Nelson v. Sec'y, Dept. of Corr.

• Decision Date: 13 March 2012
• Docket Number: Case No. 8:10-cv-2280-T-33EAJ
• Citation: Nelson v. Sec'y, Dept. of Corr., Case No. 8:10-cv-2280-T-33EAJ (M.D. Fla. Mar 13, 2012)
• Parties: MICAH NELSON, Petitioner, v. SECRETARY, DEPT. OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

MICAH NELSON, Petitioner, v.SECRETARY, DEPT. OF CORRECTIONS, Respondent.

Case No. 8:10-cv-2280-T-33EAJ

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

Dated: March 13, 2012

ORDER

This cause is before the Court on PetitionerMicah Nelson's 28 U.S.C. § 2254Petition for Writ of Habeas Corpus(hereinafter "Petition" or "petition").(Doc. 1).Nelson is a Florida inmate who has been sentenced to death.The Respondent filed a Response in opposition to the Petition (Doc. 17) and Nelson filed a reply to the response.(Doc. 20).Nelson is represented by Capital Collateral Regional Counsel-Middle Region (CCRC-M) Attorneys Ali A. Shakoor and James Vincent Viggiano, Jr.

The issues have been fully briefed and the case is ready for decision.No evidentiary hearing is necessary because the record is fully developed and the claims of the Petition raise issues of law, not issues of fact.SeeBreedlove v. Moore, 279 F.3d 952, 959(11th Cir.2002).Upon a review of the entire record and the Parties' written submissions, the Court finds that all of Nelson's claims lack merit.The Petition will be denied in its entirety.

FACTS AND PROCEDURAL HISTORY

The facts of the case and procedural history through trial are stated at length in the Florida Supreme Court's opinion denying Nelson's direct appeal.SeeNelson v. State, 850 So. 2d 514(Fla.2003)(Ex. A35):

The evidence presented at trial indicated that during the early morning hours of November 17, 1997, Micah Louis Nelson(Nelson) entered Virginia Brace's (Brace) home by removing the screen and climbing through the bathroom window.Seventy-eight-year-old Brace had been in bed and her glasses and hearing aid were on her bedroom dresser.Nelson sexually assaulted Brace, took her car keys from her purse, and then placed her in the trunk of her own car.He drove around with Brace in the trunk for a period of hours and eventually drove to an orange grove, where he apparently intended to leave her.However, the car became stuck in soft sand and had to be pulled out with the assistance of machinery at about 9:30 a.m. on November 17, 1997.

Steven Weir, the heavy equipment operator who pulled the car out of the sand, felt a thud when he put his hand on the car's trunk.Nelson advised him that there was a dog in the trunk and then proceeded to turn up the car radio.The heavy equipment operator observed Nelson to be nervous and pacing, and Nelson would not look him in the eye when they spoke.Nelson sped off as soon as the car was lifted out of the sand and drove to another orange grove where he let Brace out of the trunk and walked her or dragged her 175 feet into the grove.FN1 With Brace on the ground, Nelson attempted to strangle her with his bare hands, emptied the contents of a fire extinguisher into her mouth, and forced a tire iron into her mouth and through the back of her head.

FN1.The medical examiner testified that the soles of Brace's feet were dirty, indicating that "she probably left standing on her feet," but that there was also evidence that she had been dragged on her back.

At 3:30 p.m. on November 17, 1997, Joann Lambert noticed an unfamiliar car parked on the road behind her house.The car was still parked in the same location when it began to get dark that evening so she called the Highlands County Sheriff's Department.When Deputy Vance Pope arrived to investigate the car, he found Nelson asleep in the back seat.Deputy Pope also noticed an insurance card on the floorboard with the name Virginia Brace.Nelson told Pope that he borrowed the car from a family friend.Pope could not verify the vehicle's registration because the DMV computer was notworking at that time.Pope would not allow Nelson to drive because he did not have a driver's license, so he gave Nelson a ride to Nelson's sister's house.Later that evening, Pope heard the name Virginia Brace over the police radio, which prompted him to contact Sergeant Hofstra regarding his earlier contact with Nelson.Police recovered the car where Deputy Pope had last seen it, and it was identified as belonging to Brace.

At 11 p.m. on November 17, 1997, Deputy Pope returned to the house where he previously dropped off Nelson.Nelson agreed to be questioned by the Avon Park Police.After a series of interrogations on November 18, 1997, and November 19, 1997, Nelson showed the police where Brace's body was located and he confessed to killing her.

