Nance v. Norris

Decision Date10 December 2004
Docket NumberNo. 03-2018.,03-2018.
Citation392 F.3d 284
PartiesEric Randall NANCE, Appellant, v. Larry NORRIS, Director, Arkansas Department of Correction, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

Craig Lambert, Assistant Federal Public Defender, argued, Little Rock, AR, for appellant.

Kelly K. Hill, Assistant U.S. Attorney, argued, Little, Rock, AR, for appellee.


BEAM, Circuit Judge.

Eric Randall Nance killed Julie Heath on October 11, 1993. The State of Arkansas charged him with capital felony murder with attempted rape as the underlying felony. After a jury trial, Nance was convicted. That crime was punishable by death under Arkansas law. The jury was again called upon to determine the aggravating and mitigating circumstances involved in Nance's case and make a recommendation regarding the death penalty. The jury found that two statutory aggravating factors existed, no mitigating factors existed, and recommended the death penalty, which the trial court imposed.

Nance appealed his conviction and sentence to the Arkansas Supreme Court, and he unsuccessfully sought state post-conviction relief. On September 13, 2000, Nance filed a petition for federal habeas relief in the Eastern District of Arkansas. The district court1 denied the petition on January 22, 2003, and issued a certificate of appealability on April 16, 2003, on the following claims: (1) insufficiency of the evidence of attempted rape and (2) ineffective assistance of counsel. Nance claimed that his trial counsel were ineffective for a variety of reasons, four of which are included in the certificate. First, Nance argued that his trial counsel were ineffective for failing to investigate, present, and argue evidence of Nance's innocence of attempted rape during the guilt phase of his trial. Second, Nance argued that his trial counsel were ineffective for failing to support their requests for funding to employ experts in both the guilt and penalty phases of his trial. Finally, Nance argued that his trial counsel were ineffective in the penalty phase of his trial for failing to develop a mitigation case and for failing to object to victim-impact testimony. We affirm the district court's denial of the habeas petition.


Julie Heath was last seen alive on October 11, 1993. That evening she left her home in Malvern, Arkansas, to visit her boyfriend in Hot Springs, Arkansas. Ms. Heath's car broke down on the way. Nance was returning to Malvern from Hot Springs in his pickup at about this time. When he left Hot Springs, he was dressed in a shirt, bib-overalls, and shoes. According to Nance, he stopped to help and offered Ms. Heath a ride to Malvern. Nance was later seen in a convenience store with no shoes, socks, or shirt. He also had dark, damp stains on his overalls that appeared to be fresh.

On October 18, 1993, Ms. Heath's body was found in a wooded area just off an unpaved road about seven miles from where she had left her car. The body was fully clothed. A photograph of the clothed body that was admitted into evidence2 shows that the belt buckle was partially undone; the pants' zipper was partially zipped; and the portion of the shirt covering the body's right shoulder was torn. An officer testified at trial that the shirt was inside out when the body was found. And photographs of the shirt3 once it was removed from the body reveal that the shirt's torn shoulder was its left shoulder. The officer also testified that he concluded the shirt was wrong-side out because when he saw the clothed body in the woods, the shirt's shoulder pad was on the outside surface of the garment. The shirt's other shoulder pad was found nearby.

The medical examiner testified that when the body was presented to him it

was dressed in one black shirt which was inside out, one pair of black jeans, one black belt, one pair of black socks, which were inside out, one pair of black shoes, a white bra, which was pulled up around the neck and shoulder area, pink panties, which were inside out. The shirt and pants were intact around the body. The belt was buckled and the zipper was partially zipped and a slightly soiled sanitary napkin was present.

The medical examiner also testified that the shirt was torn or cut near the shoulder.

A search of Nance's pickup revealed red pubic hairs in the cab. Ms. Heath had red hair and an expert testified that these hairs were microscopically similar to some taken from Ms. Heath's body.

Nance's defense theory was that he accidentally killed Ms. Heath. He claimed that when she was riding in his pickup she saw his knife (a box cutter), became hysterical, started kicking him and pulling his hair, and that he put his hand up to make her stop. He claimed that after he put his hand up, he realized the knife had become lodged in her throat. Though Nance did not testify, this version of his story arose at trial through his brother and sister, to whom he had told the same story.

