The opinion
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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 30, 2023
No. 17-70012
Lyle W. Cayce
Clerk
Steven Lawayne Nelson,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of
Criminal Justice, Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CV-904
Before Jones, Smith, and Dennis, Circuit Judges.
Edith H. Jones, Circuit Judge:
Steven Lawayne Nelson was convicted of capital murder and
sentenced to death for his involvement in the robbery and murder of a pastor.
After exhausting his state remedies, Nelson filed a federal habeas petition
under 28 U.S.C. § 2254 and sought investigative services under
18 U.S.C. § 3599. The district court rejected his petition for relief,
concluded that investigative services were not reasonably necessary, and
denied a certificate of appealability (COA). Nelson then petitioned this court
for a COA. We granted that petition on a single issue: Whether Nelson’s
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trial counsel were ineffective for failing to investigate and present at the
penalty phase of trial two alleged accomplices’ participation in the robbery
and murder. We hold that Nelson’s attempt to reframe his Sixth
Amendment counsel ineffectiveness claim in federal court does not save it
from the strictures of AEDPA review, 28 U.S.C. § 2254(d). We now
AFFIRM.
I.
On March 3, 2011, while tending to his ecclesiastical duties at
Arlington’s NorthPointe Baptist Church, Reverend Clinton Dobson was
bound, savagely beaten, and then suffocated with a plastic bag. Nelson v.
State, No. AP-76,924, 2015 WL 1757144, at *1 (Tex. Crim. App. Apr. 15,
2015). Dobson’s elderly secretary, Judy Elliott, was also beaten beyond
recognition and within an inch of her life. Id. at *1–2. A car, laptop,
cellphone, and several credit cards were stolen. Id. Two days later, police
arrested Nelson and a grand jury indicted him for capital murder based on,
inter alia, physical evidence recovered at the scene, surveillance video
showing Nelson using the victims’ credit cards at a mall, and information
provided by Nelson’s acquaintances. See id. at *2–3.
At the guilt stage of Nelson’s trial, the State presented impressive
physical and circumstantial evidence directly linking Nelson to the crime.
Nelson’s fingerprints were at the murder scene, and droplets of the victims’
blood were on top of Nelson’s sneakers. Id. at *3. Moreover, distinctive
white metal studs from the belt Nelson was wearing when police arrested him
were found on and around Dobson’s body. Id. at *2–3. Shortly after the
murder, Nelson was seen driving Elliott’s car to a store, where he sold
Dobson’s laptop to another customer. Id. at *2. Video surveillance at the
local mall showed Nelson using Elliott’s stolen credit cards to make
purchases. Id. Further, the day after the murder, Nelson sent a series of
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incriminating text messages. “One asked to see the recipient because ‘[i]t
might be the last time.’ Another said, ‘Say, I might need to come up there to
stay. I did some [stuff] the other day, Cuz.’ A third said, ‘I [messed] up bad,
Cuz, real bad.’” Id. Nelson even bragged about the murder to a friend.
Against his lawyers’ advice, Nelson insisted on testifying. According
to Nelson, he waited outside the church to serve as a lookout while two
others, Anthony Springs and Claude Jefferson, went inside to rob Dobson
and Elliott. 1 Id. at *3. After about twenty-five minutes, Nelson entered the
church and saw the victims face down and bleeding out from their heads on
the floor, but still alive. Id. Nelson did nothing to aid the victims; instead,
he robbed them, taking Dobson’s laptop, Elliott’s keys, and Elliott’s credit
cards, and then went back outside. Id. Later, he went back inside and saw
that Dobson was dead, but quickly left because he could not stand the smell.
Id. Nelson admitted that “he knew people were inside the church and that
he agreed to rob them,” he just did not know that his accomplices would kill
anyone. Id.
Nelson’s story did not square with the State’s extensive evidence.
For one, Nelson could not explain how droplets of the victims’ blood got on
the top of his shoes or how pieces of his belt broke off at the murder scene.
Moreover, Springs and Jefferson each had alibis. Two witnesses and phone
records placed Springs over 30 miles away during the time of the murder. A
class sign-in sheet and phone records placed Jefferson in his chemistry class.
Rather than try to definitively prove Nelson’s story, Nelson’s trial
counsel raised suspicion as to Springs’s and Jefferson’s involvement to
undermine the State’s theory that Nelson alone committed the murder. For
1
When police initially confronted Nelson about the murder, he only named
Springs, but not Jefferson, as his accomplice.
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example, Nelson’s counsel challenged Springs’s and Jefferson’s alibis and
established that police recovered DNA evidence from the crime scene that
did not match the victims, Nelson, or Springs.
The trial court gave the jury a law of the parties instruction, meaning
that it could return a guilty verdict if it found either that Nelson was
(1) directly responsible for Dobson’s murder or (2) a party to the robbery and
should have anticipated that a death was likely to occur during the robbery.
After deliberating, the jury found Nelson guilty of capital murder without
specifying which theory it relied on. Then the court proceeded to the penalty
stage.
The penalty stage was held before the same jury that convicted
Nelson. To sentence Nelson to death, the jury had to first find that Nelson
(1) poses a “continuing threat to society” and (2) “actually caused the death
of the deceased or did not actually cause the death of the deceased but
intended to kill the deceased or another or anticipated that a human life
would be taken.” Tex. Code Crim. Proc. art. 37.071, § 2(b)(1)–(2). If
the jury answered those questions in the affirmative, then it had to consider
whether mitigating circumstances warranted a “sentence of life
imprisonment without parole rather than a death sentence.” Tex. Code
Crim. Proc. art. 37.071, § 2(e)(1).
