United States Court of Appeals
For the Fifth Circuit

Summary:

Nixon entered the home of Thomas and Virginia Tucker with two accomplices, his son John Nixon Jr, and Gilbert Jimenez. Nixon pulled out a .22 caliber pistol and said, “I brought y’all something.”

Thomas Tucker, who had married his wife six months earlier, immediately guessed that the men had been hired by his wife’s former husband. Thomas offered Nixon money to spare their lives, but Nixon replied, “that’s not what I’m after. The deal’s already been made.”

Nixon and one of his associates then shot at Thomas Tucker, who managed to escape despite being hit twice. Nixon then took the gun back from Jimenez, held the gun one inch behind Virginia Tucker’s ear and fired a shot into her head while Jiminez held her down. Nixon and his associates fled. Thomas survived the ordeal and identified Nixon.

The man who hired the killers for $1000, Elster Joseph Ponthieux, was also convicted of capital murder and received a life sentence. Nixon's sons Henry Leon Nixon and John B. Nixon Jr. were convicted on lesser charges for their involvement in the murder plot.

Jiminez testified against the others and received a 20 year sentence. It took the jury only half an hour to find Nixon guilty, and only one and a half hours to determine the sentence should be death.

At age 77, Nixon is the oldest person executed in the United States since the death penalty was reinstated in 1976.

Citations:

Nixon v. State, 533 So.2d 1078 (Miss. 1987) (Direct Appeal).
Nixon v. State, 641 So.2d 751 (Miss. 1994) (PCR).
Nixon v. Epps, 405 F.3d 318 (5th Cir. Miss. 2005) (Habeas).

Final Meal:

A well-done T-bone steak, buttered asparagus spears, a baked potato with sour cream, peach pie, vanilla ice cream and sweet tea.

Final Words:

"I'm sorry for what I've done. I'm sorry to the world. I'm sorry for myself and I'm sorry to the family. I did not kill Virginia Tucker. I know within my heart, and it hurts to acknowledge, that it was a son of mine and a Spanish friend and another man from Jackson."

ClarkProsecutor.org

Mississippi Department of Corrections

MDOC# 41484
Name: John B. Nixon Sr.
Race WHITE
Sex MALE
Date of Birth 04/01/28
Height 5FT 08IN
Weight 175
Complexion FAIR
Build MEDIUM
Eye Color BLUE
Hair Color WHITE
Entry Date 04/02/86
Location MSP

Execution of John B. Nixon, Sr.

Death Row inmate John B. Nixon, Sr., MDOC # 41484, is scheduled to die by lethal injection at 6:00 p.m. on Dec. 14, 2005, at the Mississippi State Penitentiary (MSP) in Parchman, Miss. Nixon was convicted of capital murder by a Rankin County jury for the murder-for-hire of 45-year-old Virginia Tucker on Jan. 22, 1985; Nixon was sentenced to death on March 26, 1986.

News media organizations wishing to have a representative considered as a media witness and to have a reporter allowed access to the media center during the day of the execution must make their request in writing on company letterhead and signed by the news department manager. Include in the letter the name of each proposed representative, date of birth, driver’s license number (including expiration date) and social security number.

In the letter please differentiate between the news representative to be considered as the media witness and others to be considered for access to the media center. You may list all in the same letter. In addition, please indicate in your letter if your representative works for print, radio or television.

The deadline to have letters submitted to the MDOC Communications Division is 5:00 p.m., Dec. 5, 2005. No telephone or e-mail requests will be accepted. To accommodate as many media firms as possible, each news media organization will be limited to one (1) representative to be considered for the media witness lottery. Letters may be mailed or faxed to: MDOC Communications Division ATTN: Media Witness and Reporter Request 723 N. President Street Jackson, MS 39202 (601) 359-5738 – fax

The media witness lottery will take place at 9:00 a.m. on Dec. 6, 2005, in the first floor conference room of MDOC headquarters, 723 N. President Street, Jackson, Miss. During the lottery two representatives each of print, radio and television will be selected as media witnesses. The list of media witnesses will be published following the lottery. The Mississippi Associated Press and Mississippi Radio Network will each be allowed one representative as a media witness.

All credentials will be mailed to the news organization one (1) week prior to the scheduled execution. It is up to the news organization to inquire about credentials not received. The media center at MSP will open at 10:30 a.m. on Dec. 14 and all credentialed media may enter as late as 2:00 p.m. No media will be allowed to enter the grounds after this time. All media leaving the grounds of MSP prior to the execution will not be permitted back on the grounds.

On-grounds parking is limited. The media center can accommodate approximately 14 television and radio station satellite or microwave vehicles. Requests will be taken on a first received, first served basis. Television and radio stations are limited to one (1) satellite or microwave vehicle and will be permitted three (3) support personnel (engineer, camera operator, and producer). Please indicate in your letter if you wish to have the above news personnel and a satellite or microwave vehicle credentialed for the execution.

EVERYONE IS SUBJECT TO SEARCH BEFORE ENTERING MSP. For security purposes, two forms of identification will be required. One must be an official photo ID such as a driver’s license, passport or state-issued identification card. Only those credentialed to the media center will be permitted.

Approximately one hour prior to the execution, media witnesses will be escorted to another building where they will be searched prior to being transported to the witness room. No cell phone, pagers, video or audio recording devices, pocketknives or other contraband will be allowed. Media witnesses will be provided with note-taking materials prior to the execution. No artist renderings or sketches of the execution will be allowed by any of the media witnesses. All artist renderings and sketches of the execution will be confiscated.

Reporters interested in the condemned inmate’s crime, trial, appeals or his life in general are urged to research those issues in advance. MDOC may not be able to answer press inquiries that are not directly related to his stay on death row or the execution process.

Media Center Contact Information for Nixon Execution

The Mississippi Department of Corrections (MDOC) Communications Division will hold three press briefings on December 14, 2005, at the Mississippi State Penitentiary (MSP) in Parchman, Miss., for news organization members credentialed to cover the execution of John B. Nixon. The MDOC Communications Division will also have a designated telephone line established for media organizations only wishing to call the media center and receive updated information.

Scheduled Press Briefings
The MDOC Communications Division has scheduled press briefings for 11:00 a.m., 2:00 p.m., 4:00 p.m. and 7:00 pm on December 14th. The briefings will take place at the MSP designated media center.

Media Only Phone Number
The MDOC Communications Division has established a telephone number for media organizations only for the December 14th scheduled execution. This telephone number is not for publication to the public and will be operational from 10: 30 a.m. to 10:30 p.m. Wednesday, December 14th.

Dec. 14, 2005
Scheduled Execution of John B. Nixon, Sr.
4 p.m. News Briefing

Parchman, Miss. - The Mississippi Department of Corrections (MDOC) today briefed members of the news media of death row inmate John B. Nixon’s activities from 2:00 p.m. to approximately 4:00 p.m., including telephone calls and visits.

Nixon’s Collect Telephone Calls

Wednesday, Dec. 14, 2005
Inmate Nixon has made only one phone call today which was made at 12:41 p.m. to his attorney, Brian Toohey. The phone call lasted for 4 minutes.

Nixon’s Visits
1:16 p.m. – 4:00 p.m.
Ruth Lee Sister
Paige Walden Sister
Janell Veach Niece
Denny Veach Nephew-in-Law
Billy Mitchell Spiritual Advisor
Willie Bays MSP Chaplain
2:04 p.m. – 4:00 p.m.
Visiting with his attorneys: Brian Toohey and David Mills
4:00 p.m. – 4:30 pm. Last Meal and Shower
4:30 p.m. - 5:00 p.m. Billy Mitchell, Spiritual Advisor, if requested

Activities of Inmate Nixon:
Nixon remains under observation. As reported earlier, inmate Nixon is talkative. At this time, Nixon has not requested any sedative.

State executes killer

By Kathleen Baydala - Jackson Clarion Ledger

December 14, 2005

The state executed its first inmate in three years at 6:25 p.m. today when John B. Nixon Sr. was pronounced dead at Mississippi State Penitentiary.

His mood changed from cheerful and chatty to somber and withdrawn as the time of his execution grew near, state corrections officials said at 4 p.m. ‘He’s not playing anymore,” Mississippi Department of Corrections Commissioner Chris Epps said. “Time is caving in on Mr. Nixon, and it appears to me that he is realizing that.”

Epps and officials observed Nixon in Unit 17 of the Mississippi State Penitentiary during a portion of his visitation with family this afternoon. Earlier in the day, Nixon told Epps he did not commit the crime but knew who did. Nixon will have his last meal and a shower from 4-4:30 p.m. He will be able to call for his spiritual adviser from 4:30 to 5 p.m.

The quote Nixon gave his attorneys to pass on to media this morning — “That I was where I would be/then should I be where I am not/ here I am where I must be/where I would be I cannot” — was taken from a Mother Goose poem titled “Katy Cruel.”

Nixon was convicted of killing Rankin County resident Virginia Tucker for $1,000 and shooting her husband Thomas Tucker in 1985. Elester Ponthieux, Virginia Tucker’s ex-husband, hired Nixon to kill Tucker. He is serving a life sentence for his role in the crime.

Thomas Tucker survived the shooting and witnessed Nixon’s execution. At age 77, Nixon is the oldest person executed in the United States since the death penalty was reinstated in 1976. Earlier this morning Nixon said he was sorry for himself and the Tucker family.

Condemned man's mood turns somber as execution nears

By Kathleen Baydala - Jackson Clarion Ledger

December 14, 2005

Condemned killer John B. Nixon Sr.'s mood changed from cheerful and chatty to somber and withdrawn as the time of his execution grew near, state corrections officials said at 4p.m. 'He's not playing anymore," Mississippi Department of Corrections Commissioner Chris Epps said. "Time is caving in on Mr. Nixon, and it appears to me that he is realizing that."

