Nobles v. Johnson

REVISED
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-50093
JONATHAN WAYNE NOBLES,
Petitioner - Appellant,
VERSUS
GARY L. JOHNSON,
Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Texas
October 28, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JOHN M. DUHÉ, JR., Circuit Judge:
Appellant Jonathan Wayne Nobles (“Nobles”) appeals the
district court’s denial of his application for writ of habeas
corpus. For the reasons that follow, we affirm.
FACTUAL BACKGROUND
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 scene2 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.
PROCEDURAL HISTORY
1
On the evening before the murders Nobles and O’Brien had
purchased hypodermic needles filled with what O’Brien assumed was
speed. After the purchase, O’Brien dropped Nobles off at his
godmother’s house around 6:00 p.m. and picked him up again around
8:00 p.m. She did not actually see Nobles take any drugs but
assumed he had because of his behavior and because she observed
track marks on his arms the following morning. O’Brien testified
that Nobles told her he had ingested speed, cocaine, marijuana and
liquor that night and that he did not remember what had happened.
2
Nobles’s fingerprint was found on one of the window screens
found in the victims’ backyard. Blood and pubic hair found at the
scene were consistent with Nobles’s own.
2
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.
ISSUES RAISED
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.
DISCUSSION
3
I.
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 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, 117 S. Ct. 2059 (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, 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
3
We have held that the current Texas scheme for appointment of
counsel in capital cases, pursuant to Tex. Code Crim. Proc. Ann.
art. 11.071 § 2(d), does not qualify Texas for the expedited
procedures of new Chapter 154. See Mata v. Johnson, 99 F.3d 1261,
1266-67 (5th Cir. 1996), vacated in part on other grounds, 105 F.3d
209 (5th Cir. 1997); see also Carter v. Johnson, 110 F.3d 1098,
1104 (5th Cir. 1997).
4
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
4
Drinkard and its progeny presumably remain precedent in this
circuit to the extent they interpret the provisions of the AEDPA
and do not conflict with Lindh’s conclusion that the chapter 153
amendments do not apply to cases pending on the effective date of
the Act. See Green v. Johnson, 116 F.3d 1115, 1120 n.2 (5th Cir.
1997).
5
The district court granted Nobles’s motion and stayed his
execution on November 8, 1995.
6
Nobles also argues that 28 U.S.C. § 2251, the authority by
which the district court stayed his execution, demonstrates that
his case was “pending” when the AEDPA became effective. Section
2251 provides in pertinent part:
A justice or judge of the United States before whom
a habeas corpus proceeding is pending may, before
final judgment or after final judgment of
discharge, or pending appeal, stay any proceeding
against the person detained in any State court or
by or under the authority of any State for any
matter involved in the habeas corpus proceeding.
5
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
In McFarland v. Scott, 512 U.S. 849 (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. The Court also held
that “once a capital defendant invokes his right to appointed
(emphasis added). Nobles contends that the stay of execution under
§ 2251 “is clearly sufficient judicial intervention in the case to
consider the case ‘pending.’” He also points out that Congress
used the expression “cases pending” in AEDPA § 107(c) in defining
the temporal scope of new chapter 154.
7
See, e.g., Lindh, 117 S. Ct. at 2061 (“The issue in this case
is whether that new section of the statute dealing with petitions
for habeas corpus governs applications in noncapital cases that
were already pending when the Act was passed.”); id. at 2063 (“The
statute reveals Congress’ intent to apply the amendments to chapter
153 only to such cases as were filed after the statute’s enactment
(except where chapter 154 otherwise makes select provisions of
chapter 153 applicable to pending cases.”); id. at 2064 (“If, then,
Congress was reasonably concerned to ensure that chapter 154 be
applied to pending cases, it should have been just as concerned
about chapter 153, unless it had the different intent that the
latter chapter not be applied to the general run of pending
cases.”); id. at 2068 (“We hold that the negative implication of
§ 107(c) is that the new provisions of chapter 153 apply only to
cases filed after the Act became effective.”)(emphasis added).
8
21 U.S.C. § 848(q)(4)(B) provides:
In any post conviction proceeding under section
2254 or 2255 of title 28, seeking to vacate or set
aside a death sentence, any defendant who is or
becomes financially unable to obtain adequate
representation or investigative, expert, or other
reasonably necessary services shall be entitled to
the appointment of one or more attorneys and the
furnishing of such other services in accordance
with paragraphs (5), (6), (7), (8), and (9).
6
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.
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 (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
9
The majority appeared to confirm Justice Thomas’ view when,
responding to his dissent, it observed that § 848(q)(4)(B) indeed
creates a “divergent practice” for capital defendants, insofar as
their habeas proceedings are commenced by a motion for appointment
of counsel. By contrast, “[b]ecause noncapital defendants have no
equivalent right to the appointment of counsel in federal habeas
corpus proceedings, it is not surprising that their habeas corpus
proceedings typically will be initiated by the filing of a habeas
corpus petition.” McFarland, 512 U.S. at 857 n.3.
7
counsel. McFarland, 512 U.S. at 862 (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, No. 96-31167, 1997 WL
612739 (5th Cir. Oct. 3, 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,
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.
