UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-50031
Summary Calendar
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JARRETT NELSON,
Petitioner-Appellant,
versus
WAYNE SCOTT, Director
Texas Dept. of Criminal
Justice, Institutional
Division,
Respondent-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
(W 93 CA 410)
______________________________________________
(August 17, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.*
GARWOOD, Circuit Judge:
Petitioner-appellant Jarrett Nelson (Nelson), a Texas state
prisoner, appeals the district court's denial of his petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
Facts and Proceedings Below
On August 22, 1991, a Texas grand jury returned an indictment
charging Nelson with the delivery of a controlled substance, namely
cocaine. The indictment also alleged that Nelson had used and
exhibited a deadly weapon (cocaine) during the commission of the
offense. The indictment recounted that Nelson delivered a
controlled substance to Darrell Deloach (Deloach) on or about
February 26, 1991, in Robertson County, Texas, by "actually
transferring, constructively transferring, or offering to sell said
controlled substance." In addition, the indictment included three
enhancement paragraphs reciting that Nelson had three prior felony
convictions. On October 8, 1991, Nelson moved to quash the
indictment on the ground that it did not describe in sufficient
detail the offense for which he was being charged. The trial court
denied this motion, and the case proceeded to trial on October 9,
1991.
The evidence at trial showed that on February 26, 1991,
Deloach, a member of the Brazos Valley Narcotics Trafficking Task
Force, and Eddie Wood (Wood), a confidential informant, parked
their vehicle behind a club in Hearne, Texas. Hood called out to
some men who were standing behind the building, and four men,
including Nelson, approached the vehicle. Describing the ensuing
drug transaction, Deloach testified that Nelson handed a rock of
crack cocaine to one of the four men, who then sold the rock to
Deloach for $15. Deloach testified that he negotiated the price
with Nelson and that he gave the $15 to Nelson. The entire
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transaction was recorded by video camera, and the prosecution
played the video tape at trial.
On October 9, 1991, the jury found Nelson guilty of the
delivery of a controlled substance as charged in the indictment.
The trial court made an affirmative finding that Nelson used a
deadly weapon, cocaine, during the commission of the offense.
After Nelson pleaded true to each of the three enhancements alleged
in the indictment, the trial court sentenced him to eighty years in
prison. On appeal, the Texas Tenth Court of Appeals affirmed
Nelson's conviction but modified the judgment to delete the deadly
weapon finding. Nelson did not file a petition for discretionary
review with the Texas Court of Criminal Appeals, but he did file a
state application for a writ of habeas corpus. On May 23, 1993,
the trial court entered findings rejecting the arguments raised in
Nelson's state habeas application. On September 8, 1993, the Texas
Court of Criminal Appeals denied Nelson's habeas application
without written order on the findings of the trial court.
Proceeding pro se and in forma pauperis, Nelson then filed
this section 2254 petition in the district court below, raising the
same arguments that he raised in his state habeas application.
Nelson argued that (1) the indictment in his case was insufficient,
(2) the evidence was insufficient to support his conviction, (3)
one of his prior convictions used to enhance his sentence was void
because there was no proof that it was a final conviction, and (4)
all three of his prior convictions used for enhancement were void
because there was insufficient evidence to support his guilty pleas
3
in those cases. The district court referred the case to a
magistrate judge on December 8, 1993. On November 10, 1994, the
magistrate judge issued a report that recommended denying Nelson's
petition. In his report, the magistrate judge stated that Nelson's
indictment claim provided no basis for federal habeas relief, that
the evidence was sufficient to support his conviction, and that he
had waived his challenges to the enhancement convictions by
pleading true to the enhancement paragraphs of the indictment.
Nelson filed written objections to the magistrate judge's report.
In a judgment dated December 21, 1994, the district court adopted
the magistrate judge's report, denied Nelson's petition, and
dismissed his case without prejudice.1 Nelson filed a timely
notice of appeal, and on January 25, 1995, the district court
granted him a certificate of probable cause to appeal and leave to
proceed in forma pauperis on appeal.
Discussion
Nelson argues that the charging indictment was defective
because it failed to specify the exact manner or theory of the
transfer of the cocaine, thereby failing to give him adequate
notice to allow him to prepare a defense. The sufficiency of a
state indictment is not cognizable under section 2254 unless it can
be shown that the indictment is so defective that the convicting
1
On March 25, 1995, respondent Wayne Scott filed a motion in
the district court to amend the judgment pursuant to Fed. R. Civ.
P. 60(a) to state that Nelson's case is dismissed with prejudice.
On March 28, 1995, the district court issued an order amending
the December 21, 1994, judgment to reflect that Nelson's suit was
dismissed with prejudice.
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court had no jurisdiction. McKay v. Collins, 12 F.3d 66, 68 (5th
Cir.), modified on reh'g, 12 F.3d 70 (5th Cir.), cert. denied, 115
S.Ct. 157 (1994). Furthermore, when the state courts have held
that the indictment is sufficient under state law, a federal habeas
court need not consider such a claim. Alexander v. McCotter, 775
F.2d 595, 598 (5th Cir. 1985) ("[A] federal habeas court will not
consider such claims when it appears . . . that the sufficiency
of the indictment was squarely presented to the highest court of
the state on appeal, and that court held that the trial court had
jurisdiction over the case.") (internal quotation marks and
citations omitted).
