October 7, 1998
Jonathan Nobles #885
1 Corinthians 12:31B –
And now I will show you
the most excellent way.
If I speak in the
tongues of men and of angels, but have not love, I am only a
resounding gong or a clanging cymbal. If I have the gift of
prophecy and can fathom all mysteries and all knowledge, and if
I have a faith that can move mountains, but have not love, I am
nothing. If I give all I possess to the poor and surrender my
body to the flames, but have not love, I gain nothing.
Love is patient, love
is kind. It does not envy, it does not boast, it is not proud.
It is not rude, it is not self-seeking, it is not easily angered,
it keeps no record of wrongs. Love does not delight in evil but
rejoices with the truth. It always protects, always trusts,
always hopes, always perseveres.
Love never fails. But
where there are prophecies, they will cease; where there are
tongues, they will be stilled; where there is knowledge, it will
pass away. For we know in part and we prophesy in part, but when
perfection comes, the imperfect disappears.
When I was a child, I
talked like a child, I thought like a child, I reasoned like a
child. When I became a man, I put childish ways behind me. Now
we see but a poor reflection as in a mirror; then we shall see
face to face. Now I know in part; then I shall know fully, even
as I am fully known.
And now these three
remain: faith, hope and love. But the greatest of these is love.
Victims: Mitzi Johnson-Nalley (21), Kelly Farquhar
In a lengthy final statement, Nobles expressed love to
survivors of his victims, including a man wounded in the attack, and
sorrow for his actions.
"Ron, I took so much from you. There is nothing I
can do to give it back to you. I love you deeply," he said,
addressing victim Ron Ross, who was stabbed 19 times and lost an eye.
Ross watched through glass a few feet away.
"I carried a lot of anger into that room but
after the conversation we had...I think I released it," Ross said
Nobles addressed virtually every witness by name and
expressed love. Then he began quoting a biblical passage from
Corinthians about love and said he was dedicating his death "in
sacrifice for abuses to the Holy Mother." After reciting other
prayers and scripture passages, Nobles began singing "Silent Night"
as the lethal dose was administered. His singing halted mid-phrase with
a gasp as the drugs took effect.
Nobles, who claimed to have become addicted to drugs
at age 8, was condemned for the stabbing deaths of Mitzi Johnson-Nalley,
21, and Kelly Farquhar, 24.
Ross identified Nobles as the man who broke into the
north Austin home Sept. 13, 1986 and began flailing away in a frenzy
with a knife 5 1/2 inches long and nearly 2 inches wide.
At the time of the attack, Nobles was on parole about
4 months after serving less than 8 months of a 3-year prison term for
theft in Collin County in suburban Dallas.
"I don't think I'm a terrible person today,"
Nobles said in a recent death row interview. "I don't think I'm the
monster who perpetrated these terrible acts. Nothing I can do for a
thousand years can relieve me of my responsibility."
Jonathan Nobles, 37, 98-10-7, Texas
A death row inmate who unsuccessfully tried to donate his organs and
even used notorious suicide doctor Jack Kevorkian in a transplant effort
was executed Wednesday for killing 2 young Austin women while high on
drugs 12 years ago.
Jonathan Nobles, 37, was pronounced dead at 6:25 p.m., 5 minutes after
an executioner started the flow of lethal drugs into his arms.
In a lengthy final statement, Nobles expressed love to survivors of his
victims, including a man wounded in the attack, and sorrow for his
"Ron, I took so much from you. There is nothing I can
do to give it back to you. I love you deeply," he said, addressing
victim Ron Ross, who was stabbed 19 times and lost an eye. Ross
watched through glass a few feet away.
"I carried a lot of anger into that room but after the conversation we
had...I think I released it," Ross said afterward.
Nobles addressed virtually every witness by name and expressed love.
Then he began quoting a biblical passage from Corinthians about love and
said he was dedicating his death "in sacrifice for abuses to the Holy
After reciting other prayers and scripture passages, Nobles began
singing "Silent Night" as the lethal dose was administered. His singing
halted mid-phrase with a gasp as the drugs took effect.
Nobles, who claimed to have become addicted to drugs at age 8, was
condemned for the stabbing deaths of Mitzi Johnson-Nalley, 21, and Kelly
Ross identified Nobles as the man who broke into the north Austin home
Sept. 13, 1986 and began flailing away in a frenzy with a knife 5 1/2
inches long and nearly 2 inches wide.
At the time of the attack, Nobles was on parole about 4 months after
serving less than 8 months of a 3-year prison term for theft in Collin
County in suburban Dallas.
"I don't think I'm a terrible person today," Nobles said in a recent
death row interview. "I don't think I'm the monster who perpetrated
these terrible acts. Nothing I can do for a thousand years can relieve
me of my responsibility.''
Nobles, a former electrician and telemarketer who quit school after the
eighth grade, said he turned to drugs and alcohol as a reaction to
beatings and abuse while growing up in a foster home. Witnesses at his
trial described him as a frequent user of methamphetamine, cocaine,
marijuana and alcohol.
Ross, Ms. Nalley's boyfriend, testified he was awakened in the middle of
the night by screams, ran into Ms. Farquhar's bedroom and saw Nobles
stabbing Ms. Nalley. He fought with the attacker and was stabbed
repeatedly, stumbled outside and collapsed in the street. The 2 women
were killed but he was revived by emergency medical technicians.
Nobles, also wounded in the fight, left a blood trail away from the home.
His fingerprint and a piece of his hair were found nearby. Nobles was
arrested less than a week later, confessed to police and led officers to
a trash bag where he had hid bloody evidence from the murder scene.
"It's not a pleasant thing watching someone die, no matter the
circumstances," Paula Kurland, Ms. Nalley's mother, said after
witnessing the execution. Ms. Nalley, stabbed 28 times, died on her 21st
"There's no such thing as closure," she said. "This is the beginning of
a new chapter for us. The punishment was just. It doesn't mean we have
to like it. We didn't get any pleasure."
Nobles converted to Catholicism while on death row and had a Catholic
bishop, Edmond Carmody of Tyler, as 1 of the 5 witnesses he selected to
watch him die. Country singer-songwriter Steve Earle also accepted
Nobles' invitation to witness the death and blasted the death penalty in
a brief statement afterward.
"I'm not here for any other reason except Jonathan asked me to be here
today,'' Earle said. "But I still believe that what I just witnessed was
murder although nobody in this prison is any more responsible than
anybody else in the state of Texas or the country for that matter."
Nobles said he was prepared to die for what he did but also wanted to do
something positive so he tried to have his organs harvested and donated.
While the Texas Department of Criminal Justice allows inmates to donate
organs, it does not extend that policy to death row prisoners.
5 years ago, Nobles disclosed he had been corresponding with Kevorkian,
the Michigan doctor who has helped people commit suicide, to try to
arrange the donation of a kidney and found a surgeon to perform the
transplant and a patient willing accept it. Nobles and the woman were
not a blood-type match, however, and she died without getting a
Nobles becomes the 16th condemned prisoner to be put to death in Texas
this year, and the 160th overall since the state resumed capital
punishment on Dec. 7, 1982. Texas executed a record 37 men last year.
(sources: Associated Press and Rick Halperin)
Two mothers found grace to forgive the men who killed
By Ken Camp
Texas Baptist Communications
April 21, 1999
DALLAS--Restorative justice ministry is incomplete if it extends
hope to offenders but fails to touch crime victims and their families,
two mothers of murdered daughters told a statewide conference.
"You owe it to yourself as ministers to find out what the other half
is like. Your job is just halfway done if you don't consider the victims,"
said Paula Kurland of Houston, whose 21-year-old daughter Mitzi was
stabbed 28 times by a stalker in 1986. "If you're only hearing one side,
how can you feel the job is complete?"
