Nelson v. Quarterman , 77 F. App'x 209 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 12, 2003
_______________________ Charles R. Fulbruge III
Clerk
No. 02-11096
_______________________
BILLY RAY NELSON,
Petitioner-Appellant,
versus
JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Abilene Division
Civil Docket CA1-01-0196
_________________________________________________________________
Before JONES, STEWART, and DENNIS, Circuit Judges.
By EDITH H. JONES, Circuit Judge:*
Billy Ray Nelson was convicted of capital murder and
sentenced to death in December 1991 for murdering Charla Wheat.
Nelson filed a petition for a writ of habeas corpus in federal
district court pursuant to 28 U.S.C. § 2254 (2000). Nelson’s
petition raised eleven issues which he contended provided a basis
for a writ of habeas corpus to issue. Appellee moved for summary
*
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this opinion should not be published and is not precedent except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.
judgment on all eleven issues. The district court granted summary
judgment and denied Nelson’s petition. The district court also
refused to grant a certificate of appealability (“COA”) on any of
the issues raised by Nelson.
Nelson now seeks a COA from this court on three issues:
(1) whether the special issue instructions used at trial provided
the jury with an adequate vehicle to give mitigating effect to
evidence in violation of the Eighth and Fourteenth Amendments as
construed in Penry v. Lynaugh, 492 U.S. 302 (1989); (2) whether
Nelson’s counsel provided ineffective assistance by failing to
request an instruction on the definition of reasonable doubt or by
failing to raise this issue on direct appeal; and (3) whether the
introduction of testimony by a state psychiatrist regarding future
dangerousness violated the Fifth Amendment as construed in Estelle
v. Smith, 451 U.S. 454 (1981). We grant a COA on the first two
issues but deny the application for COA on the other issue. With
respect to the merits issues, we affirm the district court’s denial
of habeas relief.
BACKGROUND
Nelson was indicted for the capital murder of Charla M.
Wheat and the attempted capital murder of Wheat’s roommate Carol
Maynard that occurred on or about February 23, 1991. In December
1991, Nelson was tried for the capital murder of Wheat. During the
guilt/innocence phase of trial Maynard testified as to the events
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of February 23. Specifically, Maynard testified that she and Wheat
were forced, at knifepoint, by Nelson to perform sexual acts on
each other and on Nelson. Maynard further testified that Nelson
stabbed Wheat. Other testimony established that the stab wounds
were the cause of Wheat’s death. Also, at trial, two voluntary
statements made by Nelson were admitted into evidence. In these
statements Nelson confessed to stabbing Wheat. He stated that he
committed the crime because he “was drunk and wanted a piece of
butt.”
On December 11, 1991, the jury found Nelson guilty of
capital murder. On December 13, following the punishment phase of
trial, the jury answered affirmatively the two special issues
submitted pursuant to Texas Code of Criminal Procedure article
37.071(b). Nelson was sentenced to death. Nelson’s sentence and
conviction were affirmed on direct appeal by the Texas Court of
Criminal Appeals on May 26, 1993. The United States Supreme Court
denied Nelson’s petition for writ of certiorari on March 21, 1994.
On April 17, 1997, Nelson commenced a series of state
applications for writ of habeas corpus. The state district court
issued findings of fact and conclusions of law recommending denial
of relief on all of Nelson’s claims on July 10, 2001. The Court of
Criminal Appeals denied Nelson’s application on the findings and
recommendations of the trial court. Additionally, it dismissed
Nelson’s subsequent application as an abuse of the writ under Texas
Code of Criminal Procedure article 11.071, § 5(a).
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DISCUSSION
Nelson’s § 2254 habeas petition, filed on December 7,
2001, is subject to the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792
(2001). Under AEDPA, Nelson must obtain a COA before he can appeal
the district court’s denial of habeas relief. 28 U.S.C. §
2253(c)(1) (2000); Slack v. McDaniel, 529 U.S. 473, 478 (2000).
“[U]ntil a COA has been issued federal courts of appeals lack
jurisdiction to rule on the merits of appeals from habeas
petitioners.” Miller-El v. Cockrell, 123 S. Ct. 1029, 1039 (2003).
To obtain a COA, Nelson must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)
(2000); Miller-El, 123 S. Ct. at 1039; Slack, 529 U.S. at 483 . To
make such a showing, he must demonstrate that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Miller-El, 123 S. Ct. at 1039 (quoting Slack, 529 U.S.
at 484).