At the penalty stage, the State continued to press the theme that
Nelson alone murdered Dobson. Moreover, the State presented evidence
that while awaiting trial Nelson murdered a fellow inmate, Johnathan
Holden, vandalized jail property, smuggled weapons into the jail, and
repeatedly assaulted jail personnel. See Nelson, 2015 WL 1757144 at *6–7.
Nelson’s trial counsel challenged the evidence indicating that Nelson
murdered Holden. They further argued that Nelson did not deserve the
death penalty because others participated in the crime. To show that,
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Nelson’s DNA expert testified that the items used to restrain both victims
contained DNA from unknown contributors. And another expert testified
that hair found at the scene did not match the victims, Nelson, or Springs.
Finally, Nelson’s trial counsel presented a comprehensive mitigation case by
calling numerous witnesses to show that Nelson’s violent tendencies
stemmed from mental illness and a difficult upbringing. Notwithstanding
these efforts, the jury answered all three questions consistent with the death
penalty and the district court sentenced Nelson to death.
Nelson next sought state habeas relief. The State appointed John
Stickels, an experienced and well-credentialed criminal attorney, to
represent Nelson in his state habeas petition. Among other grounds for relief,
Nelson alleged that his trial counsel rendered ineffective assistance under the
Sixth Amendment at the penalty phase by failing “to adequately investigate
and present mitigation evidence.” In particular, he asserted that his
“defense team failed to investigate [his] background, history, family, and
friends and, as a result, failed to discover relevant and important mitigation
evidence.”
On the basis of the record, the state habeas trial court recommended
denying relief. It noted that Nelson’s trial counsel were “both highly
experienced attorneys who were well-qualified to represent [him] at his
capital-murder trial,” and that they “became fully versed in and
knowledgeable of the information against [him] contained in the State’s file.”
Furthermore, “[d]ue to the allegations of the indicted capital-murder case
and the subsequent allegations of [Nelson’s] severe misconduct while
awaiting trial, [they] knew that most of their time would be spent trying to
build a strong mitigation case.” Ultimately, the court concluded, Nelson’s
trial counsel “made a well-reasoned strategic decision based on a thorough
investigation, their professional judgment, the available witness testimony,
and their reliance on well-qualified experts about how to best present
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[Nelson’s sentencing] case to the jury.” The Texas Court of Criminal
Appeals adopted the state habeas court’s findings and conclusions and also
denied relief. See Ex parte Nelson, No. WR-82,814-01, 2015 WL 6689512,
at *1 (Tex. Crim. App. Oct. 14, 2015).
With new counsel, Nelson then filed the instant § 2254 application.
Nelson again raised a single ineffective assistance of counsel claim related to
his trial counsel’s alleged deficient performance at sentencing. In addition to
the mitigation-related deficiencies identified in his state habeas application,
Nelson asserted that his trial counsel deficiently failed to investigate,
prepare, and litigate how Nelson’s culpability may be diminished by
Springs’s and Jefferson’s participation. Nelson labels this his “participation
claim.” Nelson maintained that his trial counsel’s aggregate failure to
investigate mitigation, participation, and other sentencing related issues
“deprived the jury of powerful information showing that [his] life should be
spared.” He likewise argued prejudice—that, but for his trial counsel’s
cumulative deficiency in failing to investigate the various sentencing-related
issues, there is a reasonable probability that Nelson’s sentence would have
been different. Finally, Nelson sought funding to further investigate his
ineffective assistance claim.
In a thorough and painstaking opinion, the district court rejected
Nelson’s ineffective assistance claim. As a threshold matter, the district
court held that Nelson did not procedurally default the ineffective assistance
claim because he presented the same claim, albeit with fewer alleged
instances of trial counsel’s deficient performance, in state court. Even if the
mitigation and participation based claims were distinct and the participation
based claim was therefore procedurally defaulted, the district court reasoned,
Nelson did not overcome that procedural default under Martinez v. Ryan,
566 U.S. 1, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 569 U.S. 413,
133 S. Ct. 1911 (2013), by showing that his state habeas counsel provided
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ineffective assistance. In the alternative, the district court rejected Nelson’s
participation claim on the merits. The district court also denied Nelson’s
request for investigative services under 18 U.S.C. § 3599(f). Finally, the
district court refused a COA.
Nelson then petitioned this court for a COA. This court granted
Nelson’s request in part. Nelson v. Davis, 952 F.3d 651, 670–76 (5th Cir.
2020). Noting that “reasonable jurists could debate whether Nelson’s
[participation] allegations ‘fundamentally alter’ his [ineffective assistance]
claim,” this court hypothesized that Nelson’s participation based ineffective
assistance claim may be distinct from the ineffective assistance claim raised
in state court and therefore procedurally defaulted. Id. at 671–72. Next, this
court concluded that reasonable jurists could debate whether Nelson’s state
habeas counsel was ineffective in failing to raise the participation claim and
that, as a result, reasonable jurists could debate whether Nelson could
overcome procedural default under Martinez/Trevino. As to the merits of
Nelson’s participation claim, this court reasoned that “[b]ecause Nelson’s
counsel sought to convince the jury that Springs and Jefferson were involved
but arguably failed to take reasonable investigative steps in developing
evidence in support of this argument, . . . reasonable jurists could debate that
his trial counsel’s performance” was deficient. Id. at 675. This court carried
with the development of the participation claim the questions of Strickland
prejudice and denial of funding. Id. at 675–76.
II.
In an appeal from a district court order denying habeas relief, “this
court reviews the district court’s findings of fact for clear error and its
conclusions of law de novo, applying the same standards to the state court’s
decision as did the district court.” Harrison v. Quarterman, 496 F.3d 419,
423 (5th Cir. 2007) (citing Coble v. Dretke, 444 F.3d 345, 349 (5th Cir. 2006)).
