Filed: Sep. 27, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 27, 2004 Charles R. Fulbruge III _ Clerk NO. 02-60385 _ JOHN B. NIXON, SR., Petitioner-Appellant, versus CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondent-Appellee. Appeal from the United States District Court for the Southern District of Mississippi 3:95-CV-91(Br)(S) Before JONES, SMITH and BENAVIDES, Circuit Judges. PER CURIAM:* This habeas ap
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 27, 2004 Charles R. Fulbruge III _ Clerk NO. 02-60385 _ JOHN B. NIXON, SR., Petitioner-Appellant, versus CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondent-Appellee. Appeal from the United States District Court for the Southern District of Mississippi 3:95-CV-91(Br)(S) Before JONES, SMITH and BENAVIDES, Circuit Judges. PER CURIAM:* This habeas app..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 27, 2004
Charles R. Fulbruge III
_______________________ Clerk
NO. 02-60385
_______________________
JOHN B. NIXON, SR.,
Petitioner-Appellant,
versus
CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
3:95-CV-91(Br)(S)
Before JONES, SMITH and BENAVIDES, Circuit Judges.
PER CURIAM:*
This habeas appeal arises out of the January 1985 murder
of Virginia Tucker. John B. Nixon, Sr. was convicted of capital
murder by a Rankin County, Mississippi jury after a three-day
trial. In the penalty phase of the trial the jury returned a death
penalty verdict and found that the capital offense was committed
for pecuniary gain, that the murder was especially heinous,
*
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opinion should not be published and is not precedent except under the limited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.
atrocious and cruel, and that the defendant had previously been
convicted of a felony involving the use or threat of violence to a
person. The conviction was affirmed on direct appeal by the
Mississippi Supreme Court. Nixon v. State, 533 So. 2d 1078 (Miss.
1987). Certiorari was denied by the United States Supreme Court in
1989. Nixon v. Mississippi,
492 U.S. 932,
110 S. Ct. 13,
106
L. Ed. 2d 628 (1989). Nixon exhausted his state post-conviction
remedies. Nixon v. State,
641 So. 2d 751 (Miss. 1994), cert.
denied, Nixon v. Mississippi,
513 U.S. 1120,
115 S. Ct. 922,
130
L. Ed. 2d 802 (1995). Nixon then filed a federal petition for a
writ of habeas corpus. The district court, in a series of three
decisions between 1998 and 2002, denied habeas relief. The case
comes to this court on appeal from the district court’s grant of a
certificate of appealability (COA) on Nixon’s claim of ineffective
assistance of counsel and on Nixon’s motion to this court for a COA
on ten other grounds.
For the reasons that follow, we deny COA on most of the
issues sought by petitioner, but grant COA and deny relief on his
Batson/Powers claim. We grant COA on his claim regarding the
introduction of a prior violent felony conviction before the jury
as an aggravator. We defer ruling on the ineffective assistance
claim pending briefing.
I. BACKGROUND
2
On January 22, 1985, Nixon and two other individuals
arrived at the home of Thomas and Virginia Tucker. Upon entering
the house, Nixon pulled out a .22 caliber pistol and said, “I
brought y’all something.” Mr. Tucker, who had married his wife six
months earlier (a scant three months after her prior divorce was
finalized), immediately surmised that men had been hired by
Mrs. Tucker’s former husband, Elster Joseph Ponthieux. Tucker
offered Nixon money to spare their lives, but Ponthieux replied
“[t]hat’s not what I’m after. The deal’s already been made.”
Nixon and one of his associates then shot at Tucker, who managed to
escape despite being hit in the side. Tucker made his way to his
nearby place of work and asked a co-worker to check on his wife.
Meanwhile, Nixon took the gun back from his associate, held the gun
one inch behind Mrs. Tucker’s ear and fired a shot into her head.
Nixon and his associates fled. Mrs. Tucker was soon discovered by
Tucker’s co-worker and was taken to the hospital, where she died
the next day. Nixon was arrested after being identified in a
lineup by Mr. Tucker.
At trial, as noted above, Nixon was convicted of capital
murder and sentenced to death. Following completion of his direct
appeal and state post-conviction proceedings, Nixon filed a federal
habeas petition that was denied by the district court. This
application for a COA followed.
3
II. DISCUSSION
Nixon has briefed ten separate grounds upon which he
argues a COA should issue, and the state has responded. We first
set forth the applicable standards of review and then turn to the
issues he has raised.
A. Standard of Review
Nixon filed his original federal habeas petition in the
district court on May 24, 1995. Because the petition was filed
before the effective date of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), pre-AEDPA standards apply to the
district court’s review of the petition as well as to our review of
the petition. See Lindh v. Murphy, 521 U.S. 320, 326-27,
117
S. Ct. 2059, 2063,
138 L. Ed. 2d 481 (1997); see also Slack v.
McDaniel,
529 U.S. 473, 481,
120 S. Ct. 1595, 1602,
146 L. Ed. 2d
542 (2000) (noting that “Lindh requires a court of appeals to apply
pre-AEDPA law in reviewing the trial court’s ruling, for cases
commenced there pre-AEDPA”). However, because Nixon’s notice of
appeal was filed in this court on January 14, 2003, the post-AEDPA
version of 28 U.S.C. § 2253 — the statute governing appeals of
habeas petitions — sets forth the appropriate standard for this
court to apply in determining whether Nixon has a right to appeal.
Slack, 529 U.S. at 481, 120 S. Ct. at 1602.
