Filed: May 24, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 24, 2006 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 05-70027 _ CHARLES ANTHONY NEALY, Petitioner - Appellant, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee. _ Appeal from the United States District Court for the Northern District of Texas, Dallas USDC No. 3:01-CV-02274 _ Before JOLLY, HIGGINBOTHAM, and WIEN
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 24, 2006 FOR THE FIFTH CIRCUIT _ Charles R. Fulbruge III Clerk No. 05-70027 _ CHARLES ANTHONY NEALY, Petitioner - Appellant, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee. _ Appeal from the United States District Court for the Northern District of Texas, Dallas USDC No. 3:01-CV-02274 _ Before JOLLY, HIGGINBOTHAM, and WIENE..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 24, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-70027
______________________
CHARLES ANTHONY NEALY,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,
Respondent - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas
USDC No. 3:01-CV-02274
_________________________________________________________________
Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:1
Charles Anthony Nealy (“Nealy”) was convicted of capital
murder and sentenced to death for the 1997 murder of Jiten Bhakta
(“Jiten”) during an armed robbery of the convenience store owned by
Jiten. This court granted a certificate of appealability (“COA”)
to appeal the district court’s denial of habeas relief on Nealy’s
claim that the evidence is insufficient to support the verdict of
guilt. We AFFIRM.
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
Nealy’s conviction and sentence were affirmed on direct
appeal. Nealy v. State, No. 73,267 (Tex. Crim. App. September 13,
2000) (unpublished), cert. denied, 531 U.S. 1160 (2001). In
October 2001, the Texas Court of Criminal Appeals adopted the trial
court’s recommendation that Nealy’s state habeas application be
denied. Ex parte Nealy, No. 50,361-0-1 (Tex. Crim. App. October
24, 2001) (unpublished).
The district court adopted the magistrate judge’s
recommendation and denied Nealy’s petition for federal habeas
relief, as well as his application for a COA. Nealy requested a
COA from this court to appeal the denial of relief as to three
claims. Based on our “threshold inquiry”, consisting of “an
overview of the claims in the habeas petition and a general
assessment of their merits,” Miller-El v. Cockrell, 537 U.S. 322,
327, 336 (2003), this court granted a COA for only one of the three
claims: whether the evidence is sufficient to support the jury’s
verdict of guilt.
The parties filed supplemental briefs on the merits of the
claim for which a COA was granted, and this court heard oral
arguments of counsel. Having considered the arguments of counsel
and based on our review of the record of the state court trial, we
conclude that the state court’s decision is not unreasonable and,
therefore, we AFFIRM the district court’s denial of federal habeas
relief, for the reasons that follow.
2
II
Nealy is not entitled to federal habeas relief on his claim of
insufficient evidence unless the state court’s adjudication of this
claim
(1) resulted in a decision that was
contrary to, or involved an unreasonable
application of, clearly established Federal
law, as determined by the Supreme Court of the
United States; or
(2) resulted in a decision that was based
on an unreasonable determination of the facts
in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). The state court’s factual determinations
“shall be presumed to be correct”, and the petitioner “shall have
the burden of rebutting the presumption of correctness by clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Nealy argues that
the state court’s decision was based on an unreasonable
determination of the facts in the light of the evidence presented
at trial.
A claim of insufficient evidence is reviewed under the
standard set forth in Jackson v. Virginia, 443 U.S. 307, 318
(1979): whether, “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” With respect to Nealy’s case, the prosecution was required
to prove beyond a reasonable doubt that Nealy intentionally caused
the death of Jiten Bhakta during the course of a robbery. Nealy
3
contends that no rational trier of fact could have found the
essential elements of the offense of capital murder beyond a
reasonable doubt, because the eyewitness’s identification was
tainted by conflicting testimony and his lack of memory about
whether he had previously identified Nealy, and because the
remaining testimony presented by the prosecution did not establish
that Nealy caused Jiten Bhakta’s death.
The following evidence was presented at trial. The State’s
first witness was Memphis Nealy (“Memphis”). He testified that
between 5:00 and 7:00 p.m. on the evening of the robbery, he was
riding with Nealy on Central Expressway in Dallas. When they
passed the Expressway Mart convenience store, Memphis said that
Nealy stated, “I’m going to come back and get ‘em.” Nealy did not
want Memphis to participate in their return to the convenience
store because Memphis did not have a criminal record.
