Steven LaWayne Nelson v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Steven Nelson was convicted of capital murder under the Texas “law of parties,” meaning that the guiltphase jury found that he agreed to commit a felony in which a capital killing later took place. Nelson’s sentencing-phase jury therefore received the “anti-parties” instruction, which exists to ensure that individuals on the periphery of a felony murder do not receive unconstitutional death sentences. After Nelson was sentenced to death, his state post-conviction counsel filed an ineffective-assistance-of-counsel (“IATC”) claim based on Wiggins v. Smith, 539 U.S. 510 (2003). Nelson presented a different IATC claim to the federal habeas court: that his trial counsel failed to develop evidence regarding Nelson’s accomplices that would have influenced at least one juror’s assessment of Nelson’s culpability. The Fifth Circuit nevertheless held that those two claims were the same for purposes of the relitigation bar in 28 U.S.C. § 2254(d), deepening a circuit split over how to analyze “claim sameness” under that statute. This petition presents two questions:

1. Has a claim been “adjudicated on the merits” in state court under 28 U.S.C. § 2254(d) when it consists wholly of allegations the state court never considered?

2. Does a non-killing defendant always exhibit the necessary culpability for a sentence of death when he is aware that his accomplices have severely injured a victim?