*2
JONES, STEWART, and
Before
BACKGROUND
*3
DENNIS,
Judges.
Circuit
mur-
capital
indicted
Nelson was
attempted
M.
and the
der of Charla Wheat
JONES,
Judge*
Circuit
of
roommate Carol
capital murder Wheat’s
capi-
of
Billy Ray Nelson was convicted
or
Febru-
Maynard that occurred on
about
in De-
murder
to death
tal
and sentenced
1991,
23,
ary
In December
Nelson
1991.
murdering
cember 1991 for
Charla Wheat.
for the
murder of Wheat.
capital
was tried
a
for a writ of habeas
petition
Nelson filed
of trial
During
guilt/innocence phase
pursuant
district court
to
corpus
federal
of
to the
Feb-
Maynard testified as
events
(2000).
§
petition
28 U.S.C.
Maynard
ruary
testified
Specifically,
23.
issues which he contended
raised eleven
forced, at
and Wheat were
knife-
that she
cor-
a
for a
of
provided
basis
writ
habeas
point, by
perform
Nelson to
sexual acts on
moved for sum-
pus
Appellee
to issue.
fur-
Maynard
and on Nelson.
each other
judgment on all
mary
eleven issues. The
stabbed Wheat.
ther testified that Nelson
summary
granted
judgment
district court
testimony
that the
established
stab
Other
petition.
and denied Nelson’s
The district
of
death.
wounds were the cause Wheat’s
also
to
a
of
refused
certificate
Also,
trial,
voluntary
at
two
statements
(“COA”)
any of the
appealability
on
issues
into
made
Nelson were admitted
evi-
raised Nelson.
In these
Nelson
dence.
statements
con-
Nelson
seeks
now
a COA
this court
stabbing
fessed to
Wheat. He stated
(1)
special
on three
issues:
whether
he committed
crime because
“was
provided
issue instructions used at trial
of
piece
drunk and wanted a
butt.”
jury
give
adequate
with an
vehicle to
1991,
11,
jury
On
found
December
mitigating effect
evidence
violation of
of
On De-
guilty
capital
Nelson
murder.
Eighth
and Fourteenth Amendments
punishment phase
following
cember
Penry
Lynaugh,
as construed
trial,
jury
affirmatively
of
answered
109 S.Ct.
U.S.
pursuant
special
the two
issues submitted
(2)
(1989);
pro-
whether Nelson’s counsel
of
Procedure arti-
Texas Code Criminal
by failing
vided ineffective assistance
37.071(b).
cle
Nelson
sentenced to
request an
instruction on
definition
death. Nelson’s sentence and conviction
by failing
reasonable doubt or
raise
this
appeal by
were
on
Tex-
affirmed
direct
(3)
appeal;
issue on direct
and whether the
May
on
Appeals
as Court of Criminal
testimony by
psy-
introduction of
a state
Supreme Court
1993. The United States
regarding
dangerousness
chiatrist
future
petition
denied
for writ
certio-
Fifth
con-
violated the
Amendment as
21,1994.
rari March
Smith,
strued
Estelle
U.S.
17, 1997,
a
April
recommending denial of relief on all of
claims.”
July
claims on
The
ruling
2001. The
Court observed
“a
is
COA
not
Appeals
ruling
Court
Criminal
denied Nelson’s
the occasion for
on the merit
Id. at 1036. In-
findings
petitioner’s
claim ...”
application on the
and recommen-
stead,
Additionally,
dations of the trial court.
it
our determination must be based on
subsequent
“an
dismissed Nelson’s
overview
the claims in
habeas
petition
general
as
abuse of the writ under Texas
assessment of
Code
their
Id. 11.071,
Criminal Procedure
article
merits.”
1039. “This threshold in-
5(a).
quiry
require
full
does
consideration of
legal
in sup-
factual
bases adduced
*4
DISCUSSION
Id.
port of
the claims.”
