                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                              March 27, 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
                      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.   He requests a certificate of appealability (“COA”) to

appeal the district court’s denial of federal habeas relief for

three claims.   The request is GRANTED in part, and DENIED, in part.




     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this opinion should not be published and is not precedent except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

     At trial, Satishbhi Bhakta (“Bhakta”) testified that his

brother, Jiten, owned the Expressway Mart in Dallas. On August 20,

1997, at 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.

Jiten died from a shotgun wound to the chest.      The man with the

pistol then shot Patel in the head; he died a few days later.   The

man with the shotgun came out of the office with a briefcase

(containing $4,000) and said, “I got the man in the office.”    The

man with the pistol said, “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.

     Four video cameras in the store recorded the robbery.      The

videotape was played for the jury.    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.

                                  2
     Nealy’s nephew, Memphis Nealy (“Memphis”), testified that

between 5:00 and 7:00 p.m. on the evening of the robbery, he was

riding with Nealy on Central Expressway.            When they passed the

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 Expressway Mart because Memphis did not have

a criminal record.

     At trial, Memphis testified that he recognized Nealy, Claude

Nealy (“Claude” -- Nealy’s nephew and Memphis’s brother), and

Reginald Mitchell     on   the   videotape   of   the   robbery.    Memphis

identified Nealy as the man wearing the dark hat and carrying the

shotgun and briefcase. On cross-examination, Memphis admitted that

he was unable to identify anyone from the videotape until the

police told him that his uncle and brother were on the tape.

     Reginald Mitchell, a co-defendant, testified at trial that on

the night of the robbery, he joined Claude and Nealy in Nealy’s car

and went to the Expressway Mart.         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

                                     3
testified that Nealy threatened to kill him if he told anyone about

the robbery.

     Nealy was convicted of capital murder and sentenced to death.

The Texas Court of Criminal Appeals affirmed his conviction and

sentence 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 and denied Nealy’s application for

state habeas relief.      Ex parte Nealy, No. 50,361-0-1 (Tex. Crim.

App. October 24, 2001) (unpublished).            In May 2005, the district

court adopted the magistrate judge’s recommendation and denied

Nealy’s petition for federal habeas relief.              The district court

also denied Nealy’s request for a COA.          As we have noted, Nealy now

requests a COA from this court to appeal the denial of relief as to

three claims.

                                      II

     To obtain a COA, Nealy must make “a substantial showing of the

denial of a constitutional right.”          28 U.S.C. § 2253(c)(1)(A).      To

make such a showing, he must demonstrate that “jurists of reason

could   disagree   with   the    district      court’s   resolution   of   his

constitutional claims or that jurists could conclude the issues

presented   are    adequate     to   deserve    encouragement   to    proceed

further.”   Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).               In

making our decision whether to grant a COA, we conduct a “threshold

                                       4
inquiry”, which consists of “an overview of the claims in the

habeas petition and a general assessment of their merits.”             Id. at

327, 336.     “While the nature of a capital case is not of itself

sufficient to warrant the issuance of a COA, in a death penalty

case any doubts as to whether a COA should issue must be resolved

in the petitioner’s favor.”      Ramirez v. Dretke, 398 F.3d 691, 694

(5th Cir. 2005) (internal quotations and citations omitted).

                                      A

     Based on our limited, threshold inquiry and general assessment

of the merits of the three claims for which Nealy requests a COA,

we conclude that the following claim presents issues that are

adequate to deserve encouragement to proceed further:          whether the

evidence was sufficient to prove beyond a reasonable doubt the

essential elements of the offense of capital murder.          Accordingly,

we GRANT a COA for this claim.        If petitioner Nealy wishes to file

a supplemental brief with respect to the merits of this claim, he

may do so within thirty days of the date that this order is filed.

A supplemental brief should be filed only to address matters that

have not already been covered in the brief in support of the COA

application.      The   State   may    file   a   response   fifteen    days

thereafter.

                                      B

     Nealy has failed to demonstrate that jurists of reason could

disagree with or find debatable the district court’s resolution of

the issues presented in the following claims, and we therefore DENY

                                      5
his request for a COA for those claims, for the reasons set forth

below.

                                          1

      Nealy seeks a COA for his claim that the trial court’s failure

to allow him to inform the jury of his parole eligibility if the

death penalty were not assessed violated his constitutional rights

to equal protection, effective assistance of counsel, due process,

and protection from cruel and unusual punishment.

      At trial, Nealy filed motions to question the venire, present

evidence, and instruct the jury regarding his parole eligibility --

that is, if sentenced to life in prison, he would not be eligible

for parole for forty years.         The trial court denied the motions.

      On direct appeal, citing Simmons v. South Carolina, 512 U.S.

154   (1994),   and    Justice     Stevens’s     opinion   on   the   denial   of

certiorari in Brown v. Texas, 522 U.S. 940 (1997), Nealy argued

that the trial court’s denial of his motions deprived him of due

process and subjected him to cruel and unusual punishment.                     The

Court of Criminal Appeals affirmed.