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
10
Justice O’Connor also cited other provisions of the habeas
statute to show that a habeas proceeding is not “pending” until an
application has been filed: e.g., § 2254(d) (referring to “any
proceeding instituted in a Federal court by an application for a
writ of habeas corpus”); § 2242 (an “[a]pplication for a writ of
habeas corpus . . . shall allege the facts concerning the
applicant’s commitment or detention”); § 1914(a) (“the parties
instituting any . . . proceeding in [district court must] pay a
filing fee of $120, except that on application for a writ of habeas
corpus the filing fee shall be $5"); Habeas Corpus Rule 2(a)
(“[T]he application shall be in the form of a petition”). Id.
8
standards to Nobles’s petition.
II.
A.
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 evidence was material, and (3) the
prosecution knew that the evidence was false. Giglio v. United
States, 405 U.S. 150, 153-154 (1972); Boyle v. Johnson, 93 F.3d
180, 186 (5th Cir. 1996). Evidence is “false” if, inter alia, it
11
At the punishment phase of the trial, the jury responded
“yes” to Special Issue Number 1, which asked if the jury had found
that Nobles committed the murders “deliberately and with the
reasonable expectation that the death of [the victims] would
result.” See Texas Code Crim. Proc. Ann. art. 37.071(b)(3) (West
1981). Counsel for Nobles argued at the punishment phase that
Nobles had been temporarily insane during the murders due to the
combined effect of drugs and alcohol.
9
is “specific misleading evidence important to the prosecution’s
case in chief.” See Donnelly v. DeChristoforo, 416 U.S. 637, 647
(1974). False evidence is “material” only “if there is any
reasonable likelihood that [it] could have affected the jury’s
verdict.” Westley v. Johnson, 83 F.3d 714, 726 (5th Cir. 1996),
cert. denied, 117 S. Ct. 773 (1997).
The state habeas court denied this claim, finding that
“[Nobles’s] allegations do not suggest . . . the presentation of
false evidence by the State.” The district court observed that the
state court addressed the “falsity” of the evidence but made no
findings as to its “materiality.” The district court then found
that the edited confession “was, at least to some degree,
misleading in an important way,” but ruled that Nobles’s claim
failed the “materiality” prong of the Giglio test. Specifically,
the district court found that Nobles’s asserted memory loss was not
credible given his detailed descriptions of trivial events before
and after the murders, and that, in any case, such evidence was
cumulative of other evidence presented to the jury.12 Thus, the
court found no “reasonable likelihood the jury would have returned
a different verdict at the guilt or punishment stages of trial if
it had heard the unedited confession.” Nobles v. Johnson, No. A95-
12
For example, at the punishment phase the jury heard the
testimony of Pastor Charles Hyde and Assistant Pastor Frank
McElhenney who had both spoken to Nobles shortly after the murders.
They testified that Nobles had admitted that he had trouble
recalling whether he had actually killed anyone. Further, the
edited confession, admitted during the guilt/innocence phase of the
trial, “retained numerous allusions to the fragmented state of
Nobles’s memory.” Nobles, mem. op. at 18.
10
CA-703 SS, mem. op. at 19 (W.D.Tex. Dec. 19, 1996).13
1.
We need not decide whether the edited confession constituted
“false evidence” under Giglio, because we agree with the district
court that the confession, even if “false,” was not “material,”
because it could not have reasonably affected the jury’s
determination that Nobles deliberately committed the murders.
Whether false evidence is “material” under Giglio is a mixed
question of law and fact. United States v. Bagley, 473 U.S. 667,
679 n.8. (1985); Napue v. Illinois, 360 U.S. 264, 271-72 (1959).
When reviewing a mixed question of law and fact under the AEDPA, a
federal court may grant habeas relief only if it determines that
the state court decision rested on “an unreasonable application
of[] clearly established Federal law, as determined by the Supreme
Court,” to the facts of the case. 28 U.S.C. § 2254(d)(1)(West
1997); see Drinkard, 97 F.3d at 767-68. An application of law to
facts is unreasonable “only when it can be said that reasonable
13
Nobles asserts that the district court applied an incorrect
materiality standard by requiring a showing that the jury would
have reached a different result because of the false evidence. See
Westley, 83 F.3d at 726 (requiring a showing of a reasonable
likelihood that the false testimony could have affected the jury’s
verdict). We observe that the district court’s able memorandum
opinion cited to Westley and recited the proper standard for
materiality. See Nobles, mem. op. at 12. Nothing in the district
court’s analysis, save the one sentence cited by Nobles, indicates
that it applied a more stringent standard than Westley requires.
Finally, we observe that, even if the district court applied the
wrong standard, we are free to substitute the correct one. Baker
v. Metcalfe, 633 F.2d 1198, 1201 (5th Cir. 1981). As our
discussion, infra, demonstrates, we would find in any case no
reasonable possibility that the allegedly false evidence could have
had any effect on the jury’s findings.
11
jurists considering the question would be of one view that the
state court ruling was incorrect.” Drinkard, 97 F.3d at 769.
Before applying amended § 2254(d)(1), we must first determine
whether Nobles’s Giglio claim was “adjudicated on the merits” in
the state court proceedings. See 28 U.S.C. § 2254(d)(West 1997).