Epps and officials observed Nixon in Unit 17 of the Mississippi State Penitentiary during a portion of his visitation with family this afternoon. Earlier in the day, Nixon told Epps he did not commit the crime but knew who did.

Daryl Neely, policy adviser for Gov. Haley Barbour, said a last-minute pardon is not likely. Barbour reviewed Nixon's request for clemency last week and denied it over the weekend. "We do have communication in place should it change," Neely said, noting he will speak to the governor before 6 p.m.

Nixon will have his last meal and a shower from 4-4:30 p.m. He will be able to call for his spiritual adviser from 4:30 to 5 p.m. The quote Nixon gave his attorneys to pass on to media this morning — "That I was where I would be/then should I be where I am not/ here I am where I must be/where I would be I cannot" — was taken from a Mother Goose poem titled "Katy Cruel."

Epps said Nixon might recite that portion as his final words.

Nixon is scheduled to die by lethal injection at 6 p.m. He was convicted of killing Rankin County resident Virginia Tucker for $1,000 and shooting her husband Thomas Tucker in 1985. Elester Ponthieux, Virginia Tucker's ex-husband, hired Nixon to kill Tucker. He is serving a life sentence for his role in the crime. Thomas Tucker survived the shooting and will witness Nixon's execution.

At age 77, Nixon will be the oldest person executed in the United States since the death penalty was reinstated in 1976. After Nixon is put to death this evening, his body will be loaded into a hearse and his sister Paige Walden will claim him, Epps said. Earlier this morning Nixon said he was sorry for himself and the Tucker family.

Convicted hitman Nixon executed in Mississippi for 1985 murder

By Holbrook Mohr - Biloxi Sun-Herald

Associated Press - December 14, 2005

PARCHMAN, Miss. - Hired killer John B. Nixon Sr. was executed Wednesday by lethal injection, but not before he claimed one of his sons carried out the 1985 murder of a Mississippi woman. "I did not kill Virginia Tucker," said Nixon, strapped to the death chamber gurney. "I know within my heart, and it hurts to acknowledge, that it was a son of mine and a Spanish friend and another man from Jackson."

Nixon, 77, did not identify which of his sons he was blaming, but said he believed his oldest son, John B. Nixon Jr., did not know murder was the reason the group entered Tucker's home in Brandon on Jan. 2, 1985. Two of Nixon's sons - Nixon Jr. and Henry Leon Nixon - along with Gilbert Jimenez were convicted in the killing but were given lesser sentences. Corrections officials said the two sons, now out of prison, had not been in contact with their father, and Corrections Commissioner Christopher Epps said he did not know where the two sons are now. A third son, Charles Lee Nixon, 37, of Davenport, Iowa, was found dead near Mount Vernon, Ill., on Nov. 26. His death was ruled a homicide.

Nixon Sr., the oldest person in the nation to be executed since the death penalty was reinstated in the U.S. nearly three decades ago, appeared to die quietly. He was pronounced dead at 6:25 p.m.

Just before the fatal chemicals were injected, Nixon - wearing red pants, a white T-shirt and white sneakers - said in a lengthy but coherent statement: "Friends, I pray for everybody." Nixon's execution on a rainy night at the sprawling state penitentiary in the rural Mississippi Delta came after a final steak-and-potato meal and visits with family. Prison officials said he appeared more withdrawn as the time for his death approached, but as Nixon puffed on a last cigarette before the execution, he joked that smoking kills.

Virginia Tucker's husband, Thomas Tucker, who was also shot during the attack, watched stoically with Virginia Tucker's son, Joey Ponthieux, as Nixon's chest began to heave, the convict's face reddened and his eyes closed. Elester Joseph Ponthieux of Raymond - who is Virginia Tucker's ex-husband and father of Joey Ponthieux - is serving a life sentence for hiring Nixon for $1,000 to carry out the murder.

Tucker's family did not speak to reporters after the execution, but Joey Ponthieux issued a written statement thanking "God for the opportunity to have lived long enough to witness this day." "She was made to know fear and horror as her last conscious thoughts before a bullet permanently destroyed her brain tissue at the command of her assassin," the statement said.

Nixon, a one-time car mechanic, died near the death row building where he had spent almost 20 years while appealing his conviction. Epps said Nixon on the eve of the execution had denied committing the murder, but expressed remorse shortly before his own death. Nixon's last chance for a reprieve ended Wednesday when the U.S. Supreme Court declined to intervene. Gov. Haley Barbour earlier had refused a request for clemency.

Before his death Nixon issued a statement quoting the Mother Goose poem "Katy Cruel." "If that I was where would I be, then should I be where I am not," he said. "Here am I where I must be and where I would be, I cannot."

One of Nixon's daughters, Dorothy Nixon-Clark, remained at her home in Texas on Wednesday but said in a news release that her father's execution "is just and called for." "My sympathies go with the remaining family of the victim," said Nixon-Clark, who also wrote about her father's "violent outbursts towards anyone in his path."

After Nixon and his companions entered the Virginia Tucker's home on Jan. 2, 1985, her husband, Thomas, apparently figured out the four attackers had been hired by Virginia Tucker's former husband. Thomas Tucker tried to bargain with them, but Nixon said the "deal's already been made." Nixon pointed the .22 caliber pistol at Thomas Tucker but it misfired, allowing Tucker to escape outside. One of Nixon's accomplices then wrestled Virginia Tucker to the ground, and Nixon put the gun behind her head and pulled the trigger, according to the court records. She died the next day.

Nixon's attorneys had claimed a 1958 statutory rape conviction in Texas should not have been admitted as a mitigating circumstance in arguing for the death penalty, and Nixon reiterated the claim just before his death. Nixon's attorney Brian Toohey said: "Stepping back from this whole process, if John had been adequately represented, I think it's reasonably clear he would not have been sentenced to death."

ProDeathPenalty.com

On January 22, 1985, John B. Nixon and two accomplices, his son, John Nixon Jr, and Gilbert Jimenez, arrived at the home of Thomas and Virginia Tucker. Upon entering the house, Nixon pulled out a .22 caliber pistol and said, “I brought y’all something.” Thomas Tucker, who had married his wife six months earlier, immediately surmised that the men had been hired by his wife’s former husband, Elster Joseph Ponthieux.

Thomas offered Nixon money to spare their lives, but Nixon replied, “that’s not what I’m after. The deal’s already been made.” Nixon and one of his associates then shot at Thomas Tucker, who managed to escape despite being hit twice in the side. Thomas made his way to his nearby place of work and asked a co-worker to check on his wife. Meanwhile, Nixon took the gun back from Jimenez, held the gun one inch behind Virginia Tucker’s ear and fired a shot into her head while Jiminez held her down. Nixon and his associates fled.

Virginia was soon discovered by Tucker’s co-worker and was taken to the hospital, where she died the next day. Thomas Tucker survived the attempt on his life and later identified Nixon as the man who killed his wife. He has said he wants Nixon to die for killing his wife. "I think there is a place picked out for him. I hope he dies and goes to hell," said Tommy Tucker. "If she was here and the roles were reversed, she would do the same thing. She'd want him put to death too," said Tucker. "Seeing him put to death will relieve my feelings of knowing he's not here anymore, and i won't have to look behind my back thinking he will get out someday," said Tucker.

At trial, Nixon was convicted of capital murder and sentenced to death. The man who hired the killers, Ponthieux, is serving a life sentence for capital murder at the Central Mississippi Correctional Facility in Rankin County. Nixon's sons Henry Leon Nixon and John B. Nixon Jr. were convicted on lesser charges for their involvement in the murder plot. Jiminez testified against the others and received a 20 year sentence. It took the jury only half an hour to find Nixon guilty, and only one and a half hours to determine the sentence should be death.

Virginia Tucker's brother, Jacob Tellez of New Mexico, said his only regret is that his sister's ex-husband didn't get a death sentence for hiring Nixon. Mississippi Governor Haley Barbour said he found nothing to convince him that granting clemency was justified, saying "The real tragedy is that justice in this case has been delayed for more than 20 years."

UPDATE: John Nixon was executed by lethal injection just after 6:00 pm. Some members of Nixon's family witnessed the execution, but one of Nixon's daughters stayed home in Texas. She issued a written statement saying her father's execution "is just and called for. My sympathies go with the remaining family of the victim." Dorothy Nixon-Clark also wrote about her father's "violent outbursts towards anyone in his path."

National Coalition to Abolish the Death Penalty

Do Not Execute John B. Nixon!

MISSISSIPPI - John Nixon - Mississippi - December 14, 2005

John B. Nixon, a 77-year-old white man, is scheduled to be executed in Mississippi on Dec. 14, 2005 for the murder-for-hire of Virginia Tucker in Rankin County. The man convicted of hiring Nixon received a life sentence while Nixon received a death sentence -- possibly because of the incompetence of his trial attorneys.

One major reason that Nixon’s lawyers were ineffective is that they were overburdened. They were beginning another death penalty case after Nixon’s; while attempting to represent Nixon they were investigating their next case. One way of handling both cases at the same time involved counsel assuming that Nixon would not be convicted of capital murder. In any murder case this is a dangerous assumption for the defense counsel to make. Representing two death penalty clients so close together also caused Nixon’s trial counsel to rush into his penalty phase of trial unnecessarily.

Because they had another trial to begin they did not accept the court’s offer of time to prepare for Nixon’s penalty phase. Clearly, the fact that Nixon’s counsel was working on two death penalty cases had an affect on Nixon’s level of representation. In fact a different panel of federal judges found that the other man that Nixon’s counsel was representing had suffered constitutionally ineffective counsel.

