Summary:

Armed with a shotgun, Nealy entered a convenience store in Dallas and demanded money, along with an accomplice, who was armed with a handgun.

The store was owned by Jiten Bhakta, who was in the office taking a nap, while his brother Satishbhi Bhakta and a 17 year old employee, Vijay Patel, were behind the counter.

Nealy entered the office and shot Jiten in the chest with the shotgun. The other man then shot Patel in the head. Both men died. Nealy came out with a briefcase full of money and said, "I got the man in the office." The men then took cash from the register and grabbed wine and beer, then left. Nealy was positively identified at trial by Satishbki, who survived the attack.

His accomplice, Claude Nealy, received a life sentence for the murder of Patel. The getaway driver, Reginald Mitchell testified that as the three drove away, Charles Nealy said “in a little old happy tone” that “this is the way the Nealy’s do it.” Mitchell received a two year sentence for his participation in the robbery.

Citations:

Ex parte Nealy, Not Reported in S.W.3d 2007 WL 404852 (Tex.Crim.App. 2007).
Nealy v. Dretke, 172 Fed.Appx. 593 (5th Cir. 2006) (Habeas).

Final/Special Meal:

None.

Final Words:

Nealy made his last statement - a calm, 4½-minute monologue. In it, Nealy asked witnesses to "tell the guys on death row I'm not wearing a diaper." He then criticized the Dallas County assistant prosecutor who handled his case. "You messed up. Now to cover it up, the state is killing me. I'm not sad and bitter. I feel sad for everyone else. You have to stay here; I'm going to someplace better." He also encouraged his relatives and friends who were present and said that he was going to be with his mother and Allah. "Don't bury me in that prison graveyard, I want to be buried next to momma. By the way, the reason it took so long was because [they] couldn't find a vein. I used to tear up the doctor's office. I hate needles." Nealy continued talking as the lethal injection was administered. As he was losing consciousness, Nealy said he could "feel it."

ClarkProsecutor.org

Inmate: Nealy, Charles A.
Date of Birth: 3/23/64
TDCJ#: 999289
Date Received: 12/10/98
Education: 10 years
Occupation: unknown
Date of Offense: 8/20/97
County of Offense: Dallas
Native County: Dallas County, Texas
Race: Hispanic
Gender: Male
Hair Color: Black
Eye Color: Brown
Height: 6' 00"
Weight: 180 lb

Texas Attorney General

Tuesday, March 13, 2007

Media Advisory: Charles Nealy Scheduled For Execution

AUSTIN – Texas Attorney General Greg Abbott offers the following information about Charles Anthony Nealy, who is scheduled to be executed after 6 p.m. Tuesday, March 20, 2007. Nealy was sentenced to death for the 1997 murder and robbery of Dallas convenience store employee Jiten Bhakta.

FACTS OF THE CRIME

On the evening of August 20, 1997, as Charles Nealy drove by the Expressway Mart in south Dallas, he told his nephew, Memphis Nealy, that he was going to “come back and get” the people at that store, because they would not sell him certain cigars, “Blackie Mounds.”

Later that night, Charles Nealy drove to the Expressway Mart, with Reginald Mitchell and nephew Claude Nealy as passengers. Mitchell went in the store and paid for gasoline, then went out and pumped it. When he finished, Charles Nealy, armed with a shotgun, and his nephew, Claude, toting a handgun, entered the store.

Store employee Satishbhi Bhakta testified that Charles Nealy and the other robber ordered him and another store employee, Vijay Patel, to get down on the floor or they would be shot. Satishbhi saw Charles Nealy go into the office where his brother, Jiten Bhakta, was and heard the shotgun fired, then heard Claude Nealy shoot Patel in the head, as the employee was lying on the floor.

As he came out of the office, Charles Nealy said “I got the man in the office.” Claude replied “I got the one over here too.” Charles Nealy took about $4,000 in cash from Jiten’s office, then turned his attention to Satishbhi and ordered him to open the cash register. After he complied, Nealy pulled the money out of it and stuffed it in his pocket. The Nealys took a six-pack of beer and a bottle of wine, then left the store. These events were recorded on the store’s video camera and shown to the jury.