We do not have
jurisdiction
justify
to
the denial of a COA
§ 2254
petition,
filed
habeas
on
adjudication
based on an
of the actual mer-
7, 2001,
subject
December
is
to the Anti-
Id.
its of
Accordingly,
the claims.
we can-
Penalty
terrorism and Effective Death
Act
not
(AEDPA).
deny
“application
an
for a
Johnson,
merely
COA
Penry
See
1996
of
applicant
because
the
782,
[we believe]
will not
792,
1910,
532 U.S.
121 S.Ct.
150
Id.
an entitlement
relief.”
(2001).
demonstrate
to
AEDPA,
9
Under
Nelson
“[A] claim can be
though
debatable even
appeal
must obtain a COA before he can
every jurist
might agree,
of reason
after
the district
court’s denial
habeas relief.
has
granted
COA
been
and the case
2253(c)(1) (2000);
§
Slack v.
28 U.S.C.
consideration,
has
McDaniel,
peti-
received full
that
473, 478,
529 U.S.
Id.
tioner
not
(2000).
prevail.”
will
1595,
In Court in- evi mitigating relevant Slack, (2) structed, dence, and, so, proffered if previously it had held in that as beyond the that federal courts should “limit evidence was ‘effective reach’ [their] Collins, Madden jurors.” inquiry into the 18 F.3d examination to threshold (5th Cir.1994). underlying petitioner’s] merit [the Collins, 308; case, Barnard v. that argued In Cir.1992). (5th (1) Nel- mitigating: is following evidence (2) mother, rejection by his son’s Nelson, points to passing, also drugs and alco- of and addiction abuse which, damage organic brain evidence (8) hol, relationships Nelson’s troubled provide special issues did urges, (4) women, that with his brother disagree. The to consider. a vehicle a treatable he suffered from borderline organic brain dam only evidence of record that conclude personality disorder. We testimony single is a sentence age jurists the district could debate defense, stating expert witness for deny conclusion to relief on court’s “there minimal room consider is accordingly grant Nelson Penry claim and damage.” may there be minimal brain claim. COA on this however, that he expert, explicitly The said diagnosis make formal could not COA, grant a we con Although we only He damage. fact had brain Nelson in de properly clude the district if examina suggested that further medical None Penry nied relief on Nelson’s claim. existence of performed, tions were *5 being incapable of Nelson’s evidence is prior not be ruled out damage should brain assigned mitigating full assessed and Additionally, the no evidence exam. his weight charge presented the under if suggested that even there was brain Thus, the jury. problem present unusual damage, by caused it. Nelson’s acts were whereby Penry, evidence of extreme Thus, ed constitutionally is not this evidence Robertson, childhood abuse and mental retardation F.3d 253 relevant. See 325 potentially mitigating (stating were held to be but that for to fall within the evidence beyond scope statutory Penry, the death a causal scope the there must be issues, This evidence and penalty mitigating does not exist nexus between the here. crime); of the Graham v. the commission repeatedly has held that court substance Cir.1992) Collins, (5th 1009, 1029 950 F.2d Penry-type addiction is not evidence. (en banc) (holding inquiry the Cockrell, that relevant 243, v. Robertson 825 F.3d 253- criminal act “due to the Cir.2003) (en is whether (5th banc). Furthermore, 54 permanent handicaps with uniquely severe we have held that evidence of mental dis burdened which the defendant was that, person ease like Nelson’s borderline own”). fault through no of his disorder, ality can be controlled medi with treatment, cation and can be full given AEDPA, may court a federal “Under mitigating effect via Id. special issues. prisoner’s petition only where Johnson, (discussing v. at 252 Hernandez to, ‘contrary state court’s ‘decision’ was (5th Cir.2001)); F.3d 344 Ro 248 see also of, involved an unreasonable Johnson, v. 151 F.3d 266-67 law, bison clearly Federal as deter established (5th Cir.1998); Johnson, Lucas F.3d v. 132 Supreme mined Court of the United by (5th Cir.1998). addition, 1069, 1082-83 In or was ‘based on an unreasonable States’ found repeatedly has evidence light of the facts in determination far more se neglect childhood abuse pro in the State court presented evidence ” Cockrell, by than that Nelson because 271 ceeding.’ vere suffered v. F.3d Santellan Cir.2001) (5th be rejecting him not to (quoting of his mother’s 192 28 U.S.C. Robertson, denied, 2254(d) (2000)), constitutionally relevant. See 535 cert. U.S. 253; Scott, 1463, 152 461 v. 51 F.3d 122 325 F.3d Davis (5th Madden, Cir.1995); and the Based on this standard 462 214 evidence, we proffered performance