Kurland and Pat Stonestreet participated in a victim
impact panel discussion at the sixth annual Statewide Restorative
Justice Ministry Conference in Dallas, April 9-10. The conference was
sponsored in part by the Baptist General Convention of Texas and Texas
Stonestreet never had the opportunity to
talk directly with Kenneth Harris, the man who repeatedly raped, stabbed,
choked and drowned her 28-year-old daughter, Lisa.
But on the day after Lisa's funeral, as
the family gathered in Stonestreet's living room, they made a commitment.
"My husband said, 'You know, we have to
forgive that man.' I didn't want to, but that night, my family made that
decision. It took me three years to get there, but that early decision
short-circuited a lot of bitterness, anger and hatred that could have
developed," she said.
"The highest form of obedience (to God) is
forgiveness," she concluded.
Kurland came to that same conclusion, but
her journey was different than Stonestreet's. Kurland, who was brought
up in a home with one Baptist and one Catholic parent, described her own
spiritual pilgrimage of restoration which eventually led to a face-to-face
meeting with her daughter's killer on death row.
Driving to Houston one night from Baton
Rouge, La., Kurland heard a message on Christian radio about forgiveness.
She realized she would be sentenced to a life of bitterness unless she
forgave the man who killed her daughter and placed him in God's hands.
"You forgive because it frees you," she
said. "Hopefully, one day, it will free the offender, but that's not the
reason you do it. You do it because it frees you."
Kurland became convinced that her faith
demanded that she forgive the person who murdered her daughter, even
though she never could forgive his actions.
"You don't have to forgive what he did.
You have to forgive him," she realized. "It became important for me to
visit him to tell him he was forgiven."
Kurland ultimately was able to meet her
daughter's killer through Victim Offender Mediation/Dialogue, a program
of the Victim Services Division in the Texas Department of Criminal
The mediation and dialogue program
provides victims of violent crime the opportunity to have structured,
face-to-face meetings with their offenders in a safe and secure
The goal, according to Director Raven
Kazen, is to help the victim heal and to allow the offender to take
responsibility for his behavior and face the full impact of his crime.
Some victims need to ask questions and
receive answers that only the offender can provide, Kazen said.
That wasn't the case for Kurland, though.
"I never wanted to ask him why. That was never important to me. What was
important was that I have the opportunity to give him back the
responsibility for the devastation and pain and destruction that he
brought into a lot of people's lives," she said.
Even though her family did not support the
decision, Kurland met Jonathan Wayne Nobles, the man who killed Mitzi
and her roommate.
"Meeting with him was the hardest thing I
ever did, second only to burying my child," she said.
In the process of preparing for the
mediation dialogue, Kurland learned that Nobles had become a Roman
Catholic while in prison, an idea she initially resisted.
"I had shared the last 12 years with him.
Now I had to share my God with him? No way!" she said.
In their face-to-face meeting, Kurland
recognized the depth of Nobles' remorse for his crime, and she believed
his new-found faith was genuine.
But for Kurland, Nobles' repentance was
primarily a matter between him and God. Her role was to offer
"I went against my whole family, but I
knew that if I didn't tell Jonathan I had forgiven him, I would be a
prisoner for the rest of my life," she said. "And I couldn't live with
Some time later, Kurland saw Nobles again.
It was on the day of his execution by lethal injection. Kurland recalled
the scene as they brought the convicted killer into the death chamber,
strapped to a gurney.
"Jonathan blew me a kiss and told me he
loved me," she said. "He addressed each of us (the victims' families)
individually. He died singing 'Silent Night.' And I know that my
daughter ... greeted him."
Kurland remains convinced that her own
restoration could not have been achieved without the opportunity to meet
personally with the man who committed the crime against her family.
That commitment led her recently to become
involved in the Sycamore Tree Project, a program that facilitates
mediations and leads offenders to take responsibility for their actions.
"You're only doing half the job if you
don't find the victim. See if you can bring this all together," she
urged. "There is no victimless crime. There is always a victim."
A Death in Texas
Prison made a new man out of Jonathan
Nobles...But death row only has one exit
By Steve Earle - Tikkun.org
Jonathan Wayne Nobles grins at me through inch-thick
wire-reinforced glass, hunching over to speak in a deep, resonant voice
through the steel grate below. A feeble "What’s up?" is the best I can
manage. The visiting area in Ellis One Unit is crowded with other folks
who have traveled, in some cases thousands of miles, to visit relatives
and correspondents on Texas’ Death Row. They sit at intervals in wooden
chairs surrounding a cinder block and steel cage that dominates the
center of the room. There are cages within the cage as well, reserved
for inmates under disciplinary action and "death watch" status. Falling
into the latter category, Jon must squeeze his considerable bulk into
one of these phone-booth-sized enclosures.
It’s an awkward moment for both of us. In the 10
years we have corresponded, we have never met face to face. The occasion
is auspicious. Jon and I will spend eight hours a day together for the
next three days and another three days next week. Then the state of
Texas will transport Jon, chained hand and foot, 11 miles to the Walls
unit in downtown Huntsville. There he will be pumped full of chemicals
that will collapse his lungs and stop his heart forever. This is not a
worst-case scenario. It is a certainty. Jonathan Nobles has precisely 10
days to live. And I, at Jon’s request, will attend the execution as one
of his witnesses
Over the next few days a routine develops. I arrive at Ellis at 8:30
in the morning. We usually spend the first two hours talking about
music, politics, religion—subjects that we have covered thoroughly
enough in letters over the years to know that we have widely divergent
views and tastes. We fill the long awkward silences that seem inevitable
in prison visiting areas with trips to the vending machines for soft
drinks, candy, and potato chips. I pass Jon’s goodies to the guard on
duty through a small opening in the steel mesh.
Inevitably, we move on to life behind bars, drugs, and recovery—topics
where we share considerably more common ground. We are both recovering
addicts who got clean only when we were locked up. Jon began reading
about recovery and attending 12-step meetings in prison years ago. I can
remember a time, back when I was still using drugs, when the recovery-speak
that filled his letters made me extremely uncomfortable. Now it is a
language that we share—sort of a spiritual shorthand that cuts through
the testosterone and affords us a convenient, if uncomfortable, segue to
the business at hand.
There are arrangements to be made. If Jon’s body were
to go unclaimed, as is the case with half of the men executed in Texas,
he would be buried in the prison cemetery on the outskirts of
Huntsville. Called "Peckerwood Hill" by the locals, it is a lonely space
filled with concrete crosses, adorned only with the interred inmates’
prison numbers. Those executed by the state are easily identifiable by
the "X" preceding their number. There are no names on the stones. Jon
doesn’t want to wind up there.
Instead, he wants to be buried in Oxford, England—a
place he’s never seen. One of his pen pals, a British woman named Pam
Thomas, has described it to him in her letters. He likes the picture Pam
paints of the springtime there, when the bluebells are in bloom. Jon
says that Pam is working on permission from a landowner there. I have
Plan B on the back burner. A Dominican community in Galway, Ireland, has
offered Jon a final resting place. At some point in the proceedings, it
dawns on me that I have spent the past hour helping a living, breathing
man plan his own burial.
One thing Jon and I don’t talk about much is the
movement to abolish the death penalty. In fact, Jon is suspicious of
abolitionists. We were "introduced" by a pen pal of his and an
acquaintance of mine. She had heard that I sometimes corresponded with
inmates and asked if she could give Jon my address. I said sure. Within
a month, I received my first letter. It was a page and a half long in a
beautiful flowing script. It contained a lot of the usual tough rhetoric
and dark humor I had learned to expect in letters from inmates. After
several readings, I realized that the jailhouse small talk was merely a
medium, a vehicle for one pertinent piece of information—that Jonathan
Wayne Nobles was guilty of the crimes he was charged with.
