* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

August 12, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 02-11096

_______________________

BILLY RAY NELSON,

Petitioner-Appellant,

versus

JANIE COCKRELL, Director, Texas Department

of Criminal Justice, Institutional Division,

Respondent-Appellee.

________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas, Abilene Division

Civil Docket CA1-01-0196

_________________________________________________________________

Before JONES, STEWART, and DENNIS, Circuit Judges.

By EDITH H. JONES, Circuit Judge: *

Billy Ray Nelson was convicted of capital murder and

sentenced to death in December 1991 for m urdering Charla Wheat.

Nelson filed a petition for a writ of habeas corpus in federal

district court pursuant to 28 U.S.C. § 2254 (2000). Nelson’s

petition raised eleven issues which he contended provided a basis

for a writ of habeas corpus to issue. Appellee moved for summary2

judgment on all eleven issues. The district court granted summary

judgment and denied Nelson’s petition. The district court also

refused to grant a certificate of appealability (“COA”) on any of

the issues raised by Nelson.

Nelson now seeks a COA from this court on three issues:

(1) whether the special issue instructions used at trial provided

the jury with an adequate vehicle to give mitigating effect to

evidence in violation of the Eighth a nd Fourteenth Amendments as

construed in Pe nry v. Lynaugh , 492 U.S. 302 (1989); (2) whether

Nelson’s counsel provided ineffective assis tance by failing to

request an instruction on the definition of reasonable doubt or by

failing to raise this issue on direct appeal; and (3) whether the

introduction of testimony by a state psychiatrist regarding future

dangerousness violated the Fifth Amendment as construed in Estelle

v. Smith

, 451 U.S. 454 (1981). We grant a COA on the first two

issues but deny the application for COA on the other issue. With

respect to the merits issues, we affirm the district court’s denial

of habeas relief.

BACKGROUND

Nelson was indicted for the capital murder of Charla M.

Wheat and the attempted capital murder of Wheat’s roommate Carol

Maynard that occurred on or about February 23, 1991. In December

1991, Nelson was tried for the capital murder of Wheat. During the

guilt/innocence phase of trial Maynard testified as to the events3

of February 23. Specifically, Maynard testified that she and Wheat

were forced, at knifepoint, by Nelson to perform sexual acts on

each other and on Nelson. Maynard further testified that Nelson

s tabbed Wheat. Other testimony established that the stab wounds

were the cause of Wheat’s death. Also, at trial, two voluntary

statements made by Nelson were admitted into evidence. In these

statements Nelson confessed to stabbing Wheat. He stated that he

c ommitted the crime because he “was drunk and wanted a pie ce of

butt.”

On December 11, 1991, the jury found Nelson guilty of

capital murder. On December 13, following the punishment phase of

trial, the jury answered affirmatively the two special issues

submitted pursuant to Texas Code of Criminal Proced ure article

37.071(b). Nelson was sentenced to death. Nelson’s sentence and

conviction were affirmed on direct appeal by the Texas Court of

Criminal Appeals on May 26, 1993. The United States Supreme Court

denied Nelson’s petition for writ of certiorari on March 21, 1994.

On April 17, 1997, Nelson commenced a series of state

applications for writ of habeas corpus. The state district court

issued findings of fact and conclusions of law recommending denial

of relief on all of Nelson’s claims on July 10, 2001. The Court of

Criminal Appeals denied Nelson’s application on t he findings and

recommenda tions of the trial court. Additionally, it dismissed

Nelson’s subsequent application as an abuse of the writ under Texas

Code of Criminal Procedure article 11.071, § 5(a).4 DISCUSSION

Nelson’s § 2254 habeas petition, filed on December 7,

2001, is subject to the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA). S ee Penry v. Johnson

, 532 U.S. 782, 792

(2001). Under AEDPA, Nelson must obtain a COA before he can appeal

the district court’s denial of habeas relief. 28 U.S.C. §

2253(c)(1) (2000); Sl ack v. McDaniel , 529 U.S. 473, 478 (2000).

“[U]ntil a COA has been issued federal courts of appeals lack

jurisdictio n to rule on the merits of appeals from habeas

petitioners.” M iller-El v. Cockrell

, 123 S. Ct. 1029, 1039 (2003).

To obtain a COA, Nelson must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)

(2000); Miller-El

, 123 S. Ct. at 1039; Slack

, 529 U.S. at 483

. To

make such a showing, he must demonstrate that “reasonable jurists

could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encou ragement to proceed

further.” Miller-El , 123 S. Ct. at 1039 (quoting Slack , 529 U.S.

at 484).

