                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                               May 24, 2006
                         FOR THE FIFTH CIRCUIT
                         _____________________           Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-70027
                      ______________________

CHARLES ANTHONY NEALY,

                                             Petitioner - Appellant,

                                versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,

                                           Respondent - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
            for the Northern District of Texas, Dallas
                      USDC No. 3:01-CV-02274
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:1

     Charles Anthony Nealy (“Nealy”) was convicted of capital

murder and sentenced to death for the 1997 murder of Jiten Bhakta

(“Jiten”) during an armed robbery of the convenience store owned by

Jiten.   This court granted a certificate of appealability (“COA”)

to appeal the district court’s denial of habeas relief on Nealy’s

claim that the evidence is insufficient to support the verdict of

guilt.   We AFFIRM.




     1
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                    I

     Nealy’s   conviction   and   sentence   were   affirmed     on   direct

appeal.    Nealy v. State, No. 73,267 (Tex. Crim. App. September 13,

2000) (unpublished), cert. denied, 531 U.S. 1160 (2001).                  In

October 2001, the Texas Court of Criminal Appeals adopted the trial

court’s recommendation that Nealy’s state habeas application be

denied.    Ex parte Nealy, No. 50,361-0-1 (Tex. Crim. App. October

24, 2001) (unpublished).

     The     district   court     adopted    the    magistrate        judge’s

recommendation and denied Nealy’s petition for federal habeas

relief, as well as his application for a COA.         Nealy requested a

COA from this court to appeal the denial of relief as to three

claims.     Based on our “threshold inquiry”, consisting of “an

overview of the claims in the habeas petition and a general

assessment of their merits,” Miller-El v. Cockrell, 537 U.S. 322,

327, 336 (2003), this court granted a COA for only one of the three

claims:    whether the evidence is sufficient to support the jury’s

verdict of guilt.

     The parties filed supplemental briefs on the merits of the

claim for which a COA was granted, and this court heard oral

arguments of counsel.    Having considered the arguments of counsel

and based on our review of the record of the state court trial,           we

conclude that the state court’s decision is not unreasonable and,

therefore, we AFFIRM the district court’s denial of federal habeas

relief, for the reasons that follow.

                                    2
                                      II

      Nealy is not entitled to federal habeas relief on his claim of

insufficient evidence unless the state court’s adjudication of this

claim

                 (1) resulted in a decision that was
            contrary to, or involved an unreasonable
            application of, clearly established Federal
            law, as determined by the Supreme Court of the
            United States; or

                 (2) resulted in a decision that was based
            on an unreasonable determination of the facts
            in light of the evidence presented in the
            State court proceeding.

28 U.S.C. § 2254(d).        The state court’s factual determinations

“shall be presumed to be correct”, and the petitioner “shall have

the burden of rebutting the presumption of correctness by clear and

convincing evidence.”      28 U.S.C. § 2254(e)(1).         Nealy argues that

the     state   court’s   decision    was   based     on   an   unreasonable

determination of the facts in the light of the evidence presented

at trial.

      A   claim   of   insufficient   evidence   is    reviewed   under   the

standard set forth in Jackson v. Virginia, 443 U.S. 307, 318

(1979):     whether, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt.” With respect to Nealy’s case, the prosecution was required

to prove beyond a reasonable doubt that Nealy intentionally caused

the death of Jiten Bhakta during the course of a robbery.             Nealy


                                      3
contends that no rational trier of fact could have found the

essential elements of the offense of capital murder beyond a

reasonable     doubt,   because   the   eyewitness’s   identification      was

tainted by conflicting testimony and his lack of memory about

whether   he   had   previously   identified    Nealy,    and    because   the

remaining testimony presented by the prosecution did not establish

that Nealy caused Jiten Bhakta’s death.

     The following evidence was presented at trial.              The State’s

first witness was Memphis Nealy (“Memphis”).             He testified that

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

riding with Nealy on Central Expressway in Dallas.                 When they

passed the Expressway Mart convenience store, Memphis said that

Nealy stated, “I’m going to come back and get ‘em.”             Nealy did not

want Memphis to participate in their return to the convenience

store because Memphis did not have a criminal record.

     Memphis testified that, within 24 hours, he saw a television

news report about the robbery and murders at the Expressway Mart.