In 1986 Jon was convicted (almost entirely on the strength of his
own confession) of stabbing Kelley Farquhar and Mitzi Johnson-Nalley to
death. He also admitted stabbing Ron Ross, Nalley’s boyfriend, who lost
an eye in the attack. Jon never took the stand during his trial. He sat
impassively as the guilty verdict was read and, according to newspaper
accounts, only flinched slightly when District Judge Bob Jones sentenced
him to death.
When Jon arrived at Ellis he quickly alienated all of the guards and
most of the inmates. He once broke away from guards while returning to
his cell from the exercise yard and climbed the exposed pipes and bars
in the cell block, kicking down television sets suspended outside on the
bottom tier. On another occasion he cut himself with a razor blade,
knowing that the guards would have to open his cell to prevent him from
bleeding to death. He just wanted to hit one officer before he passed
But somehow, somewhere along the line, in what is
arguably the most inhumane environment in the "civilized" world,
Jonathan Nobles began to change. He became interested in Catholicism and
began to attend Mass. He befriended the Catholic clergy who ministered
in the prison system, including members of the Dominican Order of
Preachers. He eventually became a lay member of the order and ministered
to his fellow inmates, even standing as godfather at inmate Cliff
Boggess’ baptism. He later helped officiate at the Mass that was
celebrated the night before Boggess’ execution. I watched this
transformation in the letters that I received.
The Jonathan Nobles who sits on the other side of the
glass from me in September 1998 is a different man from the one the
state of Texas sentenced to die almost 12 years ago. The greatest
evidence of this fact is the way Jon is treated by everyone he
encounters. A prison clerk, displaying genuine regret, interrupts our
visit. She needs Jon to sign some papers. Jon does so and then informs
me that the documents allow me to pick up his personal property and
distribute it to a list of people detailed in a note the clerk will hand
me on my way out. Inmate James Beathard, on his way down the line to
visit with a family member, stops to talk and Jon introduces us. The
guard patiently waits until the exchange is over before escorting him to
his assigned cubicle. Socialization during inmate transfer is a clear
violation of policy, but a lot of the rules have relaxed for Jon. He
says it’s like the last week of the school year. I believe it’s more
likely that he has earned the genuine respect of everyone here.
I excuse myself to go to the bathroom. The truth is,
I simply need a break. On the way back I run into Father Stephen Walsh,
a Franciscan friar from Boston who travels regularly to minister to the
Catholic inmates at Ellis. He will serve as Jonathan’s spiritual adviser,
waiting with Jon in the holding cell over at the Walls until he’s
escorted into the death chamber itself. There, he will administer the
Every visit ends the same way. A guard gives us a five-minute
warning, and Jon hurriedly dictates a list of "things to do" that I must
commit to memory, since visitors are not allowed to bring writing
instruments and paper into the unit. Then Jon presses his palm against
the glass and I mirror his with mine. Jon says, "I love you. I’ll see
OVER THE PAST FEW DAYS
the other witnesses have arrived in Huntsville. I had
dinner with Dona Hucka, Jon’s aunt. She is the only blood relative to
make the trip and she has driven all night to be here. Pam Thomas is in
from England. Both are already on the unit when I arrive. We take turns
leaning close to the glass while a prison employee takes Polaroid
snapshots of each of us with Jon. The prison provides this service for
the fee of eight dollars each.
It’s 10 o’clock in the morning. There isn’t much time
left. At 12:30 we will be asked to leave the unit and Jon will be
transported to the Walls. In the death chamber, we will be able to hear
Jon over a speaker in the witness room, but this is our last opportunity
to speak to him. Jon divides the remaining time between us more or less
equally. I go first. Jon looks tired; the stress is showing for the
first time. He leans down and motions me closer. I realize he’s
assessing my condition as well. "You all right, man?" I tell him that
I’m okay. Jon is not convinced.
"I’m worried about you. You don’t have to be Superman
or nothin’. This is insane shit that’s goin’ on here today. You don’t
have to be strong for the women if that’s what you’re thinkin’. They’re
big girls. You need to take care of yourself."
"I know, Jon. I’m all right. I went to a meeting last
night and my manager’s here now. I’ve also got a couple of friends up
from Houston who have done this before."
"Yeah." That seemed to make him feel better. "Okay,
but if you need to cry, it’s all right. Go ahead and cry."
"When this is all over, I’ll cry."
Jon shifts gears suddenly. Back to business. He looks
both ways to make sure the guard isn’t watching. "Take this." With much
effort he pushes a tiny slip of tightly rolled paper, the diameter of a
toothpick, through the impossibly tight mesh. Somehow he pulls it off. "That’s
my daughter’s phone number in California. My sister read it to me over
the phone last night. They’re going to strip search me and I can’t take
anything to the Walls and I’m afraid I’ll forget it. Give it to Father
Walsh. Then I’ll have it when I make my last phone calls."
I poke the paper in the watch pocket of my Levi’s.
There are a few other requests. He wants me to call his foster mother
and his sister after the execution, and send flowers to two women who
worked for the prison who were kind to him over the years. I promise
that I won’t forget. "All right, bro. Take care of yourself and your
kids. Tell Dona to come back." Hands against the glass one last time.
"I love you, Jonathan."
"I love you too, bro."
NOON I head back into Huntsville. My manager,
Dan Gillis, arrived last night and not a moment too soon. Suddenly,
driving has become difficult. The world has taken on a kind of
surrealistic patina. I need someone to drive for the rest of the day.
Also waiting at the hotel are two friends from the abolition movement,
Karen Sebung and Ward Larkin. Both have witnessed executions, and they
have made the trip to assist in any way they can. We talk over
arrangements for the transportation and cremation of Jon’s body, which,
as it turns out, Dan has already taken care of. I make a couple of phone
calls and check my messages. Then I shower, shave, and put on a pair of
black jeans, a blue short-sleeve shirt, and a black linen sport coat.
4:00 We leave the hotel. Dan drives us to
Hospitality House, a guest residence operated by the Baptist Church for
the families of in-mates. Dona and Pam, as well as Pam’s friend
Caroline, are staying there. The two other witnesses, Bishop Carmody of
the East Texas diocese and the Reverend Richard Lopez of the Texas
Department of Corrections, are already there when we arrive. We are
assembled here for an orientation session to be conducted by the
Reverend Jim Brazzil, the chaplain at the Walls unit. He and the warden
will be the only two people inside the chamber with Jon when he dies. He
goes through the execution process step-by-step so that we will know
what to expect and, though it’s obvious he speaks with authority, I’m
not listening. I can’t concentrate, so I just nod a lot. It doesn’t
matter. No matter how well or poorly the witnesses are prepared, they
are going to kill Jon anyway.
5:05 Reverend Brazzil answers his cell phone.
It’s Father Walsh, who’s over at the Walls with Jon and wants the phone
number, the one that Jon passed me through the . . . oh my God. I can’t
find it. I was sure that I transferred the slip from my other jeans into
my wallet when I changed clothes, but it’s simply not there. Dan runs to
the motel and checks my room, but it’s hopeless. Reverend Brazzil relays
the bad news to Father Walsh. I feel awful.
5:30 We arrive at the visitors’ center across
the street from the Walls unit. Karen Sebung accompanies me as far as
the waiting area, where we witnesses are searched, then Dona and Pam are
escorted to another room by a female officer. When they return, a large
man enters the room and introduces himself as an officer of the prison’s
internal affairs division. If we should feel faint, he says, medical
attention is available. He also warns us that anyone who in any way
attempts to disrupt the "process," as he calls it, will be removed from
the witness area immediately. Nothing about my body is working right. My
feet and hands are cold and the side of my neck is numb.