Bhakta’s brother, Jiten Bhakta, was found dead in his office. Vijay Patel died of his wounds a couple of days later. At trial, Mitchell testified that, as they drove away, Nealy commented in a “little old happy tone”, that “this is the way the Nealy’s [sic] do it.”

PRIOR CRIMINAL HISTORY

Evidence at the punishment phase of his trial indicated that Charles Nealy had three prior convictions for aggravated robbery. In addition, Nealy assaulted a jail inmate following his arrest for capital murder, and he had an extensive record as a juvenile offender, including charges for shoplifting, truancy, burglary, and theft.

PROCEDURAL HISTORY

Sept. 1, 1998 -- A jury found Charles Nealey guilty of the capital murder of Jiten Bhakta.
Sept. 2, 1998 -- Following a separate punishment hearing, the court sentenced Nealy to death.

Direct Appeal

Sept. 13, 2000 – The Court of Criminal Appeals affirmed his conviction and sentence.
Feb. 20, 2001 -- The U.S. Supreme Court denied Nealy’s petition for writ of certiorari.

State Habeas

July 7, 2000 -- Nealy filed a state application for writ of habeas corpus with the trial court.
Oct. 24, 2001 -- The Texas Court of Criminal Appeals denied relief.

Federal Habeas

Oct. 21, 2002 -- Nealy filed a petition for writ of habeas corpus in a Dallas federal district court.
May 18, 2005 -- The federal district court denied relief.
May 25, 2005 -- Nealy filed a motion for certificate of appealability and notice of appeal.
June 15, 2005 -- The federal district court denied Nealy’s motion for certificate of appealability.
June 15, 2006 – The 5th U.S. Circuit Court of Appeals affirmed the judgment of the district court.
Aug. 22, 2006 -- Nealy filed a petition for writ of certiorari in the U.S. Supreme Court.
Nov. 6, 2006 – The Supreme Court denied Nealy’s petition.

Subsequent State Habeas

Oct. 11, 2006 -- A hearing was held in the trial court at the request of the State.
Oct. 23, 2006 -– The Texas Court of Criminal Appeals denied Nealy’s motion for stay of execution.
Nov. 9, 2006 -- Nealy filed an application for a subsequent state writ.
Feb. 7, 2007 -- The Texas Court of Criminal Appeals denied Nealy’s successive state writ.

Prisoner executed for Dallas slaying nearly 10 years ago

By Michael Graczyk - Houston Chronicle

AP March 20, 2007

HUNTSVILLE — Texas death row inmate Charles Anthony Nealy has been executed. Nealy had a history of robberies and was sent to the Texas death chamber this evening for a fatal shooting during a convenience store holdup in Dallas nearly 10 years ago. Charles Anthony Nealy, whose 43rd birthday would have been Friday, became the ninth condemned inmate executed this year in the nation's most active capital punishment state.

Nealy had at least three earlier convictions for aggravated robbery plus an extensive juvenile record for shoplifting, burglary and theft. The Dallas man insisted he was in Oklahoma and not in Texas the night of Aug. 20, 1997, when an Expressway Mart just south of downtown Dallas was robbed of some $4,000 and the store owner and a clerk were gunned down.

In late appeals to the federal courts, lawyers for Nealy alleged prosecutor misconduct and false testimony led to Nealy's conviction and death sentence. In November, Nealy won a reprieve from the Texas Court of Criminal Appeals three days before he was scheduled to die. State courts subsequently rejected the claims.

In the hours before he was scheduled to die, his lawyers also tried to raise claims in the federal courts that Nealy was mentally retarded and therefore ineligible for execution, but state attorneys said the attempt was improper and incorrect. The U.S. Supreme Court rejected the appeal and denied a stay shortly after the 6 p.m. CDT scheduled execution time passed.