Trial counsel also failed to present a lot of important mitigating evidence. They failed to tell the jury about certain heroic acts that Nixon performed during his life. For example, Nixon once rescued a boy from drowning in a flooded irrigation ditch. He also pulled a woman from the burning wreckage of a plane crash (this was the one compelling piece of evidence counsel did have, but Nixon -- having lost all trust in counsel after being assured he would not be convicted of a capital crime -- instructed counsel not to present it, and counsel foolishly acquiesced without taking the necessary time to convince Nixon otherwise).

Furthermore, Nixon volunteered to serve in the United States’ military during the Second World War, receiving an honorable Navy discharge and, after a second enlistment, an Army discharge under honorable conditions. Nixon secured a hardship discharge from the Army at his mother’s request because his sharecropper father abandoned his mother and left the family isolated and destitute.

Nixon’s lawyers also did not inform the jury that Nixon had become a skilled and reliable auto mechanic. In fact, he earned a GED in prison and trained others as mechanics. Additionally, Nixon’s parents were alcoholics, and he witnessed and suffered repeated physical abuse at the hands of his father.

Nixon himself suffers from chronic alcoholism, with frequent blackouts and uncontrolled behavior, but he has attempted to overcome his addiction. Finally, Nixon has a severe passive-aggressive personality disorder, an impairment exacerbated by his alcoholism. Unfortunately the jury never heard this mitigating evidence at either phase of trial.

Moreover, the aggravating evidence presented by the prosecution in the case was not entirely accurate and was not presented to the jury appropriately. Nixon had in the past plead guilty to statutory rape; he did not plead guilty, nor was he convicted of violent or forceful rape. The state, at the federal level of Nixon’s appeals, conceded that it could not ethically use the statutory rape charge as evidence of a prior violent felony. However, the federal court found the error harmless.

It is interesting to note that, had the state made such a concession in the Mississippi Supreme Court, that court would have been obliged, under the state law at the time, to reverse the death sentence and remand for a resentencing trial. Clearly this is a serious problem. The jury heard evidence of a prior violent felony that had not actually been a violent felony. It is irresponsible to suggest, as the court did in this case, that such an error was harmless to Nixon’s case and sentence.

Additionally, defense counsel in Nixon’s case mentioned other “heinous, cruel, atrocious crimes” during closing arguments. Clearly such language used by defense counsel was harmful to the defendant’s case. First, such evidence seems to admit to the jury that the crime in question was heinous. More importantly, the defense counsel, with this statement, suggested past acts of violence. Clearly the defense was not only inadequate, but in this instance directly harmful to Nixon’s case.

Finally Nixon is a 77-year-old man. A life sentence in prison is almost guaranteed to assure that Nixon will spend the remainder of his natural life in prison.

Please write to Governor Haley Barbour to commute John B. Nixon’s sentence to life imprisonment.

Convicted hitman executed for 1985 murder

Northeast Mississippi Daily Journal

December 14, 2005

PARCHMAN - Hired killer John B. Nixon Sr. was put to death Wednesday by lethal injection, at age 77 the oldest person in the nation to be executed since the death penalty was reinstated in the U.S. nearly three decades ago.

Nixon's execution on a rainy night at the sprawling state penitentiary in the rural Mississippi Delta, came after a final steak and potato meal and visits with family. Prison officials said he appeared more withdrawn as the time for his death approached. Nixon was pronounced dead at 6:25 p.m.

The one-time car mechanic died near the death row building where he had spent almost 20 years while appealing his conviction for the 1985 murder of Virginia Tucker of Brandon. Two of his sons and a third man had served time in the same prison for helping fulfill the $1,000 murder contract. Tucker's ex-husband, Elester Joseph Ponthieux of Raymond, is serving a life sentence for hiring Nixon.

Corrections Commissioner Christopher Epps said Nixon on the eve of the execution had denied committing the murder, but expressed remorse shortly before his death. "'I'm sorry for what I've done. I'm sorry to the world. I'm sorry for myself and I'm sorry to the family,'" Epps quoted Nixon as saying. "At one time he even mentioned Mrs. Virginia Tucker's name."

Nixon's last chance for a reprieve ended Wednesday when the U.S. Supreme Court declined to intervene. Gov. Haley Barbour earlier had refused a request for clemency. Brian Toohey, a Cleveland, Ohio-based attorney representing Nixon, said several members of Nixon's family were on hand to witness the execution.

Nixon denies he committed crime hours before scheduled execution

By Kathleen Baydala - Jackson Clarion Ledger

December 14, 2005

Condemned killer John B. Nixon Sr. denied his guilt the morning of his execution but said he was sorry. "He said that he was sorry for the world, basically. He was sorry for himself, and he was sorry for the family," said Mississippi Department of Corrections Commissioner Chris Epps, who spoke to Nixon this morning. "He's still saying he didn't commit the crime, but he knows who did," Epps said.

The U.S. Supreme Court denied Nixon's application for stay of execution today, as well as his petition for a new hearing. Nixon's attorneys broke the news to him, the commissioner said. "I haven't gotten any word about him being bitter or hostile," Epps said. This morning, Nixon appeared to be "in a very good mood" and was chatty, correctional officers said. This afternoon, they described him as "calm and tranquil."

Nixon ate two eggs, two sausage patties and two slices of white bread for breakfast. He did not eat his cereal at breakfast and turned down his lunch because he wanted to save room for dinner. For his last meal, Nixon requested a well-done T-bone steak, buttered asparagus spears, a baked potato with sour cream, peach pie, vanilla ice cream and sweet tea. Nixon did not have any visitors Saturday, Sunday or Monday. His attorneys Brian Toohey and David Mills visited him Tuesday.

Shortly after 1 p.m. Wednesday, Nixon visited with his sisters Ruth Lee and Paige Walden, his niece Janell Veach and her husband Denny Veach, his spiritual adviser the Rev. Billy Mitchell and the Mississippi State Penitentiary Chaplain Willie Bays. At 12:41 p.m., Nixon made a collect phone call to his attorney Brian Toohey.

Nixon is scheduled to die by lethal injection at 6 p.m. today. He was convicted of killing Rankin County resident Virginia Tucker for $1,000 and shooting her husband Thomas Tucker in 1985. Elester Ponthieux, Virginia Tucker's ex-husband, hired Nixon to kill Tucker. He is serving a life sentence for his role in the crime. Thomas Tucker survived the shooting and will witness Nixon's execution.

At age 77, Nixon will be the oldest person executed in the United States since the death penalty was reinstated in 1976. After Nixon is put to death this evening, his body will be loaded into a hearse and his sister Paige Walden will claim him, Epps said.

Clemency for killer rejected

By Jimmie E. Gates - Jackson Clarion Ledger

December 12, 2005

Condemned killer John B. Nixon Sr.'s last hope for avoiding execution Wednesday now rests with the U.S. Supreme Court after Gov. Haley Barbour denied his clemency request. "I find nothing to convince me that clemency is justified in this case," Barbour said in a statement Sunday. "The real tragedy is that justice in this case has been delayed for more than 20 years. A delay of this length greatly reduces the deterrent effect of the death penalty." Barbour said he made the decision after a careful review of the records presented on behalf of Nixon.

Nixon, 77, is set to die by lethal injection for fatally shooting Virginia Tucker in the head on Jan. 22 ,1985, in a murder-for-hire scheme. He has been on death row since March 1986, shortly before his 58th birthday. Nixon was given the news of Barbour''s decision Sunday afternoon, said David W. Clark, his local attorney. "I don't know what his response was," Clark said. "We do have appeals in the U.S. Supreme Court. We are still hopeful the Supreme Court will come through." But the high court refused last month to hear Nixon's appeal.

If executed, Nixon would be the oldest person in the United States put to death since capital punishment was reinstated in 1976. His execution would be the first in Mississippi since December 2002.

Barbour said he will not substitute his judgment for the judgment of the jury and the courts that have heard Nixon's case. "Those courts have reviewed the legal issues and determined that this defendant's legal rights were protected at every stage," Barbour said. "His various appeals over all these years were repeatedly heard and consistently denied."

Retired Rankin County Sheriff J.B. Torrence, who was in office when Tucker was killed, said Nixon "deserves what he is going to get." Nixon was paid $1,000 by Tucker's ex-husband, Elster J. Ponthieux, to kill Tucker and her husband, Thomas. Ponthieux and three other men, including two of Nixon's sons, were convicted in the plot. Thomas Tucker survived the attempt on his life at the Tuckers' Brandon home, and later identified Nixon as the man who killed his wife.

Thomas Tucker rejected a request for an interview by The Clarion-Ledger on Sunday through Mississippi Department of Corrections of Victims Services Director Brad Thompson. He has said he wants Nixon to die for killing his wife.

Nixon's attorneys have argued he deserves a new sentencing hearing because the state improperly used a prior rape conviction in Texas to argue for the death sentence for Nixon. The attorney general's office earlier this year said it was improper for prosecutors to use the rape conviction, Clark said. Nixon and his lawyers also said he had ineffective counsel.

Nixon appealed to Barbour in a three-page handwritten letter last week, citing how he risked his life twice to save two people "and that should count for something." He also said he regretted killing "an innocent woman" and said when the crime occurred, "I was a broke down sorry alcoholic." Nixon's sister, Pagie Walden of Terry, would not comment about his case.

Virginia Tucker's brother, Jacob Tellez of New Mexico, said his only regret is that his sister's ex-husband didn't get a death sentence for hiring Nixon. Ponthieux is serving a life sentence for capital murder at the Central Mississippi Correctional Facility in Rankin County.

