Nelson v. United States

868 F.3d 636

Opinion

ORDER

Keith Nelson’s petition for panel rehearing filed December 15, 2016, has been considered by the panel and is granted. The petition for rehearing en banc is dismissed as moot.

Nelson’s petition argues that the panel’s order of September 15, 2016, applied an incorrect legal standard in evaluating his application for a certificate of appealability, We reject this contention. The order’s language, which 'is standard text .used by this court in denying an application for certificate of appealability, merely states that the court “has carefully reviewed the .original file of the district court,” Nelson attached to his application more than 900 pages of- exhibits from the original file of the district court; he presumably wanted the court to review these materials carefully. Nothing in the court’s order is inconsistent with the proper legal inquiry — i.e., “whether the applicant has shown that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Buck v. Davis, — U.S. —, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017) (internal quotation omitted).

On further review of the application, however, the panel concludes that it should be granted in part. The application is granted as to the first and second issues raised in the application involving four of Nelson’s claims in the district court:

Claims A(2) & (3) — alleged ineffective assistance of trial counsel in failing to conduct adequate mitigation investigation, including, failure to move for a con-, tinuance to complete one;

Claim A(4) — alleged ineffective assistance of trial counsel in failing to conduct an adequate investigation of defendant’s mental health;

Claim A(5) — alleged ineffective assistance of trial counsel in advising or instructing, defendant to decline to submit to a mental health examination by a government examiner.

The application is otherwise denied.¹

The clerk is directed to establish a briefing schedule and to set the case for oral argument before this panel during the week of January 8-12, 2018, in St. Louis. Any motions for enlargement of the word limits on briefs must be filed at least two weeks before the applicable due date and should be referred to the panel.

Footnotes

1

. Chief Judge Smith would deny the application in its entirety. Judge Wollman would also grant the application as to the third issue raised in the application involving Claims A(15)(e) and B(2)(c) in the district court.