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Nash v. Russell

United States District Court, E.D. Missouri, Eastern Division

February 4, 2015

DONALD R. NASH, Petitioner,
TERRY RUSSELL, Respondent.


TERRY I. ADELMAN, Magistrate Judge.

This matter is before the Court on Donald Nash's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. A jury found Nash guilty of the 1982 murder of Judy Spencer. He argues that the evidence was insufficient to support the conviction and that the trial court did not allow him to present a complete defense. Nash also seeks to amend the petition to add a new claim and present new evidence. Respondent contends that the claims are procedurally barred and meritless. Respondent further contends that the motion to amend should be denied. After carefully reviewing the briefs and the record, the Court finds that the petition must be denied.


The Missouri Supreme Court recounted the facts of the case as follows:

Judy Spencer was killed on the morning of March 11, 1982, in a rural area near Salem, where Judy lived with her boyfriend, Nash. On the night before Judy's death, there had been "a large party" in the area where her body was found. Judy's body had been dragged to and dumped in the foundation of an abandoned outhouse and then covered with tree branches and logs. She had been strangled with a shoelace from her shoe and, then, after she died, had been shot in the neck with a shotgun. Some of her clothing had been strewn in the woods near her body, which was discovered partially clothed. It later was determined, however, that there was no evidence of sexual contact or a sexual assault.
The car was thought to have been there since sometime between 9 p.m. March 10 and 7:30 a.m. March 11. On the day before Judy's death, March 10, she had spent the afternoon and evening drinking and driving around with her friends, including Janet Jones. [Judy's post-mortem blood alcohol content was 0.18 percent.] Judy lied to Nash about drinking that night, saying she was out of town when she actually was drinking at Janet's apartment. Nash went to Janet's apartment to switch cars with Judy, and Janet observed Nash throw Judy's car keys toward her. Judy told Janet that Nash had told her, "This is the last time you'll ever lie to me, bitch." Judy also told Janet, "[Nash] thinks I'm ugly. He doesn't like my hair."
Janet testified that Judy washed and restyled her hair in Janet's sink after talking with Nash that night. Judy went to the home she shared with Nash, and Judy and Nash argued about drinking. Judy then returned to Janet's apartment. Later in the evening, Judy drove off mad and upset, saying she was going to Houston, Missouri.
Nash later told the state trooper who informed him of Judy's death that he had looked for Judy at some time after 8 p.m. March 10. He stated that he had looked for her at the Legion Hall and at the hospital and then had stayed home the rest of the night and did not leave until the next morning. Judy's friend, Christine Colvin, however, testified at trial that she had seen Nash driving through the parking lot of Janet's apartment complex between 11 p.m. and midnight March 10.
Janet also had searched briefly for Judy on the night of March 10. She recalled that Nash had called her around 8:30 p.m., 9:30 p.m., and 10 p.m. that night, stating that he loved Judy and was worried for her safety. The next day at 5:45 a.m., Janet called Nash, who had requested the previous night that she call him so he would not be late to work. Nash called Janet twice later that morning, again stating that he was worried and looking for Judy. He said that he was concerned that Judy would drink and drive and he feared that she would be in an accident or be arrested.
Nash also called Judy's mother, whom he had never called before, on the morning of March 11. He asked if Judy was at her mother's house, and when she said "no, " he said "I won't keep you then." He told Judy's mother that he was calling from the telephone at his work and stated that he was looking for Judy.
In the afternoon on March 11, Nash and Janet left Salem and went to look for Judy in Houston. Nash continued to express that he was concerned for Judy. When Nash and Janet later returned to Salem and went to check Nash and Judy's answering machine, they received a call to come to the hospital, where they were informed that Judy had died. Janet had to be sedated, and Nash became upset and cried. Janet and Nash were interviewed separately by investigators, who did not provide details about Judy's death. Nash described Judy's drinking the night before, and he detailed what she had been wearing when he last saw her.
Janet testified at trial that Nash later appeared heartbroken because of Judy's death. But testimony also revealed that he was involved with another woman within a week of Judy's death.
When Judy's death initially was investigated in 1982, no blood or tissue was found under her fingernails, and no physical evidence linked Nash to the crime scene. He was fingerprinted and was swabbed for gunshot residue, but no gunshot residue was found. He also did not have scratches or marks that would have been consistent with being involved in a physical altercation. There was also no evidence that the tire tracks located in the area where Judy's body was discovered matched Nash's truck.
In May 1982, at the request of law enforcement, Janet recorded a conversation that she had with Nash discussing Judy's death. Janet told Nash that she suspected he was involved in Judy's death. He stated that he did not have an alibi for the night of March 10, and Janet did not ask him about having an alibi for the morning of March 11. He admitted that he had been angry with Judy on the night of March 10, but he also stated, "I'm innocent. They're on the wrong track. They're not going to catch the right guy."
Judy's case laid dormant until 2007, when Judy's sister requested that investigators renew the investigation. Investigators then requested a DNA sample from Nash to compare to DNA evidence found on fingernail clippings taken from Judy's body in 1982. He voluntarily gave a DNA sample, and testing revealed that his DNA was found under the fingernails of Judy's left hand. No DNA profile or evidence of a third person was detected under Judy's fingernails (only Judy's DNA and Nash's DNA was detected).
An information was filed charging Nash with the class A felony of capital murder in violation of section 565.001, RSMo 1978, and punishable under section 565.008.1, RSMo 1978. A jury trial was held, and jurors heard testimony about the events of March 10 and 11, 1982, and about the DNA evidence. The jury found Nash guilty, and the court sentenced him to life imprisonment with no chance for probation or parole for 50 years.