In the guilt phase of the trial, the jury found Nance guilty of capital felony murder with attempted rape as the underlying felony. In the sentencing phase, the State presented as evidence six prior felony convictions stemming from Nance's rape and beating of two Oklahoma girls in 1982. Nance was released from his twenty-year sentence for those convictions five months before he killed Ms. Heath. Ms. Heath's mother also testified about how her daughter's death affected her and her family:

Mr. Nance took my only daughter. I believe that he deserves the death penalty. He has ruined my family's life. I have been under constant doctor's care since her death. I've had to see a psychologist once a week. I'm on numerous medications. My life will never be the same again. This has affected all of my family. It's been very hard on my husband and my son. We basically do not know how we can live without her.

The State also argued that Nance killed Ms. Heath to avoid arrest.

To counter this aggravating evidence, Nance produced some mitigating facts. He offered his confession to police (which was not offered by the State in the guilt phase of the trial) to show remorse. That recitation recounted the story that was the basis for his guilt-phase defense. In further support of his mitigation case, Nance introduced testimony from his brother, sister, mother, employer, and minister.

The jury found that two statutory aggravating circumstances existed beyond a reasonable doubt, that no mitigating circumstances existed, that the aggravating circumstances outweighed any mitigating circumstances beyond a reasonable doubt, and that "the aggravating circumstances justify beyond a reasonable doubt the sentence of death." The judge, following the jury's recommendation, sentenced Nance to death.

Nance appealed his conviction and sentence to the Arkansas Supreme Court, raising ten state-law grounds for reversal. Nance v. State, 323 Ark. 583, 918 S.W.2d 114, 117 (1996) (Nance I). That court specifically refused to consider his constitutional arguments because they were supported by "conclusory allegations without supporting authority." Id.

Nance also filed for post-conviction relief in the trial court under Rule 37 of the Arkansas Rules of Civil Procedure, "alleging, among other things, that his trial counsel provided ineffective representation during the trial and penalty phases of his trial." Nance v. State, 339 Ark. 192, 4 S.W.3d 501, 502 (1999) (Nance II). The trial court denied relief without a hearing and the Arkansas Supreme Court affirmed. Id. at 506.

Nance then filed a federal habeas petition in the Eastern District of Arkansas, raising approximately fourteen issues. The district court, on Nance's motion, appointed Dr. Bradley Diner under 21 U.S.C. § 848(q) to evaluate Nance's mental health. In Dr. Diner's initial report, he relates what Nance told him about Ms. Heath's death — a yet-unheard version of the facts. According to the report, Nance was involved in a sexual relationship with Ms. Heath. On October 11, 1993, Nance stopped at Wal-Mart to purchase a new box cutter. While there, he overheard someone say that Ms. Heath was HIV-positive. Given his past relations with Ms. Heath, this information troubled Nance. On his way home, he saw Ms. Heath stopped on the side of the road. He picked her up, offering to give her a ride back to Malvern. On the way, he confronted her about the HIV rumors he had heard. Unsatisfied by her response, Nance became quite angry and hit Ms. Heath so hard that he broke her neck. Nance also said that he could not remember much of what happened. Dr. Diner also submitted a supplemental report. In that report, Dr. Diner presents a picture of Nance's social and family history, posits that those experiences contributed to the "worry and fear" Nance experienced on the night of October 11, 1993, and concludes that all of this culminated in Ms. Heath's death.

The district court dismissed the petition on January 22, 2003, and issued its memorandum opinion the next day. It is not clear how much, if any, of Dr. Diner's information was before the district court when it denied the petition. The memorandum opinion refers to some of Dr. Diner's work, while the certificate of appealability says Dr. Diner's reports were filed the day the memorandum opinion was filed. Even though the district court did not consider some or all of Dr. Diner's reports when it drafted its memorandum opinion, it issued a certificate of appealability on five issues, in part, because of Dr. Diner's reports: "[A] Certificate of Appealability will issue as to Petitioner's claim ... so that the Circuit Court may determine the propriety of the consideration of this evidence arising from the report of Dr. Diner."


Nance first makes a sufficiency-of-the-evidence, due-process claim under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61...

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