Nash v. Russell

• Decision Date: 24 November 2015
• Docket Number: No. 15–1466.,15–1466.
• Citation: 807 F.3d 892
• Parties: Donald R. NASH, Petitioner–Appellant v. Terry RUSSELL, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

807 F.3d 892

Donald R. NASH, Petitioner–Appellant

v.Terry RUSSELL, Respondent–Appellee.

No. 15–1466.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 22, 2015.

Filed: Nov. 24, 2015.

Donald R. Nash, Bonne Terre, MO, pro se.

Jonathan Barton Potts, Litigation Counsel, Stephen Robert Snodgrass, Charles Andrew Weiss, Bryan & Cave, Saint Louis, MO, for Petitioner–Appellant.

Stephen David Hawke, Assistant Attorney General, Michael Joseph Spillane, Assistant Attorney General, Attorney General's Office, Jefferson City, MO, for Respondent–Appellee.

Before MURPHY, MELLOY, and SMITH, Circuit Judges.

MELLOY, Circuit Judge.

A jury convicted Donald R. Nash of capital murder in violation of section 565.001 of the Revised Statutes of Missouri (1978) in 2009. Following an unsuccessful appeal to the Missouri Supreme Court, Nash filed this 28 U.S.C. § 2254 habeas corpus petition. He argues that his conviction is not supported by sufficient evidence and his constitutional rights were violated by Missouri's "direct connection rule," under which the trial court excluded evidence of a third-party's potential guilt. The district court¹ denied the petition, and Nash appeals. We affirm.

I. Background

On March 11, 1982, Judy Spencer was found dead in a rural area near Salem, Missouri. Her body had been dragged to and dumped in the foundation of an abandoned outhouse about thirty minutes from where her car was found stuck down a steep embankment on the side of a road. An initial police investigation determined Spencer had been strangled with her shoelace, then shot in the neck by a shotgun postmortem. Her postmortem blood alcohol content was 0.18.

At the time of her death, Spencer had been living with her boyfriend, Appellant Nash. Spencer had spent the afternoon and evening of March 10 driving around and drinking with friends. Because Spencer had agreed with Nash to stop drinking, she lied to him about her whereabouts. When Nash learned that Spencer was drinking at Janet Jones's apartment, he went to the apartment and confronted her, saying: "This is the last time you'll ever lie to me, bitch." After Nash left Jones's apartment, Spencer washed her hair in a sink and restyled it. She then went to the home she shared with Nash, where they continued to argue about her drinking and where she changed her clothes. Spencer returned to Jones's apartment and invited Jones to go drinking at bars in Houston, Missouri, more than thirty miles away. Jones declined, and Spencer left the apartment alone around 8:30 pm.

Nash told investigators that he had spent the evening of March 10 searching for Spencer in Salem. A witness saw Nash drive past the American Legion Hall around 8:30pm. The State contends Nash told investigators that he returned home shortly thereafter and did not leave until the next morning, but Nash maintains he told a private investigator he continued searching until midnight. A witness saw Nash driving by Jones's apartment complex between 10:00 pm and 11:00 pm. Nash also called Jones several times to express concern for Spencer and to ask Jones to give him a wake-up call at 6:00 am. The next day, Nash continued to search for Spencer in Salem. He also traveled to Houston, Missouri, with Jones in the afternoon to continue searching.

When Nash and Jones returned to Salem, a state trooper informed them that Spencer had been killed. Jones testified that Nash appeared heartbroken. At the hospital, investigators administered a gunshot residue test on Nash. The test results were negative. Shortly after Spencer's death, Nash became involved with another woman. Several months later, Jones recorded a conversation with Nash in which he (1) admitted he was angry with Spencer; (2) said he did not have an alibi for March 10; and (3) maintained he was innocent.

The case remained unsolved for twenty-five years until 2007, when Spencer's sister requested that investigators reopen the investigation. The investigators collected a DNA sample from Nash to compare with DNA evidence found on fingernail clippings taken from Spencer's body in 1982. Nash appeared nervous when the sample was taken and asked to be notified "if I am eliminated" as a suspect. Nash's DNA sample matched one of two DNA profiles identified on Spencer's fingernails (the second profile matched Spencer's DNA). When he was informed of this, Nash said it was not possible and his hands started shaking. Ultimately, Nash was charged with capital murder in violation of section 565.001 of the Revised Statutes of Missouri (1978).