On direct examination, he testified that he saw a “little bit” of

the videotape from the store on television;2 that he saw Nealy and

Reginald Mitchell in the videotape; and that he later viewed a

videotape of the offense and observed Nealy, wearing a dark hat and

carrying a shotgun and a briefcase.



     2
      The record on appeal was supplemented with a copy of the
videotape.

                                        4
     On cross-examination, Memphis testified that the police showed

him the videotape of the offense; that only a small portion of the

videotape was shown on the television news; that he could not tell

who was depicted on the tape when he first viewed it; and that,

after the police told him that Nealy was shown on the videotape, he

was able to recognize and identify Nealy and Claude Nealy (“Claude”

-- Nealy’s nephew and Memphis’s brother).

     On redirect examination, Memphis testified that the person

depicted on the videotape with the dark hat and shotgun is Nealy,

and that the person with the light hat and handgun is his little

brother, Claude.

     Satishbhi (Sam) Bhakta (“Bhakta”) testified that his brother,

Jiten Bhakta, owned the Expressway Mart.   On August 20, 1997, about

8:20 p.m., Bhakta was helping at the store with another employee,

Vijay Patel, while Jiten was in the office taking a nap.   Two men,

one armed with a shotgun and the other with a pistol, entered the

store.   The men ordered Patel and Bhakta to lie down on the floor.

The man with the shotgun went into the office.   Bhakta heard Jiten

call out and then heard the shotgun discharge.          The medical

examiner testified that Jiten died from a shotgun wound to his

chest that “pulpified” his heart.    Bhakta testified that the man

with the pistol shot Patel in the head and that Patel died a few

days later.

     Bhakta testified that the man with the shotgun came out of the

office with a briefcase (containing $4,000) and said, “I got the

                                 5
man in the office.”    The man with the pistol replied, “I got one

over here, too.”   The man with the pistol ordered Bhakta to open

the cash register, and the man with the shotgun took money from the

register and put it in his pocket.    Both of the robbers took wine

and beer before leaving the store.     At trial, Bhakta identified

Nealy as the man with the shotgun.

     On direct examination, Bhakta testified first that the man

with the shotgun had on a light-colored hat, but immediately

thereafter he testified that the man with the shotgun was wearing

a dark-colored hat, and that the man with the pistol was wearing a

lighter-colored hat.

     Four video cameras in the store recorded the robbery.      The

videotape was played for the jury during Bhakta’s testimony.

Although the tape was of poor quality, it showed a man with a

light-colored hat, and a man wearing a dark hat, carrying a

shotgun.   The tape did not record either of the murders, but it

recorded the two men stealing money from the cash register.

     On cross-examination, Bhakta testified that the man with the

shotgun was wearing a white hat, and that the man with the pistol

was wearing a dark hat.   He stated that the man with the pistol and

darker hat was short, balding, had a gold tooth with a star, and

was wearing a white t-shirt and dark-colored jeans. He stated that

the man with the shotgun was wearing a lighter-colored hat, a white

t-shirt, and jeans.



                                  6
     On redirect examination, Bhakta testified that the man with

the shotgun was wearing the dark-colored hat.     He identified Nealy

in court as the man who had the shotgun.

     On recross-examination, Bhakta testified that he identified

the man carrying the shotgun from a photographic line-up, but that

he did not remember if that was a picture of Nealy.     He testified

further that he also identified and signed a photograph of the

person who was carrying the pistol.

     Reginald Mitchell, a co-defendant, testified that on the night

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

to the Expressway Mart.     He stated that Nealy was wearing a dark

hat and that Claude was wearing a light hat.    Mitchell stated that

Claude and Nealy entered the store, and that Nealy had a shotgun,

although he did not see it.    He testified that Claude had a .38 or

.32 pistol. Mitchell testified that he first heard a shotgun blast

and then small-arms fire.     Nealy and Claude came out of the store

and got into the car.   Mitchell testified that Nealy said, “This is

the way the Nealys do it.”     When they got back to Nealy’s house,

Nealy said that they committed the crime because “the bitches

wouldn’t sell him no Blackie mounds” (referring to a type of

cigar). Mitchell testified that Nealy threatened to kill him if he

told anyone about the crime.    The prosecutor showed the videotape

to Mitchell and Mitchell identified Nealy as the person with the

shotgun depicted on the videotape.     On cross-examination, Mitchell



                                   7
admitted that if he did not already know Nealy, he would not have

been able to recognize Nealy on the videotape.