We feel some reservation about applying the more stringent AEDPA
standards to this claim because we are not convinced that the state
habeas court sufficiently addressed Nobles’s Giglio claim. As the
district court observed, the state habeas court did not address the
“materiality” prong of Giglio but simply ruled, without evidentiary
hearing, that “applicant’s allegations do not suggest ... the
presentation of false evidence by the state.”14
We need not determine, however, whether the state habeas court
sufficiently adjudicated Nobles’s Giglio claim on the merits for
purposes of amended § 2254(d), because we find that the allegedly
misleading edited confession was not “material” even applying the
pre-AEDPA de novo standard of review. See Gochicoa v. Johnson, 118
F.3d 440, 445 (5th Cir. 1997); 28 U.S.C. § 2254(d)(West 1994).
Nobles claims the prosecution selectively edited his
confession to omit portions which supported his defense of mental
14
Cf. Williams, 1997 WL 612739, at *7 (finding sufficient
adjudication on the merits where state court conducted evidentiary
hearing and made specific findings on issue); Moore v. Johnson, 101
F.3d 1069, 1075 (5th Cir. 1996)(state court made “full and fair”
adjudication on the merits where it conducted evidentiary hearing,
heard testimony and entered detailed findings of fact and
conclusions of law in support of judgment); Drinkard, 97 F.3d at
768 (“no question” that claim was adjudicated on the merits where
state court entered findings of fact and conclusions of law as to
issue).
12
impairment. His abridged confession, Nobles contends, presented to
the jury a “more inculpatory statement” than his actual, unedited
confession. Nobles offers as a primary example the following
excerpt heard by the jury:
I remember going out for a walk so I could
catch my breath. I did have a knife in my
hand and I felt the warmth hit my hand.
The unedited version reads as follows:
Okay, well anyway at the point that I got back
home and I walked out the door I don’t
remember. I remember going out for a walk so
I could catch my breath. The next thing I
remember was getting kicked in the face and
hearing a girl scream it had to be a woman
scream and I did not lunge out and for some
reason I had a knife in my hand. I did have a
knife in my hand because I did not reach out
and stab anybody but I felt somebody run at me
after I got kicked or hit or whatever but
somebody moved into me and I felt the warmth
hit my hand.
Nobles contends this example, and others like it, show that the
prosecution cobbled together unrelated bits of his confession to
present a misleading picture of his culpability.15
Assuming that the edited confession constituted “false
15
The prosecution’s asserted reason for introducing an edited
confession is far less malevolent. At the time of Nobles’s trial,
the prosecution was unclear about the viability of the Texas
“voucher rule,” a rule of evidence providing that any exculpatory
material introduced by the State and not directly or indirectly
disproved by it is binding upon it. See, e.g., Palafox v. State,
608 S.W.2d 177, 181 (Tex. Crim. App. 1979). At the time of
Nobles’s trial, the Texas Court of Criminal Appeals had clearly
indicated, albeit in dicta, that the common law voucher rule had
been abrogated by Texas Rule of Evidence 607 (permitting a party to
impeach its own witness). See Ibanez v. State, 749 S.W.2d 804, 807
n.3 (Tex. Crim. App. 1986). Russeau v. State, 785 S.W.2d 387, 390
(Tex. Crim. App. 1990) subsequently held that Rule 607 abolished
the voucher rule.
13
evidence,” we must ask if there is any reasonable likelihood that
the false evidence could have affected the jury’s determination
that Nobles deliberately committed the murders. See Westley, 83
F.3d at 726. We find none.
We first observe that the edited confession is replete with
references both to Nobles’s failure to remember significant
portions of the murders and also to his generally fragmented state
of mind.16 Additionally, other witnesses testified that Nobles told
them he had taken drugs and could not remember what happened on the
night of the murders.17 There was also evidence that Nobles
ingested the drugs and alcohol some seven to ten hours before the
murders; that Nobles drove around with O’Brien after taking the
drugs and spoke rationally to her about a business venture; and,
that Nobles wore gloves during the murders and afterwards disposed
16
For example, the edited version contains Nobles’s following
response, when asked whether one of his female victims said
anything to him during the attack:
No. And then she kept -- she just screamed, and
screamed, and screamed, and screamed. And then the
next thing I remember somebody else was screaming
so I ran into another room. And it was another
girl who started hitting me. And I remember this
girl had dark hair because somebody had kept the
lights on. And she was hitting on me. I was
lunging at her with the knife.
When asked whether he remembered stabbing himself, Nobles
responded:
I think so. And the next thing I remember is
running out the door. I don’t remember getting
home.
17
Marlly O’Brien, Pastor Charles Hyde and Assistant Pastor
Frank McElhenney testified to that effect. See supra note 12.
14
of the evidence of his crime. Given the evidence of mental
impairment in the edited confession and the other evidence of the
deliberateness of Nobles’s acts, we find no reasonable likelihood
that the allegedly misleading edited confession could have affected
the jury’s determination.18
2.
