     Case: 13-41313   Document: 00513239127     Page: 1   Date Filed: 10/20/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                 No. 13-41313                       October 20, 2015
                                                                      Lyle W. Cayce
RICHARD NICKLESON,                                                         Clerk


                                           Petitioner - Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent - Appellee



                Appeal from the United States District Court
                     for the Southern District of Texas


Before JONES, BARKSDALE, and PRADO, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      Richard Nickleson was convicted of murder in 2004 and sentenced to
38 years imprisonment for shooting a man with whom he had recently been
involved in a drug deal. On direct appeal, he unsuccessfully raised various
state law issues including insufficiency of the evidence. He then sought state
habeas relief for claims based on ineffective counsel, inadmissible extraneous
offense evidence, and a biased juror.
      For the first time in federal court, he asserted that his trial was
fundamentally unfair because of “cumulative errors” committed at trial. The
district court, while indicating its concern about various aspects of the trial,
ultimately denied relief on this theory. We hold that Nickleson’s newly raised
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ground for relief from conviction was unexhausted in the state courts and
procedurally barred from review in the federal courts.
                                BACKGROUND
      Apart from the testimony of Officer Gardner, the case against Nickleson
was circumstantial. As the district court summarized it,
      [w]itnesses placed Nickleson in the neighborhood at the time of the
      shooting. A witness placed him in the vehicle with the deceased
      within half an hour of the shooting. Witnesses saw a large black
      man in a predominantly Hispanic neighborhood moments after the
      shooting, walking away from the scene. Three other witnesses who
      gave Richard Nickleson a ride noted his apparent dismay at seeing
      police cars near where he told them he wanted to go. Admitted at
      trial was Lt. Gardner’s testimony that [Nickleson’s] uncles
      allegedly told Gardner that Richard admitted to being involved in
      the shooting and Richard Nickleson’s admissions to acquaintances
      at 342 Balboa that someone was shooting at him.

      The officer’s incriminating testimony was admitted twice during trial,
once pertaining to each of Nickleson’s uncles. The first time, over a hearsay
objection by defense counsel, the testimony was admitted not for the truth of
the matter asserted but only to show the reason that Officer Gardner was
brought into the case. That is, the officer had had a telephone conversation
with his friend, Nickleson’s uncle Troy, who told him Richard had been
involved in a shooting and wanted to turn himself in. The hearsay objection
was overruled. The second time, Officer Gardner stated that, while on his way,
he called Richard’s uncle Guy, who also informed him that the shooting
appeared to be in self-defense “from what Richard had told them.” No objection
was raised to this testimony.
      Guy Nickleson took the stand and denied that he talked to Officer
Gardner about any admissions by Richard. Troy testified that he had not
spoken to Richard at all on the fatal day. The jury was able to evaluate the
witnesses’ credibility, and they convicted Richard.
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      On direct appeal, Nickleson raised the following state law points:
(1) improper reference to his prior felony conviction in examination of a defense
witness; (2) evidence that he traded drugs for use of the victim’s SUV earlier
in the day revealed an improper extraneous offense; and (3) legal and factual
insufficiency of the evidence. In regard to the third point, the appellate court
noted that no objection had been made to the admission of Officer Gardner’s
conversation with Guy Nickleson. 1 The appellate court discussed and rejected
each of Nickleson’s arguments, affirming the conviction.
      Nickleson next filed a pro se state habeas petition in which he asserted
error, again, in the admission of the prior felony offense and insufficiency of
evidence to convict. He also alleged that his trial counsel was ineffective for
(1) failing to object when the prosecutor “vouched” for a witness’s testimony;
(2) failing to move to suppress Officer Gardner’s incriminating testimony; and
(3) failing to seek a mistrial for a juror’s expressed bias. Because the repetitive
claims had already been rejected by the state court, the State responded only
to the ineffectiveness claims by submitting an affidavit of Nickleson’s trial
counsel.      The “very experienced” 2 defense attorney explained his strategic
decisions concerning each claim. In particular, he did not move to suppress
Gardner’s testimony before trial because Officer Gardner had refused to speak
to him, and he was uncertain that Gardner would in fact reveal any
incriminating conversation. He did not object to admission of the testimony
about Gardner’s conversation with Guy Nickleson because in putting Guy on
the witness stand, he felt that his witness’s credibility would counteract
Gardner’s contrary testimony. The state habeas court rejected the petition.