5:55 The corrections officer returns. "Follow me, please." We
walk across the street and through the front door of the old Gothic
prison administration building. We turn left as soon as we enter and
find ourselves in the waiting area of the governor’s office, where we
are asked to wait once again. There are two reporters there. The other
three members of the press pool, along with the victims’ family members,
have already been escorted to the witness area, which is divided by a
cinder block wall. The two sets of witnesses will never come in contact
with each other.
6:00 We’re led through a visiting area similar to the one at
Ellis, then out into the bright evening sun for a moment and turn left
down a short sidewalk. Another left and we enter a small brick building
built into the side of the perimeter wall. We enter the tiny room in
single file. Father Walsh appears from somewhere inside the death
chamber to join us. The reporters enter last, and the door is locked
behind us. I can hear the reporters scratching on their notepads with
their pencils. There is only room for three of us—Dona, me, and Pam—in
the front row. Dona grabs my left hand and squeezes it hard. She already
has tears in her eyes.
Jon is strapped to a hospital gurney with heavy
leather restraints across his chest, hips, thighs, ankles, and wrists.
His arms are wrapped in Ace bandages and extended at
his sides on boards. At either wrist, clear plastic tubes protrude from
the wrappings, snaking back under the gurney and disappearing through a
plastic tube set in a bright blue cinder block wall. I think I see
movement behind the one-way glass mirror on the opposite wall—the
executioner getting into position. Jon is smiling at us, his great neck
twisted uncomfortably sideways. A microphone suspended from the ceiling
hangs a few inches above his head. The speaker above our heads crackles
to life and Jon speaks, craning his head around to see the victims’
witnesses in the room next door.
"I know some of you won’t believe me, but I am truly
sorry for what I have done. I wish that I could undo what happened back
then and bring back your loved ones, but I can’t." Jon begins to sob as
he addresses Mitzi Nalley’s mother. "I’m sorry. I’m so sorry. I wish I
could bring her back to you. And Ron . . . I took so much from you. I’m
sorry. I know you probably don’t want my love, but you have it."
Turning to me, he seems to regain his composure
somewhat. He even manages to smile again. "Steve, I can’t believe that I
had to go through all this to see you in a suit coat. Hey man, don’t
worry about the phone number, bro. You’ve done so much. I love you.
Dona, thank you for being here. I know it was hard for you. I love you.
Pam, thank you for coming from so far away. Thanks for all you have
done. I love you. Bishop Carmody, thank you so much. Reverend Lopez and
you, Father Walsh, I love you all. I have something I want to say. It
comes from I Corinthians. It goes . . . " and Jon recites the lengthy
piece of scripture that he agonized over for weeks, afraid he would
forget when the time came. He remembers every word.
When he finishes reciting he takes a deep breath and says, "Father,
into thy hands I commend my spirit." The warden, recognizing the
prearranged signal he and Jon had agreed on, nods toward the unseen
executioner and Jon begins to sing.
"Silent night / Holy night . . . "
He gets as far as "mother and child" and suddenly the
air explodes from his lungs with a loud barking noise, deep and
a child with whooping cough—"HUH!!!" His head pitches
forward with such force that his heavy, prison-issue glasses fly off his
face, bouncing from his chest and falling to the green tile floor below.
And then he doesn’t move at all. I watch his eyes fix
and glaze over, my heart pounding in my chest and Dona squeezing my hand.
Dead men look
. . . well, dead. Vacant. No longer human. But there
is a protocol to be satisfied. The warden checks his watch several times
during the longest five minutes of my life. When the time is up, he
walks across the room and knocks on the door. The doctor enters, his
stethoscope earpieces already in place. He listens first at Jon’s neck,
then at his chest, then at his side. He shines a small flashlight into
Jon’s eyes for an instant and then, glancing up at the clock on his way
out, intones, "6:18."
We are ushered out the same way we came, but I don’t
think any of us are the same people who crossed the street to the prison
that day. I know I’m not. I can’t help but wonder what happens to the
people who work at the Walls, who see this horrific thing happen as
often as four times a week. What do they see when they turn out the
lights? I can’t imagine.
I do know that Jonathan Nobles changed profoundly
while he was in prison. I know that the lives of people he came in
contact with changed as well, including mine. Our criminal justice
system isn’t known for rehabilitation. I’m not sure that, as a society,
we are even interested in that concept anymore. The problem is that most
people who go to prison get out one day and walk among us. Given as many
people as we lock up, we better learn to rehabilitate someone. I believe
Jon might have been able to teach us how. Now we’ll never know.
Jonathan Nobles was buried in
Oxford, England. From Tikkun (Sept./Oct. 2000). Subscriptions: $29/yr.
(6 issues) from Box 460926, Escondido, CA
127 F.3d 409
Gary L. Johnson, Director, Texas Department of
Institutional Division, Respondent-Appellee.
Circuits, 5th Cir.
October 28, 1997
Appeal from the United States District Court for the
Western District of Texas.
Before SMITH, DUHE and BARKSDALE,
DUHE, Circuit Judge:
Appellant Jonathan Wayne Nobles
("Nobles") appeals the district court's denial of
his application for writ of habeas corpus. For the
reasons that follow, we affirm.
Appellant Nobles broke into a
house in Austin, Texas where Mitzi Nalley and her
roommate Kelly Farquar were living. Nobles brutally
stabbed Nalley and Farquar to death and severely
injured Nalley's boyfriend, Ron Ross. Ross survived
the attack, despite receiving nineteen stab wounds
and losing an eye.
After the murders, Nobles went
home and called his friend Marlly O'Brien, asking
her to come over and help him.
She found Nobles in the bathroom with his arm, which
had been badly cut, wrapped in a towel. There was
blood all over the bathroom.
Nobles then changed clothes,
cleaned the bathroom, and put everything with blood
on it into a trash bag which he placed in the trunk
of O'Brien's car. O'Brien dropped Nobles off at a
friend's house, where Nobles shaved his beard and
had his arm taped up. O'Brien later picked Nobles up
and let him borrow her car while she went to work.
Nobles lied to O'Brien and his other friends about
what had happened, saying he had been involved in a
Based on physical evidence from
the murder scene
and on information obtained from O'Brien and others,
Nobles was arrested. Nobles confessed to the murders
and then led police to where he had hidden the trash
bag, containing the murder weapon and the blood-soaked
clothes he had worn during the killings.
In 1987 a jury found Nobles
guilty of the murders of Nalley and Farquar. The
jury responded affirmatively to the two special
sentencing issues submitted pursuant to former
Article 37.071 of the Texas Code of Criminal
Procedure, Tex.Code Crim. P. Ann. art. 37.071(b)(West
1981), and the trial court imposed the death
Nobles's conviction and sentence
were automatically appealed to the Texas Court of
Criminal Appeals, which affirmed both. Nobles v.
State, 843 S.W.2d 503 (Tex.Crim.App.1992). In 1993
Nobles filed a state habeas petition which the trial
court and the Court of Criminal Appeals denied. The
United States Supreme Court denied Nobles's petition
for writ of certiorari on February 21, 1995.
Nobles moved the United States
District Court for appointment of counsel and to
proceed in forma pauperis on a petition for federal
writ of habeas corpus. The district court granted a
stay of execution and appointed counsel who
petitioned for writ of habeas corpus. The district
court denied Nobles's petition for habeas relief and
Nobles appealed. The district court granted a
certificate of appealability on all of Nobles's
Nobles's Certificate of
Appealability addresses the applicability of the
Antiterrorism and Effective Death Penalty Act, the
prosecution's use of an edited confession, and the
effectiveness of counsel. We address each of these
issues in turn.
The Antiterrorism and Effective
Death Penalty Act ("AEDPA") of 1996, Pub.L. No.
