Nobles v. Johnson, 97-50093

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation127 F.3d 409
Docket NumberNo. 97-50093,97-50093
PartiesJonathan Wayne NOBLES, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
Decision Date28 October 1997

Page 409

127 F.3d 409
Jonathan Wayne NOBLES, Petitioner-Appellant,
Gary L. JOHNSON, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellee.
No. 97-50093.
United States Court of Appeals,
Fifth Circuit.
Oct. 28, 1997.

Page 411

David A. Sheppard, Austin, TX, Daniel William Dworin, Austin, TX, for Petitioner-Appellant.

Laura Bayouth Popps, Assistant Attorney General, Margaret Portman Griffey, Austin, TX, for Respondent-Appellee.

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

Before SMITH, DUHE and BARKSDALE, Circuit Judges.

DUHE, Circuit Judge:

Appellant Jonathan Wayne Nobles ("Nobles") appeals the district court's denial of

Page 412

his application for writ of habeas corpus. For the reasons that follow, we affirm.

Appellant Nobles broke into a house in Austin, Texas where Mitzi Nalley and her roommate Kelly Farquar were living. Nobles brutally stabbed Nalley and Farquar to death and severely injured Nalley's boyfriend, Ron Ross. Ross survived the attack, despite receiving nineteen stab wounds and losing an eye.

After the murders, Nobles went home and called his friend Marlly O'Brien, asking her to come over and help him. 1 She found Nobles in the bathroom with his arm, which had been badly cut, wrapped in a towel. There was blood all over the bathroom. Nobles then changed clothes, cleaned the bathroom, and put everything with blood on it into a trash bag which he placed in the trunk of O'Brien's car. O'Brien dropped Nobles off at a friend's house, where Nobles shaved his beard and had his arm taped up. O'Brien later picked Nobles up and let him borrow her car while she went to work. Nobles lied to O'Brien and his other friends about what had happened, saying he had been involved in a fight.

Based on physical evidence from the murder scene 2 and on information obtained from O'Brien and others, Nobles was arrested. Nobles confessed to the murders and then led police to where he had hidden the trash bag, containing the murder weapon and the blood-soaked clothes he had worn during the killings.


In 1987 a jury found Nobles guilty of the murders of Nalley and Farquar. The jury responded affirmatively to the two special sentencing issues submitted pursuant to former Article 37.071 of the Texas Code of Criminal Procedure, Tex.Code Crim. P. Ann. art. 37.071(b)(West 1981), and the trial court imposed the death penalty.

Nobles's conviction and sentence were automatically appealed to the Texas Court of Criminal Appeals, which affirmed both. Nobles v. State, 843 S.W.2d 503 (Tex.Crim.App.1992). In 1993 Nobles filed a state habeas petition which the trial court and the Court of Criminal Appeals denied. The United States Supreme Court denied Nobles's petition for writ of certiorari on February 21, 1995.

Nobles moved the United States District Court for appointment of counsel and to proceed in forma pauperis on a petition for federal writ of habeas corpus. The district court granted a stay of execution and appointed counsel who petitioned for writ of habeas corpus. The district court denied Nobles's petition for habeas relief and Nobles appealed. The district court granted a certificate of appealability on all of Nobles's claims.


Nobles's Certificate of Appealability addresses the applicability of the Antiterrorism and Effective Death Penalty Act, the prosecution's use of an edited confession, and the effectiveness of counsel. We address each of these issues in turn.



The Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), amended, inter alia, § 2244 and §§ 2253-2255 of chapter 153 of title 28 of the United States Code, the provisions that govern all habeas proceedings

Page 413

in federal courts. See 110 Stat. 1217-21. The AEDPA also created a new chapter 154, applicable to habeas proceedings against a state in capital cases. New chapter 154 applies, however, only if a state "opts in" by establishing certain mechanisms for the appointment and compensation of competent counsel. 3 See 110 Stat. 1221-26. The AEDPA became effective on April 24, 1996.

In Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the Supreme Court held that § 107(c) of the AEDPA, which explicitly made new chapter 154 applicable to cases pending on the effective date of the Act, created a "negative implication ... that the new provisions of chapter 153 generally apply only to cases filed after the Act became effective." Lindh, --- U.S. at ----, 117 S.Ct. at 2068 (emphasis added). Lindh effectively overruled our decision in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996), in which we held that the AEDPA's amendments to chapter 153 were procedural in nature and therefore applied to cases pending on the effective date of the Act without having "retroactive" effect. 4 Drinkard, 97 F.3d at 764-66. Thus, under Lindh, if a case was "filed" before April 24, 1996, the pre-AEDPA habeas standards apply.

