In Re: Nealy , 223 F. App'x 358 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 20, 2007
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 07-10311
_____________________
In Re: CHARLES ANTHONY NEALY,
Movant.
_________________________________________________________________
Motion for an order authorizing
the United States District Court for the
Northern District of Texas to consider
a successive 28 U.S.C. § 2254 application
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
On Friday, March 16, 2007, Texas death row inmate Charles
Anthony Nealy, who is scheduled to be executed on March 20, 2007,
applied to this court for authorization to file a successive
application for a writ of habeas corpus in the district court. He
seeks authorization to file two claims in a successive federal
habeas corpus petition. The claims are (1) that he was denied due
process of law under the Fourteenth Amendment because the State
suppressed exculpatory evidence and knowingly relied on perjured
testimony to convict him; and (2) that his conviction is
constitutionally unreliable and therefore violates the Eighth
Amendment’s requirement that capital proceedings adhere to a
*
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this opinion should not be published and is not precedent except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.
heightened degree of reliability, and the Fourteenth Amendment’s
right to due process.
Nealy claims that unless this court intervenes, the State of
Texas will execute an innocent man. We note, however, that he does
not dispute that he was in the convenience store at the time the
robbery and murders occurred. Indeed, in a statement that the
state court found to have been voluntarily given, although it was
not admitted into evidence at trial, Nealy admitted that he carried
the shotgun, but asserted that the shooting was accidental.
Therefore, his claim is not that he is actually innocent of murder.
Instead, his “actual innocence” claim is that the prosecution
failed to prove beyond a reasonable doubt that he personally shot
and killed Jiten Bhakta with a shotgun during the course of robbing
Jiten Bhakta’s convenience store.
I.
Nealy was convicted of capital murder and sentenced to death
for the 1997 murder of Jiten Bhakta during an armed robbery of the
convenience store owned by Jiten Bhakta. His conviction and
sentence were affirmed on direct appeal. Nealy v. State, No.
73,267 (Tex. Crim. App. September 13, 2000) (unpublished), cert.
denied, 531 U.S. 1160 (2001). In October 2001, the Texas Court of
Criminal Appeals adopted the trial court’s recommendation that
Nealy’s state habeas application be denied. Ex parte Nealy, No.
50,361-0-1 (Tex. Crim. App. October 24, 2001) (unpublished). Among
the numerous claims raised in his first state habeas petition was
2
the claim that the State failed to disclose a plea bargain
agreement made in exchange for Reginald Mitchell’s trial testimony
and thereby violated his due process rights under Brady v.
Maryland, 373 U.S. 83 (1963).
In his federal habeas petition filed in October 2002, Nealy
asserted three claims for relief: (1) that the evidence was
insufficient to prove beyond a reasonable doubt the essential
elements of the offense of capital murder; (2) that the trial
court’s failure to allow him to inform the jury of his parole
eligibility if the death penalty were not assessed violated his
constitutional rights to equal protection, effective assistance of
counsel, due process, and protection from cruel and unusual
punishment; and (3) that the evidence was insufficient to sustain
the State’s burden of proving that he would commit criminal acts of
violence constituting a future danger to society. The district
court denied relief and denied Nealy’s request for a certificate of
appealability (“COA”). Based on our “threshold inquiry”,
consisting of “an overview of the claims in the habeas petition and
a general assessment of their merits,” Miller-El v. Cockrell, 537
U.S. 322, 327, 336 (2003), we granted a COA for the claim of
insufficient evidence to support the jury’s verdict of guilt, and
denied a COA for the other two claims. Nealy v. Dretke, No. 05-
70027 (5th Cir. March 27, 2006) (unpublished). Following
supplemental briefing on the merits and oral argument, we affirmed
the district court’s denial of federal habeas relief on the
3
insufficient evidence claim. Nealy v. Dretke, No. 05-70027 (5th
Cir. May 24, 2006) (unpublished), cert. denied, 127 S. Ct. 501
(2006).
In his first federal habeas petition, Nealy argued that the
evidence was insufficient to convict him of causing the death of
Jiten Bhakta during the course of a robbery, because the
eyewitness’s identification was tainted by conflicting testimony
and his lack of memory about whether he had previously identified
Nealy, and because the remaining testimony presented by the
prosecution did not establish that Nealy caused Jiten Bhakta’s
death. In our opinion affirming the denial of federal habeas
relief on this claim, we described the evidence presented at trial
as follows:
The State’s first witness was [Nealy’s
nephew,] Memphis Nealy (“Memphis”). He
testified that between 5:00 and 7:00 p.m. on
the evening of the robbery, he was riding with
Nealy on Central Expressway in Dallas. When
they passed the Expressway Mart convenience
store, Memphis said that Nealy stated, “I’m
going to come back and get ‘em.” Nealy did
not want Memphis to participate in their
return to the convenience store because
Memphis did not have a criminal record.
