Nelson v. Dretke

• Decision Date: 01 March 2006
• Docket Number: No. 02-11096.,02-11096.
• Parties: Billy Ray NELSON, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

442 F.3d 282

Billy Ray NELSON, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 02-11096.

United States Court of Appeals, Fifth Circuit.

March 1, 2006.

Jack Knox Wall, Law Office of J.K. Rusty Wall, Midland, TX, for Nelson.

Deni S. Garcia, Austin, TX, for Dretke.

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

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before JONES, Chief Judge, and STEWART and DENNIS, Circuit Judges.

EDITH H. JONES, Chief Judge:

This death penalty case is reconsidered pursuant to the Supreme Court's instruction following its summary grant of certiorari and the vacating of our prior opinion based on Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). The panel affirms, but we are divided on our reasoning.¹

In his appeal to this court, Nelson sought a COA on three issues: (1) whether the Texas penalty phase instructions used at trial provided the jury with an adequate vehicle to consider his mitigating evidence, as required by the Eighth and Fourteenth Amendments as construed in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989); (2) ineffectiveness of counsel for failing to request an instruction on the definition of reasonable doubt at the penalty phase; and (3) improper testimony by a state psychiatrist in light of Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). We granted a COA on the first two issues but denied COA on the third issue and ultimately affirmed the district court's denial of habeas relief.

Nelson then appealed to the Supreme Court. Following that Court's decision in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004), and remand to this court, we requested further briefing based on Tennard.

After again reviewing the complete record, we reaffirm the grant of COA and affirm the district court's denial of habeas relief as to Nelson's Penry claim.²

BACKGROUND

Nelson was indicted for the capital murder of Charla M. Wheat and the attempted capital murder of Wheat's roommate Carol Maynard that occurred on or about February 23, 1991. In December 1991, Nelson was tried for the capital murder of Wheat. During the guilt/innocence phase of trial Maynard testified as to the events of February 23. Specifically, Maynard testified that she and Wheat were forced, at knife-point, by Nelson to perform sexual acts on each other and on Nelson. Maynard further testified that Nelson stabbed Wheat. Nelson also stabbed Maynard, who was five months pregnant at the time, but she pretended to be dead and thus survived. Other testimony established that the stab wounds were the cause of Wheat's death. Also, at trial, two voluntary confessions by Nelson admitted that he committed the crime because he "was drunk and wanted a piece of butt."

On December 11, 1991, the jury found Nelson guilty of capital murder. On December 13, following the punishment phase of trial, the jury answered affirmatively the two special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071(b).³ Nelson was sentenced to death. Nelson's sentence and conviction were affirmed on direct appeal by the Texas Court of Criminal Appeals on May 26, 1993. The United States Supreme Court denied Nelson's petition for writ of certiorari on March 21, 1994.

On April 17, 1997, Nelson commenced a series of state applications for writ of habeas corpus. The state district court issued findings of fact and conclusions of law recommending denial of relief on all of Nelson's claims on July 10, 2001. The Texas Court of Criminal Appeals denied Nelson's application on the findings and recommendations of the trial court. Additionally, it dismissed Nelson's subsequent application as an abuse of the writ under TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 11.071, § 5(a).

DISCUSSION

As we did in Nelson's prior appeal, we grant a COA on the question whether the special issue instructions given to the jury at sentencing failed to provide an adequate vehicle to give effect to his mitigating evidence in violation of Penry v. Lynaugh (Penry I), 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), and in light of Tennard and Smith. The instructions given by the trial court were, in pertinent part, the standard Texas capital case instructions, i.e., those given in Penry I.

We grant a COA, but we conclude that, although the district court partially relied on this court's now-defunct "constitutional relevance" analysis of mitigating evidence, the district court properly denied relief on Nelson's Penry claim. See, e.g., McGruder v. Will, 204 F.3d 220, 222 (5th Cir. 2000) ("We need not accept the district court's rationale and may affirm on any grounds supported by the record."). We cannot grant relief on a constitutional claim raised in a petition for habeas corpus unless the state court adjudication "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." 28 U.S.C. § 2254(d)(1). Although we review the federal district court's treatment of Nelson's habeas petition, the real focus of inquiry is the decision of the Texas courts, none of which used this court's now-overruled test.

