Nealy v. Dretke , 172 F. App'x 593 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 27, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-70027
______________________
CHARLES ANTHONY NEALY,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:01-CV-02274
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:1
Charles Anthony Nealy (“Nealy”) was convicted of capital
murder and sentenced to death for the 1997 murder of Jiten Bhakta
(“Jiten”) during an armed robbery of the convenience store owned by
Jiten. He requests a certificate of appealability (“COA”) to
appeal the district court’s denial of federal habeas relief for
three claims. The request is GRANTED in part, and DENIED, in part.
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
At trial, Satishbhi Bhakta (“Bhakta”) testified that his
brother, Jiten, owned the Expressway Mart in Dallas. On August 20,
1997, at about 8:20 p.m., Bhakta was helping at the store with
another employee, Vijay Patel, while Jiten was in the office taking
a nap. Two men, one armed with a shotgun and the other with a
pistol, entered the store. The men ordered Patel and Bhakta to lie
down on the floor. The man with the shotgun went into the office.
Bhakta heard Jiten call out and then heard the shotgun discharge.
Jiten died from a shotgun wound to the chest. The man with the
pistol then shot Patel in the head; he died a few days later. The
man with the shotgun came out of the office with a briefcase
(containing $4,000) and said, “I got the man in the office.” The
man with the pistol said, “I got one over here, too.” The man with
the pistol ordered Bhakta to open the cash register, and the man
with the shotgun took money from the register and put it in his
pocket. Both of the robbers took wine and beer before leaving the
store. At trial, Bhakta identified Nealy as the man with the
shotgun.
Four video cameras in the store recorded the robbery. The
videotape was played for the jury. Although the tape was of poor
quality, it showed a man with a light-colored hat, and a man
wearing a dark hat carrying a shotgun. The tape did not record
either of the murders, but it recorded the two men stealing money
from the cash register.
2
Nealy’s nephew, Memphis Nealy (“Memphis”), testified that
between 5:00 and 7:00 p.m. on the evening of the robbery, he was
riding with Nealy on Central Expressway. When they passed the
convenience store, Memphis said that Nealy stated, “I’m going to
come back and get ‘em.” Nealy did not want Memphis to participate
in their return to the Expressway Mart because Memphis did not have
a criminal record.
At trial, Memphis testified that he recognized Nealy, Claude
Nealy (“Claude” -- Nealy’s nephew and Memphis’s brother), and
Reginald Mitchell on the videotape of the robbery. Memphis
identified Nealy as the man wearing the dark hat and carrying the
shotgun and briefcase. On cross-examination, Memphis admitted that
he was unable to identify anyone from the videotape until the
police told him that his uncle and brother were on the tape.
Reginald Mitchell, a co-defendant, testified at trial that on
the night of the robbery, he joined Claude and Nealy in Nealy’s car
and went to the Expressway Mart. Mitchell stated that Claude and
Nealy entered the store, and that Nealy had a shotgun, although he
did not see it. He testified that Claude had a .38 or .32 pistol.
Mitchell testified that he first heard a shotgun blast and then
small arms fire. Nealy and Claude came out of the store and got
into the car. Mitchell testified that Nealy said, “This is the way
the Nealys do it.” When they got back to Nealy’s house, Nealy said
that they committed the crime because “the bitches” wouldn’t sell
him “no Blackie mounds” (referring to a type of cigar). Mitchell
3
testified that Nealy threatened to kill him if he told anyone about
the robbery.
Nealy was convicted of capital murder and sentenced to death.
The Texas Court of Criminal Appeals affirmed his conviction and
sentence on direct appeal. Nealy v. State, No. 73,267 (Tex. Crim.
App. September 13, 2000) (unpublished), cert. denied, 531 U.S. 1160
(2001).
In October 2001, the Texas Court of Criminal Appeals adopted
the trial court’s recommendation and denied Nealy’s application for
state habeas relief. Ex parte Nealy, No. 50,361-0-1 (Tex. Crim.
