United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 6, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 06-70014
ERIC CHARLES NENNO,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
( )
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
I
This is an application for a certificate of appealability upon
two issues urged by Eric Charles Nenno, now on death row in Texas
for the murder and sexual assault of a child. We are not persuaded
that the denial of relief on either of these points was an
unreasonable application of the law by either the state courts or
the federal district court and refuse to issue a certificate of
appealability. As the applicant frames the issues, they are:
1. Whether a polygraph examiner’s deliberate
silence after he scored Nenno’s polygraph – a
tactic he knew was likely to evoke an
incriminating statement from an accused who
had just taken a polygraph – amounted to a
“subtle form of psychological persuasion,”1
which overcame Nenno’s reluctance to admit
involvement in the capital murder and made his
confessions thereafter involuntary?
2. Whether the Constitution requires that the
states provide condemned prisoners with
counsel who provide effective assistance in
state habeas proceedings?
II
The case as Nenno states it is:
Eric Nenno was indicted for aggravated sexual
assault and intentionally causing the death of Nicole
Benton on March 23, 1995. He was convicted as charged on
January 18, 1996. On February 1, 1996, the jury answered
the first special sentencing issue under Art. 37.071,
V.A.C.C.P. (the future dangerousness issue), “yes,” and
the second special sentencing issue (whether mitigating
circumstances called for a life sentence), “no.” The
trial court sentenced Mr. Nenno to death the same day.
On direct appeal, the Texas Court of Criminal
Appeals affirmed the conviction and sentence.2 No
petition for writ of certiorari was filed in the Supreme
Court of the United States. An application for a state
writ of habeas corpus was filed thereafter on October 16,
1998, in the trial court. The Court of Criminal Appeals
adopted the findings of fact and conclusions of law
proposed by the trial court and denied relief on November
14, 2001.3
On October 18, 2002, Mr. Nenno filed his original
federal petition for writ of habeas corpus in the
1
Colorado v. Connelly, 479 U.S. 157, 164 (1986).
2
Nenno v. State, 970 S.W. 2d 549 (Tex.Crim.App. 1998).
3
Ex parte Nenno, No. 50,598-01.
2
District Court.4 The petition was dismissed without
prejudice on January 13, 2004, to allow further
exhaustion of a claim based on a new Supreme Court
decision. Thereafter, Mr. Nenno refiled his federal
petition. On March 7, 2006, the district court granted
the state’s motion for summary judgement and denied a
certificate of appealability. Mr. Nenno filed his notice
of appeal April 3, 2006.
III.
Nenno constructs an argument from Rhode Island v. Innis5 and
Colorado v. Connelly6 that state officers coerced his confession by
remaining silent after Nenno had voluntarily taken a polygraph
test. As the argument goes, the officer maintained silence
thinking it likely that Nenno, anxious to learn the results of the
test, would speak out. And he did, blurting out that “I flunked
it, didn’t I.” This “coerced” statement, it is said, was the lever
for all the incriminatory evidence that followed – taking the
police to the child’s body in the attic of his home, the
incriminating DNA, and more. As for Innis, he was in police
custody when officers engaged in conversation among themselves in
his presence. The judicial task was to define interrogation
proscribed by Miranda. The Court refused to confine Miranda’s
restraints on interrogation of persons in custody to literal
question and answer formats, accepting that police conduct
4
Nenno v. Dretke, No. 4:02-cv-04907.
5
446 U.S. 291 (1980).
6
479 U.S. at 164.
3
provoking a response from the prisoner can be functional
interrogation, “...words or actions they should have known were
reasonably likely to elicit an incriminating response.”7 Other
limits to a finding of “functional” interrogation aside, the Court
was addressing an environment found to be inherently coercive, the
predicate of Miranda. But Nenno was not in custody when he took
the polygraph. It is true, as Nenno argues, that a confession
might in some circumstances be coerced from a person not in
custody. But the question then is one of fundamental fairness
under the due process clause. We cannot conclude that the
adjudication by the state court and the denial by the federal
district court of this claim was unreasonable by that measure.
IV
Counsel ably states the case for requiring the state to
provide counsel in state habeas review of death sentences. That
the primary battle in collateral attack of capital sentences is now
in the state courts, located there both by the jurisprudence of the
Court and the Congress cannot be denied. Nor do we question the
importance of competent representation for defendants traversing
this terrain. We say only that we do not make light of the
argument, saying no more because this inferior court could not
grant the requested relief if it were persuaded to do so. The
argument must be made to the Congress or perhaps the Supreme Court.
7
Innis, 446 U.S. at 302.
4
And so we must deny a certificate of appealability on this claim as
well.
Having denied a certificate of appealability for both issues,
we lack jurisdiction to further proceed. The appeal is DISMISSED.
5