In Miller-El, the Supreme Court instructed, as it had
previously held in Slack, that federal courts should “limit [their]
examination to a threshold inquiry into the underlying merit of
[the petitioner’s] claims.” Miller-El, 123 S. Ct. at 1034. The
Court observed that “a COA ruling is not the occasion for a ruling
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on the merit of petitioner’s claim . . .” Id. at 1036. Instead,
our determination must be based on “an overview of the claims in
the habeas petition and a general assessment of their merits.” Id.
at 1039. “This threshold inquiry does not require full
consideration of the factual or legal bases adduced in support of
the claims.” Id. We do not have jurisdiction to justify the
denial of a COA based on an adjudication of the actual merits of
the claims. Id. Accordingly, we cannot deny an “application for
a COA merely because [we believe] the applicant will not
demonstrate an entitlement to relief.” Id. “[A] claim can be
debatable even though every jurist of reason might agree, after the
COA has been granted and the case has received full consideration,
that petitioner will not prevail.” Id.Because the district court denied relief on the merits of
the claims for which Nelson seeks a COA, he “must demonstrate that
reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Barraza v.
Cockrell, 330 F.3d 349, 351 (5th Cir. 2003) (quoting Miller-El, 123
S. Ct. at 1040). Nelson first seeks a COA on the ground that the
special issue instructions given to the jury at sentencing failed
to provide an adequate vehicle to give effect to his mitigating
evidence in violation of Penry v. Lynaugh, 492 U.S. 302 (1989).
The instructions given by the trial court were identical to those
given in Penry. To grant relief on Nelson’s Penry claim, we must
determine that “(1) that the proffered evidence was
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constitutionally relevant mitigating evidence, and, if so, (2) that
the proffered evidence was beyond the "effective reach" of the
jurors.” Madden v. Collins, 18 F.3d 304, 308 (5th Cir. 1994).
In this case, Nelson argued that the following evidence
is mitigating: (1) Nelson’s rejection by his mother, (2) Nelson’s
abuse of and addiction to drugs and alcohol, (3) Nelson’s troubled
relationships with his brother and women, and (4) that he suffered
from a treatable borderline personality disorder. We conclude that
reasonable jurists could debate the district court’s conclusion to
deny relief on the Penry claim and accordingly grant Nelson a COA
on this claim.
Although we grant a COA, we conclude that the district
court properly denied relief on Nelson’s Penry claim. None of
Nelson’s evidence is incapable of being assessed and assigned full
mitigating weight under the charge presented to his jury. Thus,
the unusual problem presented in Penry, whereby evidence of extreme
childhood abuse and mental retardation were held to be potentially
mitigating but beyond the scope of the statutory death penalty
issues, does not exist here. This court has repeatedly held that
substance addiction is not Penry-type evidence. Robertson v.
Cockrell, 325 F.3d 243, 253-54 (5th Cir. 2003) (en banc).
Furthermore, we have held that evidence of mental disease that,
like Nelson’s borderline personality disorder, can be controlled
with medication and treatment, can be given full mitigating effect
via the special issues. Id. at 252 (discussing Hernandez v.
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Johnson, 248 F.3d 344 (5th Cir. 2001)); see also Robison v.
Johnson, 151 F.3d 256, 266-67 (5th Cir. 1998); Lucas v. Johnson,
132 F.3d 1069, 1082-83 (5th Cir. 1998). In addition, this court
has repeatedly found evidence of childhood abuse and neglect far
more severe than that suffered by Nelson because of his mother’s
rejecting him not to be constitutionally relevant. See Robertson,
325 F.3d at 253; Davis v. Scott, 51 F.3d 457, 462 (5th Cir. 1995);
Madden, 18 F.3d at 308; Barnard v. Collins, 958 F.2d 634, 639 (5th
Cir. 1992).
Nelson, in passing, also points to evidence of organic
brain damage which, he urges, the special issues did not provide a
vehicle to consider. We disagree. The only record evidence of
organic brain damage is a single sentence of testimony from an
expert witness for the defense, stating “there is minimal room to
consider that there may be minimal brain damage.” The expert,
however, explicitly said that he could not make a formal diagnosis
that Nelson in fact had brain damage. He only suggested that if
further medical examinations were performed, the existence of brain
damage should not be ruled out prior to the exam. Additionally, no
evidence suggested that even if there was brain damage, Nelson’s
acts were caused by it. Thus, this evidence is not
constitutionally relevant. See Robertson, 325 F.3d at 253 (stating
that for evidence to fall within the scope of Penry, there must be
a causal nexus between the mitigating evidence and the commission
of the crime); Graham v. Collins, 950 F.2d 1009, 1029 (5th Cir.