Part of Nixon’s appeal remains pending before this court
following the district court’s grant of a COA on one issue. In
4
this portion, however, we must decide whether to expand the COA
grant after the district court refused it on the other issues. In
making the threshold inquiry into whether a COA should issue, the
Supreme Court reminds us, AEDPA bars the courts of appeals from
undertaking “full consideration of the factual or legal basis
adduced in support of the claims.” Miller-El v. Cockrell, 537 U.S.
322, 336,
123 S. Ct. 1029, 1039,
154 L. Ed. 2d 931 (2003). Rather,
we must be careful to undertake only “an overview of the claims in
the habeas petition and [make] a general assessment of their
merits.”
Miller-El, 537 U.S. at 336, 123 S. Ct. at 1039.
A COA should issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2000 & Supp. 2003). This standard is
satisfied when the applicant demonstrates that “jurists of reason
could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude that the
issues presented are adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 327, 123 S. Ct. at 1034. We may
not, however, deny a COA merely because we believe “that the
applicant will not demonstrate an entitlement to relief.”
Id. at
337, 123 S. Ct. at 1039. Moreover, “a claim can be debatable even
though every jurist of reason might agree, after the COA has been
granted and the case has received full consideration, that
petitioner will not prevail.”
Id. at 338, 123 S. Ct. at 1040.
Therefore, where the death penalty is at issue, “any doubt as to
5
whether a COA should issue must be resolved in [the petitioner’s]
favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000).
In evaluating the district court’s resolution on the
merits of issues presented to it, we review the district court’s
findings of fact for clear error and its conclusions of law de
novo. Finley v. Johnson, 243 F.3d 215, 218 (5th Cir. 2001). We
review its determination of a procedural bar de novo. Johnson v.
Puckett,
176 F.3d 809, 814 (5th Cir. 1999).
B. Procedural Bars
Nixon first argues that a COA should issue because the
district court improperly found that the following claims were
procedurally barred: (1) that the prosecution improperly dis-
criminated on the basis of race in using its peremptory strikes
during voir dire in violation of Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712,
90 L. Ed. 2d 69 (1986), (2) that the evidence of
Mr. Tucker’s identification of Nixon during the lineup and at trial
was improper because it was derived from impermissibly suggestive
and unreliable procedures, and (3) that the prosecution improperly
withheld exculpatory evidence in violation of Brady v. Maryland,
373 U.S. 83,
83 S. Ct. 1194,
10 L. Ed. 2d 215 (1963). The state
argues that while the district court held these claims to be
procedurally barred, it also addressed each claim on the merits in
the alternative and as such, the COA should not issue because
jurists of reason cannot dispute the district court’s resolution of
6
the merits issues. Because each of these issues appears in a
distinct procedural context, we will examine them along with any
appropriate merits discussion.
The general principles of procedural default may be
quickly repeated. A federal court may not grant habeas relief
where the last state court to consider the claim raised by the
petitioner expressly and unambiguously based its denial of relief
on an independent and adequate state law procedural ground.
Henderson v. Cockrell, 333 F.3d 592, 604 (5th Cir. 2003), cert.
denied, Henderson v. Dretke,
124 S. Ct. 1170,
157 L. Ed. 2d 1208
(2004). A state procedural rule is independent if it does not
“depend[] on a federal constitutional ruling,” Ake v. Oklahoma,
470 U.S. 68, 75,
105 S. Ct. 1087, 1092,
84 L. Ed. 2d 53 (1985), and
it is adequate if firmly established and regularly and consistently
applied by the state court.
Henderson, 333 F.3d at 604. Where a
state court finds procedural default on the basis of an independent
and adequate state ground, absent a showing of cause and actual
prejudice, a federal habeas petitioner may not obtain relief.
Id.
(citing Coleman v. Thompson,
501 U.S. 722, 750,
111 S. Ct. 2546,
2565,
115 L. Ed. 2d 640 (1991)).
C. Batson Claim
1. Procedural Default on the Batson/Powers Claim
The district court considered itself precluded from
reviewing several of Nixon’s claims, including his Batson/Powers
7
claim, because the state courts had determined that Nixon failed to
raise the claim properly during the state court proceedings. The
state concedes, however, that the district court misinterpreted the
Mississippi Supreme Court’s ruling concerning this claim on
collateral review, see Nixon, 641 So. 2d at 753-56, and a COA would
be proper if the federal court’s discussion had stopped there.
Because the federal court went on to resolve this claim on the
merits, correctly, in the state’s view, the state concludes that no
COA is required. In a cautious approach to the Supreme Court’s
decision in
Miller-El, supra, we grant COA but hold that Nixon’s
claim cannot prevail.
2. Batson, Powers and Teague Non-Retroactivity
Nixon argues that the exclusion of all African-Americans
from his jury violated the Fourteenth Amendment under Batson and
Powers. On direct appeal, the Mississippi Supreme Court held that
as a white male, Nixon lacked standing to raise a Batson challenge
based on the exclusion of jurors of a different race. Nixon, 533
So. 2d at 1086. Two years after Nixon’s cert. petition was denied,
however, the Supreme Court held that a white male could challenge
the discriminatory use of peremptory challenges.
Powers, 499 U.S.
at 416. On post-conviction review, the state supreme court held
that the non-retroactivity principle of Teague barred the
application of Powers and that Nixon could not obtain any relief on
his Batson claim. Nixon,
641 So. 2d. at 753-55. The federal
8
district court agreed with the Mississippi Supreme Court and held
that Powers was not retroactively applicable.