In Miller -El , the Supreme Court instructed, as it had

previously held in Slack

, that federal courts should “limit [their]

examination to a threshold inquiry i nto the underlying merit of

[the petitioner’s] claims.” M ill er-El , 123 S. Ct. at 1034. The

Court observed that “a COA ruling is not the occasion for a ruling5

on the merit of petitioner’s claim . . .” Id . at 1036. Instead,

our determination must be based on “an ov erview of the claims in

the habeas petition and a general assessment of their merits.” I d

.

at 1039. “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of

the claims.” I d

. We do not have jurisdiction to justify the

denial of a COA based on an adjudication of the actual merits of

the claims. Id . Accordingly, we cannot deny an “application for

a COA merely because [we believe] the applicant will not

demonstrate an entitlement to relief.” I d

. “[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

.

Because the district court denied relief on the merits of

the claims for which Nelson seeks a COA, he “must demonstrate that

reasonable jurists would find the district court’s as sessment of

the constitutio nal claims debatable or wrong.” B arraza v.

Cockrell

, 330 F.3d 349, 351 (5th Cir. 2003) (quoting Miller-El

, 123

S. Ct. at 1040). Nelson first seeks a COA on the ground that the

special issue instructions given to the jury at sentencing failed

to provide an adequate vehicle to give effect to his mitigating

evidence in violation of Penry v. Lynaugh

, 492 U.S. 302 (1989).

The instructions given by the trial court were identical to those

given in Penry . To grant relief on Nelson’s Penry claim, we must

determine that “(1) that the proffered evidence was6

constitutionally relevant mitigating evidence, and, if so, (2) that

the proffered evidence was beyond the "effective reach" of the

jurors.” Madden v. Collins , 18 F.3d 304, 308 (5th Cir. 1994).

In this case, Nelson argued that the following evidence

is mitigating: (1) Nelson’s rejection by his mother, (2) Nelson’s

abuse of and addiction to drugs and alcohol, (3) Nelson’s troubled

relationships with his brother and women, and (4) that he suffered

from a treatable borderline personality disorder. We conclude that

reasonable jurists could debate the district court’s conclusion to

deny relief on the Penry claim and accordingly grant Nelson a COA

on this claim.

Although we grant a COA , we conclude that the district

court properly denied relief on Nelson’s Penry claim. None of

Nelson’s evidence is incapable of being assessed and assigned full

mitigating weight under the charge presented to his jury. Thus,

the unusual problem presented in Penry

, whereby evidence of extreme

childhood abuse and mental retardation were held to be potentially

mitigating but beyond the scope of the statutory death penalty

issues, does not exist here. This court has repeatedly held that

substance addiction is not Penry -type evidence. R obertson v.

Cockrell

, 325 F.3d 243, 253-54 (5th Cir. 2003) (en banc).

Furthermore, we have held that evidence of mental disease that,

like Nelson’s borderline pe rsonality disorder, can be controlled

with medication and treatment, can be given full mitigating effect

via the special issues. I d. at 252 (discussing Hernandez v.7

Johnson

, 248 F.3d 344 (5th Cir. 2001)); see also Robison v.

Johnson

, 151 F.3d 256, 266-67 (5th Cir. 1998); Lucas v. Johnson

,

132 F.3d 1069, 1082 -83 (5th Cir. 1998). In addition, this court

h as repeatedly found evidence of childhood abuse and neglect far

more severe than that suffered by Nelson because of his mother’s

rejecting him not to be constitutionally relevant. S ee Robertson

,

325 F.3d at 253; Davis v. Scott

, 51 F.3d 457, 462 (5th Cir. 1995);

Madden

, 18 F.3d at 308; Barnard v. Collins

, 958 F.2d 634, 639 (5th

Cir. 1992).

Nelson, in passing, also po ints to evidence of organic

brain damage which, he urges, the special issues did not provide a

vehicle to consider. We disagree. The only record evidence of

organic brain damage is a single sentence of testimony from an

expert witness for the defense, stating “there is minimal room to

consider that there may be minimal brain damage.” The expert,

however, explicitly said that he could not make a formal diagnosis

that Nelson in fact had brain d amage. He only suggested that if

further medical examinations were performed, the existence of brain

damage should not be ruled out prior to the exam. Additionally, no

evidence suggested that even if there was brain damage, Nelson’s

acts were caused by it. Thus, this evidence is not

constitutionally relevant. S ee Robertson

, 325 F.3d at 253 (stating

that for evidence to fall within the scope of Penry

, there must be

a causal nexus between the mitigating evidence and the commission

of the crime); Graham v. Collins

, 950 F.2d 1009, 1029 (5th Cir.8

1992) (en banc) (holding that the relevant inquiry is whether the

criminal act was "due to the uniquely sev ere permanent handicaps

with which the defendant was burdened through no fault of his

own”).