Dallas man executed for 1997 robbery-slaying

Dallas Morning News

AP - Tuesday, March 20, 2007

HUNTSVILLE, Texas – A man with a history of robberies was executed Tuesday evening for a fatal shooting during a convenience store holdup in Dallas nearly 10 years ago. From the death chamber gurney, Charles Anthony Nealy blamed a more than 20-minute delay in his execution on technicians' inability to find a suitable vein to carry the lethal chemicals. "I used to tear up the doctor's office," Nealy said. "I hate needles."

Charles Anthony Nealy In a lengthy statement, Nealy wished his friends and relatives well and expressed love. "I'm not crying, so y'all don't cry. Don't be sad for me. I'm going to be with God and Allah and Momma."

He asked witnesses to tell the guys on death row "I'm not wearing a diaper" and then launched into a criticism of the Dallas County assistant prosecutor who handled the state's appeals in his case. "You messed up," he said. "Now to cover it up the state is killing me. I'm not sad and bitter. I feel sad for everyone else – you have to stay here. I'm going to someplace better." Nealy had one request, that he not be buried "in that prison graveyard. Bury me next to Momma."

At 7:20 p.m., seven minutes after the lethal dose of drugs began, he was pronounced dead. Nealy, whose 43rd birthday would have been Friday, was the ninth condemned inmate executed this year in the nation's most active capital punishment state.

Nealy had at least three earlier convictions for aggravated robbery plus an extensive juvenile record for shoplifting, burglary and theft. The Dallas man insisted he was in Oklahoma and not in Texas the night of Aug. 20, 1997, when an Expressway Mart just south of downtown Dallas was robbed of some $4,000 and the store owner and a clerk were gunned down.

In late appeals to the federal courts, lawyers for Nealy alleged prosecutor misconduct and false testimony led to Nealy's conviction and death sentence. In November, Nealy won a reprieve from the Texas Court of Criminal Appeals three days before he was scheduled to die. State courts subsequently rejected the claims.

In the hours before he was scheduled to die, his lawyers also tried to raise claims in the federal courts that Nealy was mentally retarded and therefore ineligible for execution, but state attorneys said the attempt was improper and incorrect.

India-born store owner Jiten Bhakta, 25, was shot to death with a shotgun as he dozed in the store office. One of his employees, Vijay Patel, also 25, was fatally shot with a pistol. Nealy was convicted of Bhakta's death. His nephew, Claude Nealy, 17 at the time of the slayings, is serving life in prison for Patel's killing. Bhakta's brother, who also was in the store at the time of the holdup, identified Charles Nealy as the robber with the shotgun and Claude Nealy was the man with the handgun.

A third man charged in the case, Reginald Mitchell, testified he was with the pair that evening and waited in a car as Nealy and his nephew went into the store. He said Charles Nealy admitted the slayings to him, explaining later that night the two men were shot because they refused to sell him a cigar known as "Blackie mounds." Mitchell, who was sentenced to two years in prison, also testified Charles Nealy threatened to kill him if he told anyone about the robbery and shootings.

"There's all kinds of weird stuff going on in this case," Charles Nealy said last week from death row, denying any involvement in the shootings. He said he was in Ardmore, Okla., at the time of the slayings, picking up a relative's truck. "There was plenty of evidence in the case," said Jason January, a former Dallas County assistant district attorney who prosecuted the case. "I don't have any doubt or I wouldn't have prosecuted it."

A grainy videotape image from a security camera at the store showed a man with a shotgun and another with a pistol taking money from a cash register and then grabbing a bottle of wine and a couple of six-packs of cold beer. "I wasn't one of them." Nealy said in an interview.

He acknowledged the prospect of execution was scary. "Since I've been here, my dad died, my stepdad died, my mother died, one of my friends commited suicide," he said. "And I'm up here where people are dying, it seems, like every week. "Sometimes the Prozac just isn't enough."

Scheduled to die next is Vincent Gutierrez, 28, facing lethal injection March 28 for fatally shooting a 39-year-old Air Force captain, Jose Cobo, who was carjacked outside his San Antonio apartment 10 years ago. The following day, Roy Lee Pippin, 51, is set to die for the slayings of two men in Houston 13 years ago.