Before trial, the State moved to exclude evidence of a third party's fingerprints found on Spencer's car under the "direct connection rule," which permits the exclusion of evidence of a third-party's guilt unless that evidence "prove[s] that the other person committed some act directly connecting him with the crime." State v. Nash, 339 S.W.3d 500, 513 (Mo.2011). The third-party fingerprints belonged to Lambert Anthony Feldman III. Nash alleges Feldman had been seen with Spencer in Salem, Missouri, a few days before her death. In addition, Feldman had an extensive criminal history and was known to carry a shotgun in the trunk of his car at the time of Spencer's murder. He committed suicide using a shotgun in 2008. The court granted the motion to exclude the Feldman evidence.

At trial, the jury considered expert testimony from both sides regarding the presence of Nash's DNA under Spencer's fingernails. In particular, the parties disputed whether Spencer's act of washing her hair would have affected the presence of DNA under her fingernails. The State's expert testified that she "expect[ed] that washing your hair ... would remove DNA from underneath the fingernails." Nash presented evidence that co-habitants frequently have each other's DNA under their fingernails and that frequent hand washing, even in a hospital setting, would not remove all foreign DNA. The State contended that Nash's DNA got under Spencer's fingernails sometime after she washed her hair and before her death. Nash argued that his DNA was under Spencer's fingernails because they lived together, and it remained there after Spencer washed her hair. The jury also heard evidence as to Spencer and Nash's argument at Jones' apartment and Nash's statements to investigators. Ultimately, the jury found Nash guilty of Spencer's murder, and he was sentenced to life without parole.

On direct appeal of his conviction, Nash raised four issues, contending the trial court erred by: (1) denying his motion to quash the indictment and dismiss on the grounds he cannot be prosecuted under the 1978 murder statute; (2) denying his motion for judgment of acquittal and motion for a new trial on the grounds of insufficient evidence to support his conviction; (3) failing to provide the jury an instruction on circumstantial evidence; and (4) granting the state's motion in limine to exclude evidence of third party guilt in violation of the Sixth Amendment. The Missouri Supreme Court affirmed Nash's conviction on all grounds. Nash did not file a timely motion for state postconviction relief.

On October 3, 2012, Nash filed the present federal petition for writ of habeas corpus under 28 U.S.C. § 2254. He argues: (1) the evidence was insufficient to support his conviction under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), because the state supreme court reached an unreasonable determination of the facts; and (2) the application of the "direct connection rule" regarding the Feldman evidence was an unreasonable application of clearly established Supreme Court precedent because it deprived Nash of a meaningful opportunity to present a complete defense. In later motions to amend his petition, Nash also argued the court should consider new evidence that was not available at trial, including: (1) a DNA test on Spencer's shoe showing an unidentified male DNA profile; (2) a scientific study which tested the effect of washing on the presence of foreign DNA under fingernails, and (3) an expert report concluding that Spencer had Nash's DNA under her fingernails because they lived together.

On his sufficiency of the evidence claim, the district court concluded that Nash's conviction was supported by sufficient evidence under the Jackson standard. In addition, the district court determined his "direct connection rule" claim was procedurally defaulted because on direct appeal Nash challenged the rule as facially unconstitutional but now makes an as-applied challenge. The district court further concluded that even if the claim were not procedurally defaulted, Nash would not be entitled to relief. Finally, the district court denied Nash's motions to amend his petition to present newly discovered evidence in support of an actual innocence claim. Nash appeals the district court's decisions on all of these issues.

II. Discussion

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we may grant habeas relief only if "the state court's decision was ‘contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States.’ " Armstrong v. Hobbs, 698 F.3d 1063, 1066 (8th Cir.2012) (quoting 28 U.S.C. § 2254(d)(1) ). In Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court held that a state court decision is "contrary to" clearly established federal law if it "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if [it] decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." In addition, a state court decision is an "unreasonable application" of clearly established federal law if it "identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id.

The AEDPA standard is difficult to meet as it is intended...