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The court “may affirm on any ground supported by the record,” Dorsey v.
Stephens, 720 F.3d 309, 314 (5th Cir. 2013) (citing Fisher v. Texas, 169 F.3d
295, 299 (5th Cir. 1999)), and is not bound “by the COA opinion’s
observations on the merits,” Trevino v. Davis, 861 F.3d 545, 548 n.1 (5th Cir.
2017). We review the denial of funding under 18 U.S.C. § 3599 for an abuse
of discretion. Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018).
III.
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) governs federal habeas proceedings. Out of respect to “our
system of dual sovereignty,” AEDPA greatly restricts the availability of
federal habeas relief to those convicted of crimes in state court. Shinn v.
Ramirez, 142 S. Ct. 1718, 1730 (2022) (citing Printz v. United States, 521 U.S.
898, 918, 117 S. Ct. 2365, 2376 (1997) and Brown v. Davenport, 142 S. Ct.
1510, 1523–24 (2022)). Chief among AEDPA’s federalism preserving
features is the requirement that state prisoners “exhaus[t] the remedies
available in the courts of the State” before seeking federal habeas relief.
28 U.S.C. § 2254(b)(1). Generally, state prisoners satisfy “this exhaustion
requirement by raising [their] federal claim before the state courts in
accordance with state procedures.” Shinn, 142 S. Ct. at 1732 (citing
O’Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 1734 (1999)).
A federal court’s review of a claim adjudicated in state court is
circumscribed in two ways. First, the federal court may not consider any
evidence beyond the state court record. See Cullen v. Pinholster, 563 U.S. 170,
180–81, 131 S. Ct. 1388, 1398 (2011). Second, the state prisoner must show
that the state court’s decision “was contrary to, or involved an unreasonable
application of,” law clearly established by the Supreme Court,
28 U.S.C. § 2254(d)(1), or that the decision “was based on an unreasonable
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determination of the facts” in light of the state court record,
28 U.S.C. § 2254(d)(2).
In contrast, if a state prisoner fails to present his federal claim in state
court for adjudication or comply with state procedures, and thereby
procedurally defaults the claim, then a federal court will, in all but the most
extraordinary cases, decline to review it. Shinn, 142 S. Ct. at 1732. A
prisoner may overcome such procedural default only “if he can show ‘cause’
to excuse his failure to comply with the state procedural rule and ‘actual
prejudice resulting from the alleged constitutional violation.’” Davila v.
Davis, 137 S. Ct. 2058, 2064–65 (2017) (quoting Wainwright v. Sykes,
433 U.S. 72, 84, 97 S. Ct. 2497, 2505 (1977) and Coleman v. Thompson,
501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991)). Ordinarily, “[a]ttorney
ignorance or inadvertence” does not excuse procedural default “because the
attorney is the [prisoner’s] agent when acting, or failing to act, in furtherance
of the litigation, and the [prisoner] must ‘bear the risk of attorney error.’”
Coleman, 501 U.S. at 753, 111 S. Ct. at 2566–67 (quoting Murray v. Carrier,
477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986)).
A narrow exception to the general rules stated in Shinn exists under
Martinez and Trevino. That exception allows—but does not require—a
federal habeas court to excuse a state prisoner’s procedural default of a
“substantial” ineffective assistance of trial counsel claim where (1) state law
forbids raising that claim on direct review or makes it virtually impossible to
do so and (2) the prisoner can show his state habeas counsel rendered
constitutionally deficient assistance by failing to raise the claim. Trevino,
569 U.S. at 423–24, 133 S. Ct. at 1918. In the rare case where a state prisoner
successfully overcomes procedural default, the federal habeas court then
considers the claimed ineffectiveness of trial counsel de novo. Hoffman v.
Cain, 752 F.3d 430, 437 (5th Cir. 2014) (citing Wright v. Quarterman,
470 F.3d 581, 591 (5th Cir. 2006)). Critically, however, the federal habeas
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court’s review is limited to the state court record. Shinn, 142 S. Ct. at 1734
(holding that “under § 2254(e)(2), a federal habeas court [reviewing a
procedurally defaulted claim] may not conduct an evidentiary hearing or
otherwise consider evidence beyond the state-court record based on
ineffective assistance of state postconviction counsel”).
Under AEDPA’s framework, then, two procedural issues logically
precede the merits of Nelson’s participation claim. First, whether that claim
was “adjudicated on the merits in State court proceedings” and therefore
subject to the strictures of 28 U.S.C. § 2254(d). Second, if not, whether
Nelson can overcome the consequent procedural default. We address the
first question and hold that Nelson’s participation claim was adjudicated on
the merits in state court proceedings. We pretermit the second question and
“cut straight to the merits to deny his claim” in the alternative. Murphy v.
Davis, 901 F.3d 578, 589 n.4 (5th Cir. 2018). 2
A.
The limitations on federal habeas review contained in § 2254(d) apply
to any claim “adjudicated on the merits in State court proceedings.” A
“claim” for AEDPA purposes is “an asserted federal basis for relief from a
state court’s judgment of conviction.” Gonzales v. Crosby, 545 U.S. 524, 530,
125 S. Ct. 2641, 2647 (2005) (defining “claim” as used in § 2244(b)); see also
2
Nelson also requested investigative services under 18 U.S.C. § 3599(f). Shinn v.
Ramirez, 142 S. Ct. 1718 (2022), however, makes clear that any evidence developed using
those services and raised for the first time in federal court would have to comply with
§ 2254(e)(2)’s “stringent” requirements. Id. at 1735. Nelson has never argued that he
could meet those requirements. Thus, we cannot conclude that the investigative services
are “reasonably necessary” because Nelson will not “be able to clear [the] procedural
hurdle[]” posed by § 2254(e)(2), and “the contemplated services” therefore “stand little
hope of helping [Nelson] win relief.” Ayestas v. Davis, 138 S. Ct. 1080, 1094 (2018).