Memphis testified that, within 24 hours, he saw a television
news report about the robbery and murders at the Expressway Mart.
On direct examination, he testified that he saw a “little bit” of
the videotape from the store on television;2 that he saw Nealy and
Reginald Mitchell in the videotape; and that he later viewed a
videotape of the offense and observed Nealy, wearing a dark hat and
carrying a shotgun and a briefcase.
2
The record on appeal was supplemented with a copy of the
videotape.
4
On cross-examination, Memphis testified that the police showed
him the videotape of the offense; that only a small portion of the
videotape was shown on the television news; that he could not tell
who was depicted on the tape when he first viewed it; and that,
after the police told him that Nealy was shown on the videotape, he
was able to recognize and identify Nealy and Claude Nealy (“Claude”
-- Nealy’s nephew and Memphis’s brother).
On redirect examination, Memphis testified that the person
depicted on the videotape with the dark hat and shotgun is Nealy,
and that the person with the light hat and handgun is his little
brother, Claude.
Satishbhi (Sam) Bhakta (“Bhakta”) testified that his brother,
Jiten Bhakta, owned the Expressway Mart. On August 20, 1997, about
8:20 p.m., Bhakta was helping at the store with another employee,
Vijay Patel, while Jiten was in the office taking a nap. Two men,
one armed with a shotgun and the other with a pistol, entered the
store. The men ordered Patel and Bhakta to lie down on the floor.
The man with the shotgun went into the office. Bhakta heard Jiten
call out and then heard the shotgun discharge. The medical
examiner testified that Jiten died from a shotgun wound to his
chest that “pulpified” his heart. Bhakta testified that the man
with the pistol shot Patel in the head and that Patel died a few
days later.
Bhakta testified that the man with the shotgun came out of the
office with a briefcase (containing $4,000) and said, “I got the
5
man in the office.” The man with the pistol replied, “I got one
over here, too.” The man with the pistol ordered Bhakta to open
the cash register, and the man with the shotgun took money from the
register and put it in his pocket. Both of the robbers took wine
and beer before leaving the store. At trial, Bhakta identified
Nealy as the man with the shotgun.
On direct examination, Bhakta testified first that the man
with the shotgun had on a light-colored hat, but immediately
thereafter he testified that the man with the shotgun was wearing
a dark-colored hat, and that the man with the pistol was wearing a
lighter-colored hat.
Four video cameras in the store recorded the robbery. The
videotape was played for the jury during Bhakta’s testimony.
Although the tape was of poor quality, it showed a man with a
light-colored hat, and a man wearing a dark hat, carrying a
shotgun. The tape did not record either of the murders, but it
recorded the two men stealing money from the cash register.
On cross-examination, Bhakta testified that the man with the
shotgun was wearing a white hat, and that the man with the pistol
was wearing a dark hat. He stated that the man with the pistol and
darker hat was short, balding, had a gold tooth with a star, and
was wearing a white t-shirt and dark-colored jeans. He stated that
the man with the shotgun was wearing a lighter-colored hat, a white
t-shirt, and jeans.
6
On redirect examination, Bhakta testified that the man with
the shotgun was wearing the dark-colored hat. He identified Nealy
in court as the man who had the shotgun.
On recross-examination, Bhakta testified that he identified
the man carrying the shotgun from a photographic line-up, but that
he did not remember if that was a picture of Nealy. He testified
further that he also identified and signed a photograph of the
person who was carrying the pistol.
Reginald Mitchell, a co-defendant, testified that on the night
of the robbery, he joined Claude and Nealy in Nealy’s car and went
to the Expressway Mart. He stated that Nealy was wearing a dark
hat and that Claude was wearing a light hat. Mitchell stated that
Claude and Nealy entered the store, and that Nealy had a shotgun,
although he did not see it. He testified that Claude had a .38 or
.32 pistol. Mitchell testified that he first heard a shotgun blast
and then small-arms fire. Nealy and Claude came out of the store
and got into the car. Mitchell testified that Nealy said, “This is
the way the Nealys do it.” When they got back to Nealy’s house,
Nealy said that they committed the crime because “the bitches
wouldn’t sell him no Blackie mounds” (referring to a type of
cigar). Mitchell testified that Nealy threatened to kill him if he
told anyone about the crime. The prosecutor showed the videotape
to Mitchell and Mitchell identified Nealy as the person with the
shotgun depicted on the videotape. On cross-examination, Mitchell
7
admitted that if he did not already know Nealy, he would not have
been able to recognize Nealy on the videotape.