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1992) (en banc) (holding that the relevant inquiry is whether the
criminal act was "due to the uniquely severe permanent handicaps
with which the defendant was burdened through no fault of his
own”).
“Under AEDPA, a federal court may grant a prisoner's
petition only where the state court’s ‘decision’ was ‘contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States’ or was ‘based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.’”
Santellan v. Cockrell, 271 F.3d 190, 192 (5th Cir. 2001) (quoting
28 U.S.C. § 2254 (d) (2000)), cert. denied, 535 U.S. 982 (2002).
Based on this standard and the nature of Nelson’s proffered
evidence, we cannot say that the Court of Criminal Appeals
unreasonably applied clearly established federal law in rejecting
Nelson’s Penry claim. Therefore, we affirm the district court’s
denial of relief on this claim.
Nelson next seeks a COA on his claim that his trial
counsel was ineffective for failing to object to the jury charge
used during the sentencing phase of Nelson’s trial because the
court failed to include a definition for the phrase “reasonable
doubt.” At the time of his trial in December 1991, Texas courts
were required to include a definition of “reasonable doubt” in the
jury charge. Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.
1991), overruled by Paulson v. State, 28 S.W.3d 570 (Tex. Crim.
8
App. 2000). The definition requirement was not statutory; it was
mandated by the Texas Court of Criminal Appeals as an
interpretation of the United States Constitution. Id. at 161-62.
The definition was required even in the absence of a request by
either party. Id. at 162. The failure to include the definition
constituted reversible error even without a contemporaneous
objection. Reyes v. State, 938 S.W.2d 718, 721 (Tex. Crim. App.
1996), overruled by Paulson, 28 S.W.3d 570. Because reasonable
jurists could debate the district court’s reasoning denying relief
on this claim, we grant Nelson a COA.
To establish an ineffective assistance of counsel claim,
Nelson must show that his counsel’s performance was deficient and
that he was actually prejudiced by the deficient performance.
Strickland, 466 U.S. at 687. Whether counsel’s performance was
deficient is determined by examining whether the challenged
representation fell below an objective standard of reasonableness.
Kitchens v. Johnson, 190 F.3d 698, 701 (5th Cir. 1999). Nelson
must also establish that the “prejudice caused by the deficiency is
such that there is a reasonable probability that the result of the
proceedings would have been different.” Ransom v. Johnson, 126
F.3d 716, 721 (5th Cir. 1997). Nelson must show that the prejudice
rendered the sentencing “fundamentally unfair or unreliable.” Id.(quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).
Assuming arguendo that Nelson’s trial counsel was
deficient in failing to object to the exclusion of the “reasonable
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doubt” definition in the sentencing phase jury charge,
nevertheless, Nelson was not prejudiced by the absence of the
definition in the jury charge used at the sentencing phase. Nelson
argues that his trial counsel’s failure to request the definition
was prejudicial because he lost the protection of a definition on
reasonable doubt. We disagree. The jury was given the Geesa
definition during the guilt/innocence phase of trial just a couple
of days before the jury began its deliberations regarding
punishment. Furthermore, Nelson’s counsel discussed the definition
of reasonable doubt from the guilt/innocence phase of trial during
closing arguments in the punishment phase. Given that the jury had
the benefit of a definition of reasonable doubt, Nelson was not
prejudiced by the failure to have the definition repeated in the
punishment phase jury charge.1 Thus, the state court did not
unreasonably apply clearly established federal law in rejecting
Nelson’s ineffective assistance of trial counsel claim.
Nelson goes on to argue that his appellate counsel was
ineffective for failing to raise the omission of the Geesa
definition on direct appeal. Nelson argues, citing Geesa and
Reyes, that had his counsel raised the issue, he would have been
1
Contrary to Nelson’s additional argument, the failure to
object did not preclude Nelson’s counsel from raising the omission
of the definition from the charge on appeal because under Texas
law, a trial court’s omission of the definition was non-waivable
and could be raised on appeal even in the absence of an objection
at trial. Reyes, 938 S.W.2d at 721. Failure to object did not
prejudice Nelson on appeal.
