Nelson v. Davis

• Decision Date: 12 March 2020
• Docket Number: No. 17-70012,17-70012
• Citation: 952 F.3d 651
• Parties: Steven Lawayne NELSON, Petitioner - Appellant v. Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

952 F.3d 651

Steven Lawayne NELSON, Petitioner - Appellant

v.Lorie DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent - Appellee

No. 17-70012

United States Court of Appeals, Fifth Circuit.

FILED March 12, 2020

Lee Benjamin Kovarsky, Esq., University of Maryland Law School, Baltimore, MD, Meaghan McLaine VerGow, O'Melveny & Myers, L.L.P., Washington, DC, for Petitioner-Appellant.

Stephen M. Hoffman, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, Austin, TX, for Respondent-Appellee.

Before JONES, SMITH, and DENNIS, Circuit Judges.¹

JAMES L. DENNIS, Circuit Judge:

Steven Nelson seeks a Certificate of Appealability (COA) to challenge his 2012 Texas capital conviction, alleging multiple claims of ineffective assistance of trial counsel as well as unconstitutional juror strikes under Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Nelson also appeals the district court’s denial of his motions for investigative funding under 18 U.S.C. § 3599(f) and for stay and abatement of his federal proceedings pending exhaustion of claims in state court. As discussed below, a COA is hereby GRANTED in part and DENIED in part. We AFFIRM in part the district court’s denial of Nelson’s other motions and defer adjudication in part until our full consideration of the merits of Nelson’s appeal.

I. Background

In 2012, Steven Nelson was convicted of the capital murder of Clinton Dobson on March 3, 2011, in Arlington, Texas. Nelson v. State , No. AP-76, 2015 WL 1757144 at *1 (Tex. Crim. App. Apr. 15, 2015). Dobson, a pastor, had been violently assaulted and then suffocated with a plastic bag, and his secretary, Judy Elliot, was badly beaten and almost did not survive. Id. at *1–*2. A laptop, cellphone, car, and credit cards were stolen from the victims. Id. Nelson was arrested and indicted after information from his acquaintances, forensic evidence from the scene, and surveillance video of him with the victims’ possessions linked him to the crime. Nelson confessed that he had agreed to participate in the robbery, but denied assaulting Elliot or murdering Dobson. Id. at *3. A jury convicted Nelson after receiving a law-of-the-parties instruction to return a guilty verdict if it found either that Nelson had murdered Dobson or that Nelson had joined a conspiracy to commit the robbery and should have anticipated the murder of another in furtherance of that robbery.

At the punishment phase, the State provided substantial evidence of Nelson’s past violence and criminal history, which the Court of Criminal Appeals of Texas ("TCCA") summarized in detail in its opinion on direct appeal. See Nelson , 2015 WL 1757144, at *4–7. Relevant here, punishment phase evidence included evidence that, while awaiting trial, Nelson "killed Jonathan Holden, a mentally challenged inmate." Id. at *6. "According to a fellow inmate who witnessed the incident, Holden had angered inmates when he mentioned ‘the N word under his voice.’ " Id. After Nelson "talked Holden into faking a suicide attempt to cause Holden to be moved to a different part of the jail. ... Holden came to the cell bars, and [Nelson] looped a blanket around Holden’s neck." Id. Nelson strangled Holden, and after his death, "did a ‘celebration dance’ in the style of Chuck Berry," using "a broom stick, which he had previously used to poke another mentally challenged inmate in the eye, as a guitar." Id.

The defense at the punishment phase presented mitigation testimony from Nelson’s family, a social worker who counseled him when he was a child, and Dr. Antoinette McGarrahan, a forensic psychologist hired as an expert witness to evaluate Nelson. Id. at *7. The state court summarized Dr. McGarrahan’s mitigation testimony as follows:

[Dr. McGarrahan] testified that, although appellant had no current learning disability or cognitive impairment, he had a past history of learning disabilities. Dr. McGarrahan explained that, when, as a three-year-old, appellant set fire to his mother's bed with intent to cause harm, it was essentially a cry for attention and security. She believed that there was "something significantly wrong with [appellant’s] brain being wired in a different way, being predisposed to this severe aggressive [sic ] and violence from a very early age." She testified that, by the time appellant was six years old, he had had at least three EEGs, meaning that people were already "looking to the brain for an explanation" of his behavior. The test results did not indicate a seizure disorder, but Dr. McGarrahan said that they did not rule out appellant having one. Risk factors present in appellant's life included having ADHD, a mother who worked two jobs, an absent father, verbal abuse, and witnessing domestic violence.