“Under AEDPA, a federal court may grant a prisoner's

petition only where the state court’s ‘decision’ was ‘contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States’ or was ‘based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.’”

Santellan v. Cockrell

, 271 F.3d 190, 192 (5th Cir. 2001) (quoting

28 U.S.C. § 2 254 (d) (2000)), c ert. denied

, 535 U.S. 982 (2002).

Based on this standard and the nature of Nelson’s proffered

evidence, we cannot say that the Court of Cri minal Appeals

unreasonably applied clearly established federal law in rejecting

Nelson’s Penry claim. Therefore, we affirm the district court’s

denial of relief on this claim.

Nelson next seeks a COA on his claim that his trial

counsel was ineffective for failing to object to the jury charge

used during the sentencing phase of Nelson’s trial because the

court failed to include a definition for the phras e “reasonable

doubt.” At the time of his trial in December 1991, Texas courts

were required to include a definition of “reasonable doubt” in the

jury charge. G eesa v. Stat e , 820 S.W.2d 154 (Tex. Crim. App.

1991), overruled by Paulson v. State

, 28 S.W.3d 570 (Tex. Crim.9

App. 2000). The definition requirement was not statutory; it was

mandated by the Texas Court of Criminal Appeals as an

interpretation of the United States Constitution. Id. at 161-62.

The definiti on was required even in the absence of a request by

either party. Id. at 162. The failure to include the definition

constituted reversible error even without a contemporaneous

objection. R eyes v. State

, 938 S.W.2d 718, 721 (Tex. Crim. App.

1996), o verruled by Paulson

, 28 S.W.3d 570. Because reasonable

jurists could debate the district court’s reasoning denying relief

on this claim, we grant Nelson a COA.

To establish an ineffective assistance of counsel claim,

Nelson must show that his counsel’s performance was deficient and

that he was actually prejudiced by the deficient performance.

S trickland , 466 U.S. at 687. Whether counsel’s performance was

deficient is determined by examining whether the challenged

representation fell below an objective standard of reasonableness.

Kitc hens v. Johnson , 190 F.3d 698, 701 (5th Cir. 1999). Nelson

must also establish that the “prejudice caused by the deficiency is

such that there is a reasonable probability that the result of the

proceed ings would have been different.” R ansom v. Johnson

, 126

F.3d 716, 721 (5th Cir. 1997). Nelson must show that the prejudice

rendered the sentencing “fundamentally unfair or unreliable.” I d

.

( quoting Lockhart v. Fretwell , 506 U.S. 364, 369 (1993)).

Assuming arguendo that Nelson’s trial counsel was

deficient in failing to object to the exclusion of the “reasonable1 Contrary to Ne lson’s additional argument, the failure to

object did not preclude Nelson’s counsel from raising the omission

of the definition from the charge on appeal because under Texas

law, a trial cou rt’s omission of the definition was non-waivable

and could be raised on appeal even in the absence of an objection

at trial. R eyes

, 938 S.W.2d at 721. Failure to object did not

prejudice Nelson on appeal.

10 doubt” definition in the sentencing phase jur y charge,

nevertheless, Nelson was not prejudiced by the absence of the

definition in the jury charge used at the sentencing phase. Nelson

argues that his trial counsel’s failure to request the definition

was prejudicial because he lost the protection of a definition on

reasonable doubt. We disagree. The jury was given the G eesa

definition during the guilt/innocence phase of trial just a couple

of days before the jury began its deliberations regarding

punishment. Furthermore, Nelson’s counsel discussed the definition

of reasonable doubt from the guilt/innocence phase of trial during

closing arguments in the punishment phase. Given that the jury had

the benefit of a definition of reasonable doubt, Nelson was not

prejudiced by the failure to have the definition repeated in the

puni shment phase jury charge. 1 Thus, the state court did not

unreasonably apply clearly established feder al law in rejecting

Nelson’s ineffective assistance of trial counsel claim.