To begin with, Batson itself is not retroactive to claims
pending on collateral review. Allen v. Hardy, 478 U.S. 255, 261,
106 S. Ct. 2878, 2881,
92 L. Ed. 2d 199 (1986) (per curiam) (“Our
weighing of the pertinent criteria compels the conclusion that the
rule in Batson should not be available to petitioner on federal
habeas corpus review of his convictions.”). While some of the
logic underlying Allen has since been repudiated by the Supreme
Court, the case nonetheless remains good law. See Procter v.
Butler,
831 F.2d 1251, 1254 n.4 (5th Cir. 1987) (noting that while
the Supreme Court’s holding in Griffith v. Kentucky,
479 U.S. 314,
107 S. Ct. 708,
93 L. Ed. 2d 649 (1987) that Batson applies to
cases still pending on direct appeal “casts some doubt on the
continued validity of Allen's reasoning,” the Court “limited its
holding to cases still on direct appeal, and avoided any suggestion
that Allen's holding — concerning cases on collateral review —
should be changed”). Since Nixon’s case became final on direct
appeal following Batson, Batson applies to his claim. United
States v. Robinson,
367 F.3d 278 (5th Cir. 2004) (citing
Griffith,
479 U.S. at 322, 107 S. Ct. at 712).
The determinative question in this case, and res nova in
this court, is whether Powers sets forth a “new rule” that is not
retroactively applicable under Teague. As the state notes, every
other circuit court to have directly addressed this issue has held
9
that Powers is not retroactively applicable to claims on collateral
review. See, e.g., Nguyen v. Reynolds, 131 F.3d 1340, 1351-52
(10th Cir. 1997); Jones v. Gomez,
66 F.3d 199, 202-04 (9th Cir.
1995); Van Daalwyk v. United States,
21 F.3d 179, 180-83 (7th Cir.
1994); Farrell v. Davis,
3 F.3d 370, 371-72 (11th Cir. 1993);
Echlin v. LeCureux,
995 F.2d 1344, 1349-51 (6th Cir. 1993). Nixon
agrees and cites no cases to the contrary, but he nonetheless
argues that Powers does not constitute a new rule under Teague.
Based on the strong consensus, not only of federal circuit courts
but also of state supreme courts, that Powers is nonretroactive on
collateral review, we disagree. See Brown v. State,
798 So. 2d 481,
505-06, ¶ 66 (Miss. 2001); Brewer v. State,
819 So. 2d 1165,
1167-68, ¶¶ 13-14 (Miss. 2000); Holland v. State,
705 So. 2d 307,
327-29, ¶¶ 45-47, 53-55 (Miss. 1997); King v. State,
656 So. 2d
1168, 1174-78 (Miss. 1995); Fleming v. State,
604 So. 2d 280, 294
(Miss. 1992). Nixon’s citation of a footnote in J.E.B. v. Alabama,
511 U.S. 127, 141 n.12,
114 S. Ct. 1419, 1427 n.12,
128 L. Ed. 2d
89 (1994), which suggests doctrinal “compulsion” behind the Court’s
prohibition of sex-based peremptory strikes, also fails to
persuade. J.E.B. followed Powers and Batson as a logical corollary
of those cases’ holdings that race-based peremptory strikes violate
the Equal Protection Clause. The J.E.B. footnote expresses no
opinion on, and certainly does not reach, the separate question
whether it was “doctrinally compelled,” and therefore not a “new
rule,” to hold that a defendant from one race or sex can challenge
10
discrimination in jury selection against members of another race or
gender. Nixon’s Batson/Powers claim fails on the merits.
D. Improper Identification Claim
In his pre-trial motion to suppress, Nixon asserted that
Mr. Tucker’s identification of him was the product of an unduly
suggestive lineup. The motion was eventually withdrawn by Nixon’s
trial counsel and the issue was not raised at trial. On direct
appeal, the Mississippi Supreme Court noted that no objection was
made at trial on this issue, and therefore, the claim may not have
been cognizable on appeal, Nixon, 533 So. 2d at 1086-87, but the
court proceeded to consider and reject Nixon’s identification claim
on the merits.
Id. On state post-conviction review, the identifi-
cation claim was not addressed by the court, but was dismissed as
procedurally barred. Nixon,
641 So. 2d at 756 (“A published
analysis of the remaining issues is unwarranted because Nixon has
waived his right to raise them at this time.”).1
It is unclear whether, in stating that this claim is
procedurally barred from federal review, the district court relied
upon the Mississippi Supreme Court’s ruling on direct appeal or on
post-conviction review. In any event, because the district court
also discussed this claim in detail and rejected it on the merits,
we need not decide the correctness of the district court’s
1
The court based its procedural bar ruling on two bars available under
Mississippi’s post-conviction review scheme: (1) failure to raise a claim on
direct appeal and (2) res judicata where a claim was raised and disposed of on
the merits on direct appeal. See Nixon, 641 So. 2d at 756 n.8.
11
procedural bar analysis. More than that, we may not decide the
merits of the identification claim either, for, unlike his Batson
claim, Nixon has not requested a COA on the district court’s ruling
on the merits. Nor does Nixon brief or argue any substantive
challenge to the district court’s merits ruling on the identifi-
cation claim in this court. As a result, Nixon has abandoned any
argument that the district court’s resolution of the merits claim
is debatable among jurists of reason. See Foster, 293 F.3d 766
784 (5th Cir. 2002) (unbriefed claims are abandoned). Even if we
granted a COA on the procedural default question, our decision
would not provide Nixon with any relief because the merits
determination by the district court must stand. See
Slack, 529
U.S. at 484-85 (where a procedural ruling is at issue, § 2253
requires a petitioner to show debatable issues concerning both the
denial of a constitutional right and error in a district court’s
procedural ruling before a court of appeals may grant a COA and
consider the appeal). Thus, we decline to grant the COA on the
district court’s procedural default ruling regarding the
identification claim and we will not issue a COA on the merits of
the claim.