Missouri v. Nash, 339 S.W.3d 500, 504-506 (Mo. banc 2011) (footnotes omitted).

Nash raised four points on direct appeal: (1) the trial court erred in denying his motion to quash the indictment and to dismiss; (2) the trial court erred in denying his motion for judgment of acquittal and motion for a new trial because, among other things, "a conviction resting upon insufficient evidence constitutes a violation of the Due Process Clause of the Fourteenth Amendment...";[1] (3) the trial court erred when it failed to submit Missouri's circumstantial evidence instruction to the jury; and (4) the trial court erred in granting the state's motion in limine because, among other things, "the trial court's exclusion of [Nash's] third party guilt evidence, is... violative of the Compulsory Clause of the Sixth Amendment of the United States Constitution..."[2]

In affirming, the Missouri Supreme Court found that Nash's DNA was found under Spencer's fingernails to be significant. Nash, 339 S.W.3d at 510-511. The court further stated:

This DNA evidence was bolstered by the other evidence favorable to the jury's conclusion that Nash killed Judy: he had told her the night before he died, "That's the last time you'll lie to me, bitch"; he was seen driving around Janet's apartment complex at a time after he told police he had gone home for the night on March 10; he was living with Judy but asked Janet to call him and wake him the morning Judy was killed; and he was involved with another woman shortly after Judy's murder.

Nash339 S.W.3d at 511.

Nash did not file a timely motion for postconviction relief under Missouri Court Rule 29.15. He filed this petition for writ of habeas corpus on October 3, 2012.

Grounds for Relief

1. There was insufficient evidence to support the conviction, and the Missouri Supreme Court's determination of the facts was unreasonable.
2. The trial court's application of Missouri's "Direct Connection Rule" regarding the Feldman third-party guilt evidence was an unreasonable application of clearly established federal law because it deprived Nash of a meaningful opportunity to present a complete defense.


"In the habeas setting, a federal court is bound by the AEDPA to exercise only limited and deferential review of underlying state court decisions." Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Under this standard, a federal court may not grant relief to a state prisoner unless the state court's adjudication of a claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

A state court decision is contrary to clearly established Supreme Court precedent if "the state court arrives at a conclusion opposite to that reached by [the] Court on a question of law or... decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision is an unreasonable application of clearly established federal law if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. Finally, a state court decision involves an unreasonable determination of the facts in light of the evidence presented in the state court proceedings only if it is shown that the state court's presumptively correct factual findings do not enjoy support in the record. 28 U.S.C. § 2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004).


1. Ground One

Nash argues that the prosecution's evidence was insufficient to support the conviction under Jackson v. Virginia, 443 U.S. 307 (1979) and that the Missouri Supreme Court's determination of the facts was unreasonable. Respondent argues that the ground is procedurally barred and that it lacks merit.

First, the Court disagrees with the state that the ground is procedurally defaulted. To avoid defaulting on a claim, a petitioner seeking habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (quotation marks omitted). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Id. at 1021. Claims that have not been fairly presented to the state courts are procedurally defaulted. Id. at 1022 (quoting Gray v. Netherland, 518 U.S. 152, 161-62 (1996)). Claims that have been procedurally defaulted may not give rise to federal habeas relief unless the petitioner can demonstrate cause and prejudice for the default. Id . "[T]he existence of ...

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