We offer, as did the district court, an alternative basis for
rejecting Nobles’s due process claim. During trial, Nobles’s
counsel objected to the manner in which the State introduced the
edited confession.19 During the ensuing bench conference, the trial
judge gave defense counsel the opportunity to compare the edited
and unedited versions, and also specifically instructed counsel
that he had “an absolute right pursuant to [Texas Rule of Criminal
Evidence] 106 to complete the record” if he so desired. Nobles’s
counsel chose not to do so.
18
Nobles’s contention that the prosecutor capitalized on the
omissions by emphasizing there was no evidence of mental impairment
has no merit. We find, as did the district court, that the
prosecutor made legitimate comments on the evidence. The
prosecutor argued (1) that the amount of time between Nobles’s
ingestion of the drugs and the murders cast doubt on his temporary
insanity argument; and, (2) that the fact that Nobles wore gloves
and covered up the evidence of his crime showed that he knew what
he was doing was wrong. Viewing his remarks in their proper
context, the prosecutor was merely arguing that the evidence showed
Nobles knew what he was doing was wrong, i.e., that he was not
temporarily insane due to intoxication. In his brief, Nobles
ironically takes the prosecutor’s comments out of context in trying
to show he was commenting directly on the omitted portions of
Nobles’s confession.
19
Nobles’s counsel objected to the State’s “vouching” for those
portions of the confession it sought to admit, asserting the
voucher rule had been abrogated by Texas Rule of Criminal Evidence
607. See discussion supra note 15.
15
We find that Nobles’s counsel waived any error regarding the
edited confession, since he had the unedited version in his
possession and chose not to enter it into evidence. Nobles cannot
now claim that the introduction of the edited version violated his
right to due process when his trial attorneys possessed, and chose
not to use, the very evidence that would have corrected the
asserted misrepresentation. See United States v. Sutherland, 656
F.2d 1181, 1203-04 (5th Cir. 1981)(denying claim of prosecutorial
misconduct because, inter alia, defense counsel possessed
impeaching grand jury testimony of Government witness but failed to
use it, and also denying new trial for Brady violation because
exculpatory evidence was made available to defense).
B.
Nobles also claims that trial counsel’s failure to present his
unedited confession to the jury denied him the effective assistance
of counsel guaranteed by the Sixth and Fourteenth Amendments. He
argues that counsel’s deficient performance resulted, at the guilt
phase of trial, in denial of an instruction on the lesser-included
offense of voluntary manslaughter. He also contends that had the
jury been able to consider his unedited confession during the
punishment phase, it reasonably could have found Nobles had not
acted deliberately. Nobles also argues there was no conceivable
tactical reason at either phase for counsel’s failure to introduce
the unedited confession.
1.
To prevail on this claim, Nobles must show (1) that counsel’s
16
performance was deficient, and (2) that the deficient performance
prejudiced his defense. Strickland v. Washington, 466 U.S. 668,
687 (1984); Washington v. Johnson, 90 F.3d 945, 953 (5th Cir.
1996). Performance is deficient when counsel’s representation
falls below an objective standard of reasonableness. Strickland,
466 U.S. at 688; Washington, 90 F.3d at 953. Deficient performance
is prejudicial when there is a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been
different; a reasonable probability is one sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694;
Washington, 90 F.3d at 953.
Both prongs of the Strickland test involve mixed questions of
law and fact. Strickland, 466 U.S. at 698. Under the AEDPA, a
federal court will thus not grant a writ of habeas corpus unless
the state court’s conclusions involved an “unreasonable
application” of clearly established federal law as determined by
the Supreme Court. See Carter v. Johnson, 110 F.3d 1098, 1110;
Moore, 101 F.3d at 1075-76; 28 U.S.C § 2254(d)(1). An application
of federal law is “unreasonable” if it is “so clearly incorrect
that it would not be debatable among reasonable jurists.”
Drinkard, 97 F.3d at 769.
2.
The state habeas court concluded that, because the portions
omitted from Nobles’s proffered confession would not have supported
a voluntary manslaughter charge under Texas law, Nobles had not
demonstrated prejudice from counsel’s alleged error. We cannot say
17
that the state court’s conclusion involved an unreasonable
application of the Strickland v. Washington test.
Nobles’s claim that the portions omitted from the confession
would have supported a voluntary manslaughter charge is devoid of
merit. At the time of the murders, one was guilty of voluntary
manslaughter in Texas if one committed what would otherwise be
murder “under immediate influence of sudden passion arising from
adequate cause.” Tex. Penal Code Ann. § 19.04 (West 1974).20
Voluntary manslaughter is a lesser-included offense of capital
murder; a defendant is entitled, upon request, to the lesser-
included charge if “it is included within the proof necessary to
establish the offense charged” and if “there [is] some evidence in
the record that if the defendant is guilty, he is guilty of only
the lesser offense.” See Aguilar v. State, 682 S.W.2d 556, 558
(Tex.Crim.App. 1985).