E. Brady Claim
When the Brady claim was first raised by Nixon on post-
conviction review, the Mississippi Supreme Court held the claim
procedurally barred. Nixon, 641 So. 2d at 756. Because the Brady
12
claim was not raised at trial or on direct appeal or discussed on
its merits, it is apparent that the Mississippi court relied solely
on the failure to raise bar. This bar constitutes an independent
state ground for rejecting a habeas petitioner’s claim in federal
court. See Puckett, 176 F.3d at 823-24 (discussing the application
of MISS. CODE ANN. § 99-39-21(1) to the petitioner’s Batson claim);
see also Stokes v. Anderson,
123 F.3d 858, 860 (5th Cir. 1997)
(holding that Ҥ 99-39-21(1) does contain an independent state
procedural bar”).
The next question is whether the failure to raise bar is
adequate as applied to Brady claims. As the state notes, “[w]e
presume the adequacy and independence of a state procedural rule
when the state court expressly relies on it in deciding not to
review a claim for collateral relief.” Sones v. Hargett, 61 F.3d
410, 416 (5th Cir. 1995). Further, the petitioner bears the burden
of demonstrating the inadequacy of a state procedural rule and must
show that the state has failed to apply the procedural bar to
claims similar to those he raises.
Stokes, 123 F.3d at 860. While
Nixon cites no cases indicating that Mississippi has failed
regularly to apply the procedural bar contained in § 99-39-21(1) to
Brady-type claims, and therefore appears unable to carry his burden
13
in this regard, we are reluctant to foreclose the issue altogether
because the cases cited by the state are less than compelling.2
As a prudential matter, we shall assume arguendo that the
state procedural bar applied to this claim was independent and
adequate, and move on to Nixon’s contention that his claim is
reviewable based upon a showing of cause and actual prejudice.
Henderson, 333 F.3d at 604 (citing
Coleman, 501 U.S. at 750, 111
S. Ct. at 2565). We need not consider his allegation of cause for
his procedural default, however, as Nixon cannot show actual
prejudice from the alleged Brady violation.
In order to succeed on a Brady claim, a defendant must
show that (1) the state withheld evidence, (2) the evidence is
favorable to the accused, and (3) the evidence is material to guilt
or punishment. DiLosa v. Cain, 279 F.3d 259, 262-63 (5th Cir.
2002) (citing United States v. Bagley,
473 U.S. 667, 674,
105
S. Ct. 3375, 3379,
87 L. Ed. 2d 481 (1985)). Evidence is material
2
The cases cited by the state for the proposition that the Mississippi
Supreme Court has consistently applied the failure to raise bar to Brady claims
do not clearly stand for that proposition. Indeed, at least one recent
Mississippi Supreme Court case appears to indicate that the Mississippi court is
not necessarily strict and consistent in its application of this bar in Brady
cases. See Simon v. State, 857 So. 2d 668, 679 (Miss. 2003) cert. denied by
Simon v. Mississippi,
124 S. Ct. 1885 (2004) (refusing to impose the failure to
raise procedural bar where a petitioner claimed he did not have access to the
Brady materials at the time of his direct appeal). In addition, the state’s
citation to Johnson v. Puckett,
176 F.3d 809 (5th Cir. 1999), for the proposition
that the failure to raise bar is adequate as applied to Brady claims is
incorrect. Johnson considered a Brady claim that the petitioner conceded was
barred and discussed only whether the petitioner had established cause and
prejudice. See
Johnson, 176 F.3d at 815-16. The Johnson court’s holding that
the application of Mississippi’s failure to raise bar constituted an independent
and adequate state ground for precluding federal habeas relief pertained only to
a Batson claim.
Id. at 823-24.
14
under Brady “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Bagley, 473 U.S. at 682.
The evidence proffered by Nixon was neither material nor
prejudicial.
Nixon alleges that Wade Carpenter, the man who sold the
gun that was used to murder Mrs. Tucker, was shown a picture of an
individual that the police believed to be the murderer and that
Carpenter said he did not sell the gun to the individual in the
photograph. This much of Nixon’s claim is supported by Carpenter’s
affidavit. However, Nixon also claims, with no evidentiary
support, that Nixon’s photo was the one shown to Carpenter. As the
district court noted in its opinion, nothing in Carpenter’s affi-
davit even suggests that Nixon was the man in the picture. In
addition, given that one of Nixon’s co-conspirators testified at
trial that Nixon was the triggerman who killed Mrs. Tucker, any
benefit that Nixon would have gained from Carpenter’s statement,
even if he was actually referring to a photo of Nixon, is illusory
at best. Identification of Nixon as the culprit was not a
significant issue at trial. Carpenter’s statement was neither
material under Brady nor did Nixon suffer actual prejudice as a
result of its being withheld.
For these reasons, we pretermit the decision whether to
grant a COA on the district court’s ruling that Nixon procedurally
defaulted his Brady claim. And, because we agree with the district
15
court that Nixon cannot demonstrate that the allegedly withheld
information was material or prejudicial under Brady, we decline to
grant a COA on the merits of the claim.