App. October 24, 2001) (unpublished). In May 2005, the district
court adopted the magistrate judge’s recommendation and denied
Nealy’s petition for federal habeas relief. The district court
also denied Nealy’s request for a COA. As we have noted, Nealy now
requests a COA from this court to appeal the denial of relief as to
three claims.
II
To obtain a COA, Nealy must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A). To
make such a showing, he must demonstrate that “jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In
making our decision whether to grant a COA, we conduct a “threshold
4
inquiry”, which consists of “an overview of the claims in the
habeas petition and a general assessment of their merits.” Id. at
327, 336. “While the nature of a capital case is not of itself
sufficient to warrant the issuance of a COA, in a death penalty
case any doubts as to whether a COA should issue must be resolved
in the petitioner’s favor.” Ramirez v. Dretke, 398 F.3d 691, 694
(5th Cir. 2005) (internal quotations and citations omitted).
A
Based on our limited, threshold inquiry and general assessment
of the merits of the three claims for which Nealy requests a COA,
we conclude that the following claim presents issues that are
adequate to deserve encouragement to proceed further: whether the
evidence was sufficient to prove beyond a reasonable doubt the
essential elements of the offense of capital murder. Accordingly,
we GRANT a COA for this claim. If petitioner Nealy wishes to file
a supplemental brief with respect to the merits of this claim, he
may do so within thirty days of the date that this order is filed.
A supplemental brief should be filed only to address matters that
have not already been covered in the brief in support of the COA
application. The State may file a response fifteen days
thereafter.
B
Nealy has failed to demonstrate that jurists of reason could
disagree with or find debatable the district court’s resolution of
the issues presented in the following claims, and we therefore DENY
5
his request for a COA for those claims, for the reasons set forth
below.
1
Nealy seeks a COA for his claim that the trial court’s failure
to allow him to inform the jury of his parole eligibility if the
death penalty were not assessed violated his constitutional rights
to equal protection, effective assistance of counsel, due process,
and protection from cruel and unusual punishment.
At trial, Nealy filed motions to question the venire, present
evidence, and instruct the jury regarding his parole eligibility --
that is, if sentenced to life in prison, he would not be eligible
for parole for forty years. The trial court denied the motions.
On direct appeal, citing Simmons v. South Carolina, 512 U.S.
154 (1994), and Justice Stevens’s opinion on the denial of
certiorari in Brown v. Texas, 522 U.S. 940 (1997), Nealy argued
that the trial court’s denial of his motions deprived him of due
process and subjected him to cruel and unusual punishment. The
Court of Criminal Appeals affirmed.
In state habeas proceedings, Nealy asserted that the trial
court’s denial of his motions violated equal protection, due
process, his right to be free from cruel and unusual punishment,
and his right to the effective assistance of counsel. The state
habeas court held that the equal protection claim was procedurally
barred because it could have been raised on direct appeal;
alternatively, that the absence of parole information did not
6
violate equal protection. The state habeas court held that the
Sixth, Eighth, and Fourteenth Amendment claims were procedurally
barred because they were raised and rejected on direct appeal;
alternatively, that Nealy’s right to due process, his right against
cruel and unusual punishment, and his right to effective assistance
of counsel were not violated by the court’s rulings that prevented
the jury from considering parole during the punishment phase. In
addition, the court noted that the Texas Court of Criminal Appeals
had repeatedly refused to extend the holding in Simmons to
defendants who are eligible for parole. Finally, the court
observed that because the jurors were not told about the
possibility of parole, they may have considered a term of “life” to
mean Nealy’s natural life, and thus Nealy probably benefitted from
the lack of an instruction on parole eligibility.
In his federal habeas petition, Nealy claimed that he is
entitled to relief because the trial court’s failure to allow him
to inform the jury of his parole eligibility if the death penalty
were not assessed violated his constitutional rights to equal
protection, effective assistance of counsel, due process, and
protection from cruel and unusual punishment. The district court
declined to review these claims, holding that they are all barred
by Teague v. Lane, 489 U.S. 288 (1989). Nealy contends that the
district court mischaracterized his claims, and that the claims
are not Teague-barred because he is not relying on retroactive
7
application of Simmons v. South Carolina.2 He notes that the Texas
Legislature, after his trial, changed the law to provide that
capital murder defendants facing the death penalty can inform
jurors about parole eligibility.