nature counsel’s was deficient is de say Ap- by cannot that the Court of Criminal termined examining whether chal peals unreasonably applied clearly lenged objec estab- below an representation fell federal tive standard of reasonableness. Kitchens rejecting lished law in Johnson, Therefore, (5th Penny claim. v. affirm 190 F.3d 701 Cir. 1999). district court’s of relief denial on this Nelson must also that establish “prejudice by deficiency claim. caused is such is a probability there next seeks a COA on his claim of the proceedings the result would have trial that his counsel was ineffective for Johnson, v. different.” Ransom been 126 object failing jury charge to the used (5th Cir.1997). F.3d Nelson must during phase prejudice show rendered sen trial because the court failed to include tencing “fundamentally unfair or unrelia phrase definition “reasonable Fretwell, (quoting Id. Lockhart ble.” At his doubt.” the time of trial Decem- 364, 369, U.S. ber Texas required courts were (1993)). include definition of “reasonable doubt” State, Geesa jury charge. Assuming arguendo that Nelson’s 154 (Tex.Crim.App.1991), over- S.W.2d in failing counsel was deficient State, ruled Paulson by S.W.3d object to the exclusion of the “reasonable (Tex.Crim.App.2000). The re- definition sentencing phase doubt” definition quirement statutory; was not it was man- nevertheless, jury charge, Nelson was not Ap- dated the Texas Court Criminal prejudiced of the absence definition *6 peals an of interpretation as the United charge in jury the used at the Id. at States Constitution. The 161-62. phase. argues his trial Nelson that coun required definition was even the ab- sel’s failure to request the definition was a request by Id. party. sence of either prejudicial protection because he the lost 162. The failure to the include definition of a definition on reasonable doubt. We constituted even a reversible error without Geesa disagree. jury The the given was v. Reyes objection. contemporaneous during guilt/innocence definition the phase State, 938 S.W.2d 721 (Tex.Crim.App. just of trial a couple days of before the Paulson, 1996), by overruled 28 S.W.3d jury its began regarding pun deliberations jurists 570. Because reasonable could de- Furthermore, ishment. Nelson’s counsel bate district reasoning denying the court’s discussed the definition reasonable claim, relief this on Nelson guilVinnocence doubt phase from COA closing arguments trial during pun To phase. jury establish ineffective assistance ishment Given that had claim, counsel Nelson must show that his of a benefit definition performance doubt, was prejudiced by counsel’s deficient and was not Nelson actually by that have prejudiced repeated he failure to the definition Strickland, performance. Thus, punishment phase jury charge.1 deficient 466 U.S. at 104 2052. did unreasonably apply Whether state court not Contrary argument, to Nelson’s additional the definition was non-waivable and could be object preclude appeal to failure did not raised on even in the absence of an raising objection Reyes, counsel the omission of the defi- at trial. S.W.2d at 721. 938 appeal object charge prejudice nition from the on Failure did Nelson on because to not law, appeal. court’s under Texas a trial omission