77-year-old man executed; claimed innocence with final words

By Dan Werner - 9news.com

December 14, 2005

PARCHMAN, Miss. (AP) - A 77-year-old convicted hitman was executed Wednesday, becoming the oldest person in the nation put to death since capital punishment was reinstated nearly three decades ago.

John B. Nixon Sr. still claimed innocence as he was strapped to the death chamber gurney, and blamed one of his sons for the 1985 murder of a Mississippi woman. "I did not kill Virginia Tucker," Nixon said before he was given the lethal injection. "I know within my heart, and it hurts to acknowledge, that it was a son of mine and a Spanish friend and another man from Jackson."

Nixon, a former car mechanic, did not say which son he blamed. Two of Nixon's sons -- John B. Nixon Jr. and Henry Leon Nixon -- along with Gilbert Jimenez were convicted in the killing but were given lesser sentences. Corrections officials said the sons, now out of prison, had not been in contact with their father.

According to court records, one of Nixon's accomplices wrestled Virginia Tucker to the ground at her Brandon home, and Nixon put the gun to her head and pulled the trigger. Elester Joseph Ponthieux, Virginia Tucker's ex-husband and father of her son, Joey Ponthieux, is serving a life sentence for hiring Nixon for $1,000 to carry out the killing.

Gov. Haley Barbour refused Nixon's request for clemency, and the U.S. Supreme Court on Wednesday declined to intervene.

Tucker's family did not speak to reporters after the execution, but Joey Ponthieux issued a written statement thanking "God for the opportunity to have lived long enough to witness this day."

Jackson Clarion Ledger

December 14, 2005

Other players

Elster Ponthieux is serving a life sentence for ordering John B. Nixon Sr. to kill his ex-wife Virginia Ponthieux Tucker. He is housed at Central Mississippi Correctional Facility in Rankin County and has been eligible for parole since January 1996. His next parole hearing is in April.

John B. Nixon Jr., son of John B. Nixon. Sr., was not at the home when Virginia Tucker was killed. He was released from prison in November 1989 after serving 3.5 years off a five-year sentence for accessory after the fact to capital murder.

Henry L. Nixon, son of John B. Nixon. Sr., chased Thomas Tucker as he escaped from the crime scene firing a shot that grazed his head. He was released from prison in June 1995 after serving nine years of a 20-year sentence for conspiracy to commit capital murder.

Gilbert Jimenez wrestled Virginia Tucker to the ground before she was shot by John B. Nixon Sr. Jimenez agreed to a plea bargain and testified against Nixon Sr. He was released from prison in October 1994 after serving about 8.5 years for conspiracy to commit capital murder.

TIMELINE

Jan. 22, 1985: Three intruders burst into Thomas and Virginia Tucker's home on Trickham Bridge Road, four miles northeast of Brandon. Virginia Tucker, 45, is shot in the head and dies a day later at the University of Mississippi Medical Center. Thomas Tucker, 40, is shot twice before running from the home and flagging down a motorist on a street. He survives.

November 1985: John B. Nixon Sr., then 57, is charged with capital murder in what authorities call a murder-for-hire plot. Four others are charged, including Virginia Tucker's ex-husband, Elster J. Ponthieux, who paid the four men $1,000 each to kill his ex-wife.

March 26, 1986: Nixon is convicted in Rankin County Circuit Court and sentenced to death.

April 1998: Nixon's case moves to the top of the list of those most likely to face execution in Mississippi after U.S. District Judge David Bramlette rejects Nixon's appeal.

April 2005: The 5th U.S. Circuit Court of Appeals in New Orleans upheld a ruling rejecting Nixon's claims of ineffective counsel and that his Rankin County jury shouldn't have been told about a previous rape conviction.

Nov. 14, 2005: The U.S. Supreme Court refuses to hear Nixon's appeal.

Nov. 28, 2005: The Mississippi Supreme Court sets a Dec. 14 execution date for 77-year-old Nixon.

Dec. 8, 2005: Nixon appeals to Gov. Haley Barbour for clemency.

Mississippi Department of Corrections

Death Row Inmate John B. Nixon, Sr.

• State Death Row Inmate John B. Nixon, Sr., MDOC #41484

• White Male

• DOB – 04/01/1928

Factual Background of the Case:

• Shortly before 8:00 a.m. on January 22, 1985, John Nixon, one of his sons, Henry Leon Nixon, and Gilbert Jimenez burst into the home of Thomas and Virginia Tucker in Rankin County, Mississippi. Once inside, John Nixon pulled a .22 caliber pistol from his coat. Thomas Tucker told Nixon that he knew that Joe Ponthieux (Virginia Tucker’s ex-husband) had hired Nixon to kill him and his wife. Mr. Tucker offered Nixon money to abandon the plan. Nixon replied, “That’s not what I’m after. The deal has already been made.”

• Nixon aimed the gun at Mr. Tucker, pulled the trigger, and the gun misfired. Mr. Tucker broke for the door. He got the door open and was hit and knocked to the ground by a second shot. Tucker struggled to his feet and continued his escape. Nixon gave the pistol to Henry Leon Nixon, and he took up the chase firing a third shot that grazed Mr. Tucker’s head.

• Tucker made good his escape by flagging down a small truck and having the driver drive him to his place of employment.

• In the meantime, Mrs. Tucker had been wrestled to the floor by Jimenez. When Henry Leon Nixon returned to the house with the pistol, he gave it back to John Nixon. Nixon placed the pistol about one inch from Mrs. Tucker’s head, behind an ear, and fired a shot into Mrs. Tucker’s brain. The three drove away in a Ford van.

• In the meantime, when Thomas Tucker arrived at his office, he had help sent to the house. Help arrived at the Tucker home to find Mrs. Tucker lying on the floor, gasping for breath, with blood running from her mouth and nose. She was taken to the hospital where she died the next day.

• The search for Mrs. Tucker’s killers was on-going for most of 1985. On November 4, 1985, John Nixon, Sr. was arrested after being identified in a personal lineup by Thomas Tucker. Shortly afterward, John Nixon, Jr. was arrested in Louisiana and Henry Leon Nixon was arrested in Los Angeles, California.

• Also, the Ford van in which the killers made their getaway was eventually discovered in Houston, Texas. That discovery led to the arrest of Gilbert Jimenez on January 7, 1986 in Houston. Mississippi Department of Corrections

• While in the custody of the Houston police, Jimenez executed a written statement implicating the three Nixons in the murder-for-hire scheme. Subsequently, Joe Ponthieux, former husband of Virginia Tucker, was arrested and indicted along with the three Nixons for capital murder.

• John Nixon, Sr.’s case was severed and was tried in a three day trial beginning March 24, 1986. Gilbert Jimenez, who plea-bargained to the charge of conspiracy to commit capital murder, testified at John Nixon, Sr.’s trial, describing the details of the pre-murder preparations and the payments to John Nixon, Sr. and John Nixon, Jr. by Joe Ponthieux.

• The jury deliberated only thirty-one minutes before returning a verdict of guilty of capital murder.

• John B. Nixon, Sr. was sentenced to death on March 26, 1986. Death Row Inmate John B. Nixon, Sr.

• State Inmate Elster J. Ponthieux, MDOC #41909

• White Male
• DOB—06/27/1935
• Entered MDOC on May 23, 1986

• On January 23, 1986, Elster Ponthieux was formally charged with the capital murder of Virginia Ponthieux Tucker in an indictment returned by the Rankin County Grand Jury. He was convicted of Capital Murder and sentenced to life imprisonment on May 23, 1986.

• Classified as a medium security inmate.

• Currently housed at the Central Mississippi Correctional Facility in Rankin County, Mississippi.

• Was first eligible for parole consideration in January 1996; has never been paroled.

• Is eligible for parole consideration in April 2006.

• John B. Nixon, Jr.

Sentenced on 04/16/86 to 5 years for a conviction of Accessory After the Fact to Capital Murder; discharged 11/25/89.

• Henry L. Nixon

Sentenced on 04/16/86 to 20 years for a conviction of Conspiracy to Commit Capital Murder; discharged 06/30/95.

• Gilbert Jimenez

Sentenced on 01/16/86 to 20 years for a conviction of Conspiracy to Commit Capital Murder; discharged 10/28/94. Execution by Lethal Injection

In 1998, the Mississippi Legislature amended Section 99-19-51, Mississippi Code of 1972, as follows: 99-19-51. ***The manner of inflicting the punishment of death shall be by continuous intravenous administration of a lethal quantity of an ultra short-acting barbiturate or other similar drug in combination with a chemical paralytic agent until death is pronounced by the county coroner where the execution takes place or by a licensed physician according to accepted standards of medical practice.

Contents of Syringes for Lethal Injection
• Anesthetic - Sodium Pentothal – 2.0 Gm.
• Normal Saline – 10-15 cc.
• Pavulon – 50 mgm per 50 cc.
• Potassium chloride – 50 milequiv. per 50 cc.

48 Hours Prior to Execution The condemned inmate shall be transferred to a holding cell adjacent to the execution room.
24 Hours Prior to Execution Institution is placed in emergency/lockdown status.
1030 Hours Day of Execution Designated media center at institution opens.
1500 Hours Day of Execution Inmate’s attorney of record and chaplain allowed to visit.
1600 Hours Day of Execution Inmate is served last meal and allowed to shower.
1630 Hours Day of Execution MDOC clergy allowed to visit upon request of inmate.
1730 Hours Day of Execution Witnesses are transported to Unit 17.
1800 Hours Day of Execution Inmate is escorted from holding cell to execution room.

