Nelson v. Nagle
| Decision Date | 08 July 1993 |
| Docket Number | No. 91-7797,91-7797 |
| Citation | 995 F.2d 1549 |
| Parties | David Larry NELSON, Petitioner-Appellant, Cross-Appellee, v. John E. NAGLE, Warden, Respondent-Appellee, Cross-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Bryan A. Stevenson, Alabama Capital Representation Resource Center, Montgomery, AL, for petitioner-appellant.
Sandra J. Stewart, Kenneth S. Nunnelley, Asst. Attys. Gen., Alabama State Atty. General's Office, Montgomery, AL, for respondent-appellee.
Appeals from the United States District Court for the Northern District of Alabama.
Before KRAVITCH, HATCHETT and ANDERSON, Circuit Judges.
In this capital case, we affirm the district court's decision granting appellant's petition for writ of habeas corpus requiring new penalty phase proceedings because the prosecutor's reading of a portion of the Eberhart case (Eberhart v. State, 47 Ga. 598 (1873)) rendered the penalty phase of appellant's trial fundamentally unfair.
On August 28, 1974, David Larry Nelson, the appellant, pleaded guilty to murder in the second degree for the murder of Oliver King. The Circuit Court of Jefferson County, Alabama, sentenced Nelson to twelve years imprisonment.
In 1977, after serving six years of the twelve-year sentence, including pretrial time, Alabama prison officials released Nelson. On December 31, 1977, Nelson murdered James Dewey Cash during the course of a robbery. Nelson v. State, 452 So.2d 1367 (Ala.Crim.App.1984). A few hours later, on January 1, 1978, Nelson murdered Wilson W. Thompson. The facts of the Thompson murder are set forth in Nelson v. State, 511 So.2d 225 (Ala.Crim.App.1986).
A grand jury indicted Nelson on two counts of capital murder: (1) the intentional murder of James Dewey Cash during the commission of a robbery pursuant to the Code of Alabama 1975, § 13-11-2(a)(1) 1; and (2) the murder of Wilson W. Thompson after having been convicted of the Oliver King murder in the second degree within the twenty years preceding the charged murder of Thompson, pursuant to the Code of Alabama 1975, § 13-11-2(a)(13) 2.
In March, 1979, a jury found Nelson guilty of capital murder for the death of Wilson W. Thompson, and the trial court sentenced Nelson to death. On August 4, 1981, the Court of Criminal Appeals of Alabama reversed and remanded the case pursuant to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Ritter v. State, 403 So.2d 154 (Ala.1981). Nelson v. State, 405 So.2d 50 (Ala.Crim.App.1981). After retrial in March, 1982, a jury again convicted Nelson for the murder of Wilson W. Thompson. The jury found Nelson guilty of the capital offense of murder in the first degree, having been previously convicted of the Oliver King murder in the second degree within twenty years. After a separate sentencing hearing, a unanimous jury recommended a sentence of death. At a second sentencing hearing regarding aggravating and mitigating circumstances, the trial court found two aggravating circumstances and no mitigating circumstances. 3 Thus, on April 2, 1982, the trial court sentenced Nelson to death. Nelson's conviction and sentence were affirmed on direct appeal, Nelson v. State, 511 So.2d 225 (Ala.Crim.App.1986), aff'd, 511 So.2d 248 (Ala.1987), and cert. denied, 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 pursuant to Temporary Rule 20, Alabama Rules of Criminal Procedure. 4 A Jefferson County circuit judge denied the petition. The state of Alabama and Nelson entered into a stipulation in which Nelson agreed to forego a direct appeal of the rule 20 petition in favor of petitioning the federal courts for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The state agreed not to raise default issues regarding Nelson's failure to take a direct appeal.
Nelson filed a petition for habeas corpus relief in the United States District Court for the Northern District of Alabama. The district court ruled that the prosecutor's reading of a passage from Eberhart v. State, 47 Ga. 598 (1873), constituted an improper closing argument. The district court did not find that the closing argument in this case rendered the trial or sentencing proceedings fundamentally unfair; rather, it found that Eleventh Circuit law suggests that the Eberhart argument is "per se fundamentally unfair." Thus, it granted the writ of habeas corpus, unless the state afforded Nelson a new sentencing hearing.