Accordingly, the district court did not err, much less abuse its discretion in denying relief.
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Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S. Ct. 2411,
2417 (2007) (“[I]dentical words and phrases within the same statute should
normally be given the same meaning.”). Generally, determining whether the
§ 2254(d) relitigation bar applies is straightforward. On the one hand, the
relitigation bar does not apply where the prisoner fails altogether to present a
certain claim in state court. See Trevino, 569 U.S. at 416–17, 133 S. Ct. at
1914–15 (applying procedural default regime rather than § 2254(d)
limitations in case where state habeas counsel failed to raise ineffective
assistance claim that federal habeas counsel later raised). On the other hand,
the § 2254(d) limitations do apply in cases where a prisoner “fairly presented
the substance of his [federal] claim to the state courts.” Nobles v. Johnson,
127 F.3d 409, 420 (5th Cir. 1997) (citing Picard v. Connor, 404 U.S. 270, 275–
76, 92 S. Ct. 509, 512–13 (1971)).
In cases where the support for the prisoner’s federal claim evolves
across the state and federal proceedings, determining whether § 2254(d)’s
relitigation bar applies is more difficult. A court must then consider whether
the evolved claim presented in federal court is in fact a new claim altogether,
and thus excluded from § 2254(d)’s relitigation bar, or simply the old one
already adjudicated in state court, in which case § 2254(d)’s relitigation bar
does apply. See Pinholster, 563 U.S. at 186 n.10, 131 S. Ct. at 1401 n.10. To
date, the Supreme Court has not identified “where to draw the line between
new claims and claims adjudicated on the merits.” Id.
Relying on this court’s COA opinion, Nelson posits that when a claim
raised in a federal habeas petition fundamentally alters a claim raised in the
state habeas petition, it is not “adjudicated on the merits in State court
proceedings” and is therefore not subject to § 2254(d)’s restrictions. Nelson,
952 F.3d at 671–72. A claim raised in a federal habeas petition fundamentally
alters the related claim raised in a state habeas petition, Nelson opines, where
the claim presented to the federal court includes new, material factual
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allegations that place “the claim in a ‘significantly different legal posture.’”
Nelson principally relies on Lewis v. Thaler, 701 F.3d 783 (5th Cir. 2012), and
Escamilla v. Stephens, 749 F.3d 380 (5th Cir. 2014), for support. Carefully
read, however, neither of those cases supports Nelson’s proposed standard
for separating new ineffectiveness claims from those adjudicated on the
merits.
Lewis addressed whether a federal habeas court could consider expert
mitigation evidence offered for the first time in the federal proceedings.
701 F.3d at 789. Reasoning in light of Pinholster, this court eschewed a prior
line of cases holding that facts and evidence raised “for the first time on
federal habeas review” should be “‘analyzed under the exhaustion rubric of
§ 2254(b),’ rather than as an issue of ‘factual development’ under § 2254(d)
and (e).” Id. at 789 (quoting Dowthitt v. Johnson, 230 F.3d 733, 745 (5th Cir.
2000)); see also Clark v. Thaler, 673 F.3d 410, 416–17 (5th Cir. 2012).
Accordingly, the court held that it could not consider the new mitigation
evidence. Lewis, 701 F3d. at 791. But the court did not hold that a state
prisoner could avoid § 2254(d)’s limitations by presenting new evidence that
fundamentally altered a claim already adjudicated in state court proceedings.
Escamilla is similarly unhelpful. That case held that where a
prisoner’s state habeas counsel raised a particular federal claim in state
habeas proceedings, albeit ineffectively under the Sixth Amendment,
Pinholster barred the prisoner from presenting new evidence in federal
proceedings because the original claim was adjudicated on the merits in state
court proceedings. Escamilla, 749 F.3d at 394–95. This court did not outline
a loophole around § 2254(d)’s limitations whenever newly offered evidence
and legal theories “fundamentally alter” a claim previously presented to the
state courts. Indeed, Escamilla cautioned that “once a claim is considered
and denied on the merits by the state habeas court, Martinez [v. Ryan] is
inapplicable, and may not function as an exception to Pinholster’s rule that
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bars a federal habeas court from considering evidence not presented to the
state habeas court.” Escamilla, 749 F.3d at 395 (internal citation omitted); see
also Broadnax v. Lumpkin, 987 F.3d 400, 408–09 (5th Cir. 2021).
Even so, Nelson’s argument, that the new participation aspect of the
ineffective assistance claim fundamentally alters the ineffective assistance
claim he litigated in the state proceedings, would fail. On this point, a careful
comparison of his state and federal habeas applications is useful. In his state
habeas petition, Nelson raised a single ineffective assistance of counsel claim,
as he contended that his trial counsel “fail[ed] to adequately investigate and
present mitigation evidence.” More specifically, Nelson asserted that trial
counsel “failed to investigate [his] background, history, family, and friends
and, as a result, failed to discover relevant and important mitigation evidence
that would have made a difference” at the penalty stage. After reviewing
Nelson’s habeas application, the State’s reply, “all of the exhibits and
materials filed by each party, and the entire record of the trial and habeas
proceedings,” the state habeas court concluded that Nelson’s trial counsel
made a “well-reasoned” and informed strategic decision to focus on building
a strong mitigation case.