215 467-68, (holding 1866 that testi- rejecting 101 S.Ct. clearly federal law established mony by on behalf of psychiatrist trial ineffective assistance the defendant is is inadmissible when claim. state counsel remain silent right of his to advised goes argue appel- that his Nelson on during examination pretrial failing late counsel was ineffective for Thus, argues Nelson psychiatrist). state’s of the definition raise omission Geesa court should have excluded that trial appeal. argues, citing direct Nelson on testimony Nel- Grigson’s Dr. trial about his Reyes, Geesa had counsel dangerousness. son’s future issue, he auto- raised would have been his trial counsel matically to a of his con- Nelson concedes that as entitled reversal Grigson’s testimony, object and a trial. failed to viction new claim is defaulted unless procedurally position Even if is correct for the default and can demonstrate cause time, as a matter of Texas law at one his prejudice alleged as a of the actual result appellate error cannot counsel’s still be Ogan v. violation federal law. See Cock for prejudicial purposes. Strickland This (5th rell, Cir.), 297 cert. F.3d 356 is prejudice prong is because the deter denied, 123 S.Ct. 537 U.S. law mined current law not the application for In his Westley existed the time of trial. COA, can establish argues Nelson that he Johnson, (5th Cir.1996) his cause based on claim his trial Lockhart, 372-73, (citing 506 U.S. at constitutionally counsel was ineffective 838). prejudice Strickland “focuses failing object Grigson’s testimony question on the whether counsel’s deficient grounds. Murray Fifth Amendment See of the performance renders result 488-89, Carrier, 477 U.S. at fundamentally unreliable or the proceeding (1986); Dowthitt Unreliability unfair. unfairness does Cir.2000). Johnson, (5th F.3d if not result the ineffectiveness of counsel disagree. deprive any does not defendant procedural right substantive or to which Although did raise in the *7 Lockhart, him.” the law entitles 506 U.S. proceeding state habeas an ineffective as 372, 113 838. As previously, noted sistance claim based on his counsel’s fail Texas Court of Appeals Criminal over trial, objection ure to make Estelle Paulson, ruled Geesa in 2000. 28 S.W.3d did the fed not raise claim before Therefore, at 573. omission repeatedly eral district court. have ‘We cannot prejudicial Geesa definition be by a held that a contention not raised purposes of affirm the Strickland. We petitioner can habeas the district court denial of on Nelson’s district court’s relief for the first time on be considered claims. Geesa-based ineffectiveness appeal from court’s denial habeas Puckett, relief.” respect Johnson Nelson also seeks COA with (5th Cir.1999) (quoting Johnson v. psychiatric claim that a examination his (5th Cir.1991)). Puckett, F.2d performed Grigson Dr. James on behalf Having raise of the State of Texas violated the Fifth failed to his ineffective assis court, not ad- tance district Nel Amendment because Nelson was claim before the right rely upon that he now this claim to vised had the to remain silent son cannot Ed any made could establish cause for the default. See statements he be 446, 452-53, against during Carpenter, used him wards v. 529 U.S. (2000) Estelle, 1587, 146 of his trial. See 451 U.S. at phase (holding that an ineffective assistance
claim asserted as procedural cause for the
default of another claim can itself pro be UNITED STATES America
cedurally defaulted and thus cannot serve Plaintiff-Appellee, as cause to excuse the default of the other claim); Lagrand, Stewart v. 526 U.S. 120, 119 (1999) Jose Ramon DOMINGUEZ-SANCHEZ curiam) (per (holding that ineffective assis Defendant-Appellant, tance claim cannot serve as cause when petitioner waived ineffective assistance United States America court). claim before federal district Since Plaintiff-Appellee, jurists would not debate or find wrong that procedurally Nelson has de Martinez-Borjon Ricardo Defendant- claim, faulted his Estelle we deny appli his Appellant. cation for COA on this issue. 02-50694,
No. 02-50746. CONCLUSION United Appeals, States Court of respect With to Nelson’s Penry claim Fifth Circuit. and ineffective assistance claims relating Sept. definition,
to the Geesa appli- his conclude, however, cation for COA. We
that the district court did not err in deny-
ing habeas relief on these claims because
the state courts’ clearly es-
tablished federal objectively law was not
unreasonable. deny applica-
tion for COA on his claim related to Dr.
Grigson’s testimony juris- and as such lack
diction to review the district court’s denial
of habeas relief on this claim.
AFFIRMED; COA DENIED.
DENNIS, Judge, Circuit concurring.
DENNIS, Judge. Circuit
I my concur but adhere to individual
views expressed my dissent in Robert- Cockrell, (2003) (en
son
banc).