The omitted portions of Nobles’s confession simply fail to
demonstrate either the “sudden passion” or “adequate cause”
necessary to support a voluntary manslaughter charge. The portions
in which Nobles states that one of the victims “kicked him in the
face” or “kept hitting him” show, at most, the victims’ attempts to
ward off Nobles’s vicious attack. Texas courts have repeatedly
held that when a defendant initiates a criminal episode, a victim’s
20
“Sudden passion” refers to “passion directly caused by the
individual killed or another acting with the person killed which
passion arises at the time of the offense and is not solely the
result of former provocation.” Id. “Adequate cause” means “cause
that would commonly produce a degree of anger, rage, resentment, or
terror in a person of ordinary temper, sufficient to render the
mind incapable of cool reflection.” Id.
18
attempts to defend himself will not constitute “adequate cause”
from which sudden passion will arise for purposes of voluntary
manslaughter. See, e.g., Adanandus v. State, 866 S.W.2d 210, 231
(Tex.Crim.App. 1993), cert. denied, 510 U.S. 1215 (1994); Vuong v.
State, 830 S.W.2d 929, 939 (Tex.Crim.App.), cert. denied, 506 U.S.
997 (1992).21 We further note that parts of Nobles’s confession
presented to the jury contained similar references to the victims’
striking Nobles.
Because the omitted portions of Nobles’s confession could not
have conceivably supported a voluntary manslaughter charge under
Texas law, Nobles can demonstrate no prejudice at the guilt phase
resulting from counsel’s allegedly deficient performance.
3.
Nobles also claims that counsel’s deficient performance
prejudiced him at the punishment phase, in that the jury could
reasonably have found from the omitted portions of the confession
that Nobles did not deliberately kill his victims. The state
habeas court found that, even assuming counsel’s deficient
performance, Nobles failed to demonstrate prejudice.22 Given the
21
We agree with the district court that, insofar as Nobles asks
us to review the state court’s application of state law, his claims
are outside the scope of federal habeas review. See Pemberton v.
Collins, 991 F.2d 1218, 1223 (5th Cir. 1993). We thus address
whether the omitted evidence would have supported a voluntary
manslaughter charge under Texas law only in the context of Nobles’s
Sixth Amendment ineffective assistance of counsel claim (i.e., to
demonstrate that Nobles suffered no prejudice from his counsel’s
alleged error).
22
The state habeas court took a wholly unsympathetic view of
Nobles’s arguments regarding his unedited confession:
19
cumulative nature of the omitted evidence, the essential
unbelieveability of Nobles’s asserted memory loss, and the
otherwise overwhelming evidence of deliberateness, we do not find
the state court’s determination to be an unreasonable application
of Strickland.
C.
Nobles also claims that he was denied the effective assistance
of counsel because his attorneys failed to present at the
punishment phase a sufficient amount of the mitigating evidence in
their possession regarding Nobles’s traumatic childhood and his
history of drug abuse and mental illness. Nobles argues that this
unprofferred evidence could have led the jury to conclude that
Nobles did not commit his crimes deliberately. See discussion
supra Part II.A. Respondent argues that Nobles did not raise this
ineffective assistance of counsel claim in the state courts and has
thus failed to exhaust available state remedies. Furthermore,
since the Texas court to which Nobles would present this claim
would now find it barred under the Texas abuse-of-writ doctrine,
Respondent contends Nobles has procedurally defaulted for purposes
of federal habeas review.
The gist of the applicant’s omitted statements [is] to
the effect that he for some reason unknown to himself
found himself in another’s house in the dark of night
where women began to scream and cast their bodies upon
his knife which he held in his hand also for some reason
unknown to him.
The state court thus found neither deficient performance in
counsel’s failure to introduce the unedited confession nor
prejudice resulting therefrom.
20
1.
A state prisoner normally must exhaust all available state
remedies before he can apply for federal habeas relief. See Ex
parte Royall, 117 U.S. 241, 251 (1886).23 To have exhausted his
state remedies, a habeas petitioner must have fairly presented the
substance of his claim to the state courts. Picard v. Connor, 404
U.S. 270, 275-76 (1971). The exhaustion requirement is not
satisfied if the prisoner presents new legal theories or factual
claims in his federal habeas petition. Anderson v. Harless, 459
U.S. 4, 6-7 (1982); Vela v. Estelle, 708 F.2d 954, 958 (5th Cir.
1983).
A distinct but related limit on the scope of federal habeas
review is the doctrine of procedural default. If a state court
clearly and expressly bases its dismissal of a prisoner’s claim on
a state procedural rule, and that procedural rule provides an
independent and adequate ground for the dismissal, the prisoner has
procedurally defaulted his federal habeas claim. Coleman v.
Thompson, 501 U.S. 722, 731-32 (1991); see Harris v. Reed, 489 U.S.
255, 262-63 (1989); Wainwright v. Sykes, 433 U.S. 72, 81 (1977).
A procedural default also occurs when a prisoner fails to exhaust
available state remedies and “the court to which the petitioner
would be required to present his claims in order to meet the
exhaustion requirement would now find the claims procedurally
23
See 28 U.S.C. §§ 2254(b) and (c)(West 1994); see also 28
U.S.C. § 2254(b)(West 1997).
21
barred.” Coleman, 501 U.S. at 735 n.1.
2.
Nobles admits that in his state habeas proceeding he did not
claim ineffective assistance of counsel based on failure to
introduce mitigating evidence. Instead, Nobles asserted the
related Sixth Amendment claim that he had been denied the effective
assistance of a competent court-appointed psychiatrist. See Ake v.
