Nelson v. Sec'y, Case No: 2:11-cv-327-Ftm-29CM

• Decision Date: 20 August 2014
• Docket Number: Case No: 2:11-cv-327-Ftm-29CM
• Court: United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
• Parties: JOSHUA D. NELSON, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS and ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.

JOSHUA D. NELSON, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSand ATTORNEY GENERAL, STATE OF FLORIDA, Respondents.¹

Case No: 2:11-cv-327-Ftm-29CM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

August 20, 2014

OPINION AND ORDER

This case is before the Court on an amended petition for habeas corpus relief ("the Petition") filed by Petitioner Joshua D. Nelson ("Petitioner" or "Defendant") (Doc. 36, filed December 3, 2012). Upon consideration of the petition, the Court orderedRespondent to show cause why the relief sought in the petition should not be granted (Doc. 42). Thereafter, Respondent filed a response in compliance with this Court's instructions and with the Rules Governing Section 2254 Cases in the United States District Courts (Doc. 47). Petitioner filed a reply (Doc. 56).

Petitioner raises ten claims² for relief in his petition. He alleges that: (1) his Sixth Amendment right to confrontation was violated by the erroneous admission of his co-defendant's out-of-court statements; (2) he was deprived of his constitutional right to a fundamentally fair trial because of the admission of faulty DNA evidence; (3) the trial court failed to find Petitioner's history of alcohol and drug abuse to be a mitigating circumstance in the sentencing order; (4) the trial court erred in finding that there was sufficient evidence to support the cold, calculated, and premeditated aggravating factor; (5) the heinous, atrocious, or cruel aggravating circumstance did not apply because Petitioner intended to knock the victim unconscious before he was stabbed; (6) the jury received an unconstitutionally vague jury instruction on the heinous, atrocious, or cruel aggravating circumstance; (7) counsel was ineffective for failing to ensure that Petitioner wastried and sentenced before a fair and impartial jury; (8) trial counsel was ineffective for failing to request that the jury be sequestered between the guilt and penalty phases of Petitioner's trial; (9) trial counsel was ineffective for failing to ensure the presence of Petitioner's mother and step-father at the penalty phase of trial; and (10) his death sentence is in violation of the Eighth Amendment because an equally culpable codefendant received a life sentence. Because this Court can adequately assess Petitioner's claims without further factual development, an evidentiary hearing will not be conducted. Turner v. Crosby, 339 F.3d 1247, 1275 (11th Cir. 2003).

I. Statement of the Facts

The facts adduced at trial, as set forth by the Florida Supreme Court, are as follows:

The evidence presented at trial established the following facts. Nelson and Keith Brennan wanted to leave the city of Cape Coral. The two devised a plan to murder Tommy Owens and steal his car. Nelson and Brennan knew that Owens kept a baseball bat in his car. On the evening of March 10, 1995, Owens was lured under false pretenses to a remote street. Nelson and Brennan were able to convince Owens to exit his car, whereupon Nelson hit Owens with the bat. After a number of blows, Owens eventually fell to the ground. Nelson and Brennan tied Owens' legs and arms. Owens pleaded for his life, stating that the two could take his car. After a brief discussion, Nelson and Brennan concluded that to avoid being caught, they should kill Owens. Brennan attempted to slice Owens' throat with a box cutter. Owens was not unconscious when theattacks began and he begged Nelson to hit him again with the bat so as to knock him unconscious before the stabbing continued. Nelson did as Owens requested and Brennan continued to attack Owens with the box cutter. Nelson and Brennan also continued to strike Owens a number of times with the bat. The two eventually dragged Owens' body to nearby bushes, where Owens later died.

Nelson and Brennan picked up Tina Porth and Misty Porth and the four left the city in Owens' car. After stopping in Daytona Beach, the four left the state and drove to New Jersey. At different times during the trip, Nelson and Brennan informed Tina and Misty that they had murdered Owens. Both Tina and Misty testified at trial.

Nelson and Brennan were apprehended by law enforcement officers in New Jersey. Nelson gave a video- and audio-taped confession. In the confession, Nelson detailed his account of the murder, both at the crime scene and at the place where the bat was recovered. The videotaped confession was played to the jury. Additionally, an analyst for the Florida Department of Law Enforcement testified that blood stains on Nelson's shoes, the box cutter, and a pair of underwear that the box cutter was wrapped in all matched Owens' DNA.

