            Case: 14-14371    Date Filed: 12/19/2016   Page: 1 of 4


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14371
                       ________________________

                  D.C. Docket No. 2:11-cv-00327-JES-CM



JOSHUA D. NELSON,

                                               Petitioner - Appellant.

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                               Respondents - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (December 19, 2016)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:
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      Joshua D. Nelson appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition. Nelson argues that the trial court erred in admitting out-of-court

statements of his co-defendant, Keith Brennan, in violation of his Sixth

Amendment right to confront witnesses against him. After a careful review of the

record, consideration of the parties’ briefs, and having had the benefit of oral

argument, we affirm the district court.

                                           I

      The Florida Supreme Court described the facts adduced at trial as follows:

                   The evidence presented at trial established the
             following facts. Nelson and Keith Brennan wanted to
             leave the city of Cape Coral. The two devised a plan to
             murder Tommy Owens and steal his car. Nelson and
             Brennan knew that Owens kept a baseball bat in his car.
             On the evening of March 10, 1995, Owens was lured
             under false pretenses to a remote street. Nelson and
             Brennan were able to convince Owens to exit his car,
             whereupon Nelson hit Owens with the bat. After a
             number of blows, Owens eventually fell to the ground.
             Nelson and Brennan tied Owens’ legs and arms. Owens
             pleaded for his life, stating that the two could take his
             car. After a brief discussion, Nelson and Brennan
             concluded that to avoid being caught, they should kill
             Owens. Brennan attempted to slice Owens’ throat with a
             box cutter. Owens was not unconscious when the attacks
             began and he begged Nelson to hit him again with the bat
             so as to knock him unconscious before the stabbing
             continued. Nelson did as Owens requested and Brennan
             continued to attack Owens with the box cutter. Nelson
             and Brennan also continued to strike Owens a number of
             times with the bat. The two eventually dragged Owens’
             body to nearby bushes, where Owens later died.


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                     Nelson and Brennan picked up Tina Porth and
             Misty Porth and the four left the city in Owens’ car.
             After stopping in Daytona Beach, the four left the state
             and drove to New Jersey. At different times during the
             trip, Nelson and Brennan informed Tina and Misty that
             they had murdered Owens. Both Tina and Misty testified
             at trial.

                   Nelson and Brennan were apprehended by law
             enforcement officers in New Jersey. Nelson gave a
             video- and audio-taped confession. In the confession,
             Nelson detailed his account of the murder, both at the
             crime scene and at the place where the bat was recovered.
             The video-taped confession was played to the jury.
             Additionally, an analyst for the Florida Department of
             Law Enforcement testified that blood stains on Nelson’s
             shoes, the box cutter, and a pair of underwear that the
             box cutter was wrapped in all matched Owens’ DNA.

             Nelson was found guilty of first-degree murder and
             robbery with a deadly weapon. At the penalty phase, the
             jury recommenced [sic] death by a twelve-zero vote. The
             trial court followed the jury’s recommendation and
             imposed the death penalty for the first-degree murder
             conviction. The trial court sentenced Nelson to 189
             months in prison for the robbery conviction.

Nelson v. State, 748 So. 2d 237, 239–40 (Fla. 1999) (per curiam).

      On direct appeal, the Florida Supreme Court denied Nelson’s claim for relief

based on a violation of his Sixth Amendment rights. See id. at 243. Nelson filed a

timely petition in the United States District Court for the Middle District of Florida

seeking the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court

denied relief on all claims, but granted Nelson a certificate of appealability as to

the sole issue of whether his Sixth Amendment right to confrontation was violated
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by the admission of Brennan’s out-of-court statements, elicited through Tina and

Misty Porth’s testimony at trial. See Nelson v. Sec’y, Fla. Dep’t of Corr., No. 11-

327, slip op. at 34–35 (M.D. Fla. Aug. 20, 2014). That appeal is now before us.

                                        II

      If the trial court erred in admitting the Porths’ hearsay testimony in violation

of Nelson’s Sixth Amendment rights, such error was harmless under Brecht v.

Abrahamson. See 507 U.S. 619, 623, 638, 113 S. Ct. 1710, 1714, 1722 (1993). In

addition to that testimony, the State presented an overwhelming amount of other

inculpatory evidence at trial—most notably Nelson’s voluntary, video-taped

confession in which he, at the site of the crime, described the murder in extensive

detail. Under these circumstances, we do not have “grave doubt about whether

[the admission of Brennan’s out-of-court statements] had ‘substantial and injurious

effect or influence in determining the jury’s verdict.’” See O’Neal v. McAninch,

513 U.S. 432, 436, 115 S. Ct. 992, 994 (1995); Brecht, 507 U.S. at 638, 113 S. Ct.

at 1722. Hence, the district court’s denial of habeas corpus is

      AFFIRMED.




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