appeal. Bell v. State, 938
S.W.2d 35, 55 (1996).
Penry has not been subsequently overturned by the U.S.
Supreme Court. Until it is, the standard for granting habeas
relief under AEDPA, which requires state court decisions to conform
to Federal law articulated by the Supreme Court, will not be
satisfied. Bell’s argument, formulated on a still evolving
national consensus made up of over a dozen states that have
legislatively decided to place limits on executions of the mentally
retarded, is thus irrelevant in the lower federal courts.
In addition, Bell’s case exemplifies the wisdom behind
Penry’s decision to allow juries to examine the impact of mental
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retardation on culpability on a case-by-case basis. While Bell has
scored at a level of mild mental retardation throughout his life,
an expert also testified that he was competent to stand trial and
knew the difference between right and wrong. He carefully planned
the murders of Ferd and Eileen Chisum, assembling papers, a knife,
handcuffs, and extension cords from which he had removed the ends,
and he tricked the Chisums into letting him into their house on the
pretext that he wanted their advice about attending school. He
forced Eileen Chisum to write a false name on several checks before
he killed her, and he then tried to cash one of those checks the
day after the murder. The murders were executed ruthlessly and
brutally. There was, in short, plenty of evidence to support the
jury’s post-Penry weighing of Bell’s mental retardation against his
moral culpability.
As a footnote, we, like the state courts, reject the
argument that the federal Americans with Disabilities Act somehow
entitles Bell to exoneration from the death penalty. The ADA
neither addresses the imposition of criminal penalties, nor does it
suggest that mentally disabled Americans should be treated
differently from other Americans who commit crimes.
The state courts did not render an unreasonable decision
in rejecting Bell’s contentions concerning his mental retardation.
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2. Whether Bell made a substantial showing that he was
denied any constitutional right regarding newly
discovered evidence.
Under AEDPA, a COA will issue only if Bell makes “a
substantial showing” that he was denied a federal constitutional
right. 28 U.S.C. § 2253(c)(2). A substantial showing means that
reasonable jurists would find the state courts’ assessment of
Bell’s claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
478, 120 S. Ct. 1595, 1600 (2000). The federal court’s assessment
of Bell’s claim depends, in turn, on the “reasonableness” of the
state court’s decision. 28 U.S.C. § 2254(d) and (e).
To obtain relief from a judgment based on newly
discovered evidence, a petitioner generally must demonstrate that
(1) the evidence is newly discovered and was unknown to the
defendant at the time of trial; (2) the defendant’s failure to
detect the evidence was not due to a lack of due diligence; (3) the
evidence is material, not merely cumulative or impeaching; and (4)
the evidence would probably produce an acquittal at a new trial.
Lucas v. Johnson, 132 F.3d 1069, 1076 n.3 (5th Cir.), cert dism’d.,
524 U.S. 965 (1998).
Bell contends that affidavits procured in 1997 from his
mother, his cousin, and most prominently, his former co-defendant
Sheppard Watson, would have demonstrated that Bell was beaten by
law enforcement officers to induce him to confess. He goes on to
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argue that based on this evidence, his confession would have been
excluded, and he would not have been convicted of capital murder.
In his appellate brief, Bell focuses on Watson’s affidavit, which
described Watson’s alleged beating by the police and Watson’s
suspicion that Bell was beaten and, somehow, is supposed to fortify
Bell’s claim that he was physically forced to confess.
The state habeas court rejected this claim, finding both
that Bell did not prove that the “new evidence” was unknown to him
at the time of trial and that his attorneys at the second trial
conceded the admissibility of Bell’s confession, which had been
admitted at the first trial despite a claim of police brutality.
Bell disagrees only with the former finding, but he does not make
a substantial showing, by clear and convincing evidence, to rebut
it.3 See 28 U.S.C. § 2254(e)(1). The state court findings are
thus presumed correct.
Bell hopes to circumvent the adverse findings by alleging
that his attorneys were constitutionally ineffective for not
“discovering” the “new evidence” and for not moving to suppress his
confession at the second trial. See generally Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). The
state courts responded that Bell had to know about evidence
3
Bell’s mother’s evidence could not be “new,” as she
testified similarly in both of his trials. And Bell knew that his
cousin had seen him in jail.
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bolstering his coerced confession claim. His attorneys were not
defective if he failed to communicate with them. The state courts
alternatively found that the attorneys’ performance could not have
prejudiced Bell, because even if the cousin’s and Watson’s
testimony had been offered at trial, it would have been cumulative
and, from such biased sources, not very credible. We agree. There
was substantial incriminating evidence even apart from Bell’s
confession. Bell was not prejudiced by his attorneys’ conduct.
The state courts’ analysis of Strickland reasonably applies the
relevant constitutional law in light of the state court record.
Bell has failed to make a substantial showing that his
constitutional rights were violated by his attorneys’ errors or by
the absence at his second trial of newly discovered evidence.
CONCLUSION
For the foregoing reasons, the judgment of the district
court denying habeas corpus relief on Bell’s first contention is
AFFIRMED. We DENY a certificate of appealability on Bell’s second
contention.
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