Nelson’s federal habeas application likewise raised a single ineffective
assistance of counsel claim. He argued that his trial counsel “failed to
adequately investigate, prepare, and litigate sentencing.” Trial counsel’s
performance was constitutionally deficient, Nelson asserted, because they
failed to: (1) investigate, prepare, and litigate how Nelson’s culpability may
be diminished by Springs’s and Jefferson’s participation; (2) develop
evidence that Holden died of suicide rather than at the hands of Nelson; and
(3) investigate and present evidence about Nelson’s background and mental
health. As to Strickland’s prejudice prong, Nelson argued that the
cumulative effect of trial counsel’s deficient performance prejudiced him on
all three special issues at sentencing.
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In both the state and federal habeas proceedings, Nelson raised a
single ineffective assistance of counsel claim related to trial counsel’s
performance at sentencing. Nelson concedes, as he must, that both claims
are “similar.” There is no dispute that the “asserted federal basis for relief
from [the] state court’s judgment of conviction” is the same. Crosby,
545 U.S. at 530, 125 S. Ct. at 2647. The only difference between the claim
adjudicated in the state court and the claim presented in federal court is that
Nelson pointed out more instances of trial counsel’s alleged deficient
performance at sentencing in the federal court claim. That is not enough to
fundamentally alter the ineffective assistance claim adjudicated in the state
court to place the claim in a significantly different legal posture. A state
prisoner cannot aggregate alleged instances of ineffective assistance of
counsel to satisfy the Strickland deficient performance and prejudice
requirements and then disaggregate those theories to create new,
unadjudicated claims and thereby circumvent § 2254(d)’s limitations.
Nelson resists this conclusion by arguing that it will produce absurd
results. He hypothesizes that, by the same logic, a Brady claim alleging that
the prosecution suppressed exculpatory forensic evidence would be
“adjudicated on the merits” if in state court the prisoner raised a Brady claim
alleging that the prosecution suppressed favorable eyewitness testimony. But
Nelson confounds the distinct natures of Strickland and Brady claims.
Conceptually, a Brady claim is specific to particular pieces of material
evidence allegedly suppressed by the prosecution whereas a Strickland claim
is specific to a particular stage of a proceeding. Compare United States v.
Brown, 650 F.3d 581, 588–93 (5th Cir. 2011) (evaluating Brady claims on an
item-by-item basis), with Blanton v. Quarterman, 543 F.3d 230, 236–48
(5th Cir. 2008) (evaluating separately state prisoner’s trial counsel and
appellate counsel ineffective assistance claims). Thus, this court’s analysis
does not produce absurd results, just the results required by § 2254(d).
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Because we conclude that Nelson’s ineffective assistance claim was
“adjudicated on the merits in State court proceedings,” this court’s review
is constrained by the limitations articulated in Pinholster and § 2254(d).
Nelson does not argue that he can overcome those limitations. On this basis,
the state courts’ rejection of Nelson’s ineffectiveness claim did not
unreasonably apply Strickland, nor was it an unreasonable application of the
law to the facts. Nelson is not entitled to relief.
B.
Even if Nelson’s participation claim were not subject to § 2254(d)’s
relitigation bar and assuming, arguendo, he could overcome procedural
default by showing ineffective assistance of state habeas counsel, he would
not succeed on the merits of his ineffective assistance claim. 3 In evaluating
Nelson’s ineffective assistance claim, this court’s review is limited to the
record before the state court. Shinn, 142 S. Ct. at 1734. To prevail on his trial
counsel ineffective assistance claim, Nelson must show (1) deficient
performance that (2) resulted in prejudice at sentencing. Strickland v.
Washington, 466 U.S. 668, 687, 104 S Ct. 2052, 2064 (1984). We address
only the prejudice component and conclude that Nelson has not met his
burden. 4
To establish prejudice, the “defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. Critically, the
3
See Murphy v. Davis, 901 F.3d 578, 589 n.4 (5th Cir. 2018) (denying habeas relief
on merits of ineffectiveness claim rather than first considering whether prisoner could
overcome procedural default).
4
This court need not address the performance component first. See Strickland,
466 U.S. at 697, 104 S. Ct. at 2056 (“If it is easier to dispose of an ineffectiveness claim on
the ground of lack of sufficient prejudice, that course should be followed.”).
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“likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112, 131 S. Ct. 770, 792 (2011) (citing
Strickland, 466 U.S. at 693, 104 S. Ct. at 2067–68). Where, as here, the
“Strickland claim is based on an allegedly deficient sentencing investigation,
the petitioner may establish prejudice by showing that ‘the totality of the
available mitigation evidence . . . reweigh[ed] . . . against the evidence in
aggravation’ creates ‘a reasonable probability that at least one juror would
have struck a different balance’ and recommended a life sentence instead of
death.” Busby v. Davis, 925 F.3d 699, 723–24 (5th Cir. 2019) (first quoting
Sears v. Upton, 561 U.S. 945, 955–56, 130 S. Ct. 3259, 3266 (2010) (per
curiam), and then Wiggins v. Smith, 539 U.S. 510, 537, 123 S. Ct. 2527, 2543
(2003)).
Nelson argues that his trial counsel’s failure to investigate and
introduce evidence about Springs’s and Jefferson’s potential involvement in
Dobson’s murder prejudiced him at sentencing. Specifically, had trial
counsel investigated and presented evidence about their involvement, “at
least one juror likely would have found that either man (or both) participated
in” Dobson’s murder. And the state court record, he contends, is replete
with evidence that supports that conclusion. For example, Nelson points to
(1) grand jury and trial testimony from one witness that contradicts the
timelines that Springs and Jefferson offered as alibis, and (2) testimony from
another witness that Springs’s SIM card was in that witness’s phone on the
day of the murder. Moreover, the state court record contains extensive
evidence showing that Springs and Jefferson retained proceeds of the
robbery. With a more fulsome picture of Springs’s and Jefferson’s
involvement and his own correspondingly minimal role, Nelson concludes, a
juror could have concluded that his “participation or intent fell short of the
standards set by the anti-parties issue, that his culpability warranted a
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favorable answer to the mitigation instruction, or that he would not represent
a continuing threat to society.”