Dallas man becomes third inmate executed in March

By Robbie Byrd - The Huntsville Item

March 21, 2007

The third person to be executed in Texas so far in March was pronounced dead at the Hunstville Unit’s death chamber Tuesday night. Charles Anthony Nealy, who was known as “Anthony,” was pronounced dead at 7:20 p.m., seven minutes after the procedure began. He would have been 43 on Friday.

In a lengthy 4 1/2-minute statement before he became unconcious, Nealy was eerily calm and tried to provide comfort to his sister, brother-in-law and other friends on hand to witness the execution. “Ya’ll know that I love all of you,” Nealy said at around 7:10 p.m. “I’m not crying, so y’all don’t cry for me. I’m going to be with God — Allah — and momma.”

Nealy was convicted in 1998 of gunning down 25-year-old store owner Jiten Bhatka with a shotgun while he slept in his office during a robbery of the Expressway Mart near downtown Dallas one year earlier. Nealy shot the man and ran with $4,000 in cash.

Nealy’s nephew, Claude Nealy, shot and killed 25-year-old clerk Vijay Patel. Claude Nealy, who was 17 at the time of the crime, is serving a life sentence for the clerk’s death.

Nealy said that many members of his family, including his mother, passed away while he was incarcerated. “Since I’ve been here, my dad died, my stepdad died, my mother died, one of my friends commited suicide,” Nealy said in an interview last week with the Associated Press. “And I’m up here where people are dying, it seems, like every week.”

As the first round of drugs — sodium thiopental, a sedative that causes the inmate to lose conciousness — began to take affect, Nealy said that he could “feel it.”

According to the Texas Attorney General’s office, the two Nealys, another of Charles Nealy’s nephews, Memphis Nealy and Reginald Mitchell, were in the car when Charles Nealy told the passengers he was going back to the store to “get” the employees because they would not sell him a certain type of cigar, known as “blackie mounds,” more commonly known as “Black and Milds.”

Later in the night, Mitchell and Claude Nealy returned with Charles Nealy and murdered the employees. Another employee Satishbhi Bhakta — brother to the murdered store owner Jiten Bhakta — testified that Charles Nealy and Claude Nealy ordered him and another Patel to get down on the floor or they would shoot them.

Bhakta then said he saw Charles Nealy go into the office and then heard a gunshot. Claude Nealy then shot Patel in the back of the head as he lay on the floor, and died several days later as a result of the injuries. “I got the man in the office,” Bhakta testified Claude Nealy said. Bhatka testified then that Charles Nealy said “I got the one over here, too.” Charles Nealy then ordered Satishbhi to open the cash register, then Nealy took the cash from the register and stuffed it in his pocket. Before leaving the store, the two took a six-pack of beer and a bottle of wine.

Mitchell testified that as the three drove away, Charles Nealy said “in a little old happy tone” that “this is the way the Nealy’s do it.” Mitchell was sentenced to two years for his participation in the robbery.

Charles Nealy had been convicted for three prior aggravated robberies, as well as an extensive juvenile record, including charges of shoplifting, truancy, burglary and theft. Shotrly after his arrest in the murder case, Nealy assaulted a fellow inmate.

Nealy’s execution, which has scheduled to take place just after 6 p.m., was delayed by a late attempt by his lawyer’s to have his sentence commuted on the claims that Nealy was mentally retarded. According to a 2002 ruling by the U.S. Supreme Court, executions of those with mental retardations is considered “cruel and unusual” and therefore unconstitutional. In late appeals to the federal courts, lawyers for Nealy alleged prosecutor misconduct and false testimony led to Nealy’s conviction and death sentence.

In November, Nealy won a reprieve from the Texas Court of Criminal Appeals three days before he was scheduled to die. State courts subsequently rejected the claims as being improper and incorrect. As well, the execution was delayed because Nealy said technicians had trouble finding a vein in his left arm for the administration of the lethal dose, taking nearly 20 minutes. “By the way, the reason it took so long was because (they) couldn’t find a vein.” Nealy said. “I used to tear up the doctor’s office. I hate needles.”