     Nealy contends that Bhakta’s identification is tainted and

unreliable,    because     Bhakta   could    only   identify     the   shotgun

assailant by clothing, he knew that the district attorney suspected

that Nealy was the man with the shotgun, and he was mistaken until

after he had viewed the videotape.          Furthermore, Bhakta testified

that he had identified this robber in a photographic line-up, but

did not know if he had identified Nealy.              Nealy asserts that

Memphis’s testimony does not prove capital murder, because Memphis

could not identify anyone until after the police told him that

Nealy and Claude were depicted on the videotape of the offense.

Finally, Nealy argues that the videotape is of no aid to the

State’s case     because   Reginald   Mitchell,     who   knew   all   of   the

parties, admitted that anyone who did not know Nealy could not have

identified him from viewing the tape.

     On direct appeal, the Texas Court of Criminal Appeals rejected

this claim, stating:

          Nealy argues that the State’s eyewitnesses
          gave conflicting testimony and that the
          surveillance video was of insufficient quality
          to discern the perpetrator’s facial features.
          He contends, therefore, that the evidence does
          not preclude the possibility that someone
          other than Nealy, such as Claude, shot the
          deceased.

          ....

          Mitchell, who was riding in the car with Nealy
          and Claude, saw Nealy wearing a dark hat and

                                      8
             carrying a shotgun.    The video shows a man
             wearing a dark hat and carrying a shotgun.
             The eyewitness to the offense identified Nealy
             as the man with the shotgun. The pathologist
             testified that Jiten Bhakta was shot at close
             range with a shotgun. Viewing this evidence
             in the light most favorable to the verdict, we
             hold that the jury could have found beyond a
             reasonable doubt that Nealy, as opposed to
             Claude, killed Jiten Bhakta.

       In rejecting Nealy’s federal habeas claim, the district court

held that Nealy had failed to show that any of the state court’s

findings were incorrect by clear and convincing evidence or that

its ultimate resolution of this claim was unreasonable.              The

district court observed that: (1) three witnesses identified Nealy

as the person carrying the shotgun into the store; (2) Bhakta

testified that he saw the person with the shotgun go into the

office where his brother was resting, heard his brother yell, and

saw the person with the shotgun come out of the office with a

briefcase, stating, “I got the man in the office”; and (3) Bhakta

identified Nealy in court as this same man.

       Nealy argues that the conflicts in the testimony in this case

are so fundamental that the State’s burden to prove beyond a

reasonable doubt that he killed Jiten Bhakta cannot be satisified

by the jury’s ability to resolve such conflicts.          He points out

that Bhakta originally stated that his brother’s killer had worn a

dark   hat   (which   would   have   corroborated   Reginald   Mitchell’s

testimony), but on cross-examination changed his testimony to

assert that the shotgun assailant had worn a light-colored hat.


                                     9
Thus, Nealy asserts that Bhakta confused the two assailants, and

his identification problem was cleared up only after he had viewed

the videotape of the offense.        Nealy points out that Bhakta also

asserted that he had identified the shotgun assailant in a previous

photographic   line-up,   but   he    could    not   remember   if    he   had

identified Nealy as that assailant.

      All of the arguments regarding the conflicting testimony that

Nealy now makes in support of his claim for habeas relief were

pointed out to the jury in defense counsel’s closing argument.              It

is   the   jury’s   responsibility     “to    resolve   conflicts    in    the

testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.”           Jackson, 443 U.S. at 319.

Accordingly, a reviewing court should “not focus on whether the

trier of fact made the correct guilt or innocence determination,

but rather whether it made a rational decision to convict or

acquit.”   Herrera v. Collins, 506 U.S. 390, 402 (1993).            The Texas

Court of Criminal Appeals’s decision that there was sufficient

evidence that Nealy shot Jiten Bhakta with a shotgun during the

course of a robbery to support his conviction for capital murder

did not involve an unreasonable application of clearly established

federal law and was not based on an unreasonable determination of

the facts in the light of the evidence presented as trial.

                                     III

      The Texas Court of Criminal Appeals’s determination that the

evidence, viewed in the light most favorable to the verdict, was

                                     10
sufficient   to   allow   a   rational   juror   to   find   find   beyond   a

reasonable doubt that Nealy, as opposed to Claude, killed Jiten

Bhakta, is not objectively unreasonable.         Therefore, the judgment

of the district court denying Nealy’s federal habeas petition is

                                                                    AFFIRMED.




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