104-132, 110 Stat. 1214 (1996), amended, inter alia,
§ 2244 and §§ 2253-2255 of chapter 153 of title 28
of the United States Code, the provisions that
govern all habeas proceedings in federal courts. See
110 Stat. 1217-21. The AEDPA also created a new
chapter 154, applicable to habeas proceedings
against a state in capital cases. New chapter 154
applies, however, only if a state "opts in" by
establishing certain mechanisms for the appointment
and compensation of competent counsel.
See 110 Stat. 1221-26. The AEDPA became effective on
April 24, 1996.
In Lindh v. Murphy, --- U.S.
----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), the
Supreme Court held that § 107(c) of the AEDPA, which
explicitly made new chapter 154 applicable to cases
pending on the effective date of the Act, created a
"negative implication ... that the new provisions of
chapter 153 generally apply only to cases filed
after the Act became effective." Lindh, --- U.S. at
----, 117 S.Ct. at 2068 (emphasis added).
Lindh effectively overruled our
decision in Drinkard v. Johnson, 97 F.3d 751 (5th
Cir.1996), in which we held that the AEDPA's
amendments to chapter 153 were procedural in nature
and therefore applied to cases pending on the
effective date of the Act without having "retroactive"
Drinkard, 97 F.3d at 764-66. Thus, under Lindh, if a
case was "filed" before April 24, 1996, the pre-AEDPA
habeas standards apply.
Nobles filed his habeas petition
on June 28, 1996, after the AEDPA's effective date.
Before the effective date, however, Nobles had moved
the district court for appointment of counsel and to
proceed in forma pauperis.
The district court denied Nobles's habeas petition
before Lindh was decided and thus relied on Drinkard
and Mata in applying the AEDPA to Nobles's petition.
See Drinkard, 97 F.3d at 764-66; Mata, 99 F.3d at
Nobles contends that because he
made a "filing" (i.e., his motion for appointment of
counsel) in his federal habeas action before the
AEDPA's effective date, his case was therefore "pending"
under Lindh and thus not subject to the AEDPA.
Lindh, however, does not define when a case is "pending"
for purposes of application vel non of the AEDPA; in
fact, Lindh uses the expressions "cases pending,"
"cases filed," and "applications pending"
In McFarland v. Scott, 512 U.S.
849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994), the
Supreme Court held that a "post conviction
proceeding" under 21 U.S.C. 848(q)(4)(B)
commences with a death row defendant's motion
requesting the appointment of counsel for his
federal habeas proceeding. McFarland, 512 U.S. at
856-57, 114 S.Ct. at 2572-73. The Court also held
that "once a capital defendant invokes his right to
appointed counsel, the federal court also has
jurisdiction under [28 U.S.C.] § 2251 to enter a
stay of execution." McFarland, 512 U.S. at 858, 114
S.Ct. at 2573.
Reading the two sections in pari
materia, the Court found that the terms "post
conviction proceeding" in § 848(q)(4)(B) and "habeas
corpus proceeding" in § 2251 referred to the same
event, i.e., habeas proceedings under 28 U.S.C. 2254
and 2255. Id. One could read McFarland to stand for
the proposition that when a capital defendant moves
for appointment of habeas counsel, his case is "pending"
even though no habeas application has been filed.
Justice Thomas, dissenting in McFarland, took such a
view of the majority's reasoning:
Thus, after today, the "proceeding"
to which § 2251 refers will have two different
meanings depending upon whether the stay is sought
by a capital or non-capital prisoner. In the former
situation, a "habeas corpus proceeding" under § 2251
will be "pending" once a motion for appointment for
counsel is filed. In the latter, no matter how many
preliminary motions a prisoner might file, a
proceeding will not be "pending" until an
application for habeas relief is filed.
McFarland, 512 U.S. at 872 n. 3,
114 S.Ct. at 2580 n. 3 (Thomas, J., dissenting) (emphasis
Justice O'Connor, concurring in part and dissenting
in part, agreed with the dissent that a habeas
proceeding was not "pending" under § 2251 upon
filing of a motion for appointment of counsel.
McFarland, 512 U.S. at 862, 114 S.Ct. at 2575 (O'Connor,
J., concurring in part and dissenting in part) ("[T]he
text and structure of the federal habeas statute
suggest that the stay provision contained in § 2251
is intended to apply only after a petition has been
Our recent decision in Williams
v. Cain, 125 F.3d 269 (5th Cir.1997), construes
McFarland and resolves the issue. In Williams, we
found that McFarland did not "answer the question of
what date a habeas petition becomes 'pending' for
determining the applicability of substantive
statutes." Williams, 125 F.3d at 274, 1997 WL
612739, at * 3. The date of a capital defendant's
motion for appointment of counsel is therefore
irrelevant to the question whether his case is "pending"
for purposes of Lindh and the applicability of the
Thus, under Williams, "the
relevant date for determining the applicability of
the AEDPA to habeas corpus petitions is the date
that the actual habeas corpus petition is filed." Id.
Since Nobles did not file his petition for habeas
corpus relief until June 28, 1996--some two months
after the AEDPA's effective date--Williams instructs
that we apply the AEDPA standards to Nobles's
Nobles claims the prosecution
knowingly used false evidence against him when it
introduced at trial an edited version of his taped
confession that omitted remarks indicating Nobles
did not remember certain details of the murders.
Nobles argues that had the jury considered these
remarks, it could have found that, because of mental
impairment from drugs and alcohol, he had not
deliberately committed the murders.
He further contends that in
closing argument the prosecutor compounded the
misrepresentation by emphasizing the lack of
evidence that Nobles had been unaware of his actions.
For these reasons, Nobles concludes that he was
denied the fundamentally fair and impartial trial
guaranteed him by the Due Process Clause of the
To establish a due process
violation based on the State's knowing use of false
or misleading evidence, Nobles must show (1) the
evidence was false, (2) the evidence was material,
and (3) the prosecution knew that the evidence was
false. Giglio v. United States, 405 U.S. 150,
153-154, 92 S.Ct. 763, 765-766, 31 L.Ed.2d 104
(1972); Boyle v. Johnson, 93 F.3d 180, 186 (5th
Cir.1996). Evidence is "false" if, inter alia, it is
"specific misleading evidence important to the
prosecution's case in chief." See Donnelly v.
DeChristoforo, 416 U.S. 637, 647, 94 S.Ct. 1868,
1873, 40 L.Ed.2d 431 (1974). False evidence is
"material" only "if there is any reasonable
likelihood that [it] could have affected the jury's
verdict." Westley v. Johnson, 83 F.3d 714, 726 (5th
Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.
773, 136 L.Ed.2d 718 (1997).
The state habeas court denied
this claim, finding that "[Nobles's] allegations do
not suggest ... the presentation of false evidence
by the State." The district court observed that the
state court addressed the "falsity" of the evidence
but made no findings as to its "materiality." The
district court then found that the edited confession
"was, at least to some degree, misleading in an
important way," but ruled that Nobles's claim failed
the "materiality" prong of the Giglio test.
Specifically, the district court
found that Nobles's asserted memory loss was not
credible given his detailed descriptions of trivial
events before and after the murders, and that, in
any case, such evidence was cumulative of other
evidence presented to the jury.
Thus, the court found no "reasonable likelihood the
jury would have returned a different verdict at the
guilt or punishment stages of trial if it had heard
the unedited confession." Nobles v. Johnson, No.
A95-CA-703 SS, mem. op. at 19 (W.D.Tex. Dec. 19,
We need not decide whether the
edited confession constituted "false evidence" under
Giglio, because we agree with the district court
that the confession, even if "false," was not
"material," because it could not have reasonably
affected the jury's determination that Nobles
deliberately committed the murders.
Whether false evidence is
"material" under Giglio is a mixed question of law
and fact. United States v. Bagley, 473 U.S. 667, 679
n. 8, 105 S.Ct. 3375, 3382 n. 8, 87 L.Ed.2d 481.