Nealy was the ninth person to die this year and the third this month. Two more are scheduled for March. He asked witnesses to “tell the guys on death row I’m not wearing a diaper” and then launched into a criticism of the Dallas County assistant prosecutor who handled the state’s appeals in his case. Nealy said he had only one request: “Don’t bury me in that prison graveyard; I want to be buried next to momma,” he said.

“You messed up,” he said. “Now to cover it up, the state is killing me. I’m not sad and bitter. I feel sad for everyone else — you have to stay here. I’m going to someplace better.” Charles Nealy defended his innocence to the very end, saying in an interview with the Associated Press last week that he was in Oklahoma on the day of the murders picking up a relative’s truck. “There’s all kinds of weird stuff going on in this care,” Nealy said. He acknowledged the prospect of execution was scary.

“Since I’ve been here, my dad died, my stepdad died, my mother died, one of my friends commited suicide,” he said. “And I’m up here where people are dying, it seems, like every week. “Sometimes the Prozac just isn’t enough.”

After the dose of sodium thiopental is completed, a dose of pancuronium bromide is adminsitered, collapsing the lungs and the diaphraghm. Finally, a dose of potassium chloride is administered that stops the heart.

Scheduled to die next is Vincent Gutierrez, 28, facing lethal injection March 28 for fatally shooting a 39-year-old Air Force Capt. Jose Cobo, who was carjacked outside his San Antonio apartment 10 years ago. The following day, Roy Lee Pippin, 51, is set to die for the slayings of two men in Houston 13 years ago.

Txexecutions.org

Charles Anthony Nealy, 42, was executed by lethal injection on 20 March 2007 in Huntsville, Texas for the robbery and murder of a convenience store owner.

On 20 August 1997, two men - one armed with a shotgun, and the other with a pistol - entered a Dallas convenience store. They ordered employees Vijay Patel and Satishbhi "Sam" Bhakta - who was the owner's brother - to lie on the floor.

The man with the shotgun then went into the back office, where owner Jiten Bhakta was taking a nap. Jiten called out, then was killed by a shotgun blast to the heart. The man with the pistol then shot Patel in the head.

The man with the shotgun then came out of the back office with a briefcase containing $4,000 in cash. The man with the pistol then ordered Sam Bhakta to open the cash register. The man with the shotgun then took money from the register. Both robbers took wine and beer before leaving the store. Vijay Patel died a few days later.

Four video cameras in the store recorded the robbery. They showed a man in a dark hat, carrying a shotgun, and a man in a light hat. Neither of the murders were recorded, but the tape did show both men stealing money from the cash register.

Sam Bhakta testified that man with the shotgun was wearing a light hat, white t-shirt, and jeans. After he came out of the office, he said, "I got the man in the office." The man with the pistol, who he described as short, balding, having a gold tooth with a star, and wearing a dark hat, white t-shirt, and jeans, said, "I got the one over here, too."

After viewing the videotape in court, Bhatka changed his testimony on cross-examination. He stated that the man with the shotgun was wearing the dark hat. He identified the man with the shotgun as Charles Nealy.

Memphis Nealy testified that on the evening of the robbery, he was riding with Charles Nealy, who was his uncle, and that when they passed the convenience store, Charles stated, "I'm going to come back and get 'em."

Memphis testified that Charles didn't want him to join him because he did not have a criminal record. He identified the man on the videotape with the dark hat and shotgun as his uncle, and the man with the light hat and handgun as his brother, Claude.

Reginald Mitchell testified that on the night of the robbery, he joined Charles and Claude Nealy in Charles's car and went to the convenience store. He stated that Charles was wearing a dark hat and had a shotgun, and that Claude was wearing a light hat and was carrying a pistol. He heard a shotgun blast, then a gunshot, and that the Nealys then came out of the store and got into the car. Mitchell testified that Charles said, "in a little old happy tone," that "this is the way the Nealys do it."