      1   The court inadvertently attributed the statement to Troy, but its meaning is clear.

      2  Counsel for the state so described Mr. Garza, the defense attorney, without
contradiction during the federal habeas hearing.
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                                  No. 13-41313
      Moving to federal court, Nickleson sought habeas relief on essentially
the grounds presented in his state petition. The state moved for summary
judgment. The magistrate judge proposed denying relief with a comprehensive
memorandum, which the district court initially adopted. Less than two weeks
later, however, the court sua sponte vacated its judgment. Eventually, the
district court appointed counsel for Nickleson and held a hearing on his
application.
      At the hearing, Nickleson’s counsel for the first time asserted that three
trial court “errors” combined to deprive the petitioner of a fundamentally fair
trial. Counsel focused on the admission of Nickleson’s prior felony offense
during cross-examination of a witness, the evidence of the trade of crack
cocaine for use of the victim’s car, and Officer Gardner’s testimony. The state
objected that no claim of cumulative error had been exhausted in state court,
and it was procedurally barred from federal review or, alternatively, meritless.
The court had examined the state court record in detail and closely questioned
both sides’ contentions during the hearing. The judge indicated more than once
that he would have tried the case differently.         In the end, however, he
acknowledged a sense that habeas relief must be denied based on the federal
standards. The court’s written opinion denied relief on the merits, concluding
that “the individual issues were primarily issues of state evidence law and did
not so infect the entire trial that the resulting conviction violates due process.”
The court found “no cumulative error,” but it granted a certificate of
appealability. Nickleson appealed.




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                                      DISCUSSION
       Nickleson’s appeal raises exclusively the issue of cumulative error as the
cause of a fundamentally unfair trial. As in the district court, the alleged
errors include the admission of his prior felony conviction during cross-
examination; 3 the admission of the drugs-for-car exchange earlier in the day
as relevant to petitioner’s possible motive for the murder; the admission of
Officer Gardner’s testimony over hearsay objection; and ineffective assistance
of counsel for his failures to (a) seek pretrial suppression of the Gardner
testimony, (b) object to Gardner’s testimony concerning Guy Nickleson, and
(c) object during the prosecutor’s closing argument. Nickleson acknowledges
that “according to the Texas courts of appeal,” the errors are not “reversible in
and of themselves.”
       In reviewing the denial of § 2254 relief, this court reviews issues of law
de novo and findings of fact for clear error, applying the same deference to the
state court’s decision as the district court under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Ortiz v. Quarterman, 504 F.3d 492,
496 (5th Cir. 2007). According to AEDPA, federal courts may not grant habeas
relief for any claim that was adjudicated on the merits in the state court
proceedings, unless the state court’s denial of relief, inter alia, resulted in a
decision that was contrary to, or involved an unreasonable application of,
clearly established Supreme Court precedent.                   28 U.S.C. § 2254(d)(1). 4
Further, no habeas application may be granted unless the applicant has
exhausted available remedies in state courts. 28 U.S.C. §§ 2254(b)(1) and (c).



       3The state trial court actually sustained counsel’s objection and instructed the jury to
disregard the question, but it denied a motion for mistrial.

