Nelson v. Quarterman

• Decision Date: 11 December 2006
• Docket Number: No. 02-11096.,02-11096.
• Citation: 472 F.3d 287
• Parties: Billy Ray NELSON, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

472 F.3d 287

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

No. 02-11096.

United States Court of Appeals, Fifth Circuit.

December 11, 2006.

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

Edward Larry Marshall (argued), Austin, TX, for Quarterman.

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

Before JONES, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO and OWEN, Circuit Judges.

CARL E. STEWART, Circuit Judge:

A panel of this court previously affirmed the district court's denial of Billy Ray Nelson's habeas corpus petition challenging his sentence on the ground that the Texas capital-sentencing procedure failed to give constitutionally sufficient 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). See Nelson v. Cockrell, 77 Fed.Appx. 209 (5th Cir. Aug. 12, 2003) (unpublished). Nelson petitioned the Supreme Court for writ of certiorari. The Supreme Court granted the petition, vacated our judgment, and remanded the case to this court for reconsideration in light of the Supreme Court's decision in Tennard v. Dretke, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004). Nelson v. Dretke, 542 U.S. 934, 124 S.Ct. 2905, 159 L.Ed.2d 808 (2004). On remand, a panel of this court once again affirmed the district court's denial of Nelson's habeas corpus petition. See Nelson v. Dretke, 442 F.3d 282 (5th Cir.2006). Having ordered rehearing en banc, Nelson v. Dretke, 442 F.3d 912 (5th Cir.2006), we again reconsider the application of Penry I and its progeny to Nelson's case. We conclude that, on the facts presented here, there is a reasonable likelihood that the Texas capital-sentencing scheme precluded the jury from giving full effect to Nelson's mitigating evidence as required by the Supreme Court; accordingly, we REVERSE the district court's denial of habeas relief and REMAND with instructions to grant the writ of habeas corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 11, 1991, a Texas jury found Nelson guilty of capital murder for the February 23, 1991, slaying and brutal sexual assault of his neighbor, Charla Wheat. Evidence presented during the guilt/innocence phase of trial revealed the following: Nelson gained entrance to Wheat's apartment by asking if he could use her phone. Once inside, he cut the telephone cord to prevent her from calling for help and then proceeded to stab her. He then found Wheat's roommate, Carol Maynard, who was five months pregnant at the time, and forced her to get out of bed and enter the living room, where Wheat was on her knees bleeding from her stab wounds. Nelson told the women to remove their clothing and threatened to kill them if they refused. He then forced the women to perform sexual acts on him and each other. Thereafter, he stabbed Maynard in the neck and proceeded to strike Wheat. Nelson left briefly but Wheat began screaming and he returned. While Maynard pretended to be dead, Nelson struck and stabbed Wheat until she died. He then left the women's apartment.

At the sentencing phase of the trial, Nelson presented the following mitigating evidence, which we will discuss more fully infra: (1) he was rejected by his mother, who had completely abandoned him by age 14 ("abusive childhood" evidence); (2) he abused drugs and alcohol ("substance abuse" evidence); (3) he has troubled relationships with his brother and with women; (4) he had a child out of wedlock, with whom he was not permitted to have a relationship; and (5) a psychiatrist testified he was suffering from borderline personality disorder ("mental disorder" evidence). For a jury to impose the death penalty at the time of Nelson's trial, Article 37.071(b) of the Texas Code of Criminal Procedure required the jury to answer two special issue questions concerning evidence presented in mitigation: "(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result" ("the deliberateness special issue"); and "(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" ("the future-dangerousness special issue").¹ The jury answered both special-issue questions in the affirmative, sentencing Nelson to death. Nelson appealed his sentence and conviction to the Texas Court of Criminal Appeals; that court affirmed, Nelson v. Texas, 864 S.W.2d 496 (Tex.Crim.App. 1993), and Nelson's conviction became final when the Supreme Court denied certiorari review, Nelson v. Texas, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994).

Nelson filed a state petition for writ of habeas corpus in September 1997, arguing that the Texas capital sentencing scheme, i.e., the two special-issue questions, failed to ensure that the jury could give the constitutionally required consideration of and effect to his mitigating evidence of his mental disorder, abusive childhood, and substance abuse under Penry I, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256. He also filed a second petition in February 1998, alleging additional claims. The Texas Court of Criminal Appeals denied the writ based on the findings and recommendations of the trial court. Ex parte Nelson, No. 49,886-01 (Tex.Crim.App. Oct. 10, 2001). Specifically, with regard to Nelson's Penry claims, the Texas Court of Criminal Appeals recognized that, to be constitutional, "a death penalty procedure must allow the jury to consider all relevant mitigating evidence." Ex parte Nelson, No. 8,214 at 88 (118th Judicial District Howard County, Tex. July 10, 2001) (findings of fact and conclusions of law). The court also recognized that where the defendant's mitigating evidence is beyond the scope of the special issues, and the jury is unable to give effect to its reasoned moral response to the mitigating evidence, the procedure is unconstitutional as applied to the defendant. Id. In applying the law to the facts of Nelson's case, the court noted that Nelson's evidence of drug and alcohol abuse had no mitigating relevance beyond the scope of the special issues. Id. at 89. Moreover, with regard to the other mitigating evidence presented,

[t]he Court instructed the jury on the charge on punishment, "You should consider and give effect in answering each issue to your evaluation of all of the evidence before you, including all aspects of the background and character of the defendant and the circumstances of the crime." . . . The jury charges and special issues allowed the jurors to give effect to all presented mitigating evidence in their answers to the special issues including the intoxication of [Nelson] at the time of the offense.

Id. at 90. Therefore, the court concluded that the procedure was constitutional as applied. The court dismissed Nelson's subsequent habeas petition as an abuse of the writ. Ex parte Nelson, No. 49,886-02 (Tex.Crim.App. Oct. 10, 2001).

Nelson filed a petition for writ of habeas corpus in the federal district court in August 2002. The district court rejected Nelson's Penry claim for failing to meet the requirements of our now-defunct "constitutional-relevance" test.² A panel of this court granted Nelson a certificate of appealability ("COA") on this issue; however, the panel ultimately affirmed the district court's denial of habeas relief. Nelson petitioned the Supreme Court for writ of certiorari, and the Supreme Court granted the petition, vacated the panel's judgment, and remanded the case to this court for reconsideration in light of the Supreme Court's decision in Tennard, 542 U.S. 274, 124 S.Ct. 2562, 159 L.Ed.2d 384. On remand, a panel of this court once again affirmed the district court's denial of habeas relief. All three panel members concurred in the judgment; however, there was no consensus on the correct methodology for analyzing Nelson's claim.³ Accordingly, this court ordered rehearing en banc, and we once again reconsider the application of Penry in light of Tennard to the facts of Nelson's case.⁴

II. DISCUSSION

A. Standard of Review

Because Nelson filed his § 2254 habeas petition after April 24, 1996, this habeas proceeding is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Fisher v. Johnson, 174 F.3d 710, 711 (5th Cir.1999). We have jurisdiction to resolve the merits of Nelson's habeas petition because, as stated above, we granted him a COA on his Penry claim. See Nelson v. Dretke, 442 F.3d at 284; see also 28 U.S.C. § 2253(c)(1).

Under AEDPA, a federal court may not grant a writ of habeas corpus "with respect to any claim that was adjudicated on the merits in State court proceedings" unless the petitioner shows that the state court's 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," or that the state court's adjudication of a claim "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." 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is "contrary to" clearly established federal law if (1) the state court "applies a rule that contradicts the governing law" announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (internal...