F. Improper Jury Instructions Claim
Nixon asserts that the jury instructions improperly
emphasized the requirement of unanimity with regard to mitigating
circumstances. The parties dispute whether this claim was raised
on direct appeal. The state court held this claim to be
procedurally barred on post-conviction review. Nixon, 641 So. 2d
at 756. The federal district court held that the claim was pro-
cedurally barred because the claim had not been raised on direct
appeal and, in the alternative, that the claim had no merit.
Nixon now argues that it is debatable among reasonable
jurists that the district court erred in its procedural bar ruling
because his claim was actually raised on direct appeal in an
Amendment to Petition for Rehearing. He cites Hathorn v. Levon,
457 U.S. 255,
102 S. Ct. 2421, 2424,
72 L. Ed. 2d 824 (1982), for
the proposition that new claims raised in rehearing petitions
before the Mississippi Supreme Court may be considered by the
federal courts. In this case, as in Hathorn, the petition for
rehearing was denied by the Mississippi Supreme Court without a
published opinion.
Hathorn, 457 U.S. at 259, 102 S. Ct. at 2424.
In Hathorn, the Supreme Court held that the Mississippi Supreme
Court’s denial of rehearing without opinion did not constitute the
16
application of an “adequate” state procedural bar because the Court
found it “difficult to know whether the Mississippi Supreme Court
still adheres to the rule [barring review of questions raised for
the first time on rehearing], applying it silently, or whether the
court has abandoned the rule.” Id. at 263. The state essentially
argues that Hathorn is no longer good law because since Hathorn,
the Mississippi Supreme Court has repeatedly held that it will not
consider arguments raised for the first time on rehearing.
We need not address the question of Hathorn’s continued
validity on this issue, however, because Hathorn is inapplicable to
this case. Here, the procedural bar was not applied “silently”
because, unlike in Hathorn, the denial of rehearing was not the
final ruling of the state courts on this issue. Rather, on post-
conviction review, the Mississippi Supreme Court held the claim to
be procedurally barred. Nixon, 641 So. 2d at 756. In his brief
before this court, Nixon does not argue that the Mississippi
procedural bars are inadequate as applied to his jury instruction
claim, nor does he argue that he can demonstrate cause and
prejudice sufficiently to overcome the application of any
procedural bar on this issue. Nixon’s argument against procedural
bar has no debatable merit. Since no jurist of reason could
disagree with the district court’s ruling that the jury instruction
17
claim is procedurally barred, we decline to grant a COA on this
claim.3
G. Surprise Testimony Claim
Nixon contends that the prosecution violated his right to
due process because it did not notify him prior to trial that
Mr. Tucker and Jimenez, a co-conspirator, would testify that, in
the course of committing the crime, Nixon told Mr. Tucker that “the
deal’s already been made.” The non-disclosure of this statement,
Nixon argues, violated the state’s pretrial representation to Nixon
and prejudiced his defense, which had been predicated on the
state’s inability to support capital murder charges based on a
murder-for-hire theory.
Nixon’s surprise testimony claim before this court
parallels his assertion before the state courts that the state had
violated Mississippi discovery rules. See Nixon, 533 So. 2d at
1088-91. The Mississippi Supreme Court held, on direct appeal,
that the trial court had followed the proper guidelines under state
law to address any discovery violations underlying the contested
testimony and that at least some of the statements did not fall
within the relevant state discovery rule.
Id. The district court
3
Even if we considered the merits of Nixon’s jury instruction claim,
we would hold that the district court’s alternative resolution of the claim on
the merits is undebatable. The jury instructions given by the state trial court
did not improperly suggest that the jury needed to find mitigating circumstances
unanimously to avoid imposition of the death penalty. To the contrary, the jury
instructions made clear that the jury was not required to find “any mitigating
circumstances in order to return a sentence of life imprisonment.” Thus, even
if we were to grant the COA on Nixon’s procedural claim, it would be unavailing
to him because he would not be entitled to any relief on the merits.
18
reviewed the substance of this claim and found that it had no
merit.
As Nixon evidently recognizes, a claim that state law has
been violated is generally not cognizable on federal habeas.
Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475,479-80,
116
L. Ed. 2d 385 (1991). He has attempted to recast his state claim
as a federal constitutional claim by citation to Brady.
Unfortunately for Nixon, this effort is unavailing. The ostensibly
withheld information was neither exculpatory nor useful for
impeachment purposes, as Brady requires. Nixon claims only that
his trial team was surprised by the use of this powerfully
inculpatory testimony. Such testimony, when not useful for
impeachment purposes, simply does not fall within the ambit of
Brady and its progeny. See Strickler v. Greene,
527 U.S. 263, 280,
119 S. Ct. 1936, 1947,
144 L. Ed. 2d 286 (1999) (noting that the
Brady obligation applies to “impeachment evidence as well as
exculpatory evidence”).4
More importantly, we agree with the district court that
Nixon cannot demonstrate any prejudice arising from the allegedly
improper withholding of this information. Jimenez made a post-
arrest statement to the police, which was provided to the defense
during discovery and clearly implicated Nixon in a murder-for-hire
plot. Thus, the defense was on notice that such testimony would
4
To hold otherwise would be creating an impermissible “new rule” of
constitutional procedure. See Gray v. Netherland, 518 U.S. 152, 166-70 (1996).
19
likely be presented at trial. The notion that the additional
testimony regarding the “deal” so prejudiced the defense as to rise
to the level of a due process violation is untenable.
Jurists of reason cannot disagree with the district
court’s analysis of this issue, and we decline to grant a COA.