The district court’s decision that Nealy’s parole-eligibility
claims are barred by Teague is neither debatable nor wrong.
Nealy’s creative attempts to avoid the Teague bar are unavailing
because, as the district court held, all of his claims are
foreclosed by our precedent holding that Teague bars extension of
the Simmons rule to a situation where the defendant is eligible for
parole. See Thacker v. Dretke, 396 F.3d 607, 617 n.15 (5th Cir.
2005); Woods v. Cockrell, 307 F.3d 353, 361 (5th Cir. 2002); Tigner
v. Cockrell, 264 F.3d 521, 525 (5th Cir. 2001). At the time
Nealy’s conviction became final, the state court would not have
felt compelled by precedent to conclude that the due process
clause, the equal protection clause, and the Sixth and Eighth
Amendments required the trial court to instruct the jury on parole
eligibility where, under state law, the defendant is eligible for
parole. Thus, the district court did not unreasonably conclude
that Nealy seeks the benefit of a new rule barred by Teague.
2
2
The rule in Simmons requires that a jury be informed about
the defendant’s parole eligibility when the state argues that a
defendant represents a future danger to society, and the defendant
is legally ineligible for parole.
8
Nealy requests a COA for his claim that the evidence was
insufficient to sustain the State’s burden of proving that he would
commit criminal acts of violence constituting a future danger to
society.
In addition to the evidence presented at the guilt phase, the
State presented the following evidence of future dangerousness at
the punishment phase: Nealy had a criminal record as a juvenile in
the 1970s, including armed offenses; he received a 35-year sentence
in 1980 for aggravated robbery (he was sixteen years old, and
robbed a woman at gunpoint as she was sitting in her car with her
baby in a grocery store parking lot -- he pointed the gun at the
woman and her son and told her to get out of the car and leave her
purse or he would kill her); and he was convicted again in 1994. At
age 33, about one month before the capital murder, Nealy and his
nephew held up a pawn shop where Nealy had been a regular customer.
After they entered the shop, Nealy grabbed the clerk by the back of
the neck and put a gun to the side of her head. His nephew grabbed
the clerk’s mother and held a gun to her head. Nealy told the
clerk that he would kill her if she moved. They took money, two
handguns, and a shotgun. The day before the capital murder, Nealy
and another man posed as customers in a shoe store robbery. After
the owner fitted the two men with new shoes, the owner went to the
cash register and Nealy held a handgun close to the owner’s head.
Nealy and the other man stole about $250 from the cash register and
the two pairs of shoes.
9
Nealy accumulated 70 disciplinary reports while in prison.
While he was in jail awaiting trial for capital murder, Nealy and
two other inmates assaulted another inmate, breaking his jaw. At
trial, after the assaulted inmate had testified, Nealy threatened
him and shouted obscenities at him.
The Texas Court of Criminal Appeals found this evidence
sufficient to support the jury’s affirmative answer to the special
punishment issue on future dangerousness. The district court noted
that the Court of Criminal Appeals used the correct standard of
review and concluded that Nealy had not shown by clear and
convincing evidence that any of the state court’s factual
determinations were incorrect.
Nealy contends that, although he had a history of robberies,
the previous robberies had not been violent; there was nothing
particularly brutal about the instant offense; he could have fired
the shotgun after being surprised; the State did not offer
psychiatric evidence that he would be a future danger to society;
and the extraneous offense evidence from his time in prison was
minimal.
Nealy is not entitled to a COA for this claim because
reasonable jurists would not find debatable the district court’s
conclusion that the state court’s decision was not an unreasonable
determination of the facts or an unreasonable application of
clearly established federal law.
III
10
For the foregoing reasons, Nealy’s request for a COA is
GRANTED, in part, and DENIED, in part.
11