Memphis testified that, within 24 hours,
he saw a television news report about the
robbery and murders at the Expressway Mart.
On direct examination, he testified that he
saw a “little bit” of the videotape from the
store on television; that he saw Nealy and
Reginald Mitchell in the videotape; and that
he later viewed a videotape of the offense and
observed Nealy, wearing a dark hat and
carrying a shotgun and a briefcase.
4
On cross-examination, Memphis testified
that the police showed him the videotape of
the offense; that only a small portion of the
videotape was shown on the television news;
that he could not tell who was depicted on the
tape when he first viewed it; and that, after
the police told him that Nealy was shown on
the videotape, he was able to recognize and
identify Nealy and Claude Nealy (“Claude” --
Nealy’s nephew and Memphis’s brother).
On redirect examination, Memphis
testified that the person depicted on the
videotape with the dark hat and shotgun is
Nealy, and that the person with the light hat
and handgun is his little brother, Claude.
Satishbhi (Sam) Bhakta (“Bhakta”)
testified that his brother, Jiten Bhakta,
owned the Expressway Mart. On August 20,
1997, about 8:20 p.m., Bhakta was helping at
the store with another employee, Vijay Patel,
while Jiten was in the office taking a nap.
Two men, one armed with a shotgun and the
other with a pistol, entered the store. The
men ordered Patel and Bhakta to lie down on
the floor. The man with the shotgun went into
the office. Bhakta heard Jiten call out and
then heard the shotgun discharge. The medical
examiner testified that Jiten died from a
shotgun wound to his chest that “pulpified”
his heart. Bhakta testified that the man with
the pistol shot Patel in the head and that
Patel died a few days later.
Bhakta testified that the man with the
shotgun came out of the office with a
briefcase (containing $4,000) and said, “I got
the man in the office.” The man with the
pistol replied, “I got one over here, too.”
The man with the pistol ordered Bhakta to open
the cash register, and the man with the
shotgun took the money from the register and
put it in his pocket. Both of the robbers
took wine and beer before leaving the store.
At trial, Bhakta identified Nealy as the man
with the shotgun.
5
On direct examination, Bhakta testified
first that the man with the shotgun had on a
light-colored hat, but immediately thereafter
he testified that the man with the shotgun was
wearing a dark-colored hat, and that the man
with the pistol was wearing a lighter-colored
hat.
Four video cameras in the store recorded
the robbery. The videotape was played for the
jury during Bhakta’s testimony. Although the
tape was of poor quality, it showed a man with
a light-colored hat, and a man wearing a dark
hat, carrying a shotgun. The tape did not
record either of the murders, but it recorded
the two men stealing money from the cash
register.
On cross-examination, Bhakta testified
that the man with the shotgun was wearing a
white hat, and that the man with the pistol
was wearing a dark hat. He stated that the
man with the pistol and darker hat was short,
balding, had a gold tooth with a star, and was
wearing a white t-shirt and dark-colored
jeans. He stated that the man with the
shotgun was wearing a lighter-colored hat, a
white t-shirt, and jeans.
On redirect examination, Bhakta testified
that the man with the shotgun was wearing the
dark-colored hat. He identified Nealy in
court as the man who had the shotgun.
On recross-examination, Bhakta testified
that he identified the man carrying the
shotgun from a photographic line-up, but that
he did not remember if that was a picture of
Nealy. He testified further that he also
identified and signed a photograph of the
person who was carrying the pistol.
Reginald Mitchell, a co-defendant,
testified that on the night of the robbery, he
joined Claude and Nealy in Nealy’s car and
went to the Expressway Mart. He stated that
Nealy was wearing a dark hat and that Claude
was wearing a light hat. Mitchell stated that
Claude and Nealy entered the store, and that
6
Nealy had a shotgun, although he did not see
it. He testified that Claude had a .38 or .32
pistol. Mitchell testified that he first
heard a shotgun blast and then small-arms
fire. Nealy and Claude came out of the store
and got into the car. Mitchell testified that
Nealy said, “This is the way the Nealys do
it.” When they got back to Nealy’s house,
Nealy said that they committed the crime
because “the bitches wouldn’t sell him no
Blackie mounds” (referring to a type of
cigar). Mitchell testified that Nealy
threatened to kill him if he told anyone about
the crime. The prosecutor showed the
videotape to Mitchell and Mitchell identified
Nealy as the person with the shotgun depicted
on the videotape. On cross-examination,
Mitchell admitted that if he did not already
know Nealy, he would not have been able to
recognize Nealy on the videotape.
