194 F.3d 586 (5th Cir. 1999), 160;

Docket Nº:160;
Citation:194 F.3d 586
Party Name:Moore v Johnson
Case Date:October 27, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 586

194 F.3d 586 (5th Cir. 1999)

BOBBY JAMES MOORE, Petitioner-Appellee,

v.

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent-Appellant.

No. 95-20871

UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

October 27, 1999

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Appeal from the United States District Court for the Southern District of Texas

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The original panel opinion (presently available at 185 F.3d 244 (5th Cir. Aug.10, 1999)) is hereby withdrawn and replaced with the following.

The Director of the Texas Department of Criminal Justice, Institutional Division appeals from the district court's final judgment granting Bobby James Moore's petition for habeas corpus relief from his capital sentence and remanding to the state court for a new punishment hearing.1 We affirm, as modified by this opinion, and remand with instructions.

I.

The district court's decision in this matter left the state trial court's judgment of guilt intact, but granted relief as to punishment only by reversing that portion of the state trial court's judgment imposing the death penalty and remanding to the state trial court for a new punishment hearing. This is the second time we have been asked to review that decision. Our first decision followed this Circuit's then-existing precedent by applying newly- enacted provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to Moore's petition, which was pending on the April 24, 1996 effective date of AEDPA. See Moore v. Johnson, 101 F.3d 1069 (5th Cir. 1996), vacated, 117 S.Ct. 2504 (1997). In that decision, we concluded that the district court failed to afford the state habeas court's fact findings the deference required by AEDPA's stringent standard of review. See Moore, 101 F.3d at 1076; see also 28 U.S.C. § 2254(d) (providing that the Court may not grant habeas relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable

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application of, clearly established Federal law, as determined by the Supreme Court of the United States").

Shortly after our decision, the Supreme Court decided Lindh v. Murphy, 117 S.Ct. 2059 (1997). Lindh holds that the provisions of AEDPA relevant to this appeal do not apply to habeas corpus petitions that, like Moore's, were pending as of the April 24, 1996 effective date of AEDPA. Lindh, 117 S.Ct. at 2068. Lindh overrules this Circuit's pre-Lindh precedent, which held that AEDPA applied to habeas claims pending at the time AEDPA became effective. See, e.g., Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996); see also United States v. Carter, 117 F.3d 262 (5th Cir. 1997) (recognizing that Lindh overruled Drinkard and its progeny).

After our initial decision, Moore petitioned for and the Supreme Court granted a writ of certiorari, remanding the case to our Court for reconsideration in light of Lindh and the more lenient standards of review applicable under pre-AEDPA law. 2 See 28 U.S.C. § 2254(d) (1994) (providing that state habeas court fact findings are entitled to a presumption of correctness, but permitting a federal court to reject state habeas court fact findings that are "not fairly supported by the record"). Having concluded a thorough re-examination of the record, we find that the district court's judgment is correct when examined in light of the pre-AEDPA law applied therein. We therefore affirm the judgment of the district court as modified by this opinion.

II.

The single issue before the Court for resolution is whether Moore was deprived of his Sixth Amendment right to effective assistance of trial counsel during his 1980 capital trial. Moore claims that trial counsel were constitutionally deficient in their pretrial investigation of and presentation of a false alibi defense, and in their failure to investigate, develop, or present mitigating evidence during the guilt or punishment phase of his capital trial. Moore's ineffective assistance of counsel claim is governed by the familiar Strickland standard:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that

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counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant can make both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 104 S.Ct. 2052, 2064 (1984).

"Judicial scrutiny of counsel's performance must be highly deferential." Id. at 2065. We therefore indulge a strong presumption that strategic or tactical decisions made after an adequate investigation fall within the wide range of objectively reasonable professional assistance. Id. at 2065-66. Such decisions are "virtually unchallengeable" and cannot be made the basis of relief on a Sixth Amendment claim absent a showing that the decision was unreasonable as a matter of law. See id. at 2066; Loyd v. Whitley, 977 F.2d 149, 157 (5th Cir. 1992); Wilson v. Butler, 813 F.2d 664, 672 (5th Cir. 1987). Strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation. Strickland, 104 S.Ct. at 2066; Whitley, 977 F.2d at 157-58.

The district court concluded that Moore's counsel rendered constitutionally deficient performance at both the guilt and punishment phases of his trial, but found prejudice, and therefore granted relief, as to Moore's capital sentence only. The district court's decision is premised upon subsidiary findings that trial counsel were deficient in the two major areas identified by Moore. First, the district court found that counsel, in their presentation of an illogical and incredible alibi defense: (1) conducted an inadequate pretrial investigation, (2) ignored or excluded evidence that the offense was accidental, rather than intentional, (3) suborned perjury, and (4) elicited unduly damaging testimony against Moore on cross-examination of a state witness. Second, the district court found that counsel completely failed to investigate, develop, or offer available mitigating evidence, including previously redacted and exculpatory portions of Moore's purported confession, during the punishment phase ofMoore's capital trial.

On appeal, the Director maintains that the district court impermissibly substituted its own de novo view of the state court record for binding state habeas court fact findings, thus failing to afford those fact findings the presumption of correctness required by the pre-AEDPA version of 28 U.S.C. § 2254(d). With respect to deficient performance, the Director maintains that both the decision to pursue an alibi defense and the decision not to present mitigating evidence were strategic decisions that are entitled to deference under Strickland. With respect to prejudice, the Director maintains that Moore cannot establish prejudice during the punishment phase of his trial on the basis of deficient performance during the guilt phase of his trial. Thus, the Director maintains that deficient performance arising from presentation of the alibi defense may not be imputed to the punishment phase of Moore's trial. The Director further argues that admission of the mitigating evidence proposed by Moore wouldnot have affected the jury's decision to impose the death penalty. Finally, the Director argues that the district court exceeded its authority by remanding with instructions that the state court conduct a new punishment hearing.

Moore responds that the district court complied with 28 U.S.C. § 2254(d) by affording any relevant state habeas court fact findings the deference justified by the record in this case. See 28 U.S.C. § 2254(d)(8) (1994) (providing that the federal court may, after a review of the relevant record, reject state habeas court fact findings that are "not fairly supported by the record"). Moore further responds that the record reflects counsel did not make fully informed strategic decisions with regard

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to the presentation of the alibi defense or the failure to present mitigating evidence. To the contrary, Moore responds that counsel failed to properly investigate the controlling facts and law, both as to guilt and as to punishment, with the effect that available and availing evidence was never developed. Moreover, Moore responds that counsel's decision to exclude the potentially exculpatory evidence that was developed was both professionally unreasonable and based upon an erroneous understanding of the controlling legal principles. Thus, Moore maintains that there are no reasonable strategic decisions entitled to this Court's deference under Strickland. With respect to prejudice, Moore maintains that there is a reasonable probability that, but for counsel's deficient performance at both the guilt and punishment phases of his capital trial, the jury would have reached a different decision with respect to the appropriate sentence in his case. Accordingly, Moore argues in support of the district court's determinations that trial counsel were ineffective in their pretrial investigation and presentation of the alibi defense, and in their failure to investigate, develop or present mitigating evidence during the punishment phase of Moore's trial.

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