H. “Especially Heinous, Atrocious or Cruel” Aggravator
Nixon argues that the use of the “especially heinous,
atrocious or cruel” aggravator violated his constitutional rights
because it is unconstitutionally vague and did not properly narrow
the class of individuals who are death-eligible. The state court
denied this claim on the merits on direct appeal. Nixon, 533 So.
2d at 1097-98. In Maynard v. Cartwright,
486 U.S. 356,
108 S. Ct.
1853,
100 L. Ed. 2d 372 (1988), the Supreme Court held that such an
aggravator is unconstitutionally vague unless an appropriate
limiting instruction is provided.
Id. at 364. The jury
instruction provided at Nixon’s trial defined a capital offense to
be “especially heinous, atrocious or cruel,” where the offense is
“a conscienceless or pitiless crime which is unnecessarily
torturous to the victim.” This language was borrowed by the
Mississippi Supreme Court from a Fifth Circuit opinion. See
Clemons v. State,
535 So. 2d 1354, 1363 (Miss. 1988) (quoting
Spinkellink v. Wainwright,
578 F.2d 582, 611 (5th Cir. 1978)). The
Fifth Circuit, in turn, quoted a Florida Supreme Court opinion.
See State v. Dixon,
283 So. 2d 1, 9 (Fla. 1973) (internal citation
20
omitted). The Mississippi Supreme Court quoted the following
language from these cases:
What is intended to be included are those capital crimes
where the actual commission of the capital felony was
accompanied by such additional acts as to set the crime
apart from the norm of capital felonies — the
conscienceless or pitiless crime which is unnecessarily
torturous to the victim.
Clemons, 535 So. 2d at 1363 (internal quotation marks and citations
omitted). The United States Supreme Court has at least implicitly
endorsed the limiting instruction adopted by the Mississippi
Supreme Court, referring to it as “the proper limiting construction
of the ‘especially heinous’ aggravating factor.” Clemons v.
Mississippi,
494 U.S. 738, 751, 110 S. Ct. 1441, 1449,
108
L. Ed. 2d 725 (1990) (emphasis added). In doing so, the Supreme
Court cited the page from the Mississippi Supreme Court’s opinion
in Clemons that contains the above quotation.
Id. (citing Clemons,
535 So. 2d at 1363). Earlier in Clemons, the Court recited the
Mississippi Supreme Court’s narrowing language to include “murders
that are conscienceless or pitiless and unnecessarily torturous to
the victim . . .
.” 494 U.S. at 744, 110 S. Ct. at 1446 (internal
quotations and citations omitted).
Notwithstanding this reasonably clear guidance in
Clemons, Nixon contends that the Supreme Court really meant to
require in the narrowing construction that “the actual commission
of the capital felony [must be] accompanied by such additional acts
as to set the crime apart from the norm of capital felonies.” We
21
cannot accept Nixon’s position as reasonably debatable for two
reasons. First, the Supreme Court in Clemons never expressly
refers to the language on which he relies. Second, as the district
court noted, a capital case jury can hardly be expected to know
what facts set apart the case before them from “the norm of capital
felonies.” Such language would improperly invite speculation and
references to wholly extraneous events.
Finally, as we noted in Billiot v. Puckett, 135 F.3d 311
(5th Cir. 1998), “a federal habeas court may not grant relief
unless the petitioner demonstrates that the error ‘had a
substantial and injurious effect or influence in determining the
jury's
verdict.’” 135 F.3d at 318 (quoting Brecht v. Abrahamson,
507 U.S. 619, 622,
113 S. Ct. 1710, 1714,
123 L. Ed. 2d 353
(1993)). As a result, “a federal habeas court must conduct a
harmless error analysis of all trial errors . . . before granting
habeas relief.”
Id. Here, it seems apparent, as it did to the
district court, that had the jury been instructed with the
additional language sought by Nixon, the testimony adduced at trial
regarding the execution-style killing of Mrs. Tucker would have
inexorably led the jury to conclude beyond a reasonable doubt that
an aggravating circumstance existed.5 Thus, any error in the jury
5
The Mississippi Supreme Court found that the murder qualified under
the “especially heinous” aggravator based upon the following facts adduced at
trial:
Mr. Nixon forcibly entered the house of a couple who feared he was
there to kill them; Nixon fired several shots at Mr. Tucker in the
presence of Mrs. Tucker; Mrs. Tucker was wrestled to the floor in
preparation for her murder; Nixon held a pistol an inch from Mrs.
22
instruction was harmless at best and the district court’s ruling to
that effect is not debatable among jurists of reason. COA is not
warranted on this claim.
I. Prior Violent Felony Claim
Nixon asserts that his prior Texas conviction for rape
should not have been introduced before the jury to satisfy the
“prior violent felony” aggravating circumstance because he pled
guilty to statutory rape, not rape involving the use of force. See
Miss. Code Ann. § 99-19-101(5)(b) (indicating that a prior
conviction for “another capital offense or of a felony involving
the use or threat of violence to the person” is an aggravating
circumstance under Mississippi law). Mississippi law requires that
the prosecutor prove each aggravating circumstance beyond a
reasonable doubt. See Nixon, 533 So. 2d at 1099; Miss. Code Ann.
§ 99-19-103 (Supp. 1986).
The 1958 Texas indictment to which Nixon pled guilty
accused him of “ma[king] an assault and . . . ravish[ing] and
hav[ing] carnal knowledge” of a woman under eighteen years of age.
The Mississippi Supreme Court held that this conviction qualified
as a prior violent felony based on the Texas Court of Criminal
Appeals decision in Rodrigues v. State, 308 S.W.2d 39 (Tex. Crim.