      In state habeas proceedings, Nealy asserted that the trial

court’s denial of his motions violated equal protection, due

process, his right to be free from cruel and unusual punishment,

and his right to the effective assistance of counsel.                 The state

habeas court held that the equal protection claim was procedurally

barred   because      it   could   have   been   raised    on   direct   appeal;

alternatively, that the absence of parole information did not

                                          6
violate equal protection.         The state habeas court held that the

Sixth, Eighth, and Fourteenth Amendment claims were procedurally

barred because they were raised and rejected on direct appeal;

alternatively, that Nealy’s right to due process, his right against

cruel and unusual punishment, and his right to effective assistance

of counsel were not violated by the court’s rulings that prevented

the jury from considering parole during the punishment phase.                  In

addition, the court noted that the Texas Court of Criminal Appeals

had   repeatedly   refused   to     extend    the   holding    in    Simmons    to

defendants   who   are   eligible    for     parole.    Finally,      the   court

observed   that    because   the    jurors     were    not    told   about     the

possibility of parole, they may have considered a term of “life” to

mean Nealy’s natural life, and thus Nealy probably benefitted from

the lack of an instruction on parole eligibility.

      In his federal habeas petition, Nealy claimed that he is

entitled to relief because the trial court’s failure to allow him

to inform the jury of his parole eligibility if the death penalty

were not assessed violated his constitutional rights to equal

protection, effective assistance of counsel, due process, and

protection from cruel and unusual punishment.            The district court

declined to review these claims, holding that they are all barred

by Teague v. Lane, 489 U.S. 288 (1989).             Nealy contends that the

district court mischaracterized his claims, and that the claims

are not Teague-barred because he is not relying on retroactive



                                      7
application of Simmons v. South Carolina.2            He notes that the Texas

Legislature, after his trial, changed the law to provide that

capital murder defendants facing the death penalty can inform

jurors about parole eligibility.

     The district court’s decision that Nealy’s parole-eligibility

claims are      barred   by   Teague   is   neither    debatable      nor   wrong.

Nealy’s creative attempts to avoid the Teague bar are unavailing

because,   as    the   district   court     held,   all   of   his    claims   are

foreclosed by our precedent holding that Teague bars extension of

the Simmons rule to a situation where the defendant is eligible for

parole.    See Thacker v. Dretke, 396 F.3d 607, 617 n.15 (5th Cir.

2005); Woods v. Cockrell, 307 F.3d 353, 361 (5th Cir. 2002); Tigner

v. Cockrell, 264 F.3d 521, 525 (5th Cir. 2001).                      At the time

Nealy’s conviction became final, the state court would not have

felt compelled by precedent to conclude that the due process

clause, the equal protection clause, and the Sixth and Eighth

Amendments required the trial court to instruct the jury on parole

eligibility where, under state law, the defendant is eligible for

parole.    Thus, the district court did not unreasonably conclude

that Nealy seeks the benefit of a new rule barred by Teague.

                                       2



     2
      The rule in Simmons requires that a jury be informed about
the defendant’s parole eligibility when the state argues that a
defendant represents a future danger to society, and the defendant
is legally ineligible for parole.

                                       8
     Nealy requests a COA for his claim that the evidence was

insufficient to sustain the State’s burden of proving that he would

commit criminal acts of violence constituting a future danger to

society.

     In addition to the evidence presented at the guilt phase, the

State presented the following evidence of future dangerousness at

the punishment phase:   Nealy had a criminal record as a juvenile in

the 1970s, including armed offenses; he received a 35-year sentence

in 1980 for aggravated robbery (he was sixteen years old, and

robbed a woman at gunpoint as she was sitting in her car with her

baby in a grocery store parking lot -- he pointed the gun at the

woman and her son and told her to get out of the car and leave her

purse or he would kill her); and he was convicted again in 1994. At

age 33, about one month before the capital murder, Nealy and his

nephew held up a pawn shop where Nealy had been a regular customer.

After they entered the shop, Nealy grabbed the clerk by the back of

the neck and put a gun to the side of her head.   His nephew grabbed

the clerk’s mother and held a gun to her head.       Nealy told the

clerk that he would kill her if she moved.     They took money, two

handguns, and a shotgun.   The day before the capital murder, Nealy

and another man posed as customers in a shoe store robbery.   After

the owner fitted the two men with new shoes, the owner went to the

cash register and Nealy held a handgun close to the owner’s head.

Nealy and the other man stole about $250 from the cash register and

the two pairs of shoes.

                                 9
      Nealy accumulated 70 disciplinary reports while in prison.

While he was in jail awaiting trial for capital murder, Nealy and

two other inmates assaulted another inmate, breaking his jaw.                         At

trial, after the assaulted inmate had testified, Nealy threatened

him and shouted obscenities at him.

      The Texas Court of Criminal Appeals found this evidence

sufficient to support the jury’s affirmative answer to the special

punishment issue on future dangerousness. The district court noted

that the Court of Criminal Appeals used the correct standard of

review   and    concluded     that    Nealy      had    not    shown    by   clear   and

convincing      evidence    that     any    of    the        state    court’s   factual

determinations were incorrect.

      Nealy contends that, although he had a history of robberies,

the previous robberies had not been violent; there was nothing

particularly brutal about the instant offense; he could have fired

the   shotgun    after     being   surprised;          the    State    did   not   offer

psychiatric evidence that he would be a future danger to society;

and the extraneous offense evidence from his time in prison was

minimal.

      Nealy    is   not    entitled    to    a   COA     for    this    claim   because

reasonable jurists would not find debatable the district court’s

conclusion that the state court’s decision was not an unreasonable

determination of the facts or an unreasonable application of

clearly established federal law.

                                        III

                                           10
     For the foregoing reasons, Nealy’s request for a COA is

GRANTED, in part, and DENIED, in part.




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