Nelson told police that some time after midnight, he broke into Brace's home through her bathroom window.He stated that he entered her bedroom and she woke up and started screaming.He said that they had a struggle on her bed, after which he took her car keys and placed her in the trunk of her car.Nelson stated that he drove around in the car for hours and that at one point he stopped to get gas.He then drove to an orange grove where he was going to kill Brace, but the car became stuck in the sand and he required help to extricate the car from the sand.He then took Brace to another orange grove where he and Brace walked into the grove.He stated that he started to choke Brace on the ground, but she did not pass out, so he sprayed a fire extinguisher into her mouth, which made her cough.He stated that he then took the tire iron and stuck it into her mouth until it came through the back of her neck and into the ground.He stated that Brace gasped for air when he pushed the tire iron into her mouth.Nelson denied having any sexual contact with Brace.

At trial, Dr. Melamud, the medical examiner, testified that the condition of Brace's body corresponded with her being dead for two days before she was found.He testified that Brace's injuries were consistent with asphyxiation, an object being forced into her mouth through the back of her neck, such as a tire iron, and a fire extinguisher being discharged into her mouth.He stated that she also suffered a crushed vertebra as a result of the compression of her neck and spinal cord, and three broken ribs.He testified that her death could have resulted from any one of those injuries, or a combination of them.Although he could not assign an order in which the injuries occurred, he stated that the medical evidence indicated that she was alive both when the object was forced into her mouth and through the back of her neck, and when the fire extinguisher's contents were expelled into her mouth.FN2 He could not say with certainty if she was conscious when those injuries were inflicted, but he opined that if Brace had been conscious during the infliction of any of these injuries, she would have experienced severe pain.

FN2.An emptied fire extinguisher was recovered on the rear floor of the driver's seat of Brace's car.A yellow powdery substance from the extinguisher's contents was located around the hose.The yellow powder was also found on the rear floorboard behind the driver's seat, in the trunk, and on Brace's face and in her bronchial tubes.

Karen Cooper, a laboratory analyst with the Florida Department of Law Enforcement(FDLE), testified that prints made from boots recovered from Nelson's bedroom at his sister's house were consistent with boot prints found at the orange grove on the ground near Brace's body.Stephen Stark, a latent fingerprint examiner with FDLE, testified that Nelson's latent prints were found inside Brace's bathroom on the towel rack, on tiles under the bathroom window, on the bathroom tub, and on the bathroom door jamb.Stark, who also processed the crime scene at the orange grove, testified that there was a hole in the ground beneath the back of the victim's head and that a yellow powdery substance was found on the ground where the body was located.He also testified that three prints found in the interior of the trunk were consistent with Brace's fingerprints.Stark stated that when he processed the car, the trunk liner was moist and smelled of urine.Jennifer Garrison, an FDLE crime lab analyst in the serology DNA section, testified that testing revealed the semen found on Brace's bedspread was consistent with Nelson's DNA profile.Darrin Esposito, an FDLE crime lab analyst in the serology DNA section, testified that he tested the vaginal swab taken in this case, and it was consistent with a mixture of DNA from both Brace and Nelson.Jeannie Eberhardt, a serologist with FDLE, testified that the swabbing of the tire iron found in the trunk of Brace's car came back positive for indications of blood.

The jury recommended a death sentence by a vote of nine to three and the trial court sentenced Nelson to death.The trial court found six statutory aggravators: (1)the defendant was previously convicted of a felony, was under a sentence of imprisonment, and was on felony probation, or controlled release, at the time of the murder; (2) the crime for which the defendant was to be sentenced was committed while the defendant was engaged in the commission of, or flight after, committing a sexual battery, burglary, or kidnapping; (3) the capital felony was committed for the purpose of avoiding or preventing a lawful arrest; (4) the murder was especially heinous, atrocious or cruel (HAC); (5) the murder was committed in a cold and calculated and premeditated manner, and without any pretense of moral or legal justification (CCP); and (6) the victim was particularly vulnerable due to advanced age or disability.The trial court found that all six aggravators were proven beyond a reasonable doubt and assigned five of them great weight.The trial court assigned little weight to the sixth aggravator of the victim being "particularly vulnerable due to age or disability."

The trial court addressed and rejected three statutory mitigating factors.FN3 Twenty-one nonstatutory mitigating circumstances were addressed by the trial court: (1) at the time of the offense the defendant was impulsive and his ability to exercise good judgment was impaired (not proven); (2)defendant was remorseful for his conduct (not

...