Nobles filed his habeas petition on June 28, 1996, after the AEDPA's effective date. Before the effective date, however, Nobles had moved the district court for appointment of counsel and to proceed in forma pauperis. 5 The district court denied Nobles's habeas petition before Lindh was decided and thus relied on Drinkard and Mata in applying the AEDPA to Nobles's petition. See Drinkard, 97 F.3d at 764-66; Mata, 99 F.3d at 1266. Nobles contends that because he made a "filing" (i.e., his motion for appointment of counsel) in his federal habeas action before the AEDPA's effective date, his case was therefore "pending" under Lindh and thus not subject to the AEDPA. 6 Lindh, however, does not define when a case is "pending" for purposes of application vel non of the AEDPA; in fact, Lindh uses the expressions "cases pending," "cases filed," and "applications pending" interchangeably. 7

Page 414

In McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), the Supreme Court held that a "post conviction proceeding" under 21 U.S.C. § 848(q)(4)(B) 8 commences with a death row defendant's motion requesting the appointment of counsel for his federal habeas proceeding. McFarland, 512 U.S. at 856-57, 114 S.Ct. at 2572-73. The Court also held that "once a capital defendant invokes his right to appointed counsel, the federal court also has jurisdiction under [28 U.S.C.] § 2251 to enter a stay of execution." McFarland, 512 U.S. at 858, 114 S.Ct. at 2573. Reading the two sections in pari materia, the Court found that the terms "post conviction proceeding" in § 848(q)(4)(B) and "habeas corpus proceeding" in § 2251 referred to the same event, i.e., habeas proceedings under 28 U.S.C. §§ 2254 and 2255. Id.

One could read McFarland to stand for the proposition that when a capital defendant moves for appointment of habeas counsel, his case is "pending" even though no habeas application has been filed. Justice Thomas, dissenting in McFarland, took such a view of the majority's reasoning:

Thus, after today, the "proceeding" to which § 2251 refers will have two different meanings depending upon whether the stay is sought by a capital or non-capital prisoner. In the former situation, a "habeas corpus proceeding" under § 2251 will be "pending" once a motion for appointment for counsel is filed. In the latter, no matter how many preliminary motions a prisoner might file, a proceeding will not be "pending" until an application for habeas relief is filed.

McFarland, 512 U.S. at 872 n. 3, 114 S.Ct. at 2580 n. 3 (Thomas, J., dissenting) (emphasis added). 9 Justice O'Connor, concurring in part and dissenting in part, agreed with the dissent that a habeas proceeding was not "pending" under § 2251 upon filing of a motion for appointment of counsel. McFarland, 512 U.S. at 862, 114 S.Ct. at 2575 (O'Connor, J., concurring in part and dissenting in part) ("[T]he text and structure of the federal habeas statute suggest that the stay provision contained in § 2251 is intended to apply only after a petition has been filed."). 10

Our recent decision in Williams v. Cain, 125 F.3d 269 (5th Cir.1997), construes McFarland and resolves the issue. In Williams, we found that McFarland did not "answer the question of what date a habeas petition becomes 'pending' for determining the applicability of substantive statutes." Williams, 125 F.3d at 274, 1997 WL 612739, at * 3. The date of a capital defendant's motion for appointment of counsel is therefore irrelevant to the question whether his case is "pending" for purposes of Lindh and the applicability of the AEDPA. Thus, under Williams, "the relevant date for determining the applicability of the AEDPA to habeas corpus petitions is the date that the actual habeas corpus petition is filed." Id.

Page 415

Since Nobles did not file his petition for habeas corpus relief until June 28, 1996--some two months after the AEDPA's effective date--Williams instructs that we apply the AEDPA standards to Nobles's petition.



Nobles claims the prosecution knowingly used false evidence against him when it introduced at trial an edited version of his taped confession that omitted remarks indicating Nobles did not remember certain details of the murders. Nobles argues that had the jury considered these remarks, it could have found that, because of mental impairment from drugs and alcohol, he had not deliberately committed the murders. 11 He further contends that in closing argument the prosecutor compounded the misrepresentation by emphasizing the lack of evidence that Nobles had been unaware of his actions. For these reasons, Nobles concludes that he was denied the fundamentally fair and impartial trial guaranteed him by the Due Process Clause of the Fifth Amendment.

To establish a due process violation based on the State's knowing use of false or misleading evidence, Nobles must show (1) the evidence was false, (2) the...

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