We noted that Nealy’s arguments regarding conflicts in the
testimony were pointed out to the jury by defense counsel in
closing argument, and that it was the jury’s prerogative to resolve
those conflicts. We therefore concluded that the state court’s
decision denying relief on this claim did not involve an
unreasonable application of clearly established federal law and was
not based on an unreasonable determination of the facts in the
light of the evidence presented at trial.
In October 2006, two investigators from the Dallas County
District Attorney’s office questioned Nealy’s nephew, Memphis
Nealy, about his trial testimony.** Memphis told the investigators
**
Nealy’s motion is somewhat misleading because he omits
relevant information concerning the reason the District Attorney’s
office contacted Memphis. According to the February 7, 2007,
opinion of the Texas Court of Criminal Appeals, Nealy and his
family attempted to pressure Memphis to recant his trial
7
that he had been harassed by one of the prosecutors in 1997. At a
hearing convened by the District Attorney’s office on October 11,
2006, Memphis testified that portions of his testimony at Nealy’s
capital murder trial in 1998 were false and that he was coerced by
prosecutor George West into testifying falsely at the trial.
Memphis testified that he lied at trial when he stated that Nealy
told him on the night of the murders that he was going to “come
back and get ‘em.” He testified further that he never
independently identified Nealy from the videotape as the man with
the shotgun. Memphis explained that he testified falsely at trial
because West threatened him with capital murder charges if he did
not cooperate, and he believed that his life was threatened and
that he had no choice but to cooperate. Memphis, who was 17 years
old at the time of the murders, stated that he was only able to
come forward now, nine years later, and tell the truth because he
was older and felt like he had control over his life.
On November 9, 2006, Nealy filed a subsequent application for
state habeas relief, raising claims of actual innocence and
identification testimony. When the District Attorney’s office
discovered the plan, investigators contacted Memphis. In its
response in opposition to Nealy’s motion to file a successive
habeas application, the State offers further details. According to
the State, a posting on a website for Nealy charged that the police
had “blackmailed” Memphis to testify. Through the use of its
subpoena power, the Dallas County District Attorney’s Office
learned of a letter that Nealy wrote to his sister on August 20,
2006, and a subsequent three-way telephone call between Nealy, his
sister, and Memphis, in which Nealy asked his sister to find
Memphis and bring Memphis to the prison to visit him.
8
prosecutorial misconduct. The Texas Court of Criminal Appeals
dismissed the actual innocence claim and remanded the claim of
prosecutorial misconduct to the trial court for resolution.
The state trial court conducted an evidentiary hearing on
December 13, 2006. At that hearing, Memphis testified that, if the
investigators from the District Attorney’s office had not contacted
him, he never would have come forward and told the truth. In its
response to Nealy’s motion, the State asserts that at that hearing,
Memphis described a detective, Anthony Winn, rather than prosecutor
West, as his alleged harasser. The State notes that the trial
court found that Memphis was not a credible witness at the
“recantation” hearings, that his allegations of prosecutorial
misconduct and false trial testimony were untrue and were
fabricated to obtain a stay of execution, and that his trial
testimony was not false, coerced, or fabricated.
In an investigation conducted as a result of Memphis’s
recantation, defense investigators allegedly discovered that a
signature on a statement purportedly given by co-defendant Claude
Nealy (“Claude”), secured in connection with the prosecution of
Nealy, appears to be fabricated. In his purported statement to the
police on September 18, 1997, Claude admitted his involvement in
the robbery and stated that Charles Nealy shot and killed both of
the victims at the convenience store. On December 18, 2006, Claude
signed an affidavit in which he stated that he did not make or sign
any statement for detectives. Nealy asserts that Claude’s
9
signature on this affidavit does not resemble the signature on the
September 1997 statement. He therefore asserts that the September
1997 statement “appears to be a fabrication.” The State points out
that Claude’s statement was never introduced into evidence at
Nealy’s trial, and thus was not used to convict Nealy. In any
event, the State notes that Claude’s December 2006 affidavit does
not dispute the facts of the crime recited in the September 1997
statement.