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automatically entitled to a reversal of his conviction and a new
trial.
Even if Nelson’s position is correct as a matter of Texas
law at one time, his counsel’s appellate error still cannot be
prejudicial for Strickland purposes. This is because the prejudice
prong is determined by current law and not the law that existed at
the time of trial. Westley v. Johnson, 83 F.3d 714, 723 (5th Cir.
1996) (citing Lockhart, 506 U.S. at 372-73). Strickland prejudice
“focuses on the question whether counsel’s deficient performance
renders the result of the trial unreliable or the proceeding
fundamentally unfair. Unreliability or unfairness does not result
if the ineffectiveness of counsel does not deprive the defendant of
any substantive or procedural right to which the law entitles him.”
Lockhart, 506 U.S. at 372. As noted previously, the Texas Court of
Criminal Appeals overruled Geesa in 2000. Paulson, 28 S.W.3d at
573. Therefore, the omission of the Geesa definition cannot be
prejudicial for purposes of Strickland. We affirm the district
court’s denial of relief on Nelson’s Geesa-based ineffectiveness
claims.
Nelson also seeks a COA with respect to his claim that a
psychiatric examination performed by Dr. James Grigson on behalf of
the State of Texas violated the Fifth Amendment because Nelson was
not advised that he had the right to remain silent and that any
statements he made could be used against him during the sentencing
phase of his trial. See Estelle, 451 U.S. at 467-68 (holding that
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testimony by a psychiatrist on behalf of the state is inadmissible
when the defendant is not advised of his right to remain silent
during a pretrial examination by the state’s psychiatrist). Thus,
Nelson argues that the trial court should have excluded Dr.
Grigson’s trial testimony about Nelson’s future dangerousness.
Nelson concedes that as his trial counsel failed to
object to Grigson’s testimony, this claim is procedurally defaulted
unless he can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law. See
Ogan v. Cockrell, 297 F.3d 349, 356 (5th Cir.), cert. denied, 123
S. Ct. 582 (2002). In his application for COA, Nelson argues that
he can establish cause based on his claim that his trial counsel
was constitutionally ineffective for failing to object to Grigson’s
testimony on Fifth Amendment grounds. See Murray v. Carrier, 477
U.S. 488-89 (1986); Dowthitt v. Johnson, 230 F.3d 733, 752 (5th
Cir. 2002). We disagree.
Although Nelson did raise in the state habeas proceeding
an ineffective assistance claim based on his counsel’s failure to
make an Estelle objection at trial, he did not raise this claim
before the federal district court. “We have repeatedly held that
a contention not raised by a habeas petitioner in the district
court cannot be considered for the first time on appeal from that
court’s denial of habeas relief.” Johnson v. Puckett, 176 F.3d
809, 814 (5th Cir. 1999) (quoting Johnson v. Puckett, 930 F.2d 445,
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448 (5th Cir. 1991)). Having failed to raise his ineffective
assistance claim before the district court, Nelson cannot now rely
upon this claim to establish cause for the default. See Edwards v.
Carpenter, 529 U.S. 446, 452-53 (2000) (holding that an ineffective
assistance claim asserted as cause for the procedural default of
another claim can itself be procedurally defaulted and thus cannot
serve as cause to excuse the default of the other claim); Stewart
v. Lagrand, 526 U.S. 115, 120 (1999) (per curiam) (holding that
ineffective assistance claim cannot serve as cause when petitioner
waived ineffective assistance claim before federal district court).
Since reasonable jurists would not debate or find wrong that Nelson
has procedurally defaulted his Estelle claim, we deny his
application for COA on this issue.
CONCLUSION
With respect to Nelson’s Penry claim and ineffective
assistance claims relating to the Geesa definition, we grant his
application for COA. We conclude, however, that the district court
did not err in denying habeas relief on these claims because the
state courts’ application of clearly established federal law was
not objectively unreasonable. We deny Nelson’s application for COA
on his claim related to Dr. Grigson’s testimony and as such lack
jurisdiction to review the district court’s denial of habeas relief
on this claim.
AFFIRMED; COA DENIED.
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14
DENNIS, Circuit Judge, concurring:
I concur but adhere to my individual views expressed in my
dissent in Robertson v. Cockrell, 325 F.3d 243 (2003) (en banc).
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