Witnesses are escorted into observation room.
1900 Hours Day of Execution A post execution briefing is conducted with media witnesses.
2230 Hours Day of Execution Designated media center at institution is closed.

HISTORY

Since Mississippi joined the Union in 1817, several forms of execution have been used. Hanging was the first form of execution used in Mississippi. The state continued to execute prisoners sentenced to die by hanging until October 11, 1940, when Hilton Fortenberry, convicted of capital murder in Jefferson Davis County, became the first prisoner to be executed in the electric chair. Between 1940 and February 5, 1952, the old oak electric chair was moved from county to county to conduct executions. During the 12-year span, 75 prisoners were executed for offenses punishable by death.

In 1954, the gas chamber was installed at the Mississippi State Penitentiary, in Parchman, Miss. It replaced the electric chair, which today is on display at the Mississippi Law Enforcement Training Academy. Gearald A. Gallego became the first prisoner to be executed by lethal gas on March 3, 1955. During the course of the next 34 years, 35 death row inmates were executed in the gas chamber. Leo Edwards became the last person to be executed in the gas chamber at the Mississippi State Penitentiary on June 21, 1989.

On July 1, 1984, the Mississippi Legislature partially amended lethal gas as the state’s form of execution in § 99-19-51 of the Mississippi Code. The new amendment provided that individuals who committed capital punishment crimes after the effective date of the new law and who were subsequently sentenced to death thereafter would be executed by lethal injection. On March 18, 1998, the Mississippi Legislature amended the manner of execution by removing the provision lethal gas as a form of execution.

INMATES EXECUTED IN THE MISSISSIPPI GAS CHAMBER
Name Race-Sex Offense Date Executed

Gerald A. Gallego White Male Murder 03-03-55
Allen Donaldson Black Male Armed Robbery 03-04-55
August Lafontaine White Male Murder 04-28-55
John E. Wiggins White Male Murder 06-20-55
Mack C. Lewis Black Male Murder 06-23-55
Walter Johnson Black Male Rape 08-19-55
Murray G. Gilmore White Male Murder 12-09-55
Mose Robinson Black Male Rape 12-16-55
Robert Buchanan Black Male Rape 01-03-56
Edgar Keeler Black Male Murder 01-27-56
O.C. McNair Black Male Murder 02-17-56
James Russell Black Male Murder 04-05-56
Dewey Towsel Black Male Murder 06-22-56
Willie Jones Black Male Murder 07-13-56
Mack Drake Black Male Rape 11-07-56
Henry Jackson Black Male Murder 11-08-56
Minor Sorber White Male Murder 02-08-57
Joe L. Thompson Black Male Murder 11-14-57
William A. Wetzell White Male Murder 01-17-58
J.C. Cameron Black Male Rape 05-28-58
Allen Dean, Jr. Black Male Murder 12-19-58
Nathaniel Young Black Male Rape 11-10-60
William Stokes Black Male Murder 04-21-61
Robert L. Goldsby Black Male Murder 05-31-61
J.W. Simmons Black Male Murder 07-14-61
Howard Cook Black Male Rape 12-19-61
Ellic Lee Black Male Rape 12-20-61
Willie Wilson Black Male Rape 05-11-62
Kenneth Slyter White Male Murder 03-29-63
Willie J. Anderson Black Male Murder 06-14-63
Tim Jackson Black Male Murder 05-01-64
Jimmy Lee Gray White Male Murder 09-02-83
Edward E. Johnson Black Male Murder 05-20-87
Connie Ray Evans Black Male Murder 07-08-87
Leo Edwards Black Male Murder 06-21-89 PRISONERS EXECUTED BY LETHAL INJECTION
Name Race-Sex Offense Date Executed

Tracy A. Hanson White Male Murder 07-17-02
Jessie D. Williams White Male Murder 12-11-02

MISSISSIPPI STATE PENITENTIARY

• The Mississippi State Penitentiary (MSP) is Mississippi’s oldest of the state’s three institutions and is located on approximately 18,000 acres in Parchman, Miss., in Sunflower County.
• In 1900, the Mississippi Legislature appropriated $80,000 for the purchase of 3,789 acres known as the Parchman Plantation.
• The Superintendent of the Mississippi State Penitentiary is Lawrence Kelly.
• There are approximately 1,239 employees at MSP.

John B. Nixon, Sr. (April 1, 1928 (in Midnight, Mississippi) – December 14, 2005) was a convicted murderer executed by the U.S. state of Mississippi. He was convicted of the January 22, 1985 murder-for-hire of Virginia Tucker in Rankin County. At 77 years old, he was oldest person executed since 1976, and according to the Espy File the oldest person executed since Joe Lee in Virginia at the age of 83 on April 21, 1916.

Murder

On January 22, 1985, Nixon, his son, John Nixon, Jr., and Gilbert Jimenez arrived at the home of Thomas and Virginia Tucker. Upon entering the house, Nixon pulled out a .22 caliber pistol and said, "I brought y’all something." Thomas Tucker, who had married his wife six months earlier (a scant three months after her divorce was finalized), immediately surmised that the men had been hired by his wife’s former husband, Elster Joseph Ponthieux. Mr. Tucker offered Nixon money to spare their lives, but Nixon replied, "[t]hat's not what I’m after. The deal’s already been made."

Nixon and one of his associates then shot at Thomas Tucker, who managed to escape despite being hit in the side. Mr. Tucker made his way to his nearby place of work and asked a co-worker to check on his wife. Meanwhile, Nixon took the gun back from his associate, held the gun one inch behind Virginia Tucker’s ear and fired a shot into her head. Nixon and his associates fled. Mrs. Tucker was soon discovered by Tucker’s co-worker and was taken to the hospital, where she died the next day. Nixon was arrested after being identified in a lineup by Thomas Tucker.

Trial and appeals

Nixon was convicted by a jury of capital murder after a three day trial and then sentenced to death on April 2, 1986. The jury found that the aggravating circumstances of the murder being for hire, it was especially heinous, atrocious and cruel, and that Nixon had previously committed a felony involving the use or threat of violence to a person.

The ex-husband who had hired Nixon to perform the killing received a life sentence and two of Nixon's sons and a friend also were convicted in the killing.

During his appeals, Nixon has argued that his trial counsel were over-burdened and could not represent him effectively. At the time of the trial they were preparing for another capital case and did not accept an offer from the judge to give them more time to prepare for the penalty phase of the case. The trial counsel even assumed that Nixon would not be convicted of capital murder.

There were several aspects of Nixon's life that were not brought to the attention of the jury. He had twice saved people from death — once a drowning boy in a flooded irrigation ditch and the other a woman from a burning plane crash at Houston International Airport in 1966. He had volunteered to serve in the United States Navy during World War II and after an honorable discharge and reenlisted for the United States Army, getting a hardship discharge after his father abandoned his mother. Nixon did not tell his lawyers any of this and they had to find it out through their own private investigations. He and his mother were physical abused by his father. Dr. Gerald O'Brien, a psychiatrist, diagonised him with suffering from a severe passive-aggressive personality disorder. Dr. O'Brien also said that such a disorder would not have stopped Nixon from knowing the difference between right and wrong at the time of the murder.

The prosecution presented misleading aggravating circumstances. They claimed that Nixon was convicted of a violent or forceful rape, when he had in fact plead guilty to statutory rape in 1958 in Texas. In a federal court, after an appeal by Nixon, the state prosecutors admitted that it could not ethically use the statutory rape charge as evidence of a prior violent felony, but the court held that error was harmless, as the jury found two other aggravating circumstances in the penalty phase. Nixon's lawyer have also argued that as Nixon is already 77 years of age, he would now be little danger to society and should be able to live out the rest of his days in prison, where he has been for the last 19 years. During those two decades, Nixon has had his appeals turned down by the Supreme Court of Mississippi, United States district courts, the Court of Appeals for the Fifth Circuit, and the Supreme Court of the United States.

Governor of Mississippi, Haley Barbour, denied clemency for Nixon on December 10, 2005. In a statement released with the decision, Barbour said that real tragedy of the Nixon case was that: "…justice in this case has been delayed for more than 20 years. A delay of this length greatly reduces the deterrent effect of the death penalty."

Execution

Nixon was pronounced dead at 6:25 pm CST on December 14, 2005 after his execution by lethal injection at the Mississippi State Penitentiary. It was the seventh execution by the state of Mississippi since the Gregg v. Georgia decision and the 1004th overall in the United States. Prison officials described Nixon as being upbeat on the day of his execution, but his mood turned somber around 4 pm as the time of the execution neared. While strapped to the gurney, Nixon said that: "I did not kill Virginia Tucker. I know within my heart, and it hurts to acknowledge, that it was a son of mine and a Spanish friend and another man from Jackson." He said that he had only taken the blame for the murders as he did not want to see his son end up where he was now.

For his last meal, Nixon requested a well-done T-bone steak, buttered asparagus spears, a baked potato with sour cream, peach pie, vanilla ice cream and sweet tea. Before his execution, Nixon released a statement through his attorneys, taken from a Mother Goose poem titled Katy Cruel. "If that I was where would I be, then should I be where I am not, Here am I where I must be, and where I would be, I cannot."

Wikipedia.org

Nixon v. State, 533 So.2d 1078 (Miss. 1987) (Direct Appeal).