Tucker’s head and fired a bullet into her brain; Mrs. Tucker was
left to die, but was found within one-half hour bleeding from the
mouth and nose and gasping for breath; and Mrs. Tucker struggled to
live but died the next day.
Nixon, 533 So. 2d at 1097-98. These facts place the case beyond the norm even
of capital felonies.
23
Ohio App. 1957). Nixon,
533 So. 2d at 1098-99. The district court
independently reviewed the claim and agreed with the Mississippi
court, reading Rodrigues to stand for the proposition that because
an indictment including the terms “ravish” and “assault” could
support a conviction for rape by force as well statutory rape, and
because the terms were not necessary to a conviction for statutory
rape, Nixon’s guilty plea qualified the conviction as a prior
violent felony.
The district court relied upon the language in Rodrigues
which indicates that under Texas law,
[t]he word “ravish” implies force and want of consent,
and its use in the indictment in connection with the
allegation of rape of a female between the ages of 15 and
18 years, as here, renders the indictment sufficient to
support a conviction for rape by force as well as for
statutory rape.
Rodrigues, 308 S.W.2d at 40. However, as Nixon points out, the
Texas court went on to hold that “[t]he word ‘ravish’ is not,
however, descriptive of the offense, and it is therefore not
necessary that force be proven in order to sustain a conviction
under such indictment.”
Id. (emphasis added). Indeed, in
Rodrigues, the Texas court rejected the state’s argument that such
an indictment could only support a conviction for rape by force.
Id. As a result, the court held that the defendant should have
been permitted to submit a jury instruction indicating that the
previous unchaste behavior of the accuser would constitute a valid
24
defense to the indictment — a defense that was only available in
statutory rape cases under Texas law at the time.6 Id.
In addition to the dispute over the status of this
conviction as an aggravator, there is a question whether its being
placed before the jury amounted to harmless error. See
Billiott,
supra.
Thus, we find it at least debatable among jurists of
reason whether a guilty plea to such an indictment can support a
jury finding that Nixon had committed a prior violent felony and
that such a finding may support the imposition of the death
penalty.7 Therefore we grant the COA on this claim.
J. Double Use Claim
Nixon next argues that the use of the “for pecuniary
gain” aggravator was inappropriate in his case because this
aggravator duplicates an element of his offense of conviction under
Mississippi’s capital murder statute. See Miss. Code Ann. § 97-3-
19(2)(d). The Mississippi Supreme Court on direct appeal held that
6
The state, in its brief before this court, provides no analysis of
this issue and rather simply relies on the district court opinion and asserts
that the district court’s resolution of the claim is not debatable.
7
In holding that this claim is debatable among jurists of reason, we
do not suggest, as Nixon proposes, that it is appropriate to examine the Texas
state court proceedings related to Nixon’s prior conviction or information beyond
the fact of conviction, the underlying indictment and Nixon’s guilty plea to the
indictment. As the state points out, Mississippi law relating to sentencing
enhancements appears to indicate that such an examination is inappropriate
because of the potential for extended proceedings to consider the nature of
prior offenses. See Phillips v. State, 421 So. 2d 476, 481 (Miss. 1982) (“In
fulfilling its mission to determine whether a prior conviction is
constitutionally valid for the purpose of enhancing a defendant's sentence, the
trial court must not be placed in position of ‘retrying’ the prior case.”).
25
claim was foreclosed by substantial state and federal court
precedent. Nixon, 533 So. 2d at 1097. Like that court and the
district court, we hold that Nixon’s claim was barred by existing
precedent. See Lowenfield v. Phelps,
484 U.S. 231, 246,
108 S. Ct.
546, 555,
98 L. Ed. 2d 568 (1988) (the “fact that the aggravating
circumstance duplicated one of the elements of the crime does not
make [a death] sentence constitutionally infirm”); Tuilaepa v.
California,
512 U.S. 967, 971-72,
114 S. Ct. 2630, 2634-35,
129
L. Ed. 2d 750 (1994) (“To render a defendant eligible for the death
penalty in a homicide case, we have indicated that the trier of
fact must convict the defendant of murder and find one ‘aggravating
circumstance’ (or its equivalent) at either the guilt or penalty
phase.” “The aggravating circumstance may be contained in the
definition of the crime or in a separate sentencing factor (or in
both).”) (emphasis added; internal citations omitted). Williams v.
Taylor,
529 U.S. 362, 392 n.16,
120 S. Ct. 1495, 1513 n. 16, 146
L. Ed. 2d 389 (2000) . Nixon’s purported distinctions of
Lowenfield and Tuilaepa are meritless; no COA is warranted.
K. Psychological Assistance Claim
Nixon argues that the trial court’s failure to appoint a
psychologist on his behalf violated his constitutional rights under
Ake v. Oklahoma, 470 U.S. at 83, 105 S. Ct. at 1096, and the due
process clause. The Mississippi Supreme Court denied this claim on
the merits on direct appeal. Nixon,
533 So. 2d at 1095-97. The
26
federal district court on habeas rejected the claim on the merits
holding that Nixon had not even made a preliminary showing or
presented any evidence to the trial court, which suggested that an
expert would have provided any useful information in this case.
We have read Ake to impose
a constitutional obligation [upon the state] to provide
an indigent criminal defendant with access to the
assistance of a psychiatrist in the following two
circumstances: (1) “when a defendant demonstrates to the
trial judge that his sanity at the time of the offense is
to be a significant factor at trial” and (2) “in the
context of a capital sentencing proceeding, when the
State presents psychiatric evidence of the defendant's
future dangerousness.”