This court recently noted that, "The Supreme Court's rulings in Penry II and Smith should not be read to disturb its earlier holdings affirming the constitutionality of Texas's statutory death penalty sentencing scheme." Bigby v. Dretke, 402 F.3d 551, 570 (5th Cir.2005) (internal citations omitted). Accordingly, for a Penry I claim to succeed, a court must first determine whether the defendant's proffered mitigating evidence reasonably might serve as a basis for a sentence less than death. Tennard, 124 S.Ct. at 2571. In this inquiry, mitigating evidence is "relevant" so long as it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. (quoting McKoy v. North Carolina, 494 U.S. 433, 440, 110 S.Ct. 1227, 1232, 108 L.Ed.2d 369 (1990) and New Jersey v. T.L.O., 469 U.S. 325, 345, 105 S.Ct. 733, 744, 83 L.Ed.2d 720 (1985)). Second, we must determine whether the proffered, relevant evidence was beyond the "effective reach" of the jurors. Madden v. Collins, 18 F.3d 304, 308 (5th Cir.1994). Evidence is beyond the "effective reach" of the jury "only if there exists a reasonable likelihood that the jury would have [found] itself foreclosed from considering" the mitigating evidence. Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 2669, 125 L.Ed.2d 290 (1993).

In the sentencing phase, Nelson introduced evidence that (1) his mother rejected him; (2) he was intoxicated by drugs and alcohol when he committed the crime; (3) he had troubled relationships with his brother and women; and (4) he suffered from a treatable borderline personality disorder.⁴

In light of Tennard,⁵ all of this evidence could be construed as mitigating, but only Nelson's evidence of borderline personality disorder arguably supports the second prong of his Penry I claim.

Nelson's evidence relating to his troubled interpersonal relationships and indifferent treatment by his mother is within the reach of the Texas punishment issues. The state court reasonably distinguished Nelson's claim from Penry's evidence of severe physical abuse by his mother. The state court's decision is supported by longstanding precedent concerning similar — and more severe — claims of parental abuse and troubled interpersonal relationships. See Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 902, 122 L.Ed.2d 260 (1993) (concluding family background could be considered within the special issues); Cole v. Dretke, 418 F.3d 494 (5th Cir.2005) (holding troubled childhood, including alcoholic parents who deserted the defendant, alcoholic grandparents who did not want to care for the defendant upon taking custody of him, and an isolated childhood punctuated by frequent changes in caretakers could be considered within the special issues); Lucas v. Johnson, 132 F.3d 1069, 1082-83 & n. 8 (5th Cir.1998) (traumatic childhood was within the effective reach of the jury under the first special issue, deliberateness); Drew v. Collins, 964 F.2d 411, 420 (5th Cir.1992) (adverse effects of troubled childhood — including testimony that parents fought repeatedly, parents divorced and abandoned petitioner when he was very young, and petitioner was raised by his grandparents — could be considered under the special issues); Barnard v. Collins, 958 F.2d 634, 639 (5th Cir.1992) (troubled childhood, including evidence that petitioner's father abandoned him from age four to age nine, was not Penry evidence absent proof these experiences had a psychological effect on the petitioner).⁶ Specifically, when considering the first special issue, deliberateness, the jury could have given effect to Nelson's claims that his mother abandoned him, his parents divorced at a young age, and he never had a relationship with his own child. All of these traumatic experiences might have countered the State's argument that Nelson "deliberately" murdered this victim; the jury simply disagreed.

As to Nelson's mitigation claim of voluntary intoxication, the state courts and federal district court correctly held that the special issues plainly allowed the jury to consider this evidence. See West v. Johnson, 92 F.3d 1385, 1405 (5th Cir.1996) ("As to the drinking and inference of intoxication, we have many times held that this may be adequately taken into account under both the first and second punishment issues (deliberateness and future dangerousness)."); Briddle v. Scott, 63 F.3d 364, 377 (5th Cir.1995)("[E]vidence of intoxication may be considered as favorable to a negative answer to both the first...