When they got back to Charles's house, Charles said that they committed the crime because "the bitches wouldn't sell him no blackie mounds" - referring to Black and Milds, a brand of cigar. Mitchell identified Charles Nealy as the man on the videotape with the shotgun and dark hat and testified that he threatened to kill him if he told anyone about the crime.

The defense argued that Sam Bhatka gave conflicting testimony in identifying the men. They also argued that the quality of the videotape was too poor to make a positive identification, and that all of the witnesses were led by the state into identifying the man with the shotgun as Charles Nealy.

Nealy had three prior convictions for aggravated robbery. He also had an extensive record as a juvenile offender. In addition, Nealy assaulted another jail inmate following his arrest for capital murder.

A jury convicted Nealy of capital murder in September 1998 and sentenced him to death. The Texas Court of Criminal Appeals affirmed the conviction and sentence in September 2000. All of his subsequent appeals in state and federal court were denied.

Claude Nealy was convicted of the capital murder of Vijay Patel and was sentenced to life in prison.

In October 2006, when Charles Nealy was facing a November 2006 execution date, Memphis Nealy recanted his testimony against his uncle and brother, claiming that he was lied to and pressured by prosecutors. "It's not me," Charles Nealy said in an interview from death row. "I wasn't even in Texas." Nealy said that on the day of the murders, he was in Oklahoma picking up a relative's truck. "There's all kinds of weird stuff going on in this case."

According to a court document, Nealy gave a statement, which was not admitted at trial, where he admitted being in the convenience store, carrying a shotgun, at the time of the murders. Nealy won a reprieve last November so his claims of prosecutor misconduct could be considered, and so that his nephew's recanted testimony could be investigated. After holding a hearing, a Dallas judge rejected those claims. The Court of Criminal Appeals agreed and lifted its stay, allowing a new execution date to be set.

Nealy maintained his innocence in another interview held a few days before his execution. "Memphis lied, Mitchell lied, and my conviction is based on nothing but lies," he said.

Nealy's execution was delayed for about an hour as courts considered and rejected his final appeals. Additionally, prison staff had difficulty finding a vein in his left arm for the lethal injection. This resulted in another 20-minute delay. The evening's slow pace continued as Nealy made his last statement - a calm, 4½-minute monologue. In it, Nealy asked witnesses to "tell the guys on death row I'm not wearing a diaper."

He then criticized the Dallas County assistant prosecutor who handled his case. "You messed up," Nealy said. "Now to cover it up, the state is killing me. I'm not sad and bitter. I feel sad for everyone else. You have to stay here; I'm going to someplace better." He also encouraged his relatives and friends who were present and said that he was going to be with his mother and Allah. "Don't bury me in that prison graveyard," he told them. "I want to be buried next to momma."

"By the way, the reason it took so long was because [they] couldn't find a vein," Nealy added. "I used to tear up the doctor's office. I hate needles." Nealy continued talking as the lethal injection was administered. As he was losing consciousness, Nealy said he could "feel it." He was pronounced dead at 7:20 p.m.

ProDeathPenalty.com

Charles Anthony Nealy was convicted of capital murder and sentenced to death for the 1997 murder of Jiten Bhakta during an armed robbery of the convenience store owned by Jiten.

At trial, Satishbhi 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.

Nealy’s nephew, Memphis Nealy, 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 (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 testified that Nealy threatened to kill him if he told anyone about the robbery. 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.

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. Nealy was convicted of capital murder and sentenced to death.

UPDATE: A man with a history of robberies was executed Tuesday evening for a fatal shooting during a convenience store holdup in Dallas nearly 10 years ago. In a lengthy statement, Charles Anthony Nealy wished his friends and relatives well and expressed love. "I'm not crying, so y'all don't cry. Don't be sad for me. I'm going to be with God and Allah and Mama." Nealy had one request: "Bury me next to Mama." At 7:20 p.m., seven minutes after the lethal dose of drugs began, he was pronounced dead.

Ex parte Nealy, Not Reported in S.W.3d 2007 WL 404852 (Tex.Crim.App. 2007).