We must decide four issues: (1) whether the district court erred in denying relief on the motion in limine; (2) whether the district court erred in denying Nelson relief on his ineffective assistance of counsel claim; (3) whether the district court erred in denying Nelson relief on the Brady claim ( Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)); and (4) whether the district court erred in granting sentence stage relief based upon prosecutorial misconduct.
Nelson contends that he relied on the trial court's pretrial ruling that the motion in limine would prohibit the jury from hearing evidence of the Cash murder. Nelson also contends that even if the trial court's subsequent reversal of the pretrial ruling was correct, this court may intervene if it finds that the ruling was fundamentally unfair. Finally, Nelson contends that this issue is not procedurally barred because he brought it on direct appeal and in the rule 20 motion. The state responds that the first time Nelson claimed that the trial court's reversal of its decision on the motion in limine violated his constitutional rights was in his rule 20 proceeding. Therefore, the claim is procedurally barred. The state also argues that Nelson could not rely on a pretrial ruling.
In declining to grant relief on the motion in limine issue, the district court found that it is "likely" that the claim is procedurally barred because no evidence indicated that Nelson raised the issue at trial or on appeal. Nevertheless, the district court addressed the merits of the claim and found that the state trial court's reversal of its decision on the motion in limine during trial did not violate Nelson's constitutional rights. The district court further ruled that the record failed to indicate that Nelson relied on the state trial court's ruling in electing to testify. We agree with the district court's initial ruling that Nelson's claim is procedurally barred.
It is well settled under Alabama law that failure to raise an issue either at trial or on direct appeal from a conviction constitutes a procedural bar to the assertion of the claim in a subsequent collateral proceeding. Pelmer v. White, 877 F.2d 1518, 1521 (11th Cir.1989) (citing Ladd v. Jones, 864 F.2d 108, 109 (11th Cir.), cert. denied sub nom. Ladd v. Burton, 493 U.S. 842, 110 S.Ct. 129, 107 L.Ed.2d 89 (1989)).
In this case, on direct appeal, Nelson raised the following issue:
I. The defendant was denied substantive and procedural due process by the introduction into evidence of an unrelated homicide.
The state court addressed the relevancy of the evidence concerning the murder of James Dewey Cash, which occurred approximately four hours prior to the murder of Thompson. The district court concluded that the state trial court properly admitted the evidence of the Cash killing because it bore upon Nelson's intent at the time of the Thompson shooting. The Cash evidence was also relevant to show the motive for the subsequent murder of Thompson. Nelson now raises a different claim: he relied on the trial court's pretrial motion in limine ruling prohibiting the state from introducing evidence of the Cash murder in deciding to testify. Nelson points to the fact that his claim on direct appeal included the words "denied substantive and procedural due process" to argue that this wording was sufficient to "alert the state court to the constitutional issue, which in this circuit is all that is necessary for there to be exhaustion."
This circuit has held that "preciseness of words is not necessary in presenting the issue so long as the state court has an adequate opportunity to consider a party's objection." Osborne v. Wainwright, 720 F.2d 1237, 1239 (11th Cir.1983) (citing Hutchins v. Wainwright, 715 F.2d 512, 519 (11th Cir.1983)). Additionally, "when a criminal defendant perceives a constitutional error during the course of the trial, it is defense counsel's responsibility to raise the error both at trial and on appeal in clear and forthright terms thereby alerting the state of the perceived error." Hutchins, 715 F.2d at 519. Thus, Nelson preserved and presented on direct appeal the issue regarding relevancy of the Cash murder. He did not, however, preserve and present on direct appeal the issue of whether the trial court's reversal of the motion in limine ruling violated his constitutional rights. The state courts have not been afforded an adequate opportunity to address Nelson's claim that he relied on the motion in limine in electing to testify. As a federal habeas corpus petitioner, Nelson is "required to provide the state courts with a fair opportunity to apply controlling legal principles to the facts bearing upon his constitutional claim." Walker v. Dugger, 860 F.2d 1010, 1011 (11th Cir.1988) (citing Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971)), cert. denied, 489 U.S. 1029, 109 S.Ct. 1162, 103 L.Ed.2d 220 (1989). Hence, we hold that Nelson's in limine ruling claim is procedurally barred.
We may still review the merits of Nelson's claim, however, if he meets either of the two exceptions to the procedural default doctrine. The first is the "cause and prejudice" exception; the second is the "actually innocent" exception, also known as the "fundamental miscarriage of justice" exception used in extraordinary circumstances. Johnson v. Singletary, 938 F.2d 1166, 1174-75 (11th...
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