Joshua Nelson v. Secretary, FL DOC, et al

Filing

Opinion issued by court as to Appellant Joshua D. Nelson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-14371

Date Filed: 12/19/2016

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14371
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D.C. Docket No. 2:11-cv-00327-JES-CM

JOSHUA D. NELSON,
Petitioner - Appellant.
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 19, 2016)
Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.
PER CURIAM:

Case: 14-14371

Date Filed: 12/19/2016

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Joshua D. Nelson appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition. Nelson argues that the trial court erred in admitting out-of-court
statements of his co-defendant, Keith Brennan, in violation of his Sixth
Amendment right to confront witnesses against him. After a careful review of the
record, consideration of the parties’ briefs, and having had the benefit of oral
argument, we affirm the district court.
I
The Florida Supreme Court described the facts adduced at trial as follows:
The evidence presented at trial established the
following facts. Nelson and Keith Brennan wanted to
leave the city of Cape Coral. The two devised a plan to
murder Tommy Owens and steal his car. Nelson and
Brennan knew that Owens kept a baseball bat in his car.
On the evening of March 10, 1995, Owens was lured
under false pretenses to a remote street. Nelson and
Brennan were able to convince Owens to exit his car,
whereupon Nelson hit Owens with the bat. After a
number of blows, Owens eventually fell to the ground.
Nelson and Brennan tied Owens’ legs and arms. Owens
pleaded for his life, stating that the two could take his
car. After a brief discussion, Nelson and Brennan
concluded that to avoid being caught, they should kill
Owens. Brennan attempted to slice Owens’ throat with a
box cutter. Owens was not unconscious when the attacks
began and he begged Nelson to hit him again with the bat
so as to knock him unconscious before the stabbing
continued. Nelson did as Owens requested and Brennan
continued to attack Owens with the box cutter. Nelson
and Brennan also continued to strike Owens a number of
times with the bat. The two eventually dragged Owens’
body to nearby bushes, where Owens later died.
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Date Filed: 12/19/2016

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Nelson and Brennan picked up Tina Porth and
Misty Porth and the four left the city in Owens’ car.
After stopping in Daytona Beach, the four left the state
and drove to New Jersey. At different times during the
trip, Nelson and Brennan informed Tina and Misty that
they had murdered Owens. Both Tina and Misty testified
at trial.
Nelson and Brennan were apprehended by law
enforcement officers in New Jersey. Nelson gave a
video- and audio-taped confession. In the confession,
Nelson detailed his account of the murder, both at the
crime scene and at the place where the bat was recovered.
The video-taped confession was played to the jury.
Additionally, an analyst for the Florida Department of
Law Enforcement testified that blood stains on Nelson’s
shoes, the box cutter, and a pair of underwear that the
box cutter was wrapped in all matched Owens’ DNA.
Nelson was found guilty of first-degree murder and
robbery with a deadly weapon. At the penalty phase, the
jury recommenced [sic] death by a twelve-zero vote. The
trial court followed the jury’s recommendation and
imposed the death penalty for the first-degree murder
conviction. The trial court sentenced Nelson to 189
months in prison for the robbery conviction.
Nelson v. State, 748 So. 2d 237, 239–40 (Fla. 1999) (per curiam).
On direct appeal, the Florida Supreme Court denied Nelson’s claim for relief
based on a violation of his Sixth Amendment rights. See id. at 243. Nelson filed a
timely petition in the United States District Court for the Middle District of Florida
seeking the writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court
denied relief on all claims, but granted Nelson a certificate of appealability as to
the sole issue of whether his Sixth Amendment right to confrontation was violated
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Date Filed: 12/19/2016

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by the admission of Brennan’s out-of-court statements, elicited through Tina and
Misty Porth’s testimony at trial. See Nelson v. Sec’y, Fla. Dep’t of Corr., No. 11327, slip op. at 34–35 (M.D. Fla. Aug. 20, 2014). That appeal is now before us.
II
If the trial court erred in admitting the Porths’ hearsay testimony in violation
of Nelson’s Sixth Amendment rights, such error was harmless under Brecht v.
Abrahamson. See 507 U.S. 619, 623, 638, 113 S. Ct. 1710, 1714, 1722 (1993). In
addition to that testimony, the State presented an overwhelming amount of other
inculpatory evidence at trial—most notably Nelson’s voluntary, video-taped
confession in which he, at the site of the crime, described the murder in extensive
detail. Under these circumstances, we do not have “grave doubt about whether
[the admission of Brennan’s out-of-court statements] had ‘substantial and injurious
effect or influence in determining the jury’s verdict.’” See O’Neal v. McAninch,
513 U.S. 432, 436, 115 S. Ct. 992, 994 (1995); Brecht, 507 U.S. at 638, 113 S. Ct.
at 1722. Hence, the district court’s denial of habeas corpus is
AFFIRMED.

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