(1985); Napue v. Illinois, 360 U.S. 264, 271-72, 79
S.Ct. 1173, 1178-79, 3 L.Ed.2d 1217 (1959). When
reviewing a mixed question of law and fact under the
AEDPA, a federal court may grant habeas relief only
if it determines that the state court decision
rested on "an unreasonable application of[ ] clearly
established Federal law, as determined by the
Supreme Court," to the facts of the case. 28 U.S.C.
2254(d)(1)(West 1997); see Drinkard, 97 F.3d at
767-68. An application of law to facts is
unreasonable "only when it can be said that
reasonable jurists considering the question would be
of one view that the state court ruling was
incorrect." Drinkard, 97 F.3d at 769.
Before applying amended §
2254(d)(1), we must first determine whether Nobles's
Giglio claim was "adjudicated on the merits" in the
state court proceedings. See 28 U.S.C. 2254(d)(West
1997). We feel some reservation about applying the
more stringent AEDPA standards to this claim because
we are not convinced that the state habeas court
sufficiently addressed Nobles's Giglio claim. As the
district court observed, the state habeas court did
not address the "materiality" prong of Giglio but
simply ruled, without evidentiary hearing, that "applicant's
allegations do not suggest ... the presentation of
false evidence by the state."
We need not determine, however,
whether the state habeas court sufficiently
adjudicated Nobles's Giglio claim on the merits for
purposes of amended § 2254(d), because we find that
the allegedly misleading edited confession was not
"material" even applying the pre-AEDPA de novo
standard of review. See Gochicoa v. Johnson, 118
F.3d 440, 445 (5th Cir.1997); 28 U.S.C. 2254(d)(West
Nobles claims the prosecution
selectively edited his confession to omit portions
which supported his defense of mental impairment.
His abridged confession, Nobles contends, presented
to the jury a "more inculpatory statement" than his
actual, unedited confession. Nobles offers as a
primary example the following excerpt heard by the
I remember going out for a walk
so I could catch my breath. I did have a knife in my
hand and I felt the warmth hit my hand.
The unedited version reads as
Okay, well anyway at the point
that I got back home and I walked out the door I
don't remember. I remember going out for a walk so I
could catch my breath. The next thing I remember was
getting kicked in the face and hearing a girl scream
it had to be a woman scream and I did not lunge out
and for some reason I had a knife in my hand. I did
have a knife in my hand because I did not reach out
and stab anybody but I felt somebody run at me after
I got kicked or hit or whatever but somebody moved
into me and I felt the warmth hit my hand.
Nobles contends this example, and
others like it, show that the prosecution cobbled
together unrelated bits of his confession to present
a misleading picture of his culpability.
Assuming that the edited
confession constituted "false evidence," we must ask
if there is any reasonable likelihood that the false
evidence could have affected the jury's
determination that Nobles deliberately committed the
murders. See Westley, 83 F.3d at 726. We find none.
We first observe that the edited
confession is replete with references both to
Nobles's failure to remember significant portions of
the murders and also to his generally fragmented
state of mind.
Additionally, other witnesses testified that Nobles
told them he had taken drugs and could not remember
what happened on the night of the murders.
There was also evidence that
Nobles ingested the drugs and alcohol some seven to
ten hours before the murders; that Nobles drove
around with O'Brien after taking the drugs and spoke
rationally to her about a business venture; and,
that Nobles wore gloves during the murders and
afterwards disposed of the evidence of his crime.
Given the evidence of mental impairment in the
edited confession and the other evidence of the
deliberateness of Nobles's acts, we find no
reasonable likelihood that the allegedly misleading
edited confession could have affected the jury's
We offer, as did the district
court, an alternative basis for rejecting Nobles's
due process claim. During trial, Nobles's counsel
objected to the manner in which the State introduced
the edited confession.
During the ensuing bench conference, the trial judge
gave defense counsel the opportunity to compare the
edited and unedited versions, and also specifically
instructed counsel that he had "an absolute right
pursuant to [Texas Rule of Criminal Evidence] 106 to
complete the record" if he so desired. Nobles's
counsel chose not to do so.
We find that Nobles's counsel
waived any error regarding the edited confession,
since he had the unedited version in his possession
and chose not to enter it into evidence. Nobles
cannot now claim that the introduction of the edited
version violated his right to due process when his
trial attorneys possessed, and chose not to use, the
very evidence that would have corrected the asserted
misrepresentation. See United States v. Sutherland,
656 F.2d 1181, 1203-04 (5th Cir.1981)(denying claim
of prosecutorial misconduct because, inter alia,
defense counsel possessed impeaching grand jury
testimony of Government witness but failed to use it,
and also denying new trial for Brady violation
because exculpatory evidence was made available to
Nobles also claims that trial
counsel's failure to present his unedited confession
to the jury denied him the effective assistance of
counsel guaranteed by the Sixth and Fourteenth
Amendments. He argues that counsel's deficient
performance resulted, at the guilt phase of trial,
in denial of an instruction on the lesser-included
offense of voluntary manslaughter.
He also contends that had the
jury been able to consider his unedited confession
during the punishment phase, it reasonably could
have found Nobles had not acted deliberately. Nobles
also argues there was no conceivable tactical reason
at either phase for counsel's failure to introduce
the unedited confession.
To prevail on this claim, Nobles
must show (1) that counsel's performance was
deficient, and (2) that the deficient performance
prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d
674 (1984); Washington v. Johnson, 90 F.3d 945, 953
(5th Cir.1996). Performance is deficient when
counsel's representation falls below an objective
standard of reasonableness. Strickland, 466 U.S. at
688, 104 S.Ct. at 2064-65; Washington, 90 F.3d at
Deficient performance is
prejudicial when there is a reasonable probability
that, but for counsel's errors, the result of the
proceeding would have been different; a reasonable
probability is one sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at
694, 104 S.Ct. at 2068; Washington, 90 F.3d at 953.
Both prongs of the Strickland
test involve mixed questions of law and fact.
Strickland, 466 U.S. at 698, 104 S.Ct. at 2070.
Under the AEDPA, a federal court will thus not grant
a writ of habeas corpus unless the state court's
conclusions involved an "unreasonable application"
of clearly established federal law as determined by
the Supreme Court. See Carter v. Johnson, 110 F.3d
1098, 1110; Moore, 101 F.3d at 1075-76, 28 U.S.C
2254(d)(1). An application of federal law is "unreasonable"
if it is "so clearly incorrect that it would not be
debatable among reasonable jurists." Drinkard, 97
F.3d at 769.
The state habeas court concluded
that, because the portions omitted from Nobles's
proffered confession would not have supported a
voluntary manslaughter charge under Texas law,
Nobles had not demonstrated prejudice from counsel's
alleged error. We cannot say that the state court's
conclusion involved an unreasonable application of
the Strickland v. Washington test.
Nobles's claim that the portions
omitted from the confession would have supported a
voluntary manslaughter charge is devoid of merit. At
the time of the murders, one was guilty of voluntary
manslaughter in Texas if one committed what would
otherwise be murder "under immediate influence of
sudden passion arising from adequate cause." Tex.
Penal Code Ann. § 19.04 (West 1974).
Voluntary manslaughter is a
lesser-included offense of capital murder; a
defendant is entitled, upon request, to the lesser-included
charge if "it is included within the proof necessary
to establish the offense charged" and if "there [is]
some evidence in the record that if the defendant is
guilty, he is guilty of only the lesser offense."
See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985).