On Application for Writ of Habeas Corpus, In Cause No. F97-52818-H, From the Criminal District Court No. 1 of Dallas County.

PER CURIAM.

This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. We remanded to the convicting court to resolve applicant's claim that the prosecutor suborned perjured testimony.

Applicant was convicted of capital murder on September 2, 1998. After review this Court affirmed the conviction and sentence of death. Nealy v. State, No. 73,267 (Tex.Crim.App. September 13, 2000). On July 7, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Nealy, No. WR-50,361-01 (Tex.Crim.App. October 24, 2001). Applicant's date for execution was set for November 16, 2006.

On November 9, 2006, he filed this subsequent application alleging he was actually innocent based on a new recantation by his cousin who had testified at trial and that the prosecutor had suborned perjured testimony. We determined that the claim of prosecutorial misconduct had met the requirements of Article 11.071, Section 5, for consideration of subsequent claims. We dismissed his claim of actual innocence and remanded the claim of prosecutorial misconduct to the convicting court for resolution. The convicting court took evidence, received proposed findings of fact from the parties, and made findings of fact. The case has been returned to this Court for review.

We have reviewed the record and hold that the findings of the convicting court are supported by the record and we adopt them as our own. The convicting court found that “Memphis' allegations of prosecutorial misconduct and false trial testimony are untrue and were fabricated to affect a stay of execution in this case.” Applicant also tried to raise a claim which was not before the convicting court, that Reginald Mitchell had an undisclosed deal with prosecutors. To the extent that claim is before this Court it is dismissed as an abuse of the writ, having been adversely decided against applicant in his initial application.

Applicant and his family attempted to pressure Memphis Nealy, applicant's cousin, to recant his trial identification testimony. This plan was discovered by the Dallas County District Attorney's office and they made contact with Memphis Nealy. Memphis, at first, asserted that he had testified truthfully at trial but a few days later, on the record before the convicting court, he stated that a prosecutor had coerced him into testifying and that he had testified to what he had been told by the prosecutor.

On remand the convicting court determined that Memphis had attempted to recant but had not changed his testimony in any material way from the testimony he gave to the jury on direct and cross examination. The court also found Memphis' testimony to be “not worthy of belief.”

Applicant's subsequent application for writ of habeas corpus is denied, the stay previously entered is terminated. IT IS SO ORDERED THIS THE 7TH DAY OF FEBRUARY, 2007.

Nealy v. Dretke, 172 Fed.Appx. 593 (5th Cir. 2006) (Habeas).

Background: Following appellate affirmance of his state court conviction of capital murder and his receipt of sentence of death, and denial of his application for state habeas relief, petitioner sought federal writ of habeas corpus. The United States District Court for the Northern District of Texas denied petition, and petitioner sought certificate of appealability (COA).

Holdings: The Court of Appeals held that:
(1) petitioner made substantial showing of denial of a constitutional right in connection with his claim that evidence was insufficient to prove beyond reasonable doubt essential elements of offense of capital murder;
(2) petitioner had no constitutional right to have jury instructed with respect to his eligibility for parole; and
(3) evidence of future dangerousness was sufficient to warrant finding of such aggravating circumstance. Certificate of appealability granted in part and denied in part.

PER CURIAM:

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.

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 *595 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.

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 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, 121 S.Ct. 1114, 148 L.Ed.2d 983 (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.

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, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

In making our decision whether to grant a COA, we conduct a “threshold inquiry”, which consists of “an overview of the claims in the habeas petition and a general assessment of their merits.” Id. at 327, 336, 123 S.Ct. 1029. “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).

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.

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

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, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994), and Justice Stevens's opinion on the denial of certiorari in Brown v. Texas, 522 U.S. 940, 118 S.Ct. 355, 139 L.Ed.2d 276 (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 *597 claim was procedurally barred because it could have been raised on direct appeal; alternatively, that the absence of parole information did not 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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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 application of Simmons v. South Carolina.FN2 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.

FN2. 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.

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.

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 *598 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.

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.