Defendant was convicted of capital murder, by jury, before the Circuit Court, Rankin County, Alfred G. Nicols, Jr., J., and was sentenced to death; defendant appealed. The Supreme Court, Prather, J., held that: (1) jury was fair and impartial; (2) prosecutor's comments in both guilt and penalty phase were not improper; (3) court's levity did not constitute reversible error; (4) defendant could not make Batson claim; (5) attempted victim's in-court identification was admissible; (6) defendant was not entitled to counsel at lineup; (7) prosecution's failure to disclose, pursuant to discovery order, was not reversible error; (8) prosecution's disclosure of coconspirator's written statements was sufficient to comply with discovery order; (9) coconspirator's testimony was admissible; (10) witness did not testify after being refreshed by hypnosis; (11) jury instructions were proper; (12) defendant was not entitled to psychiatric examination; (13) defendant was not subjected to double jeopardy; (14) admission of prior rape guilty plea was not reversible error; and (15) sufficient aggravating circumstances existed for imposition of death penalty. Affirmed. Sullivan, J., concurred in part and dissented in part with opinion in which Robertson, J., partially concurred, and Hawkins, P.J., partially concurred.

PRATHER, Justice, for the Court:

John B. Nixon, Sr. was convicted in the Circuit Court of Rankin County of capital murder of Mrs. Virginia Tucker as the trigger man in a murder-for-hire scheme. Miss.Code Ann. § 97-3-19(2)(d) (1987) provides the definition of such a crime as: (2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases: (d) Murder which is perpetrated by any person who has been offered or has received anything of value for committing the murder, and all parties to such a murder, are guilty as principals; From that conviction and a sentence of death, Nixon perfects this appeal, assigning 18 errors, which will be discussed in the order they arose at trial.

Shortly before 8:00 a.m. on January 22, 1985, Thomas Tucker was walking through the den of his home in Rankin County, Mississippi, when his wife, Virginia Tucker, answered a knock at the back door.

Mrs. Tucker ran backwards from the door through which entered an “old man,” later identified as John Nixon, Sr., and two younger men, identified as Henry Leon Nixon and Gilbert Jimenez. Henry Leon Nixon is John Nixon, Sr.'s son.

After telling the Tuckers “I brought y'all something,” John Nixon, Sr. pulled a .22 caliber pistol from his coat. Mr. Tucker immediately responded, “I know Joe Ponthieux hired you to kill us, but we got some money if that's what you (sic) after.” FN1 John Nixon, Sr. responded, “That's not what I'm after. The deal has already been made.” FN1. Virginia Tucker was the former wife of Joe Ponthieux.

John Nixon, Sr. then pointed the pistol at Mr. Tucker and pulled the trigger, but the pistol misfired. Mr. Tucker seized the opportunity to dart toward the front door and pull it open, but he was hit in the left side and knocked to the ground by a second shot. Mr. Tucker managed to pull himself up and to continue his escape.

John Nixon, Sr. passed the pistol to Henry Leon Nixon who chased Mr. Tucker into the yard and fired a third shot that grazed Mr. Tucker's head. Mr. Tucker eventually made his way over 100 yards to the road and was picked up by a small truck and carried to his work site, the Mississippi Power & Light office in Brandon, Mississippi.

Meanwhile, inside the Tucker house, Gilbert Jimenez wrestled Mrs. Tucker to the floor where he kept her pinned during the shooting. When Henry Leon Nixon returned the pistol to John Nixon, Sr., Mr. Nixon, Sr. held the pistol one inch from Mrs. Tucker's head, behind an ear, and fired a shot into Mrs. Tucker's brain. The three intruders then drove away in a Ford van.

When Mr. Tucker arrived at the Mississippi Power & Light office, he was taken inside where he asked Mr. Carl Corley to go to the aid of Mrs. Tucker. Mr. Corley immediately drove to the Tucker home where he found Virginia Tucker lying on the floor, gasping for breath, with blood running from her mouth and nose. According to Mr. Corley, he arrived at the Tucker home within fifteen minutes of the time Mr. Tucker arrived at the MP & L office. Virginia Tucker was taken to a hospital where she died the next day.

The search for Virginia Tucker's killers was on-going for most of 1985. On November 4, 1985, John Nixon, Sr. was arrested after being identified in a personal lineup by Thomas Tucker. Shortly afterward, John Nixon, Jr. was arrested in Louisiana and Henry Leon Nixon was arrested in Los Angeles, California. Also, the Ford van in which the killers made their getaway was eventually discovered in Houston, Texas. That discovery led to the arrest of Gilbert Jimenez on January 7, 1986 in Houston.

While in the custody of the Houston, Texas police, Jimenez executed a written statement implicating the three Nixons in the murder-for-hire scheme. Subsequently, Joe Ponthieux, former husband of Virginia Tucker, was arrested and indicted along with the three Nixons for capital murder in violation of Miss.Code Ann. § 97-3-19(2)(d), as amended.

John Nixon, Sr.'s case was severed and was tried in a three day trial beginning March 24, 1986. Gilbert Jimenez, who plea-bargained to the charge of conspiracy to commit capital murder, testified at John Nixon, Sr.'s trial, describing the details of the pre-murder preparations and the payments to John Nixon, Sr. and John Nixon, Jr. by Joe Ponthieux.

The jury deliberated only thirty-one minutes before returning a verdict of guilty of capital murder. The penalty phase of the trial was then conducted after which the jury deliberated sixty-seven minutes before returning their decision in an improper form. The jury was sent back to the jury room with a correcting instruction. Twenty-five minutes later, the jury returned a death penalty verdict, having found: (1) the capital offense was committed for pecuniary gain; (2) the capital offense was especially heinous, atrocious, and cruel; and (3) the defendant had previously been convicted of a felony involving the use and threat of violence to a person.

After John Nixon, Sr.'s motion for new trial was overruled, he perfected this appeal.

* * *

During the penalty phase of Nixon's trial, the State sought to introduce as an aggravating circumstance Nixon's prior felony conviction “involving the use or threat of violence to the person.” See,Miss.Code Ann. § 99-19-101(5)(b) (Supp.1986). Defense counsel objected to the introduction of the prior conviction on grounds that the record was not given to the defendant as part of the aggravating circumstance material FN4 and that the prior record reflected the name “John B. Nixon” instead of “John B. Nixon, Sr.” Nixon's objections were overruled. FN4. Defense counsel admitted the prior record was tendered to them. They simply argued that the record was not highlighted as being for the purpose of an aggravating circumstance.

The prior conviction introduced by the State was a 1958 Texas rape conviction in which Nixon pled guilty and was sentenced to fifteen years in prison. On appeal, Nixon contends the introduction of the prior rape conviction was error because (A) the prior conviction was for a non-violent “statutory rape” and (B) the prior conviction was facially invalid. Initially the State contends these points are procedurally barred because they were not the subject of Nixon's trial objections. Notwithstanding the absence of objections on the specific points raised on appeal, this Court proceeds to the merits.

A. Was the Texas rape non-violent?

The indictment under which Nixon pled guilty stated as follows: The grand jurors for the County of Brazoria ··· upon their oaths present in and to said court that John B. Nixon on or about the 1st day of March, A.D. 1958, ··· did then and there unlawfully in and upon Mary Jo Polk, a female then and there under the age of eighteen years, make an assault, and the said John B. Nixon did then and there ravish and have carnal knowledge of the said Mary Joe Polk, the said Mary Jo Polk not being then and there the wife of the said John B. Nixon···· The applicable rape statute, Tex.Penal Code Ann. § 1183 (Vernon 1918) (repealed 1973), read as follows:

Rape is the carnal knowledge of a woman without her consent obtained by force, threats or fraud; or the carnal knowledge of a woman other than the wife of the person having such carnal knowledge with or without consent and with or without the use of force, threats or fraud, such woman being so mentally diseased at the time as to have no will to oppose the act of carnal knowledge, the person having carnal knowledge of her knowing her to be so mentally diseased; or the carnal knowledge of a female under the age of eighteen years other than the wife of the person with or without her consent and with or without the use of force, threats or fraud; provided that if she is fifteen years of age or over the defendant may show in consent cases she was not of previous chaste character as a defense. (Emphasis added)

According to Nixon, “[t]here is absolutely no doubt that this was a conviction for Statutory Rape” and was therefore not a crime involving the threat or use of violence. The indictment under which Nixon was convicted states Nixon made an “assault” on his victim and he “ravished” and had carnal knowledge of the victim. According to Texas caselaw, “[t]he word ‘ravish’ implies force and want of consent, and its use in the indictment in connection with the allegation of rape of a female between the ages of fifteen and eighteen years ··· renders the indictment sufficient to support a conviction for rape by force as well as for statutory rape.” Rodrigues v. State, 166 Tex.Cr.R. 1, 308 S.W.2d 39, 40 (1958).

In Nixon's rape case, no force was needed to convict him because his victim was under eighteen years of age. However, the indictment to which he pled guilty alleged he assaulted and ravished his victim. Because those terms were used and were not required, this Court holds that the logical conclusion is that Nixon's rape involved force and want of consent and was therefore not a “statutory rape” as he contends.

When considering whether Nixon's prior offense was one involving the use or threat of violence the Court should be mindful that it behooves the prosecutor to prove the existence of each aggravating circumstance beyond a reasonable doubt. Miss.Code Ann. § 99-19-103 (Supp.1986).

B. Was the Prior Conviction Facially Invalid?

Here the Court is asked to render guidelines for determining the admissibility of prior felony records to establish aggravating circumstances under Miss.Code Ann. § 99-19-101(5)(b) (Supp.1986). This Court has announced the following procedure in Phillips v. State, 421 So.2d 476 (Miss.1982). In Phillips, the prosecution sought to use a prior Kentucky conviction to enhance the defendant's punishment under Miss.Code Ann. § 99-19-81, as amended. The defendant objected to the use of the Kentucky conviction alleging that the conviction was invalid because he had not “knowingly and voluntarily” pled guilty. In response to Phillips' argument, this Court held that the trial judge is not required to go beyond the face of the prior convictions sought to be used in establishing a defendant's status as an habitual offender. “If, on its face, the conviction makes a proper showing that a defendant's prior plea of guilty was both knowing and voluntary, that conviction may be used for the enhancement of the defendant's punishment under the Mississippi Habitual Offender Act.” Phillips, 421 So.2d at 481. See also, Moore v. State, 508 So.2d 666 (Miss.1987).