The omitted portions of Nobles's
confession simply fail to demonstrate either the "sudden
passion" or "adequate cause" necessary to support a
voluntary manslaughter charge. The portions in which
Nobles states that one of the victims "kicked him in
the face" or "kept hitting him" show, at most, the
victims' attempts to ward off Nobles's vicious
Texas courts have repeatedly held
that when a defendant initiates a criminal episode,
a victim's attempts to defend himself will not
constitute "adequate cause" from which sudden
passion will arise for purposes of voluntary
manslaughter. See, e.g., Adanandus v. State, 866 S.W.2d
210, 231 (Tex.Crim.App.1993), cert. denied,
510 U.S. 1215 , 114 S.Ct. 1338, 127 L.Ed.2d
686 (1994); Vuong v. State, 830 S.W.2d 929,
939 (Tex.Crim.App.), cert. denied,
506 U.S. 997 , 113 S.Ct. 595, 121 L.Ed.2d 533
We further note that parts of Nobles's confession
presented to the jury contained similar references
to the victims' striking Nobles.
Because the omitted portions of
Nobles's confession could not have conceivably
supported a voluntary manslaughter charge under
Texas law, Nobles can demonstrate no prejudice at
the guilt phase resulting from counsel's allegedly
Nobles also claims that counsel's
deficient performance prejudiced him at the
punishment phase, in that the jury could reasonably
have found from the omitted portions of the
confession that Nobles did not deliberately kill his
victims. The state habeas court found that, even
assuming counsel's deficient performance, Nobles
failed to demonstrate prejudice.
Given the cumulative nature of
the omitted evidence, the essential unbelieveability
of Nobles's asserted memory loss, and the otherwise
overwhelming evidence of deliberateness, we do not
find the state court's determination to be an
unreasonable application of Strickland.
Nobles also claims that he was
denied the effective assistance of counsel because
his attorneys failed to present at the punishment
phase a sufficient amount of the mitigating evidence
in their possession regarding Nobles's traumatic
childhood and his history of drug abuse and mental
illness. Nobles argues that this unprofferred
evidence could have led the jury to conclude that
Nobles did not commit his crimes deliberately. See
discussion supra Part II.A.
Respondent argues that Nobles did
not raise this ineffective assistance of counsel
claim in the state courts and has thus failed to
exhaust available state remedies. Furthermore, since
the Texas court to which Nobles would present this
claim would now find it barred under the Texas
abuse-of-writ doctrine, Respondent contends Nobles
has procedurally defaulted for purposes of federal
A state prisoner normally must
exhaust all available state remedies before he can
apply for federal habeas relief. See Ex parte Royall,
117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868
To have exhausted his state remedies, a habeas
petitioner must have fairly presented the substance
of his claim to the state courts. Picard v. Connor,
404 U.S. 270, 275-76, 92 S.Ct. 509, 512-13, 30 L.Ed.2d
438 (1971). The exhaustion requirement is not
satisfied if the prisoner presents new legal
theories or factual claims in his federal habeas
petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103
S.Ct. 276, 277-78, 74 L.Ed.2d 3 (1982); Vela v.
Estelle, 708 F.2d 954, 958 (5th Cir.1983).
A distinct but related limit on
the scope of federal habeas review is the doctrine
of procedural default. If a state court clearly and
expressly bases its dismissal of a prisoner's claim
on a state procedural rule, and that procedural rule
provides an independent and adequate ground for the
dismissal, the prisoner has procedurally defaulted
his federal habeas claim. Coleman v. Thompson, 501
U.S. 722, 731-32, 111 S.Ct. 2546, 2555, 115 L.Ed.2d
640 (1991); see Harris v. Reed, 489 U.S. 255,
262-63, 109 S.Ct. 1038, 1043-44, 103 L.Ed.2d 308
(1989); Wainwright v. Sykes, 433 U.S. 72, 81, 97
S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977). A
procedural default also occurs when a prisoner fails
to exhaust available state remedies and "the court
to which the petitioner would be required to present
his claims in order to meet the exhaustion
requirement would now find the claims procedurally
barred." Coleman, 501 U.S. at 735 n. 1, 111 S.Ct. at
2557 n. 1.
Nobles admits that in his state
habeas proceeding he did not claim ineffective
assistance of counsel based on failure to introduce
mitigating evidence. Instead, Nobles asserted the
related Sixth Amendment claim that he had been
denied the effective assistance of a competent court-appointed
psychiatrist. See Ake v. Oklahoma, 470 U.S. 68, 83,
105 S.Ct. 1087, 1096, 84 L.Ed.2d 53 (1985).
On appeal, Nobles urges us to
entertain his re-postured ineffective assistance of
counsel claim because the "gist" of it, and the
factual issues, are the same as those involved in
his ineffective psychiatric assistance claim. The
district court rejected this argument, finding that
the claims implicate "two wholly different inquiries"
and that Nobles thus did not fairly present his
ineffective assistance of counsel claim to the state
courts. We agree with the district court.
To meet the exhaustion
requirement, "[i]t is not enough that all the facts
necessary to support the federal claim were before
the state courts." Anderson, 459 U.S. at 6, 103 S.Ct.
at 277. Rather, the federal habeas petitioner must
have provided the state courts with a " 'fair
opportunity' to apply controlling legal principles
to the facts bearing upon his constitutional claim."
Id., quoting Picard, 404 U.S. at 276-77, 92 S.Ct. at
Nobles's argument to the state
habeas court that he was not provided with competent
psychiatric assistance did not give that court a
"fair opportunity" to consider the factually related
but legally distinct ineffective assistance of
counsel claim he now presses upon us.
In his state habeas petition,
Nobles based his due process claim on the "lack of a
reliable mental health evaluation by his state-appointed
experts in competently investigating petitioner's
background to discover a mother-lode of information
indicative of life-long mental disorders." Nobles
relied on the Supreme Court's decision in Ake v.
Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53
(1985), which recognized an indigent defendant's due
process right to a competent psychological
evaluation when his sanity would be a significant
factor at trial. Ake, 470 U.S. at 83, 105 S.Ct. at
Nobles asserted that, because of
the failure of his court-appointed psychiatrist to
conduct a competent investigation into his traumatic
past, the jury did not hear evidence that, during
the murders, Nobles was in the grip of a
dissociative episode and was thus not acting
deliberately. The state habeas court rejected
Nobles's claim, finding that he had provided no "rational
basis for finding that the psychiatrist ... was
incompetent or performed incompetently."
In his federal habeas petition,
Nobles shifted focus from the alleged incompetence
of his court-appointed psychiatrist to that of his
He claimed that counsel failed to present most of
the available mitigating evidence regarding Nobles's
childhood and history of mental illness.
Given that one of the primary issues the jury had to
resolve during the punishment phase was
deliberateness, Nobles asserts there was no
conceivable reason for counsel's failure to
introduce all available evidence of his troubled
Nowhere in his state habeas
petition did Nobles claim that his trial counsel
provided ineffective assistance regarding the
introduction of mitigating evidence. He focused
exclusively on the allegedly incompetent
investigation performed by his court-appointed
psychiatrist. Only in his federal habeas petition
did Nobles call into question his attorneys'
performance on this ground.
In addressing a due process claim
based on ineffective psychiatric assistance, a court
must inquire whether the defendant was provided
access to a "competent psychiatrist" and whether
that psychiatrist competently examined the defendant
and "assist[ed] in evaluation, preparation and
presentation of the defense." Ake, 470 U.S. at 83,
105 S.Ct. at 1093.
By contrast, a court assessing
whether a defendant was provided with the effective
assistance of counsel must focus on the
reasonableness of counsel's decisions and in
particular whether allegedly deficient performance
falls within the wide range of reasonable
professional assistance. See Strickland, 466 U.S. at
688-91, 104 S.Ct. at 2065-67.