Nealy contends that Bhakta’s identification is tainted and
unreliable, because Bhakta could only identify the shotgun
assailant by clothing, he knew that the district attorney suspected
that Nealy was the man with the shotgun, and he was mistaken until
after he had viewed the videotape. Furthermore, Bhakta testified
that he had identified this robber in a photographic line-up, but
did not know if he had identified Nealy. Nealy asserts that
Memphis’s testimony does not prove capital murder, because Memphis
could not identify anyone until after the police told him that
Nealy and Claude were depicted on the videotape of the offense.
Finally, Nealy argues that the videotape is of no aid to the
State’s case because Reginald Mitchell, who knew all of the
parties, admitted that anyone who did not know Nealy could not have
identified him from viewing the tape.
On direct appeal, the Texas Court of Criminal Appeals rejected
this claim, stating:
Nealy argues that the State’s eyewitnesses
gave conflicting testimony and that the
surveillance video was of insufficient quality
to discern the perpetrator’s facial features.
He contends, therefore, that the evidence does
not preclude the possibility that someone
other than Nealy, such as Claude, shot the
deceased.
....
Mitchell, who was riding in the car with Nealy
and Claude, saw Nealy wearing a dark hat and
8
carrying a shotgun. The video shows a man
wearing a dark hat and carrying a shotgun.
The eyewitness to the offense identified Nealy
as the man with the shotgun. The pathologist
testified that Jiten Bhakta was shot at close
range with a shotgun. Viewing this evidence
in the light most favorable to the verdict, we
hold that the jury could have found beyond a
reasonable doubt that Nealy, as opposed to
Claude, killed Jiten Bhakta.
In rejecting Nealy’s federal habeas claim, the district court
held that Nealy had failed to show that any of the state court’s
findings were incorrect by clear and convincing evidence or that
its ultimate resolution of this claim was unreasonable. The
district court observed that: (1) three witnesses identified Nealy
as the person carrying the shotgun into the store; (2) Bhakta
testified that he saw the person with the shotgun go into the
office where his brother was resting, heard his brother yell, and
saw the person with the shotgun come out of the office with a
briefcase, stating, “I got the man in the office”; and (3) Bhakta
identified Nealy in court as this same man.
Nealy argues that the conflicts in the testimony in this case
are so fundamental that the State’s burden to prove beyond a
reasonable doubt that he killed Jiten Bhakta cannot be satisified
by the jury’s ability to resolve such conflicts. He points out
that Bhakta originally stated that his brother’s killer had worn a
dark hat (which would have corroborated Reginald Mitchell’s
testimony), but on cross-examination changed his testimony to
assert that the shotgun assailant had worn a light-colored hat.
9
Thus, Nealy asserts that Bhakta confused the two assailants, and
his identification problem was cleared up only after he had viewed
the videotape of the offense. Nealy points out that Bhakta also
asserted that he had identified the shotgun assailant in a previous
photographic line-up, but he could not remember if he had
identified Nealy as that assailant.
All of the arguments regarding the conflicting testimony that
Nealy now makes in support of his claim for habeas relief were
pointed out to the jury in defense counsel’s closing argument. It
is the jury’s responsibility “to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.
Accordingly, a reviewing court should “not focus on whether the
trier of fact made the correct guilt or innocence determination,
but rather whether it made a rational decision to convict or
acquit.” Herrera v. Collins,
506 U.S. 390, 402 (1993). The Texas
Court of Criminal Appeals’s decision that there was sufficient
evidence that Nealy shot Jiten Bhakta with a shotgun during the
course of a robbery to support his conviction for capital murder
did not involve an unreasonable application of clearly established
federal law and was not based on an unreasonable determination of
the facts in the light of the evidence presented as trial.
III
The Texas Court of Criminal Appeals’s determination that the
evidence, viewed in the light most favorable to the verdict, was
10
sufficient to allow a rational juror to find find beyond a
reasonable doubt that Nealy, as opposed to Claude, killed Jiten
Bhakta, is not objectively unreasonable. Therefore, the judgment
of the district court denying Nealy’s federal habeas petition is
AFFIRMED.
11