In the instant case the record reflects that: John B. Nixon in open court, in person, pleaded guilty to the charge contained in the indictment, thereupon the said Defendant was admonished by the Court of the consequences of said plea, and the said Defendant persisted in pleading guilty; and it plainly appearing to the Court that the said Defendant is sane, and that he is uninfluenced in making said plea by any consideration of fear, or by any persuasion, or delusive hope of pardon prompting him to confess his guilt, the said plea of guilty is by the Court received and here now entered of record upon the minutes of the Court as the plea herein of said Defendant.

C.

If the Court had found that the introduction of Nixon's prior rape conviction as an aggravating circumstance was improper, Nixon contends his death sentence must be reversed. This Court has rejected that argument. Even if this Court did so determine, reversal would not necessarily follow. Relying on Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), this Court has held numerous times that where a death penalty is supported by several aggravating circumstances, the invalidity of one of those circumstances will not constitutionally impair the sentence. See e.g., Stringer v. State, 500 So.2d 928, 945 (Miss.1986); Irving v. State, 498 So.2d 305, 314 (Miss.1986). In the instant case, the jury found two other aggravating circumstances-(1) the capital offense was committed for pecuniary gain and (2) the capital offense was especially heinous, atrocious and cruel. For those reasons, the Court holds the introduction of Nixon's prior rape conviction was not reversible error.

* * *

Pursuant to Miss.Code Ann. § 99-19-105(3)(a), (b), (c) and (5) and the decisions of this Court and the Federal courts on imposition of the death penalty, this Court has reviewed the record in this case and has compared it and the death sentence imposed in the cases decided by this Court since Jackson v. State, 337 So.2d 1242 (Miss.1976), which cases are set forth in Appendix A.

We now hold that after a review of the cases coming before this Court, and comparing them to the present case, the punishment of death is not too great when the aggravating and mitigating circumstances are weighed against each other and the death penalty will not wantonly or freakishly be imposed here. We find and conclude that the death sentence was not imposed under the influence of passion, prejudice or any other arbitrary factor, that the evidence supports the jury's finding of statutory aggravating circumstances under § 99-19-101 and that the sentence of death is not excessive or disproportionate to the penalty imposed in those cases since 1976, considering both the crime and the manner in which it was committed and the defendant; that the death penalty imposed on Nixon is consistent and even-handed to like and similar cases; and that the sentencing phase followed in his trial provided a meaningful basis for distinguishing the few cases in which the death penalty is imposed and the many cases in which it is not imposed.

This Court affirms both the guilt and sentencing phases of this trial and therefore, affirms the conviction of John Nixon, Sr. on charges of capital murder and the imposition of the death penalty. The date of Wednesday, December 16, 1987, is set as the date of the execution of the sentence and the infliction of the death penalty in the manner provided by law. AFFIRMED. WEDNESDAY, DECEMBER 16, 1987, SET FOR EXECUTION OF THE DEATH PENALTY.

Nixon v. State, 641 So.2d 751 (Miss. 1994) (PCR).

Defendant was convicted in the Circuit Court, Rankin County, Alfred G. Nicols, Jr., J., of capital murder and was sentenced to death. His conviction and sentence were affirmed on direct appeal, 533 So.2d 1078. Thereafter, defendant filed petition for postconviction relief. The Supreme Court, Prather, P.J., held that intervening decision that white defendant could object to exclusion of minority jurors through use of peremptory challenges did not apply retroactively. Petition denied. McRae, J., concurred in result. Banks, J., concurred in part and concurred in judgment with separate written opinion. Smith, J., concurred in part and dissented in part with separate written opinion, joined by Dan M. Lee, P.J., and James L. Roberts, Jr., J.

The primary issue presented by this petition is whether an intervening decision by the United States Supreme Court should be applied retroactively to John B. Nixon Sr.'s final conviction for capital murder-a crime which arose out of a murder-for-hire conspiracy. Nixon's trial commenced on March 24, 1986, and culminated in a verdict of guilty and sentence of death. No challenge was made in the trial court to the jury composition. Nixon appealed and raised a Batson FN1 question, but this Court denied the Batson challenge and affirmed. See Nixon v. State,533 So.2d 1078 (Miss.1987). The United States Supreme Court subsequently denied Nixon's petition for a writ of certiorari and Nixon's conviction became final. Nixon v. Mississippi, 490 U.S. 1102, 109 S.Ct. 2458, 104 L.Ed.2d 1012 (1989).

FN1. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was handed down April 30, 1986. Nixon was tried one month earlier, on March 24, 1986. Nixon then filed this petition for post-conviction relief (PCR), through which he presented numerous issues for analysis.FN2 FN2. This Court stayed Nixon's execution, which had been set for January 17, 1990.

* * *

This Court re-affirms Nixon's conviction and death sentence and denies his petition for post-conviction relief.

Nixon v. Epps, 405 F.3d 318 (5th Cir. Miss. 2005) (Habeas).

Background: Following affirmance of his capital murder conviction and death sentence on direct appeal, 533 So.2d 1078, and denial of state post-conviction relief, 641 So.2d 751, petitioner sought habeas corpus relief. The United States District Court for the Southern District of Mississippi, David C. Bramlette, III, J., 194 F.Supp.2d 501, denied relief, and petitioner appealed.

Holdings: The Court of Appeals, Edith H. Jones, Circuit Judge, held that: (1) petitioner was not denied effective assistance of counsel at trial and sentencing, and (2) admission of petitioner's prior conviction for rape to satisfy the prior violent felony aggravating circumstance at sentencing even though defendant had pled guilty to statutory rape, not to rape involving the use of force, was harmless error. Affirmed.

EDITH H. JONES, Circuit Judge:

This habeas appeal arises out of the January 1985 murder for hire of Virginia Tucker. John B. Nixon, Sr. was convicted of capital murder by a Rankin County, Mississippi, jury after a three-day trial. In the penalty phase of the trial the jury returned a death penalty verdict, finding that the capital offense was committed for pecuniary gain, that the murder was especially heinous, atrocious and cruel, and that the defendant had previously been convicted of a felony involving the use or threat of violence to a person. The conviction was affirmed on direct appeal by the Mississippi Supreme Court. Nixon v. State, 533 So.2d 1078 (Miss.1987).

Certiorari was denied by the United States Supreme Court in 1989. Nixon v. Mississippi, 492 U.S. 932, 110 S.Ct. 13, 106 L.Ed.2d 628 (1989). Nixon exhausted his state post-conviction remedies. Nixon v. State, 641 So.2d 751 (Miss.1994), cert. denied, Nixon v. Mississippi, 513 U.S. 1120, 115 S.Ct. 922, 130 L.Ed.2d 802 (1995). Nixon then filed a federal petition for a writ of habeas corpus. The district court, in a series of three decisions between 1998 and 2002, denied habeas relief.

The case first came to this court on appeal from the district court's grant of a certificate of appealability (COA) on Nixon's claim of ineffective assistance of counsel and on Nixon's motion to this court for a COA on ten other grounds. In a previous, unpublished opinion, we denied COA on eight of the grounds requested by Nixon but granted a COA on Nixon's Batson/ Powers claim and his claim regarding the introduction of a prior statutory rape conviction as an aggravator.FN1 After reviewing the record and briefs on the additional COA-granted issues, we now AFFIRM. FN1. We denied relief on the Batson/ Powers claim in the earlier opinion, and requested additional briefing on the two issues addressed here.

I. BACKGROUND

On January 22, 1985, Nixon and two other individuals arrived at the home of Thomas and Virginia Tucker. Upon entering the house, Nixon pulled out a .22 caliber pistol and said, “I brought y'all something.” Thomas Tucker, who had married his wife six months earlier (a scant three months after her divorce was finalized), immediately surmised that the men had been hired by his wife's former husband, Elster Joseph Ponthieux. Mr. Tucker offered Nixon money to spare their lives, but Nixon replied, “[t]hat's not what I'm after. The deal's already been made.” Nixon and one of his associates then shot at Thomas Tucker, who managed to escape despite being hit in the side. Mr. Tucker made his way to his nearby place of work and asked a co-worker to check on his wife. Meanwhile, Nixon took the gun back from his associate, held the gun one inch behind Virginia Tucker's ear and fired a shot into her head. Nixon and his associates fled. Mrs. Tucker was soon discovered by Tucker's co-worker and was taken to the hospital, where she died the next day. Nixon was arrested after being identified in a lineup by Thomas Tucker.

At trial, as noted above, Nixon was convicted of capital murder and sentenced to death. Following completion of his direct appeal and state post-conviction proceedings, Nixon filed a federal habeas petition that was denied by the district court. His appeal to this court followed.

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Nixon alleges three grounds of ineffective assistance during the guilt/innocence phase: (1) failure to adjust trial strategy based upon the state's evidence that the crime was committed for pecuniary gain, including testimony by Tommy Tucker; (2) failure to protect Nixon's Sixth Amendment rights during voir dire by failing to object to the state's use of peremptory challenges; and (3) failure to interview a prospective witness, Wade Carpenter, who testified that he sold Nixon the murder weapon.