No doubt proving that Springs or Jefferson also participated in
Dobson’s ghastly murder is relevant to the three special questions posed to
the jury at sentencing. But that is not enough to show Strickland prejudice.
Even if Nelson’s trial counsel had further investigated Springs’s and
Jefferson’s alibis and presented evidence about their involvement, the
State’s case for death on each special question would have remained
unassailable. We consider each special question in turn.
First, the anti-parties question. In answering this question, the jury
had to consider whether Nelson “actually caused” Dobson’s death or
“anticipated that a human life would be taken.” Tex. Code Crim.
Proc. art. 37.071, § 2(b)(2). At trial, the State adduced a mountain of
uncontroverted evidence that strongly suggested Nelson’s direct
participation in Dobson’s murder. Nelson’s fingerprints were found on the
wrist rest of Dobson’s desk. Distinctive studs broke off Nelson’s belt at the
crime scene, indicating a struggle. Drops of the victims’ blood were found
on top of Nelson’s shoes, and those shoes matched a bloody print left at the
scene. Nelson alone used Elliott’s credit card in the ensuing days to make
purchases, and he alone sold Dobson’s laptop. By contrast, no physical
evidence linked Springs or Jefferson with Dobson’s murder. In light of this
evidence, it is unlikely that evidence of Springs’s and Jefferson’s
involvement would have made any difference in how the jury answered the
anti-parties question.
More fundamentally, Nelson’s own testimony severely compromised
any chance for trial counsel to persuade the jury to spare Nelson’s life on the
anti-parties front. Nelson claimed that he acted as a lookout for Springs and
Jefferson. When he entered the church, he saw Elliott and Dobson bleeding
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out on the floor—but still alive—and did nothing to assist them. Instead, he
stole Dobson’s computer, Elliott’s credit cards, and her car keys and went
back outside, leaving the victims defenseless with his alleged accomplices.
Proving that Nelson was an accomplice, and not the primary perpetrator, of
the capital murder would do nothing to falsify that he “anticipated that a
human life would be taken.” Tex. Code Crim. Proc. art. 37.071,
§ 2(b)(2). That the same jury had just convicted Nelson of capital murder
means that the jury either concluded that Nelson was directly responsible for
Dobson’s murder or else that he was an accomplice to the robbery and that
he should have anticipated that a death was likely to occur during the course
of the robbery. Thus, even if the jury accepted Nelson’s testimony at face
value, there is little reason to think any juror would have answered the anti-
parties question differently, much less a substantial likelihood that any juror
would have done so.
Next, the future dangerousness and mitigation questions required the
jury to assess whether Nelson poses a “continuing threat to society” and
whether other mitigating circumstances warrant a “sentence of life
imprisonment without parole rather than a death sentence.” Tex. Code
Crim. Proc. art. 37.071, §§ 2(b)(1), (e)(1). According to Nelson’s own
recounting of the events, he participated in the aggravated robbery of a
church during which that church’s ecclesiastical leader was brutally and
senselessly murdered. While in custody and awaiting trial for Dobson’s
murder, Nelson murdered a fellow inmate, engaged in several altercations
with jail officers, repeatedly vandalized jail property, and smuggled weapons
into jail. Nelson, 2015 WL 1757144, at *6–7. And after murdering his fellow
inmate, who suffered from intellectual disabilities, Nelson “did a
‘celebration dance’ in the style of Chuck Berry, ‘where he hops on one foot
and plays the guitar.’” Id. at *6. Further, Nelson’s own forensic
psychologist “agreed that characteristics of antisocial personality disorder
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describe him” and that he “has many characteristics of a psychopath.” Id.
at *8. Even if Nelson’s trial counsel could definitively establish Springs’s or
Jefferson’s involvement, they had little hope of showing that Nelson did not
pose a continuing threat to society or that other mitigating evidence
warranted life imprisonment rather than a death sentence. Accordingly,
Nelson cannot show a substantial likelihood that a juror would have answered
the future-dangerousness or mitigation questions differently had his trial
counsel investigated and presented evidence of Nelson’s lessened
participation.
For all these reasons, Nelson cannot demonstrate a reasonable
probability that at least one juror would have recommended a life sentence
had his trial counsel investigated Springs’s and Jefferson’s involvement and
presented evidence about the same at sentencing. He was not prejudiced,
and his ineffective assistance of counsel claim would fail even if it were not
assessed under the rigorous standards of AEDPA § 2254(d).
AFFIRMED.
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James L. Dennis, Circuit Judge, dissenting:
I respectfully dissent from the majority’s opinion affirming the district
court’s denial of Nelson’s federal habeas petition. We previously granted
Nelson a COA on his unexhausted claim that his trial counsel was ineffective
for failing to investigate whether two of Nelson’s friends, Anthony Springs
and Claude Jefferson, committed the murder for which Nelson was convicted
(the “IATC-Participation claim”). Instead of resolving the merits of
Nelson’s petition, we should reverse the district court’s order and remand
with instructions to grant Nelson’s request for investigative funding to
further develop his IATC-Participation claim and for a stay so that Nelson
may exhaust this claim in state court.