White v. Johnson, 153 F.3d 197, 200 (5th Cir. 1998) (quoting
Ake,
470 U.S. at 83). Nixon presented no evidence to the trial court
that his sanity at the time of the offense would be a significant
factor at trial nor did the state present psychiatric evidence at
the sentencing phase.
Nixon posits more broadly that he sought expert
assistance in order to obtain evidence in support of and to
establish mitigating circumstances at the sentencing phase. As
shown, this request does not state a valid claim under Ake, as
interpreted by this court. White, 153 F.3d at 204. Moreover, as
there is no Supreme Court authority enunciating a capital
defendant’s constitutional right to obtain court-appointed
psychiatric counsel outside the standards of Ake, Nixon in effect
asks this court impermissibly to create a “new rule” of law,
contrary to Teague v. Lane,
489 U.S. 288,
109 S. Ct. 1060, 103
27
L. Ed. 2d 334 (1989). The district court’s resolution of this
issue is not reasonably debatable for purposes of granting a COA.
L. Claim for Ineffective Counsel at Motion for New Trial
Finally, Nixon claims that he was denied his Sixth
Amendment right to counsel during consideration of his motion for
a new trial. When this issue was raised on direct appeal, the
Mississippi Supreme Court, after noting that Nixon had no absolute
right to particular counsel because of the need to maintain an
orderly trial process, evaluated and found Nixon’s claim wanting as
an ineffective assistance claim under Strickland v. Washington, 466
U.S. 668,
104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Nixon,
533 So.
2d at 1101-02. The district court denied Nixon’s claim on the
merits, holding that he had demonstrated no conflict of interest
and that he was never deprived of the right to counsel.
On the morning of the hearing on his motion for a new
trial, Nixon attempted to dismiss his trial counsel and obtain new
representation. Nixon based his argument for new counsel on an
alleged conflict of interest that arose when his trial attorney
brought his co-defendant’s lawyer to meet with Nixon following his
conviction, and prior to the hearing on the new trial motion.
Nixon’s trial lawyer, aware that his client did not want his
services, repeatedly asked to be excused from his representation.
The trial judge, ostensibly concerned that Nixon was attempting to
delay the proceedings, denied Nixon’s motion. However, upon
28
further consideration, the trial judge placed Nixon’s trial counsel
under oath and began questioning him about the alleged conflict.
After hearing from both Nixon’s trial counsel and his co-
defendant’s counsel, the trial judge determined that no conflict
existed and that Nixon’s motion for new counsel would be denied.
The motion for a new trial was then argued by Nixon’s trial
counsel.
Nixon now asserts that he was denied his Sixth Amendment
right to counsel because an actual conflict existed between Nixon
and his counsel, and he was completely deprived of counsel while
his lawyer was discussing the alleged conflict under oath before
the state trial court. This issue is not reasonably debatable:
the district court and the state courts were clearly correct in
holding that there was no actual conflict that would have rendered
ineffective Nixon’s trial attorney’s representation of him during
the new trial motion. There is no basis for Nixon’s claim that his
lawyer had an a priori conflict of interest for bringing a co-
defendant’s lawyer to meet with Nixon post-conviction. In Bullock
v. Whitley, 53 F.3d 697 (5th Cir. 1995), we held that there was no
constitutional conflict of interest where a co-defendant’s attorney
took the lead in obtaining information from the defendant on behalf
of the defendant’s lawyer prior to
trial. 53 F.3d at 702. Setting
up a post-conviction meeting between the defendant and a co-
defendant’s attorney could not create a conflict of interest,
particularly when, as here, the state trial court found that Nixon
29
himself requested the meeting. In addition, it can hardly be
contended that Nixon’s trial attorney was testifying against his
client’s interest when the state judge questioned him regarding the
conflict of interest. Given that both Nixon and his attorney had
asked for his removal, the attorney was essentially advocating
Nixon’s position at all times.
Contrary to his assertions, Nixon was never deprived of
his right to counsel prior to or during the motion for a new trial.
Nixon had counsel — his trial attorney. It is true that Nixon and
the attorney were unhappy about the continued representation, but
we have repeatedly stated that “[t]he Sixth Amendment . . . does
not guarantee an absolute right to the counsel of one's choice.”
United States v. Paternostro, 966 F.2d 907, 912 (5th Cir. 1992).
Nixon cites no authority for the argument that he was deprived of
his right to counsel while the judge was questioning his lawyer
regarding the alleged conflict of interest. Further, the fact that
dissenting judges on the Mississippi Supreme Court would have found
a conflict of interest or would have presumed prejudice to Nixon
from the circumstances does not automatically prove that reasonable
jurists could disagree. With due respect, the dissenting justices’
position does not follow this court’s interpretation of Strickland
and Cuyler v. Sullivan,
446 U.S. 335 (1980). The question before
this court is whether reasonable jurists could debate whether the
state court’s adjudication of the claim was “reasonable” and
whether the district court’s assessment of the constitutional issue
30
is debatable or wrong. On the contrary, were we to hold as Nixon
desires, we would be creating a “new rule” of constitutional law,
a course barred to us by Teague. See Wiley, 969 F.2d at 95-98. As
a result, a COA is unwarranted.
III. CONCLUSION
For the reasons discussed above, Nixon’s application for
a certificate of appealability is GRANTED IN PART and DENIED IN
PART. The certificate has been granted on Nixon’s Batson/Powers
and prior violent felony claims, but the Batson/Powers claim fails
on the merits. Further briefing is needed on the prior violent
felony claim. As to all other claims treated in this opinion, COA
is DENIED.
31