Nelson raised the same argument concerning the allegedly
defective indictment in his state habeas application. Rejecting
his argument, the state trial court stated, "[T]he State was not
required to specify which one of the disjunctively-charged theories
of delivery it was going to prove at trial. The indictment placed
[Nelson] on notice that he needed to prepare his defense under all
three theories." The Texas Court of Criminal Appeals denied
Nelson's habeas application without written order "on [the]
findings of [the] trial court." "By refusing to grant [Nelson]
relief, . . . the Texas Court of Criminal Appeals has
necessarily, though not expressly, held that the Texas courts have
jurisdiction and that the indictment is sufficient for that
purpose." Id. (footnote omitted). Accordingly, we will not
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consider Nelson's argument that the indictment was insufficient.2
Nelson next argues that the evidence at trial was insufficient
to support his conviction for delivery of a controlled substance,
asserting that there was no evidence that he actually transferred
or offered to sell the cocaine and that the evidence demonstrated
that a third person passed, sold, and delivered the cocaine to
Deloach. In evaluating whether a state conviction is supported by
sufficient evidence, we view the evidence in the light most
favorable to the prosecution and then determine whether a rational
trier of fact could have found the petitioner guilty beyond a
reasonable doubt. Jackson v. Virginia, 99 S.Ct. 2781, 2789 (1979).
We apply this standard with reference to the substantive elements
2
We also note that a defendant has, of course, a Sixth
Amendment right to adequate notice of the charges against him.
McKay v. Collins, 12 F.3d 66, 69 (5th Cir. 1994). We hold that
the indictment in the instant case provided Nelson with adequate
notice of the charges against him. We find support for our
holding in Schad v. Arizona, 111 S.Ct. 2491 (1991). There, the
defendant was found guilty of first-degree murder by a unanimous
jury. The trial court instructed the jury that it must reach a
unanimous verdict that the defendant committed first degree
murder, which Arizona defined as either premeditated murder or
felony murder. The trial court, however, did not instruct the
jury that it was required to reach a unanimous verdict with
respect to either premeditated murder or felony murder.
Rejecting the defendant's argument that the trial court should
have instructed the jury that it was required to agree
unanimously on one of the alternative theories of first-degree
murder, a plurality of the Court affirmed the defendant's
sentence, reasoning that "the State had proved what, under state
law, it had to prove: that petitioner murdered either with
premeditation or in the course of committing a robbery." Id. at
2496. By way of analogy, we note that if unanimity is not
required at the jury stage, it is not required at the notice
stage. See id. ("Our cases reflect a long-established rule of
the criminal law that an indictment need not specify which overt
act, among several named, was the means by which the crime was
committed.").
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of the criminal offense as defined by state law. Isham v. Collins,
905 F.2d 67, 69 (5th Cir. 1990). Under Texas law, delivery of a
controlled substance may be proved through the mutually exclusive
methods of actual transfer, constructive transfer, or offer to
sell. Lacy v. State, 782 S.W.2d 556, 557-558 (Tex.App.--Houston
[14th Dist.] 1989, no writ).
Because the trial court instructed the jury on all three
methods of delivery, the jury only had to find that the prosecution
proved one of the three. Moreover, the trial judge properly
instructed the jury on the law of parties, stating that a "person
is criminally responsible for an offense committed by the conduct
of another if: acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids,
or attempts to aid the other person to commit the offense." Based
on our review of the evidence presented at trial, we hold that the
prosecution presented sufficient evidence to prove all three
theories.
Nelson contends that one of his prior convictions used to
enhance his sentence was invalid because it was not a final
conviction. He also asserts that all three of his prior
convictions used for enhancement are void because there was no
evidence to support his guilty pleas in those cases. Nelson raised
this same argument in his state habeas application. Rejecting this
argument, the state trial court found that Nelson "plead[ed] true
to all three enhancement paragraphs and acquiesced in the admission
of the three pen packets which proved up the three prior
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convictions of which he now complains." We have held that a habeas
petitioner who has pleaded true to enhancement charges and is not
currently serving a prison sentence for one of his prior
convictions has "waived any complaints he may have had concerning
the former offenses which were set out in the enhancement charge."
Long v. McCotter, 792 F.2d 1338, 1340 (5th Cir. 1986) (citation
omitted), see id. at 1343 (holding that a defendant's plea of true
to enhancement charges constitutes an admission that he "had been
duly and legally convicted of the prior charge[s]") (emphasis in
original; internal quotation marks and citation omitted). Nelson
does not allege that he was still serving the sentences for any of
the convictions set forth in the enhancement paragraphs. He is
attacking only the enhancement of his 1991 sentence. His
challenges to his prior convictions are barred.
Conclusion
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
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