I. Investigative Funding
Section 3599 “authorizes federal courts to provide funding to a party
who is facing the prospect of a death sentence and is ‘financially unable to
obtain adequate representation or investigative, expert, or other reasonably
necessary services.’” Ayestas v. Davis, 138 S. Ct. 1080, 1092 (2018) (citing 18
U.S.C. § 3599). In evaluating funding requests, courts consider whether
funding is “reasonably necessary” in light of the potential merit of the
applicant’s claims, the likelihood that the services would render useful
evidence, and the prospect that the applicant could overcome any procedural
hurdles. Id. at 1093–94 (proposed services must be “reasonably necessary”
for the applicant’s representation.”). Courts of appeals review district court
funding decisions for abuse of discretion. Ayestas v. Davis (Ayestas II), 933
F.3d 384, 388 (5th Cir. 2019).
Nelson sought funding under Section 3599(f) to pursue evidence
supporting his theory that Springs and Jefferson were primarily responsible
for the murder. The district court denied Nelson’s request, concluding—
under the “substantial need” standard later rejected by the Supreme Court
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in Ayestas—that based on the evidence presented to the jury, Nelson
committed the crime alone so no evidence of another’s participation exists.
138 S. Ct. at 1092 (adopting “reasonably necessary” standard for funding
requests brought under § 3599). But in relying on the existing evidence on
the record, the district court failed to consider “the potential merit of the
claims” and “the likelihood that the services will generate useful and
admissible evidence.” Id. at 1094. Nelson sought to conduct the requested
investigation precisely to locate evidence that he alleges exists and could have
been uncovered to support Nelson’s principal theory of defense and convince
the jury to spare Nelson’s life at the sentencing phase. The district court thus
abused its discretion in denying Nelson’s request for funding because Nelson
has demonstrated that further investigation is likely to reveal evidence that
supports his substantial IATC-Participation claim.
Nelson’s IATC-Participation claim is likely meritorious. To prevail
on this claim, Nelson must demonstrate both deficient performance by his
trial counsel and prejudice to the outcome of his case. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Nelson can probably show that his trial
counsel was deficient in failing to reasonably develop the principal defense
theory in Nelson’s case—that Springs and Jefferson carried out the murder
while Nelson served as a lookout for what he believed to be a robbery. Despite
the importance of evidence suggesting Springs’ and Jefferson’s involvement
in the murder, trial counsel did not even attempt to contact either Springs or
Jefferson, let alone otherwise independently verify their alibis. At sentencing,
trial counsel only used the fact that DNA from an unknown person was at the
scene of the crime to support this defense theory.
Moreover, on appeal Nelson identified several “red flags” that would
have prompted a reasonable attorney to conduct further investigation to
gather evidence of Springs’ and Jefferson’s involvement in the murder.
Rompilla v. Beard, 545 U.S. 374, 391 (2005) (Counsel “could not reasonably
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have ignored mitigation evidence or red flags simply because they were
unexpected.”). As to Springs, for example, Nelson points out that trial
counsel should have investigated leads suggesting that Springs obtained
Dobson’s property directly from the scene of the crime, Springs’ alibi
witnesses had motive to protect him from jail, someone else had Springs’
SIM card in their phone on the day of the murder and bruising on Springs’
knuckles at the time Springs was arrested was consistent with the struggle
with the victims. Nelson also highlighted the weaknesses in Jefferson’s alibi
given that while Jefferson testified that he was taking a quiz in class at the
time of the murder, the teacher of that class stated that there was no quiz that
day, Jefferson often skipped class, and a classmate could have signed in for
Jefferson that day. These “red flags” indicate that trial counsel’s
investigation was likely deficient, and that further investigation will generate
useful and admissible 1 evidence in support of Nelson’s IATC-Participation
claim.
Nelson can also likely show, with the aid of further factual
development, that he was prejudiced by trial counsel’s failure to investigate
because there is a reasonable probability that the jury would not have
sentenced Nelson to death if trial counsel had gathered and presented the
jury with more evidence of Springs’ and Jefferson’s participation in the
murder. In sentencing Nelson to death, the jury necessarily concluded that
he “actually caused death or anticipated that death would occur,” see TEX.
1
The government argues that additional funding could not yield admissible
evidence because any evidence uncovered would be inadmissible under Cullen v. Pinholster,
563 U.S. 170 (2011) and 28 U.S.C. § 2254(e)(2). But Pinholster is irrelevant where, as
explained below, Nelson’s federal IATC-Participation claim is different from the IATC
claim presented in his state habeas proceeding. See Section II; see also Nelson v. Davis, 952
F.3d 651, 671–72 (5th Cir. 2020) (“[N]ew evidence that ‘fundamentally alters the legal
claim’ or places the claim in a ‘significantly different legal posture’ can render it a new
claim that was not adjudicated on the merits by the state court.”).
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CODE CRIM PROC. ART. 37.071 § 2(b)(2), and further evidence that Springs
and/or Jefferson committed the murder would have cast doubt on whether
Nelson’s culpability for the murder warranted the death penalty. Yet, as we
noted in granting Nelson’s COA, in the absence of the undiscovered
evidence, the court finds itself in “something of a Catch-22” because “[w]e
cannot determine whether Nelson was prejudiced without knowing what
evidence could have been uncovered” in the absence of further investigation
and therefore “should not make this [prejudice] determination based solely
on the record before us when he may be entitled to investigative funding to
support this claim.” Nelson, 952 F.3d at 675. Based on the deficiencies in trial
counsel’s performance, and the various avenues for investigation identified
by Nelson, “[t]here is[] good reason to believe that, were [Nelson’s] §
3599(f) motion granted, he could establish prejudice under Strickland.”
Ayestas, 138 S. Ct. at 1100 (Sotomayor, J., concurring).
Further factual development is likely to lead to useful and admissible
evidence to support Nelson’s substantial IATC-Participation, and as such, is
reasonably necessary for Nelson to be adequately represented by his present
counsel. We should reverse the district court’s denial of Nelson’s petition
and remand with instructions to grant Nelson’s request for investigative
funding under Section 3599(f).