Nixon's specific allegations of deficient performance are unpersuasive. The theory of Nixon's trial counsel was that the state's evidence was insufficient to convict their client of murder for hire. When Virginia's husband Thomas Tucker testified that Nixon told them “the deal's already been made,” Nixon's attorneys were surprised. They objected and argued to the trial court that the government improperly withheld this evidence. The trial court overruled the objection, leaving defense counsel to attack this testimony-and corroborating testimony by accomplice Jimenez-through cross-examination. The jury made the ultimate credibility determination on this issue. That the jury disagreed with Nixon's counsel as to who was being truthful in no way demonstrates the inadequacy of counsel's attempt to persuade them otherwise.

Nixon's other claims of ineffective assistance during the guilt/innocence phase warrant less attention. The claim that counsel were deficient in failing to object to the prosecution's alleged racial use of peremptory strikes during voir dire must fail because Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), had not been decided at the time of Nixon's trial. Even so, Nixon raised (and lost) this claim on direct review, so even assuming deficient performance, Nixon suffered no prejudice through counsel's failure to object.FN5 As to Nixon's claim regarding counsel's failure to interview Wade Carpenter, we agree with the district court's appraisal of the claim: Presentation of testimonial evidence is a matter of trial strategy, and, particularly on federal habeas review, claims concerning what a witness might have testified if called at trial are largely speculative. See McCoy v. Cabana, 794 F.2d 177, 183 (5th Cir.1986); Murray v. Maggio, 736 F.2d 279, 282 (5th Cir.1984); Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978).

In any event, we repeat the observation in our COA opinion that Nixon's identification as the culprit, which counsel might have undermined in questioning Carpenter, “was not a significant issue at trial.” COA Op. at 15. Nixon failed to demonstrate deficient performance on his ineffective assistance claim regarding the guilt/innocence phase.

FN5. Further, even if Powers had been the law at the time of his trial, the Mississippi Supreme Court has held, and this court has agreed, that Powers is not a new rule of law that may be applied retroactively. COA Op. at 8-11.

Additionally, Nixon asserts four areas of deficient performance on the part of counsel during the sentencing phase: (1) failure to investigate and present mitigation evidence; (2) presenting an unprofessional and prejudicial closing argument; (3) failure to research the facts or law regarding an aggravating circumstance; and (4) failure to object to the state's statements made during sentencing.

Nixon now presents several incidents that could have supported mitigation: In 1966, he risked his own life to pull a woman from the burning wreckage of a plane crash; he once rescued a drowning boy from a flooded irrigation ditch; he volunteered to serve in both the Army and Navy and received honorable discharges from each service; he left the Army at his mother's request because his father abandoned his mother and sisters; he left school in seventh grade, but ultimately earned a GED in prison, and learned a trade, which he taught other prisoners; he suffered child abuse; and he struggled throughout life with alcohol abuse and “a severe personality disorder.” Pet'r's Merits Br. at 6-7. Nearly all of this mitigating evidence was discovered through the course of habeas litigation.

During trial and sentencing, Nixon was of little or no help to his counsel; in fact, counsel had to convince Nixon's sisters to testify on his behalf. This court has held that “a defendant who does not provide any indication to his attorneys of the availability of mitigating evidence may not later assert an ineffective assistance claim.” Wiley v. Puckett, 969 F.2d 86, 99-100 (5th Cir.1992).FN6 However, that does not mean trial counsel did no independent investigation whatsoever. In fact, Nixon told his lawyers that he did not want the mitigation evidence they did possess-that Nixon had saved a woman from a plane crash-presented on his behalf.FN7

At the federal evidentiary hearing, the district court determined that Nixon was not “acting emotionally and irrationally” to such a degree that his attorneys ethically had to disregard his objection to presenting this evidence. There is no basis to disregard this finding. See also Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir.1995) (rejecting ineffective assistance claims when the defendant objected to his counsel's desire to call certain witnesses on his behalf during sentencing). Precedent also prohibits a Janus-like defense strategy: A defendant cannot block his counsel from attempting one line of defense at trial, and then on appeal assert that counsel was ineffective for failing to introduce evidence supporting that defense.

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As to the second supporting argument, Nixon points to the following two statements made by the prosecutor during the closing: Also introduced into evidence has been a prior conviction of this man. You will be able to take it back in the jury room with you. I encourage you to read it. This man was convicted in the State of Texas for the crime of rape. Certainly, in a rape, ladies and gentlemen, the victim of that crime was faced with threats of bodily injury, another requirement in the findings you have to make. I submit to you that all of these have been proved by the State by the testimony of the witnesses in the guilt phase and by the subsequent introduction into evidence of his prior crime. R. 579.

The only way to protect society from John B. Nixon, Sr. is to order that he die by lethal injection. He has proven this over the years. He has been convicted of rape; and that, of course, involves the use of threat of violence. R. 584. Nixon contends that this reiteration of the invalid aggravator “compounded” the constitutional error.

Although Nixon's argument has some merit, we conclude that, had the jury not considered the invalid aggravator, it would nonetheless have sentenced Nixon to death. This case is unlike Billiot (135 F.3d at 319), where this court noted (without specifically holding) FN15 that it was unlikely the jury would have returned the same verdict in the absence of a constitutionally deficient aggravator heavily emphasized by the state.

The “decisive factor” in this jury's sentencing decision was Nixon's conduct and state of mind during the crime. Cf. Hogue, 131 F.3d at 500. In the prosecutor's closing argument against Nixon, most of the emphasis was placed on the “especially heinous” aggravator.FN16 This argument marshaled the numerous facts the jury heard in both phases of the trial about the merciless killing of Virginia Tucker.

By the time of closing argument, the jury had heard from live witnesses vivid and graphic accounts of Nixon's crime: Nixon agreed to kill Virginia Tucker for money; Nixon brought his two sons along to help him; Nixon rejected the Tuckers' attempt to pay him off instead of killing them, explaining that “the deal's already been made”; Nixon endeavored to kill the sole witness, Thomas Tucker, who escaped when Nixon's gun initially misfired; Nixon gave the murder weapon to his son in the hope that Nixon, Jr. would kill Tucker before he escaped; Mr. Tucker received several gunshot wounds while attempting to flee the crime scene; Nixon, Jr., then returned the gun to his father, who approached Virginia Tucker, whom another assailant held pinned to the floor; Nixon then placed the gun one inch behind Virginia Tucker's head and fired a shot into her brain before running away with the other assailants. Additionally, the jury heard that Virginia Tucker somehow initially survived the gunshot and was discovered on the floor gasping for breath, blood gushing from the wound in her head. Virginia Tucker survived until the following day, when she died in the hospital.

FN15. In Billiot, this court relied on the second prong of the harmless error test, ultimately holding that the jury would have sentenced the defendant to death even if the unconstitutionally vague aggravating circumstance had been properly defined in the jury instructions. Id. at 320. FN16. After describing the facts, the prosecutor further argued: Ladies and Gentlemen, if this is not heinous, if it is not cruel or atrocious, I don't know what is.

Looking at other aspects of what has constituted capital murder, you could not have returned a verdict of capital murder in this case had you not found what was in the prior jury instructions, that of the paynment [sic] of money. There was money exchanged for this murder. That satisfies the Court's instruction to you that the Judge has just read. Who actually committed this murder? Who actually pulled the trigger? John Nixon, Sr. He is the man that fired the fatal shot, the trigger man···· A plea of mercy, ladies and gentlemen, on January the 22nd, 1985, would have availed Virginia Tucker nothing. John Nixon, Sr., was set and determined on taking her life. A plea of mercy in this Court today should not help John Nixon, Sr. R. 579-80.

In contrast to these brutal details, the jury considered only documentary evidence of Nixon's rape conviction and the two brief statements excerpted above.FN17 Neither the statements nor the documentary evidence allude to the fact that Nixon was convicted for raping his stepdaughter; if this emotionally charged fact had been highlighted to the jury, perhaps our Brecht analysis would be altered.

Viewing the evidence in its totality, however, see Hogue, 131 F.3d at 500-02, we cannot conclude that there exists anything beyond a mere reasonable possibility that the jury would have come to another conclusion in sentencing Nixon. The slight possibility that the jury might have reached a different verdict is insufficient to provide relief under Brecht. FN17. We also note that Mississippi does not ask a capital sentencing jury to consider “future dangerousness.”

Finally, Nixon's attempt to compare his death sentence with the life imprisonment sentence received by Ponthieux is unavailing.FN18 Because Ponthieux was tried and convicted in a separate trial, comparisons between the two cases-and particularly the juries involved-are hazardous, especially in regard to harmless error analysis.

In any event, the two men's roles in the crime were fundamentally different. Nixon was the paid killer and central character in the grisly events described above, while Ponthieux's goal was to kill his ex-wife whom he had divorced only three months before the crime. It is feasible that Ponthieux's jury considered his crime, though premeditated, one of passion, and that it held residual doubt as to whether Ponthieux would have gone through with the crime in the manner Nixon did. Nixon, moreover, was engaging in heartless, calculated murder for hire and bringing his children into the criminal enterprise as well; these facts qualitatively distinguish Nixon's guilt from that of Ponthieux.

The analysis ultimately depends on whether the record evidence about Nixon demonstrates more than a mere reasonable possibility that the invalid prior violent felony conviction could have substantially influenced the jury's verdict. Considering the entire record, the absence of any significant mitigating circumstances,FN19 the presence of two valid aggravating circumstances, and the Brecht standard, we conclude that Nixon's jury would have returned the same verdict, and thus deem the error harmless.

For the reasons discussed above, Nixon's claims on which COA was granted are DENIED, and the judgment of the district court denying habeas relief is AFFIRMED. Further, Nixon's petition for rehearing of this court's COA determination, having been considered by this panel, and no active judge on this court having requested a poll for rehearing en banc, is DENIED.

John B. Nixon Sr.