Oklahoma, 470 U.S. 68, 83 (1985). On appeal, Nobles urges us to
entertain his re-postured ineffective assistance of counsel claim
because the “gist” of it, and the factual issues, are the same as
those involved in his ineffective psychiatric assistance claim.
The district court rejected this argument, finding that the claims
implicate “two wholly different inquiries” and that Nobles thus did
not fairly present his ineffective assistance of counsel claim to
the state courts. We agree with the district court.
To meet the exhaustion requirement, “[i]t is not enough that
all the facts necessary to support the federal claim were before
the state courts.” Anderson, 459 U.S. at 6. Rather, the federal
habeas petitioner must have provided the state courts with a “‘fair
opportunity’ to apply controlling legal principles to the facts
bearing upon his constitutional claim.” Id., quoting Picard, 404
U.S. at 276-77. Nobles’s argument to the state habeas court that
he was not provided with competent psychiatric assistance did not
give that court a “fair opportunity” to consider the factually
related but legally distinct ineffective assistance of counsel
claim he now presses upon us.
22
In his state habeas petition, Nobles based his due process
claim on the “lack of a reliable mental health evaluation by his
state-appointed experts in competently investigating petitioner’s
background to discover a mother-lode of information indicative of
life-long mental disorders.” Nobles primarily24 relied on the
Supreme Court’s decision in Ake v. Oklahoma, 470 U.S. 68 (1985),
which recognized an indigent defendant’s due process right to a
competent psychological evaluation when his sanity would be a
significant factor at trial. Ake, 470 U.S. at 83. Nobles asserted
that, because of the failure of his court-appointed psychiatrist to
conduct a competent investigation into his traumatic past, the jury
did not hear evidence that, during the murders, Nobles was in the
grip of a dissociative episode and was thus not acting
deliberately. The state habeas court rejected Nobles’s claim,
finding that he had provided no “rational basis for finding that
the psychiatrist ... was incompetent or performed incompetently.”
In his federal habeas petition, Nobles shifted focus from the
24
Nobles did allude twice in his state habeas petition to the
connection between competent psychiatric assistance and the
effective assistance of counsel. He cited Blake v. Kemp, 758 F.2d
523 (11th Cir. 1985), which recognized that a defendant’s right to
the effective assistance of counsel was impaired by the State’s
withholding of probative evidence from the psychiatrist ordered to
evaluate the defendant’s sanity. Blake, 758 F.2d at 532. He also
cited United States v. Edwards, 488 F.2d 1154 (5th Cir. 1974),
which emphasized the “particularly critical interrelation between
expert psychiatric assistance and minimally effective assistance of
counsel.” Edwards, 488 F.2d at 1163. Nobles relied on Blake and
Edwards, however, only to demonstrate that “a competent mental
health expert is essential to an effective defense,” and not to
malign his trial counsel’s performance. Those references, then,
were insufficient to fairly present to the state court the
substance of the ineffective assistance claim urged in Nobles’s
federal petition. See Picard, 404 U.S. at 275.
23
alleged incompetence of his court-appointed psychiatrist to that of
his trial counsel.25 He claimed that counsel failed to present most
of the available mitigating evidence regarding Nobles’s childhood
and history of mental illness.26 Given that one of the primary
issues the jury had to resolve during the punishment phase was
deliberateness, Nobles asserts there was no conceivable reason for
counsel’s failure to introduce all available evidence of his
troubled psyche.
Nowhere in his state habeas petition did Nobles claim that his
trial counsel provided ineffective assistance regarding the
introduction of mitigating evidence. He focused exclusively on the
allegedly incompetent investigation performed by his court-
appointed psychiatrist. Only in his federal habeas petition did
Nobles call into question his attorneys’ performance on this
ground.
In addressing a due process claim based on ineffective
25
In his federal petition, Nobles abandons all reference to his
psychiatrist’s allegedly incompetent evaluation. Nobles merely
mentions in passing that the defense “was assisted by state-funded
psychiatrist, Dr. George Pazdral.” Indeed, despite Nobles’s
assertions in state court that, due to Dr. Pazdral’s deficient
evaluation, counsel was deprived of “an explanation for the crime
which would have completely negated the state’s proof of intent,”
Nobles now claims, in federal court, that “[n]early all of the now-
known evidence of Mr. Nobles’s nightmarish upbringing and
psychological disorders was available to trial counsel.”
26
Nobles asserts, for example, that counsel failed to introduce
evidence: that, as a child, Nobles was frequently beaten by his
mother and step-father; that Nobles was, at various times,
diagnosed with schizophrenia, neurological impairment and impulse
disorder; and, that Nobles had experienced episodes of explosive
rage and auditory hallucinations in which he heard the voice of a
young man instructing him to hurt people.