II. Rhines Stay
An order staying a federal habeas proceeding and holding it in
abeyance pending a return to state court is appropriate when a petitioner
brings an unexhausted claim in federal court and: “(1) the district court
determines there was good cause for the petitioner’s failure to exhaust his
claims in state court; (2) the claim is not plainly meritless; and (3) there is no
indication that the petitioner is engaging in abusive litigation tactics or
intentional delay.” Young v. Stephens, 795 F.3d 484, 495 (5th Cir. 2015)
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(citing Rhines v. Weber, 544 U.S. 269, 277–78 (2005)). The district court did
not address that standard and instead summarily denied Nelson’s motion in
light of its denial of Nelson’s habeas petition on the merits. However, Nelson
meets the standard for a stay under Rhines, and the district court abused its
discretion in failing to issue a stay to allow Nelson to exhaust his IATC-
Participation claim in state court. Rhines, 544 U.S. at 270 (“[I]t likely would
be an abuse of discretion for a district court to deny a stay . . . if the petitioner
had good cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that he engaged in
intentionally dilatory litigation tactics.”).
As an initial matter, I disagree with the majority’s conclusion that the
IATC-Participation claim was exhausted in state court. In granting Nelson’s
COA on this claim, we found that Nelson’s state habeas IATC claim “did
not touch on Nelson’s allegations in this IATC-Participation claim that
undiscovered evidence indicating that he played a minimal role in the capital
murder itself could have been presented to the jury.” Nelson, 952 F.3d at 671–
72. Nelson’s IATC-Participation claim thus “fundamentally alters” his state
court IATC claim, which only challenged whether his trial counsel
sufficiently investigated his “background, history family, and friends.” See
also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice &
Procedure § 23.3c, at 982 (4th ed. 2001) (“The controlling standard seems to
be that the petitioner exhausts the factual basis of the claim as long as she did
not [] ‘fundamentally alter the legal claim already considered by the state
courts[.]’”). The majority faults Nelson’s IATC-Participation claim for also
being an IATC claim yet fails to meaningfully grapple with the case-specific
differences in these two claims and the simple fact that his state habeas
counsel did not raise and the state court did not adjudicate any claim based
on the allegation that trial counsel failed to gather evidence of Nelson’s
diminished culpability for the murder. Moore v. Quarterman, 533 F.3d 338,
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341 (5th Cir. 2008) (“Determining whether a petitioner exhausted his claim
in state court is a case- and fact-specific inquiry.”). Nelson’s IATC-
Participation claim is thus unexhausted because it was not adjudicated in
state court.
Nelson meets the requirements for a Rhines stay to allow him to
exhaust his IATC-Participation claim in state court. The first requirement—
“good cause”—is satisfied when state habeas counsel is deficient in failing
to raise a claim in state habeas proceedings. Ruiz v. Quarterman, 504 F.3d
523, 529 n.17 (5th Cir. 2007) (recognizing that the “failures” of Texas’ state
habeas system in affording competent state habeas representation establishes
equitable good cause for a Rhines stay). Here, Nelson’s state habeas counsel’s
representation was deficient in failing to raise the IATC-Participation claim
during state habeas proceedings. The decision to sentence Nelson to death
was predicated in part on whether Nelson intended to cause death or
anticipated loss of life, see TEX. CODE CRIM PROC. ART. 37.071 § 2(b)(2), and
as such, any reasonably competent habeas attorney would have appreciated
the importance 2 of raising the IATC-Participation claim during the state
habeas proceeding. Trevino v. Davis, 829 F.3d 328, 348–49 (5th Cir. 2016)
(state post-conviction counsel’s failure to investigate an IATC claim is
deficient performance where the “[t]he deficiency in [trial counsel’s]
investigation would have been evident to any reasonably competent habeas
attorney.”). Yet not only did state habeas counsel do nothing to investigate
the IATC-Participation claim, but he also spent only 4.5 hours reviewing trial
counsel’s records. Here, Nelson’s state habeas counsel was thus deficient
2
This is especially true given Nelson’s testimony at trial that he acted as a lookout
for his co-conspirators and thus was not substantially involved in the murder, and trial
counsel’s failure to verify the alibis of Springs and Jefferson.
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and such deficiency prejudiced Nelson since his underlying IATC-
Participation claim is substantial.
The second Rhines requirement—that the underlying claim presented
is not “plainly meritless”—is also satisfied. As explained above, Nelson’s
IATC-Participation likely has merit, especially in light of the potential
evidence he might uncover if allowed to conduct further investigation into
Springs’ and Jefferson’s role in the murder. Finally, there is no sign of
“intentionally dilatory litigation tactics” on Nelson’s part that might justify
a district court’s denial of a Rhines stay. See Rhines, 544 U.S. at 277–78.
Nelson discovered the underlying bases for his IATC-Participation Claim
during federal habeas counsel’s investigation, and he filed his federal petition
shortly thereafter. Because Nelson’s IATC-Participation claim is
unexhausted and Nelson has met the requirements set forth in Rhines, a stay
is appropriate. We should reverse the district court’s denial of Nelson’s
request for a Rhines stay and remand with instructions that the district court
stay this proceeding to allow Nelson to exhaust his IATC-Participation claim
in state court.
III.
Because the district court should have granted Nelson funding to
further develop his IATC-Participation claim and a Rhines stay to exhaust the
claim in state court, I respectfully dissent from the majority’s decision to
affirm the denial of Nelson’s habeas petition based on the incomplete record
before it. We should instead reverse the district court’s denial of Nelson’s
requests for funding and a stay, and remand with instructions that the district
court grant Nelson’s request for investigative services and stay this
proceeding while Nelson returns to state court to exhaust the IATC-
Participation claim.
26