       4We note that the State contends that the theory of cumulative error has never been
accepted by the Supreme Court and thus cannot fulfill this threshold requirement of
§ 2254(d). That issue need not be addressed here.
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Not only is exhaustion of state remedies required, but a petitioner may not
receive habeas review on any issue whose resolution would be barred by a state
procedural rule. Canales v. Stephens, 765 F.3d 551, 562 (5th Cir. 2014). The
district court rejected Nickleson’s claim without considering exhaustion and
procedural bar, but these doctrines are decisive, and the state properly raised
them. See Woodfox v. Cain, 609 F.3d 774, 789 (5th Cir. 2010).
      The above review of state proceedings demonstrates that although
Nickleson has consistently maintained that certain evidence was improperly
admitted at his trial, not until the hearing on federal habeas corpus did
appointed counsel first raise the theory of unconstitutional cumulative error.
Nickleson’s objections and briefing to the state courts dwelt on state law
questions; they did not cite the cases on which he relies in this court, nor did
they raise any issue of cumulative error under the Fourteenth Amendment. In
post-conviction pleadings, he characterized a prosecution question as violative
of due process and some of his evidentiary or mistrial complaints as proof of
counsel’s constitutional ineffectiveness under the Sixth Amendment. The state
courts reasonably addressed the issues only in terms of his arguments.
      Indeed, shortly after Nickleson’s counsel began his presentation to the
federal district court, highlighting the cumulative error argument, the State’s
attorney immediately objected that this theory had not been raised or
preserved in the state court proceedings.        Nickleson did not dispute this
objection, although counsel continued to claim that the individual errors added
up to a cumulative denial of a fair trial.
      The exhaustion doctrine demands more than allusions in state court to
facts or legal issues that might be comprehended within a later federal habeas
petition. The exhaustion doctrine is based on comity between state and federal
courts, respect for the integrity of state court procedures, and “a desire to
protect the state courts’ role in the enforcement of federal law.” Castille v.
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Peoples, 489 U.S. 346, 349 (1989) (internal quotation marks omitted) (quoting
Rose v. Lundy, 455 U.S. 509, 518 (1982)). To satisfy these important purposes,
a petitioner must “fairly present[]” his legal claim to the highest state court in
a procedurally proper manner. Morris v. Dretke, 379 F.3d 199, 204 (5th Cir.
2004). The state courts must be apprised of the constitutional foundation of
the claim. Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam). Finally,
“‘[i]t is not enough that all the facts necessary to support the federal claim were
before the state courts or that a somewhat similar state-law claim was made.’”
Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (quoting Anderson v.
Harless, 459 U.S. 4, 6 (1982) (per curiam)). Consequently, “‘where petitioner
advances in federal court an argument based on a legal theory distinct from
that relied upon in the state court, he fails to satisfy the exhaustion
requirement.’” Id. (quoting Vela v. Estelle, 708 F.2d 954, 958 n.5 (5th Cir.
1983)).
      It might be contended that Nickleson effectively raised in the state courts
each of the underlying errors on which his claim of fundamental unfairness
depends, and it is but a small step for this court consequently to evaluate their
ultimate impact. Nickleson’s briefing seems to suggest this, but he cites only
federal criminal cases that were decided on direct review by this court. See,
e.g., United States v. Delgado, 672 F.3d 320, 343-44 (5th Cir. 2012) (en banc).
To be sure, on direct review, “[t]he cumulative error doctrine . . . provides that
an aggregation of non-reversible errors (i.e., plain errors failing to necessitate
reversal and harmless errors) can yield a denial of the constitutional right to a
fair trial, which calls for reversal.” Id. (omission in original) (quoting United
States v. Munoz, 150 F.3d 401, 418 (5th Cir. 1998)). To take this step here,
however, would displace the federal habeas authorities just cited and ignores
the distinction between direct and collateral review of criminal convictions.
Pursuant to our authorities, because Nickleson did not fairly present to the
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state courts that the cumulative effect of “errors” denied him due process and
a fundamentally fair trial, he failed to exhaust this claim.                  See Finley v.
Johnson, 243 F.3d 215, 219 (5th Cir. 2001). 5
       Further, no other circuit court has yet held that cumulative error claims
against state convictions may be reviewed in federal proceedings without
exhaustion; instead, they have applied the conventional exhaustion principles.
See, e.g., Collins v. Sec’y of Pa. Dep’t of Corrs., 742 F.3d 528, 541-42 (3d Cir.),
cert. denied sub nom., Collins v. Wetzel, 135 S. Ct. 454 (2014) (holding that a
state prisoner’s claim of cumulative error, as a basis for establishing the
prejudice prong for a claim of ineffective assistance of trial counsel, was a
standalone constitutional claim subject to AEDPA procedural bar); Gonzales v.
McKune, 279 F.3d 922, 925 (10th Cir. 2002) (en banc) (rejecting petitioner’s
argument that exhaustion requires only that the substance of the claim be
presented and concluding the cumulative error argument was unexhausted
and procedurally barred because a cumulative error claim was never presented
to state court). We agree with these courts’ conclusions.
       Not only is this cumulative error claim unexhausted, it is also
procedurally barred from federal review because of Nickleson’s failure to raise



       5 The exhaustion requirement has not expressly been applied to a cumulative error
claim in this court before. This court decided in 1992 that any recognition of cumulative error
in a habeas corpus proceeding must be carefully hedged to preserve the established
boundaries of federal review. Derden v. McNeel, 978 F.2d 1453, 1458 (5th Cir. 1992) (en
banc). Accordingly, any cumulative error theory pled in habeas must refer only to actual
errors, not merely unfavorable rulings; the errors must not be procedurally barred from
federal review; and any state-law errors must “so infuse[] the trial with unfairness as to deny
due process of law.” Id. (quoting Lisenba v. California, 314 U.S. 219, 228 (1941)).
Significantly, no issue of failure to exhaust a theory of cumulative error arose in Derden
because that petitioner had asserted that numerous grounds of claimed fundamental
unfairness “contributed to an unfair trial” in the state courts. Id. at 1455 n.2. Although one
court has misinterpreted Derden to imply that it dispensed with the exhaustion doctrine
when considering a claim of cumulative error, it was wrong. See Collins v. Sec’y of Pa. Dep’t
of Corrs., 742 F.3d 528, 541-42 (3d Cir.), cert. denied sub nom., Collins v. Wetzel, 135 S. Ct.
454 (2014).
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it timely in the state courts. Any attempt at this date would be deemed an
abuse of the writ under the Texas courts’ regular and strict application of its
procedural rules. See, e.g., Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995).
The only exception to the procedural bar doctrine requires findings of “cause”
and “prejudice,” which have neither been asserted nor apply here.
      For these reasons, we AFFIRM the district court’s judgment denying
habeas relief.




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