Nelson v. Alabama, 00-14499.

• Decision Date: 03 June 2002
• Docket Number: No. 00-14499.,00-14499.
• Parties: David Larry NELSON, Petitioner-Appellant, v. State of ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

292 F.3d 1291

David Larry NELSON, Petitioner-Appellant, v. State of ALABAMA, Respondent-Appellee.

No. 00-14499.

United States Court of Appeals, Eleventh Circuit.

June 3, 2002.

Michael K. McIntyre, Harriet Victoria Smith (Court-Appointed), Law Office of Michael McIntyre, Atlanta, GA, for Petitioner-Appellant.

Michael Boysie Billingsley, Alabama Atty. Gen., Montgomery, AL, for Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before ANDERSON, HULL and WILSON, Circuit Judges.

ANDERSON, Circuit Judge:

David Larry Nelson was convicted on March 1, 1979 of "murder committed by a defendant who has been previously convicted of murder in the first or second degree in the twenty years preceding the crime," under Ala.Code § 13-11-2(a)(13) (1975). The trial court allowed Nelson to represent himself at his February 1996 resentencing hearing without first conducting a hearing to determine whether he understood the risks of self-representation, pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The only issue in this appeal is whether the absence of a Faretta hearing immediately prior to Nelson's 1996 sentencing hearing resulted in "a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," under the Antiterrorism and Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254 (2001). For the reasons discussed below, we affirm.

I. FACTS

David Larry Nelson was convicted of killing James Dewey Cash and Wilson Thompson on the night of December 31, 1977. Only Nelson's death sentence for the killing of Thompson is at issue in this appeal.¹ He was indicted in separate indictments for the two killings, with the killing of Thompson being charged as murder after having been convicted of murder in the second degree within twenty years preceding that murder. Nelson was first tried for the murder of Cash and was convicted and sentenced to death. See Nelson v. State, 405 So.2d 392 (Ala.Crim.App.1980). In October 1978, Nelson was tried for the Thompson murder and convicted and sentenced to death. Both convictions were reversed by the Alabama Court of Criminal Appeals and the Alabama Supreme Court, pursuant to the United States Supreme Court's decision in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). See Nelson v. State, 405 So.2d 50 (Ala.Crim.App.1981); Nelson v. State, 405 So.2d 401 (Ala.1981).

Nelson was re-tried for the Cash murder and found guilty. He was sentenced to life imprisonment. This conviction is not at issue in this appeal. With respect to the Thompson homicide, which is at issue here, Nelson was also re-tried and found guilty of murder and sentenced to death. The conviction was affirmed by the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Nelson v. State, 511 So.2d 225 (Ala.Crim.App.1986), aff'd, 511 So.2d 248 (Ala.1987). The United States Supreme Court denied Nelson's petition for certiorari. Nelson v. Alabama, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

Nelson then filed a petition for relief from conviction and sentence of death under Temporary Rule 20 of the Alabama Rules of Criminal Procedure² in the Circuit Court of Jefferson County. On December 1, 1987, Judge J. Richmond Pearson held a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and found that Nelson could proceed pro se in the Rule 20 hearing and in future collateral proceedings. Judge Pearson denied Nelson's petition and Nelson and the State entered into an agreement whereby Nelson would forego direct appeal of the Rule 20 petition and instead petition the federal courts for a writ of habeas corpus under 22 U.S.C. § 2254. On December 12, 1990, Nelson filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Alabama. The court denied the petition with respect to Nelson's guilt, but granted it with respect to his death sentence. This Court affirmed. Nelson v. Nagle, 995 F.2d 1549, 1558 (11th Cir.1993).

The new sentencing hearing was also conducted by Judge Pearson. Prior to the hearing, Nelson sent a letter on December 29, 1993 to Judge Pearson expressing his wish to represent himself at the re-sentencing hearing. The letter stated, "I would appreciate if your honor will allow me to represent myself at the proceedings. If it's necessary for me to have an attorney present at said proceedings, I would appreciate if your honor will appoint me an attorney to serve in the capacity as standby counsel only." Without conducting a new Faretta hearing, Judge Pearson allowed Nelson to proceed pro se and appointed two lawyers to serve as standby counsel.

Nelson presented his case before a jury in the trial court from February 14-16, 1994. Standby counsel assisted Nelson periodically, but Nelson stated that he did not wish for them to assist him unless he asked. During his closing remarks, Nelson asked the judge and jury to sentence him to death. The jury returned a recommendation that Nelson receive the death penalty, and Judge Pearson sentenced Nelson to death.

Nelson then attempted to waive his appeals and have his case sent directly to the Alabama Supreme Court to set an execution date. Because of problems with the trial court's sentencing order not relevant to this case, the Alabama Court of Criminal Appeals twice remanded the case back to the trial court to enter a new sentencing order. Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court then affirmed Nelson's sentence. Nelson did not file briefs in either case.³

On April 14, 1997, Nelson, proceeding through counsel, petitioned the United States District Court for the Northern District of Alabama for a writ of habeas corpus pursuant to 29 U.S.C. § 2254. The district court denied relief. On August 22, 2000, Nelson filed a Notice of Appeal. He subsequently filed for a Certificate of Appealability, and the district court granted his request with respect to the issue of whether it was error for the trial court to allow Nelson to proceed pro se at his 1994 re-sentencing hearing without first conducting a new Faretta hearing.

II. DISCUSSION

AEDPA and the Faretta Standard

Because Nelson filed his petition for habeas corpus after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), this case is governed by 28 U.S.C. § 2254(d), which provides, in relevant part:

an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or ... resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.

Nelson has alleged that the state courts violated federal law clearly established by the United States Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We conclude that the state courts' application of the Faretta standard was not an unreasonable application of Faretta.

A. Clear and Unequivocal Assertion of the Right of Self-Representation

Before a court allows a criminal defendant to proceed pro se, the defendant must clearly and unequivocally assert his right of self-representation. Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541. In this case, Nelson clearly asserted this right in his December 29, 1993 letter to the trial court. After being informed that he had been granted a re-sentencing hearing, Nelson wrote to the court:

I expect as a formality, or matter of law I will have to be given a sentencing trial of some sort, since it's been ordered. If so, I would appreciate if your honor will allow me to represent myself at the proceedings. If it's necessary for me to have an attorney present at said proceedings, I would appreciate if your honor will appoint me an attorney to serve in the capacity of stand-by counsel, only. Please advise me if I need to file a self-representation motion, or if this letter will be sufficient for me to represent myself in this matter.

Nelson has not challenged the district court's finding that he clearly and unequivocally asserted his right of self-representation. Consequently, the only issue for this Court is whether Nelson adequately understood the disadvantages and consequences of self-representation before choosing to proceed pro se.

B. Understanding the Disadvantages of Self-Representation

In Faretta, the Supreme Court held:

Although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.

422 U.S. at 835, 95 S.Ct. at 2541. This Court has interpreted the Supreme Court's language to mean that ideally a trial court should hold a hearing to advise a criminal defendant on the dangers of proceeding pro se and make an explicit finding that he has chosen to represent himself with adequate knowledge of the possible consequences. Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986). The failure to do so, however, is not error as a matter of law. If the trial record shows that a defendant knowingly and voluntarily elected to represent himself, the Faretta standard will be satisfied. Id.

The same judge, Judge Pearson, who presided over the sentencing hearing at issue in this case also conducted a Faretta he...