Id . After answering Texas’s three special questions required at the capital punishment phase, the jury sentenced Nelson to death. See TEX. CODE CRIM. PRO. ART. 37.071 .

In his direct appeal, Nelson argued, as relevant here, that the State unconstitutionally used its peremptory strikes to eliminate as jurors racial minorities. Nelson , 2015 WL 1757144 at *10. The TCCA denied relief. Id . at *15. Nelson then filed a state habeas application alleging, among other claims, ineffective assistance of trial counsel for failure to adequately investigate and present mitigating evidence from "other family members, friends, and former teachers" at the punishment phase of trial. The state court denied Nelson’s claims, adopting the State’s proposed findings of facts and conclusions of law without alteration. The TCCA affirmed without further reasoning. Ex Parte Steven Lawayne Nelson , No. WR-82,814-01, 2015 WL 6689512, at *1 (Tex. Crim. App. Oct 12, 2015).

With the assistance of different counsel, Nelson then filed the instant federal habeas action in the district court, asserting five grounds with multiple subparts. The district court denied relief on all claims on the merits and some on the alternative grounds that they were procedurally barred, and then denied a COA. Nelson now seeks a COA on his claims that 1) his trial counsel was ineffective in failing to adequately investigate and present three different categories of mitigating evidence, 2) the State used race to select the jury in violation of Batson , and 3) his trial counsel was ineffective for failing to adequately litigate his Batson claim during voir dire.

Additionally, Nelson directly appeals the district court’s denial of his three motions seeking funding for investigative services claim under 18 U.S.C. § 3599(f). Nelson also appeals the district court’s denial of his motion for stay and abatement to permit him to exhaust in state court his claims of ineffective assistance of counsel and an additional claim that the State knowingly presented false testimony at the punishment phase.

II. Standard of Review

To appeal the district court’s denial of his habeas claims, Nelson must first seek a COA from this court pursuant to 28 U.S.C. § 2253(c)(1). See Miller-El v. Cockrell , 537 U.S. 322, 335–36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). To obtain a COA, Nelson must demonstrate "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For a claim that the district court decided on the merits, he must show that "jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El , 537 U.S. at 327, 123 S.Ct. 1029 (citing Slack v. McDaniel , 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) ); see 28 U.S.C. § 2253(c)(2). For claims denied on procedural grounds, Nelson must show that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Segundo v. Davis , 831 F.3d 345, 350 (5th Cir. 2016) (quoting Slack , 529 U.S. at 484, 120 S.Ct. 1595 ). The COA standard is less burdensome in capital cases, as "in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner’s favor." Clark v. Thaler , 673 F.3d 410, 425 (5th Cir. 2012).

When a state court has reviewed a petitioner’s claim on the merits, our review is constrained by the deferential standards of review found in the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2254. Under these circumstances, we may not issue a COA unless reasonable jurists could debate that the state court’s decision was either "contrary to, or involved an unreasonable application of, clearly established Federal law," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). "For claims that are not adjudicated on the merits in the state court, however, we do not apply the deferential scheme laid out in § 2254(d) and instead apply a de novo standard of review." Ward v. Stephens , 777 F.3d 250, 256 (5th Cir. 2015), abrogated on other grounds by Ayestas v. Davis , ––– U.S. ––––, 138 S. Ct. 1080, 200 L.Ed.2d 376 (2018) (citations and internal quotation marks omitted).

A petitioner does not require a COA to appeal the district court’s denial of funding under § 3559(f) or denial of petitioner’s motion to stay proceedings. See Ayestas v. Stephens , 817 F.3d 888, 895 (5th Cir. 2016), vacated on other grounds by Ayestas v. Davis , ––– U.S. ––––, 138 S. Ct. 1080, 200 L.Ed.2d 376 (2018) (COA not required to appeal denial of funding under § 3599(f) ); Williams v. Thaler , 602 F.3d 291, 309 (5th Cir. 2010) (COA not required to appeal denial of a motion for stay and abatement). We review the district court’s denial of these motion for abuse of discretion. Ayestas v. Davis (...