Nealy also claims that on December 20, 2006, Reginald Mitchell
told a defense investigating attorney that he lied at Nealy’s
capital murder trial when he testified that the State had not made
any deal with him in exchange for testifying against Nealy.
Because of logistical difficulties in getting witnesses to Dallas
County for the evidentiary hearing, counsel for the parties agreed
that the testimony of Reginald Mitchell and Claude Nealy would be
provided in affidavit form. Mitchell, however, refused to sign an
affidavit because he did not want to become involved in this case
and was afraid of getting into trouble. Accordingly, Nealy
submitted the affidavit of defense investigating attorney Karen
Cunningham, who had spoken with Mitchell on several occasions. In
her affidavit, she stated that Mitchell told her that he made an
agreement with the prosecution, without the involvement of his
trial counsel, to testify against Nealy in exchange for a three-
year sentence and a lesser charge.
10
On December 26, 2006, the trial court recommended that relief
be denied. The Texas Court of Criminal Appeals adopted the trial
court’s recommendation and denied relief. Ex Parte Nealy, No. 50,
361-03 (Tex. Crim. App. February 7, 2007) (unpublished). The Court
of Criminal Appeals adopted the trial court’s finding that
Memphis’s allegations of prosecutorial misconduct and false trial
testimony are untrue and were fabricated to secure a stay of
execution. The court noted that Nealy also tried to raise a claim
that was not before the trial court -- that Reginald Mitchell had
an undisclosed deal with prosecutors. The court dismissed that
claim as an abuse of the writ on the ground that it had been
rejected when Nealy raised it in his initial state habeas
application filed in July 2000.
On March 14, 2007, Nealy filed another application for post-
conviction relief in state court. On March 15, 2007, the Texas
Court of Criminal Appeals dismissed, as an abuse of the writ,
Nealy’s claims (1) that the prosecutorial misconduct that he
identified in his first subsequent state habeas application also
rendered his conviction unreliable, in violation of the Eighth
Amendment, and (2) that he is mentally retarded and cannot be
executed. Ex parte Nealy, No. WR-50,361-04 (Tex. Crim. App. March
15, 2007) (unpublished).
On February 27, 2007, Nealy’s counsel advised this court that
he would not be filing anything further on Nealy’s behalf.
Nevertheless, on Friday, March 16, counsel called and said that
11
they were going to file a motion for authorization to file a
successive federal habeas application. The motion was filed later
that afternoon and received by this court after 5:00 p.m. on
Friday. This court ordered the State to file a response, and it
did so on Monday, March 19.
II.
This court may authorize the filing of a successive petition
only if we determine that “the application makes a prima facie
showing that the applicant satisfies the requirements” of 28 U.S.C.
§ 2244(b). 28 U.S.C. § 2244(b)(3)(C). The claims that Nealy seeks
to assert were not presented in his previous application for
federal habeas relief. Therefore, he must make a prima facie
showing that
(B)(i) the factual predicate for the claim
could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2244(b)(2)(B).
“A prima facie showing ... is simply a sufficient showing of
possible merit to warrant a fuller [exploration] by the district
court.” In re Hearn, 418 F.3d 444, 445 (5th Cir. 2005). “If it is
‘reasonably likely’ that the motion and supporting documents
indicate that the application meets the ‘stringent’ requirements
12
for the filing of a successive petition, then we must grant
authorization to file the petition.” In re Henderson, 462 F.3d
413, 415 (5th Cir. 2006) (quoting In re Morris, 328 F.3d 739, 740
(5th Cir. 2003)). The state court’s findings regarding the
credibility of Memphis’s recantation, as well as its application of
state procedural bars, “are wholly irrelevant to our inquiry as to
whether [Nealy] has made a prima facie showing of entitlement to
proceed with his federal habeas application, which is an inquiry
distinct from the burden that [Nealy] must bear in proving his
claim in the district court.” In re Wilson, 442 F.3d 872, 878 (5th
Cir. 2006).
Nealy contends that the factual predicate of his claims could
not have been discovered previously through the exercise of due
diligence, because the claims rely on facts discovered for the
first time four years after he filed his federal habeas petition in
October 2002. He asserts that Memphis Nealy’s testimony that the
prosecution coerced him into testifying falsely at Nealy’s capital
murder trial was discovered only because two investigators with the
Dallas County District Attorney’s office approached Memphis at his
workplace and questioned him about the veracity of his trial
testimony. Memphis testified that he never would have come forward
to tell the truth had he not been contacted by the State’s
investigators. Nealy asserts that his investigators learned of
Reginald Mitchell’s false testimony and Claude’s fabricated
statement only after Memphis recanted his trial testimony. He
13
claims that none of this information could have been discovered
previously through the exercise of due diligence because the State
actively concealed the information. He contends further that his
counsel could not have learned of the deal that existed between the
State and Reginald Mitchell, because that deal was never made part
of the record.