Nelson was found guilty of first-degree murder and robbery with a deadly weapon. At the penalty phase, the jury recommenced death by a twelve-zero vote.

. . .

The trial court followed the jury's recommendation and imposed the death penalty for the first-degree murder conviction. The trial court sentenced Nelson to 189 months in prison for the robbery conviction.

Nelson v. State, 748 So. 2d 237, 239-40 (Fla. 1999).

II. Procedural History

On or about April 4, 1995, Petitioner and his co-defendant Keith Brennan ("Brennan") were indicted for first degree premeditated murder (count one), first degree felony murder (count two), and robbery with a deadly weapon (count three) (Ex. A1 at 1-2).³ A jury trial was held, and Petitioner was found guilty as charged on each count of the indictment (T. at 989-90).

A penalty phase commenced on November 7, 1996 (Ex. A10-A13). Following the penalty phase, the jury unanimously recommended death (P. at 234). After a Spencer⁴ hearing, the trial court sentenced Petitioner to death (Ex. A12 at 1083-1106).⁵ He wassentenced to 189 months in prison for the robbery conviction Nelson, 748 So. 2d at 240.

Petitioner raised seven claims on direct appeal (Ex. A21). Petitioner argued that: (1) the trial court erred by failing to properly determine the admissibility of testimony by the State's DNA expert; (2) the trial court violated Petitioner's right to confrontation by admitting evidence of his non-testifying co-defendant's out-of-court statements; (3) the trial court failed to weigh Petitioner's history of substance abuse as a mitigator; (4)the trial court improperly found the cold, calculated and premeditated aggravating circumstance; (5) the trial court improperly found the especially heinous, atrocious or cruel aggravating circumstance; (6) the trial court gave the jury a vague instruction on the especially heinous, atrocious or cruel aggravating circumstance; and (7) the death sentence is disproportionate. Id. The Florida Supreme Court affirmed Petitioner's convictions and sentences; Nelson v. State, 748 So. 2d 237 (Fla. 1999) (hereinafter, Nelson I).

On January 5, 2001, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure ("Rule 3.850 motion"). Petitioner filed an amended Rule 3.850 motion on June 15, 2009, raising nine claims (Ex. C9 at 777-837).⁶ In the motion, Petitioner alleged that: (1) trial counsel was ineffective for failing to ensure that Petitioner was tried by a fair and impartial jury; (2) trial counsel failed to present mitigating evidence of Petitioner's drug and substance abuse and mental health problems during the penalty phase; (3) trial counsel failed to raise the nature and extent of the neglect and abuse, especially sexual abuse, Petitioner suffered as a child;(4) counsel failed to provide Petitioner's mental health expert with the information necessary to diagnose ADHD; (5) counsel failed to object and move for a mistrial when the State impermissibly appealed to the sympathy of the jury during closing argument; (6) trial counsel failed to ask the trial court to sequester the jury or admonish the jurors not to avoid media coverage of Petitioner's case between the guilt and penalty phases; (7) counsel failed to ensure that the trial court properly swore the jurors; (8) the cumulative effects of counsel's acts and omissions constituted ineffective assistance of counsel; and (9) co-defendant Joshua Brennan was more emotionally mature than Petitioner, yet received a life sentence because he was a juvenile at the time of the crime (Ex. C9 at 777-837). The post-conviction court ordered an evidentiary hearing on each of the claims except for Petitioner's assertion that trial counsel had not ensured that he was tried by a fair and impartial jury and the claim regarding Brennan's life sentence. Id. at 897-98. After the evidentiary hearing, the post-conviction court denied relief on all of the claims (Ex. C11 at 1111-31). The Florida Supreme Court affirmed (Ex. C16); Nelson v. State, 73 So.3d 77, 83-84 (Fla. 2011) (hereinafter, Nelson II).

III. Governing Legal Principles

A. Standard of Review Under the Antiterrorism Effective Death Penalty Act ("AEDPA")

Pursuant to the AEDPA, federal habeas relief may not be granted with respect to a claim adjudicated on the merits in state court unless the adjudication of the claim:

(1) 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

(2) 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). This standard is both mandatory and difficult to meet. White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A state court's summary rejection of a claim, even without explanation, qualifies as an adjudication on the merits which warrants deference. Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008).

"Clearly established federal law" consists of the governing legal principles, rather than the dicta, set forth in the decisions of the United States Supreme Court at the time the state court issues its decision. White, 134 S. Ct. at 1702; Carey v. Musladin, 549 U.S. 70, 74 (2006) (...