Nelson goes o n to argue that his appellate counsel was

ineff ective for failing to raise the omission of the G eesa

definition on direct appeal. Nelson argues, citing G eesa and

Reyes

, that had his counsel r aised the issue, he would have been11

automatically entitled to a reversal of his conviction and a new

trial.

Even if Nelson’s position is correct as a matter of Texas

law at one time, his counsel’s appellate error still cannot be

prejudicial for Strickland purposes. This is because the prejudice

prong is determined by current law and not the law that existed at

the time of trial. W estley v. Johnson

, 83 F.3d 714, 723 (5th Cir.

1996) (citing Lockhart

, 506 U.S. at 372-73). S trickland prejudice

“focuses on the question whether counsel’s deficient performance

renders the result of the trial u nreliable or the proceeding

fundamentally unfair. Unreliability or unfairness does not result

if the ineffectiveness of counsel does not deprive the defendant of

any substantive or procedural right to which the law entitles him.”

Lockhart

, 506 U.S. at 372. As noted previously, the Texas Court of

Criminal Appeals overruled Geesa in 2000. P aulson

, 28 S.W.3d at

573. Therefore, the omission of the Geesa definition cannot be

prej udicial for purposes of S trickland

. We affirm the district

court’s d enial of relief on Nelson’s G eesa -based ineffectiveness

claims.

Nelson also seeks a COA with respect to his claim that a

psychiatric examination performed by Dr. James Grigson on behalf of

the State of Texas violated the Fifth Amendment because Nelson was

not advised that he had the right to remain silent and that any

statements he made could be used against him during the sentencing

phase of his trial. S ee Estelle

, 451 U.S. at 467-68 (holding that12

testimony by a psychiatrist on behalf of the state is inadmissible

when the defendant is not advised of his right to re main silent

during a pretrial examination by the state’s psychiatrist). Thus,

Nelson argues that the trial court should have excluded Dr.

Grigson’s trial testimony about Nelson’s future dangerousness.

Nelson concedes that as his trial counsel failed to

object to Grigson’s testimony, this claim is procedurally defaulted

unless he can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law. S ee

Ogan v. Cockrell , 297 F.3d 349, 356 (5th Cir.), cert. denied , 123

S. Ct. 582 (2002). In his application for COA, Nelson argues that

he can establ ish cause based on his claim that his trial counsel

was constitutionally ineffective for failing to object to Grigson’s

testimony on Fifth Amendment grounds. See Murray v. Carrier , 477

U.S. 488-89 (1986); Dowthitt v. Johnson

, 230 F.3d 733, 752 (5th

Cir. 2002). We disagree.

Although Nelson did raise in the state habeas proceeding

an ineffective assistance claim based on his counsel’s failure to

make an Estelle objection at trial, he did not raise this claim

before the federal district court. “We have repeatedly held that

a contention not raised by a habeas petitioner in the district

court cannot be considered for the first time on appeal from that

court’s denial of habeas relief.” J ohnson v. Puckett

, 176 F.3d

809, 814 (5th Cir. 1999) (quoting Johnson v. Puckett

, 930 F.2d 445,13

448 (5th Cir. 1991)). Having failed to raise his ineffective

assistance claim before the district court, Nelson cannot now rely

upon this claim to establish cause for the default. S ee Edwards v.

Carpenter

, 529 U.S. 446, 452-53 (2000) (holding that an ineffective

assistance claim asserted as cause for the procedural default of

another claim can itself be procedurally defaulted and thus cannot

serve as cause to excuse the default of the other claim); Stewart

v. Lagrand

, 526 U.S. 115, 120 (1999) (per curiam) (holding that

ineffective assistance claim cannot serve as cause when petitioner

waived ineffective assistance claim before federal district court).

Since reasonable jurists would not debate or find wrong that Nelson

has procedurally defaulted his Estelle claim, we deny his

application for COA on this issue.

CONCLUSION

With respect to Nelson’s Penry claim a nd ineffective

assistance claims relating to the Ge esa definition, we grant his

application for COA. We conclude, however, that the district court

d id not err in denying habeas relief on these claims bec ause the

state courts’ application of clear ly established federal law was

not objectively unreasonable. We deny Nelson’s application for COA

on his claim related to Dr. Grigson’s testimony and as such lack

jurisdiction to review the district court’s denial of habeas relief

on this claim.

AFFIRMED; COA DENIED.1415

DENNIS, Circuit Judge, concurring:

I concur but adhere to my individual views expressed in my

dissent in Robertson v. Cockrell , 325 F.3d 243 (2003) (en banc).