Nealy asserts that the facts underlying these claims, if
proven and viewed in the light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found
him guilty of the capital murder of Jiten Bhakta. He asserts that,
without the false testimony given by Memphis and Mitchell, no
reasonable jury would have convicted him solely on the basis of the
contradictory, unreliable testimony of the eyewitness, Sam Bhakta.
III.
Nealy has not made the requisite showing under 28 U.S.C. §
2244(b)(2)(B)(i) to raise his prosecutorial misconduct and Eighth
Amendment “unreliable process” claims in a successive habeas
application. The evidence he relies on is neither new nor
previously undiscoverable. Memphis Nealy, Claude Nealy, and
Reginald Mitchell were available for further investigation by the
defense before Nealy filed his first federal habeas application in
2002. Memphis’s allegedly “false” testimony has been known to
Nealy since his trial. Reginald Mitchell’s allegedly undisclosed
deal with prosecutors has been known by Nealy at least since July
14
2000, when he raised a Brady claim based on the same allegations in
his first state habeas application. Had he exercised due
diligence, these claims could have been discovered and raised in
his first federal habeas application.
Furthermore, Nealy has not made a prima facie showing of
prosecutorial misconduct or an Eighth Amendment violation by
showing that the facts of his claim, if proven and viewed in the
light of the evidence as a whole, would be sufficient to establish
by clear and convincing evidence that, but for constitutional
error, no reasonable factfinder would have found him guilty of
capital murder, as required by 28 U.S.C. § 2244(b)(2)(B)(ii).
The evidence of Nealy’s guilt is not undermined by Memphis’s
recantation of his testimony, and Nealy has not made a prima facie
showing that he would have been acquitted if Memphis had not been
“coerced” into testifying. Mitchell testified that he and Claude
rode in Nealy’s car to the Expressway Mart and stopped for
gasoline. Mitchell went into the store, paid for the gasoline, and
returned to the car to pump the gas. They drove away but returned
a few minutes later. Nealy, carrying a shotgun, and Claude, armed
with a pistol, entered the store. Mitchell heard a shotgun blast,
followed by small-arms fire. Mitchell testified that when Nealy
came out of the store, he was carrying a briefcase. Sam Bhakta
testified that when the robber armed with the shotgun came out of
Jiten’s office after shooting Jiten, that individual was carrying
Jiten’s briefcase. Nealy told Mitchell he committed the crime
15
because the victims would not sell him a cigar. At trial, after
viewing the videotape of the incident, Mitchell identified Nealy as
the robber wearing a dark hat and carrying the shotgun, and
identified Claude as the robber with the pistol. Sam Bhakta also
identified Nealy as the robber who had the shotgun. Although there
were discrepancies and inconsistencies in Sam Bhakta’s testimony,
as described in our prior opinion (quoted earlier in this opinion),
at trial he identified Nealy as the robber wearing the dark hat and
carrying the shotgun. Contrary to Nealy’s assertion that Sam
Bhakta’s testimony must be disregarded in its entirety because of
the inconsistencies, the jury was entitled to consider his
testimony and to resolve any issues relating to his credibility.
Nealy has not satisfied his burden to make a prima facie
showing that Reginald Mitchell testified falsely that he had not
made a deal with the prosecutors for a lesser sentence in exchange
for his testimony against Nealy. The only evidence offered by
Nealy in support of this allegation is the hearsay affidavit of one
of his investigating attorneys. Mitchell has never stated under
oath that he lied at Nealy’s trial. Furthermore, there is no
evidence that Mitchell told the investigating attorney that he was
lying when he testified regarding the events of the robbery and
murder, and in particular his testimony that Nealy was wearing a
dark hat and carrying a shotgun.
In sum, Nealy has failed to make a prima facie showing in both
requirements of the statute: that is, he has failed to show that
16
the evidence presented could not have been previously discovered
through the exercise of due diligence and secondly, he has failed
to show that even if the claims were proved, that they would be
sufficient to change the outcome of the guilty verdict in this
case.
IV.
For the foregoing reasons, Nealy’s motion for authorization to
file a successive federal habeas application is
DENIED.
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