The court's focus does not change
even when the ineffective assistance of counsel
claim is predicated on counsel's failure to
introduce mitigating psychological evidence. See
Black v. Collins, 962 F.2d 394, 403 (5th Cir.1992)(finding
reasonable counsel's decision not to present
evidence that defendant suffered from Post-Traumatic
Stress Syndrome in light of defense strategy at
In sum, Nobles "advance[d] in
federal court an argument based on a legal theory
distinct from that relied upon in state court," and
therefore failed to satisfy the exhaustion
requirement. Vela, 708 F.2d at 958 n. 5, citing
Anderson, 459 U.S. at 7, 103 S.Ct. at 277-78.
As noted above, the district
court also found Nobles's claim barred by the
doctrine of procedural default. The court reasoned
that because Tex.Code Crim. Proc. Ann. art. 11.071 §
would prohibit Nobles from filing a successive
habeas petition at the state level, Nobles had
procedurally defaulted his ineffective assistance of
counsel claim. See Coleman, 501 U.S. at 735 n. 1,
111 S.Ct. at 2557 n. 1.
Were Nobles to file a successive
habeas petition in the Texas state courts, his
application would be governed by § 5(a) of article
11.071. See Ex parte Davis, 947 S.W.2d 216, 222 (Tex.Crim.App.1996)(McCormick,
That section would prohibit a Texas court from
considering the successive petition on the merits,
unless it met certain exceptions. Id. The only
exception arguably applicable here would allow
consideration of the successive petition if it
sufficient specific facts
establishing that ... by clear and convincing
evidence, but for a violation of the United States
Constitution no rational juror would have answered
in the state's favor one or more of the special
issues that were submitted to the jury in the
applicant's trial under Article 37.071 or 37.011.
Tex.Code Crim. P. Ann. art.
11.071 § 5(a)(3)(West 1997).
After considering Nobles's Sixth
Amendment claim based on counsel's failure to
sufficiently introduce mitigating evidence, we fail
to discern evidence of any constitutional violation
whatsoever, much less a constitutional violation
that impacted the jury's findings at the punishment
phase. The so-called "mitigating" psychological
evidence Nobles refers to was at best double-edged:
not to present evidence of Nobles's volatile mental
state, especially given counsel's decision to
emphasize Nobles's non-violent history,
was clearly reasonable trial strategy. See Black,
962 F.2d at 403 (finding that, where counsel chose
to emphasize defendant's non-violent history,
decision not to present all evidence tending to
negate "deliberateness" element not unreasonable);
see also Green, 116 F.3d at 1123.
Even assuming counsel's deficient
performance, Nobles could not in any case
demonstrate prejudice, given that the evidence of
his childhood trauma and history of mental illness
was cumulative of other evidence actually presented
during the punishment phase. We thus find that a
Texas court, presented with a successive state
habeas petition on this claim, would find it barred
under article 11.071 § 5(a).
Given that article 11.071 is "a
new statute, largely uninterpreted by state cases,"
we provide an alternate basis for applying the
doctrine of procedural default. See Emery v.
Johnson, 123 F.3d 213, 217-18 (5th Cir.1997);
Mangaroo v. Nelson, 864 F.2d 1202, 1204 n. 2 (5th
Cir.1989). The Texas abuse-of-writ doctrine
prohibits a second habeas petition, absent a showing
of cause, if the applicant urges grounds therein
that could have been, but were not, raised in his
first habeas petition. See Ex parte Barber, 879 S.W.2d
889, 891 n. 1 (Tex.Crim.App.1994)(en banc)(plurality
That doctrine represents an
adequate state procedural bar for purposes of
federal habeas review. See Emery, 123 F.3d at
217-18; Fearance v. Scott, 56 F.3d 633, 642 (5th
Cir.1995). Given that Nobles has cited no cause for
his failure to raise his Sixth Amendment claim in
his initial state habeas petition, the Texas abuse-of-writ
doctrine would constitute an independent and
adequate bar to a successive habeas petition.
Thus, whether we consider article
11.071 or the abuse-of-writ doctrine, Nobles has
procedurally defaulted his unexhausted Sixth
The AEDPA amended 28 U.S.C.
2254(b) to allow a federal court to deny an
application on the merits, "notwithstanding the
failure of the applicant to exhaust the remedies
available in the courts of the State." 28 U.S.C.
2254(b)(2)(West 1997). We note that amended §
2254(b)(2) is permissive ("[a]n application ... may
be denied ..."). The district court, after finding
Nobles's claim procedurally defaulted, found in the
alternative that his claim would not have succeeded
on the merits. We review the district court's
resolution of this mixed question of law and fact de
novo. See Green, 116 F.3d at 1122.
We agree with the district court
that Nobles's allegations fail to demonstrate his
counsel's deficient performance, and that, in any
case, Nobles could not show prejudice resulting
therefrom. As the district court observed, "mitigation
is in the eye of the beholder." While the
unprofferred evidence of Nobles's childhood abuse
and emotional problems may have helped Nobles on the
deliberateness issue, the same evidence could have
strengthened the prosecution's argument that Nobles
posed a continuing threat to society. Thus,
counsel's decision not to offer such evidence did
not constitute deficient performance. Furthermore,
the unprofferred evidence was cumulative and thus
could not have affected the outcome of the
For the foregoing reasons, we
AFFIRM the district court's denial of Nobles's
petition for writ of habeas corpus.
A justice or judge of the United
States before whom a habeas corpus proceeding is
pending may, before final judgment or after final
judgment of discharge, or pending appeal, stay any
proceeding against the person detained in any State
court or by or under the authority of any State for
any matter involved in the habeas corpus proceeding.
(emphasis added). Nobles contends
that the stay of execution under § 2251 "is clearly
sufficient judicial intervention in the case to
consider the case 'pending.' " He also points out
that Congress used the expression "cases pending" in
AEDPA § 107(c) in defining the temporal scope of new
In any post conviction proceeding
under section 2254 or 2255 of title 28, seeking to
vacate or set aside a death sentence, any defendant
who is or becomes financially unable to obtain
adequate representation or investigative, expert, or
other reasonably necessary services shall be
entitled to the appointment of one or more attorneys
and the furnishing of such other services in
accordance with paragraphs (5), (6), (7), (8), and
No. And then she kept--she just
screamed, and screamed, and screamed, and screamed.
And then the next thing I remember somebody else was
screaming so I ran into another room. And it was
another girl who started hitting me. And I remember
this girl had dark hair because somebody had kept
the lights on. And she was hitting on me. I was
lunging at her with the knife.
When asked whether he remembered
stabbing himself, Nobles responded:
I think so. And the next thing I
remember is running out the door. I don't remember
The gist of the applicant's
omitted statements [is] to the effect that he for
some reason unknown to himself found himself in
another's house in the dark of night where women
began to scream and cast their bodies upon his knife
which he held in his hand also for some reason
unknown to him.
The state court thus found
neither deficient performance in counsel's failure
to introduce the unedited confession nor prejudice
We find more apposite the case of
Lamberti v. Wainwright, 513 F.2d 277 (5th Cir.1975).
There, the petitioner asserted in his state habeas
petition that his untimely appeal to the state
appellate court was due to the trial court's
unauthorized and allegedly misleading extension of
time in which to file a motion for new trial. In
federal court, petitioner asserted for the first
time that his late appeal was the product of his
attorneys' deficient performance. We found that
petitioner's ineffective assistance claim was not
the "substantial equivalent" of his first claim,
based on the actions of the trial judge, even though
the basic facts underlying both claims were similar.
Lamberti, 513 F.2d at 281-83. Thus, petitioner
failed to meet the exhaustion requirement. Id.
If an original application for a
writ of habeas corpus is untimely or if a subsequent
application is filed after filing an original
application, a court may not consider the merits of
or grant relief on the subsequent or untimely
original application unless the application contains
sufficient specific acts establishing that:
(3) by clear and convincing
evidence, but for a violation of the United States
Constitution no rational juror would have answered
in the state's favor one or more of the special
issues that were submitted to the jury in the
applicant's trial under Article 37.071 or 37.0711.