24
psychiatric assistance, a court must inquire whether the defendant
was provided access to a “competent psychiatrist” and whether that
psychiatrist competently examined the defendant and “assist[ed] in
evaluation, preparation and presentation of the defense.” Ake, 470
U.S. at 83. By contrast, a court assessing whether a defendant was
provided with the effective assistance of counsel must focus on the
reasonableness of counsel’s decisions and in particular whether
allegedly deficient performance falls within the wide range of
reasonable professional assistance. See Strickland, 466 U.S. at
688-91. The court’s focus does not change even when the
ineffective assistance of counsel claim is predicated on counsel’s
failure to introduce mitigating psychological evidence. See Black
v. Collins, 962 F.2d 394, 403 (5th Cir. 1992)(finding reasonable
counsel’s decision not to present evidence that defendant suffered
from Post-Traumatic Stress Syndrome in light of defense strategy at
punishment phase).27
27
Nobles relies on the Eighth Circuit’s decision in Guinan v.
Armontrout, 909 F.2d 1224 (8th Cir. 1990) for the proposition that
presentation of a claim in state court “similar enough” to the
federal claim will save the federal claim from being procedurally
barred. Guinan is distinguishable on its facts, however. In
Guinan, petitioner asserted at the state level a due process claim
based on denial of a mental exam to determine his competency. He
subsequently asserted in his federal petition two due process
claims, based on the denial of a psychiatric examination and on the
denial of possible mitigating evidence. The court found the latter
two claims “obviously closely related” to the first claim and thus
held that “the due process claim as a whole was adequately
presented to the state courts.” Guinan, 909 F.2d at 1227.
Significantly, the court observed that, regardless of which aspect
of his due process claim was considered, the court would engage in
the same legal analysis -- i.e., the analysis prescribed by Ake v.
Oklahoma. Id. In Nobles’s case, by contrast, his distinct claims
implicate two different legal analyses.
We find more apposite the case of Lamberti v. Wainwright, 513
25
In sum, Nobles “advance[d] in federal court an argument based
on a legal theory distinct from that relied upon in state court,”
and therefore failed to satisfy the exhaustion requirement. Vela,
708 F.2d at 958 n.5, citing Anderson, 459 U.S. at 7.
3.
As noted above, the district court also found Nobles’s claim
barred by the doctrine of procedural default. The court reasoned
that because Tex. Code Crim. Proc. Ann. art. 11.071 § 5(a)28 would
prohibit Nobles from filing a successive habeas petition at the
state level, Nobles had procedurally defaulted his ineffective
F.2d 277 (5th Cir. 1975). There, the petitioner asserted in his
state habeas petition that his untimely appeal to the state
appellate court was due to the trial court’s unauthorized and
allegedly misleading extension of time in which to file a motion
for new trial. In federal court, petitioner asserted for the first
time that his late appeal was the product of his attorneys’
deficient performance. We found that petitioner’s ineffective
assistance claim was not the “substantial equivalent” of his first
claim, based on the actions of the trial judge, even though the
basic facts underlying both claims were similar. Lamberti, 513
F.2d at 281-83. Thus, petitioner failed to meet the exhaustion
requirement. Id.
28
Article 11.071 § 5(a) provides in pertinent part:
If an original application for a writ of habeas corpus is
untimely or if a subsequent application is filed after
filing an original application, a court may not consider
the merits of or grant relief on the subsequent or
untimely original application unless the application
contains sufficient specific acts establishing that:
* * *
(3) by clear and convincing evidence, but for a
violation of the United States Constitution no
rational juror would have answered in the state’s
favor one or more of the special issues that were
submitted to the jury in the applicant’s trial
under Article 37.071 or 37.0711.
26
assistance of counsel claim. See Coleman, 501 U.S. at 735 n.1.
Were Nobles to file a successive habeas petition in the Texas
state courts, his application would be governed by § 5(a) of
article 11.071. See Ex parte Davis, 947 S.W.2d 216, 222
(Tex.Crim.App. 1996)(McCormick, J., concurring).29 That section
would prohibit a Texas court from considering the successive
petition on the merits, unless it met certain exceptions. Id. The
only exception arguably applicable here would allow consideration
of the successive petition if it contained
sufficient specific facts establishing that
... by clear and convincing evidence, but for
a violation of the United States Constitution
no rational juror would have answered in the
state’s favor one or more of the special
issues that were submitted to the jury in the
applicant’s trial under Article 37.071 or
37.011.30
Tex. Code Crim. P. Ann. art. 11.071 § 5(a)(3)(West 1997).
After considering Nobles’s Sixth Amendment claim based on
counsel’s failure to sufficiently introduce mitigating evidence, we
fail to discern evidence of any constitutional violation
whatsoever, much less a constitutional violation that impacted the
jury’s findings at the punishment phase. The so-called
“mitigating” psychological evidence Nobles refers to was at best
29
“If an applicant has previously filed a habeas corpus
application ... an applicant must establish one of the exceptions
contained in Article 11.071, Section 5(a), to permit this Court to
consider the merits of a successive habeas corpus petition....”
Id.
30
Articles 37.071 and 37.0711 govern sentencing proceedings in
death penalty cases. See Tex. Code. Crim. P. arts. 37.071 and
37.0711 (West 1997).
27
double-edged: not to present evidence of Nobles’s volatile mental
state, especially given counsel’s decision to emphasize Nobles’s
non-violent history,31 was clearly reasonable trial strategy. See
Black, 962 F.2d at 403 (finding that, where counsel chose to
emphasize defendant’s non-violent history, decision not to present
all evidence tending to negate “deliberateness” element not
unreasonable); see also Green, 116 F.3d at 1123. Even assuming
counsel’s deficient performance, Nobles could not in any case
demonstrate prejudice, given that the evidence of his childhood
trauma and history of mental illness was cumulative of other
evidence actually presented during the punishment phase. We thus
find that a Texas court, presented with a successive state habeas
petition on this claim, would find it barred under article 11.071
§ 5(a).
Given that article 11.071 is “a new statute, largely
uninterpreted by state cases,” we provide an alternate basis for
applying the doctrine of procedural default. See Emery v. Johnson,
No. 96-20826, 1997 WL 564153, at *3 (5th Cir. Sept 10, 1997);
Mangaroo v. Nelson, 864 F.2d 1202, 1204 n.2 (5th Cir. 1989). The
Texas abuse-of-writ doctrine32 prohibits a second habeas petition,
31
As the district court pointed out, at the punishment phase
Nobles’s counsel chose to focus on the second special issue, which
asked the jury whether it found beyond a reasonable doubt “a
probability that the defendant would commit criminal acts of
violence that would constitute a continuing threat to society.”
See Texas Code Crim. P. Ann. art. 37.071(b)(2)(West 1981).
32
We note that in his concurring opinion in Davis, Judge
McCormick, joined by Judges White, Meyers, and Keller, expressed
the opinion that “[t]he successive writ provisions of Article
11.071, Section 5(a), for the most part are merely a legislative
28
absent a showing of cause, if the applicant urges grounds therein
that could have been, but were not, raised in his first habeas
petition. See Ex parte Barber, 879 S.W.2d 889, 891 n.1
(Tex.Crim.App. 1994)(en banc)(plurality opinion). That doctrine
represents an adequate state procedural bar for purposes of federal
habeas review. See Emery, 1997 WL 564153, at *3; Fearance v.
Scott, 56 F.3d 633, 642 (5th Cir. 1995). Given that Nobles has
cited no cause for his failure to raise his Sixth Amendment claim
in his initial state habeas petition, the Texas abuse-of-writ
doctrine would constitute an independent and adequate bar to a
successive habeas petition.33
Thus, whether we consider article 11.071 or the abuse-of-writ
codification of the judicially created “abuse of the writ”
doctrine.” Ex parte Davis, 947 S.W.2d at 226 (McCormick, J.,
concurring). In view of the dearth of judicial interpretation of
Article 11.071 § 5(a), however, we cannot definitively say, and
therefore do not venture to guess, whether that section was
intended to codify the preexisting abuse-of-writ doctrine. We
provide an alternate basis for finding procedural default, then,
assuming that the abuse-of-writ doctrine is still viable in light
of Article 11.071 § 5(a).
33
We recognize that a habeas petitioner can overcome a
procedural default by showing cause for and actual prejudice
resulting from the default. See Wainwright, 433 U.S. at 86-91.
Nobles has not, however, advanced any cause for his failure to
raise in his initial state habeas petition his Sixth Amendment
claim based on counsel’s failure to introduce mitigating evidence.
We also note that in Mata, we identified a new “cause and actual
innocence” standard imposed by amended § 2254(e)(2), applicable
when a habeas petitioner “has failed to develop the factual basis
for a claim in State court proceedings.” See Mata, 99 F.3d at 1271
& n.36. We observe in passing that Nobles could not meet the §
2254(e)(2) standard because, inter alia, it requires a showing by
clear and convincing evidence that “but for constitutional error,
no
reasonable factfinder would have found the applicant guilty of the
underlying offense.” See 28 U.S.C. § 2254(e)(2)(B).
29
doctrine, Nobles has procedurally defaulted his unexhausted Sixth
Amendment claim.
4.
The AEDPA amended 28 U.S.C. § 2254(b) to allow a federal court
to deny an application on the merits, “notwithstanding the failure
of the applicant to exhaust the remedies available in the courts of
the State.” 28 U.S.C. § 2254(b)(2)(West 1997). We note that
amended § 2254(b)(2) is permissive (“[a]n application ... may be
denied ...”). The district court, after finding Nobles’s claim
procedurally defaulted, found in the alternative that his claim
would not have succeeded on the merits. We review the district
court’s resolution of this mixed question of law and fact de novo.
See Green, 116 F.3d at 1122.
We agree with the district court that Nobles’s allegations
fail to demonstrate his counsel’s deficient performance, and that,
in any case, Nobles could not show prejudice resulting therefrom.
As the district court observed, “mitigation is in the eye of the
beholder.” While the unprofferred evidence of Nobles’s childhood
abuse and emotional problems may have helped Nobles on the
deliberateness issue, the same evidence could have strengthened the
prosecution’s argument that Nobles posed a continuing threat to
society. Thus, counsel’s decision not to offer such evidence did
not constitute deficient performance. Furthermore, the
unprofferred evidence was cumulative and thus could not have
affected the outcome of the punishment phase.
CONCLUSION
30
For the foregoing reasons, we AFFIRM the district court’s
denial of Nobles’s petition for writ of habeas corpus.
31