425 F.3d 250 (6th Cir. 2005), 03-6105, Moore v. Parker

Docket Nº:03-6105.
Citation:425 F.3d 250
Party Name:Brian Keith MOORE, Petitioner-Appellant, v. Philip PARKER, Warden, Respondent-Appellee.
Case Date:October 04, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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425 F.3d 250 (6th Cir. 2005)

Brian Keith MOORE, Petitioner-Appellant,


Philip PARKER, Warden, Respondent-Appellee.

No. 03-6105.

United States Court of Appeals, Sixth Circuit.

October 4, 2005

Argued: March 10, 2005.

Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 99-00745—Thomas B. Russell, District Judge.

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Milton Coburn Toby, PERCH & TOBY, Lexington, Kentucky, William Yesowitch, BARBER, BANASZYNSKI & ASSOCIATES, Louisville, Kentucky, for Appellant.

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David A. Smith, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.


Milton Coburn Toby, PERCH & TOBY, Lexington, Kentucky, William Yesowitch, BARBER, BANASZYNSKI & ASSOCIATES, Louisville, Kentucky, for Appellant.

David A. Smith, OFFICE OF THE ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Before: BOGGS, Chief Judge; MARTIN and COOK, Circuit Judges.


COOK, Circuit Judge.

Brian Keith Moore, a Kentucky prisoner under sentence of death, appeals the district court's denial of his petition for a writ of habeas corpus. For the following reasons, we affirm the district court and deny the writ.

I. Background and Procedural History

In 1984, a Kentucky jury convicted Moore of the 1979 kidnaping, murder, and first-degree robbery of seventy-seven-year-old Virgil Harris. In the trial's penalty phase, the jury determined Moore committed the murder during the commission of first-degree robbery, and sentenced him to death.1 The Kentucky Supreme Court affirmed the conviction and sentence, and the United States Supreme Court denied certiorari. Moore v. Commonwealth, 771 S.W.2d 34 (Ky. 1988) ("Moore I"), cert. denied, 494 U.S. 1060 (1990).

In 1990, Moore filed a motion to vacate his sentence under Ky. R. Crim. P. 11.42 in the state trial court, alleging ineffective assistance of trial counsel. While that motion was pending, he filed a motion under Ky. R. Civ. P. 60.02 for a new trial based upon newly discovered evidence. The trial court allowed Moore to present evidence on this second motion during the Rule 11.42 hearing. It denied both motions in January 1997. The Kentucky Supreme Court affirmed, and the United States Supreme Court denied certiorari. Moore v. Commonwealth, 983 S.W.2d 479 (Ky. 1998) ("Moore II"), cert. denied, 528 U.S. 842 (1999).

Moore filed his petition for habeas corpus in the district court in November 1999, raising claims of ineffective assistance of counsel, trial errors, prosecutorial misconduct, and a due-process violation. He also claimed police obtained incriminating statements used against him at trial in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

The magistrate judge recommended denying Moore's petition. He concluded that each of Moore's ineffective-assistance claims was either procedurally defaulted or meritless; that each alleged trial error was meritless; that the prosecutorial-misconduct claims were procedurally defaulted; that the due-process claim was procedurally defaulted and meritless; and that the Miranda claims were procedurally defaulted. The district court reviewed the portions of the magistrate judge's report and recommendation to which Moore had objected, adopted them, and denied Moore's petition.

Moore then obtained a certificate of appealability as to the following claims: (1) ineffective assistance of counsel based on

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counsel's failure to impeach a commonwealth witness, Doris Riddle; (2) ineffective assistance of counsel based on inadequate penalty-phase preparation; (3) error in restricting Moore's contact with his attorneys during a lunch break; (4) error in using the same jury for both the guilt and sentencing phases of the trial; and (5) cumulative error.

II. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we review a district court's legal conclusions de novo and its factual findings for clear error. Hill v. Hofbauer, 337 F.3d 706, 710 (6th Cir. 2003). We may not grant a writ of habeas corpus unless we conclude that the state court's decision: (1) was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) was based on an unreasonable determination of the facts. Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir. 2004).

III. Ineffective Assistance of Counsel

A. Failure to Impeach

Moore argues that his trial counsel performed ineffectively by failing to impeach a commonwealth witness, Doris Riddle. Riddle, an employee at the driver's license bureau, testified concerning the alibi of a second suspect, Kenneth Blair, whom Moore tried to target at trial as the real killer. Riddle's testimony placed Blair at the license bureau in the same general time frame as the crime (as described by witnesses) and thus hurt Moore's attempt to blame Blair. But Riddle had told police shortly after the murder that she did not know what time Blair came in to the license bureau—and Moore's counsel failed to impeach Riddle with this earlier inconsistent statement.

To support a Sixth Amendment ineffective-assistance claim, a defendant (or petitioner) must show (1) that counsel's performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, the defendant must show a reasonable probability that, but for counsel's deficient performance, the proceeding's result would have been different. Id. at 694.

The Kentucky Supreme Court rejected Moore's claim in state post-conviction proceedings, finding that, although Moore's counsel was deficient for failing to impeach Riddle, that deficiency did not prejudice Moore, and therefore was not ineffective assistance under Strickland. See Moore II, 983 S.W.2d at 482-84. The Kentucky court gave three reasons for its lack-of-prejudice finding: (1) even considering Riddle's testimony, Blair's alibi was not air-tight—he could have committed the murder and still been at the license bureau during Riddle's time-frame; (2) other witnesses confirmed Blair's alibi; and (3) abundant evidence, including physical evidence and Moore's confession, demonstrated that Moore—not Blair—killed the victim. Id. at 483-84.

Moore argues the Kentucky court unreasonably applied Strickland by creating a new requirement that to show prejudice, a defendant must demonstrate actual innocence or show that the jury had insufficient evidence to support its guilty verdict. But the Kentucky court did not create any such requirement. That court identified the correct standard for prejudice ("reasonable probability"), looked at the totality of the evidence (including the flaws in Blair's alibi and the overwhelming evidence against Moore), and found no reasonable probability of a different outcome in the absence of the error. While Moore claims the state court considered the remaining evidence against him in an effort

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to create a sufficiency-of-the-evidence standard, the court properly looked at that evidence only to determine whether a reasonable probability of a different outcome existed. See, e.g., Hicks v. Collins, 384 F.3d 204, 215 (6th Cir. 2004) ("overwhelming evidence" of petitioner's guilt precluded reasonable-probability determination).

And even if the Kentucky court might have undervalued Riddle's testimony2 (so we could possibly disagree with its ultimate decision), that decision did not constitute an unreasonable application of established Supreme Court precedent, sufficient to grant the writ. See Williams v. Taylor, 529 U.S. 362, 411 (2000) ("[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."). Thus Moore's first ineffective-assistance claim fails.

B. Penalty Phase

Moore also claims his counsel insufficiently prepared for the penalty phase. Again he cites Strickland as the Supreme Court precedent allegedly violated, and again he fails because he cannot show prejudice.

Moore argues that his attorneys erred by (1) allegedly spending only about three percent of their preparation time on the penalty phase; (2) remaining unaware of ninety-five letters sent to the first trial court supporting him, which could have led them to more mitigating evidence; and (3) not having another psychologist examine him after the first one they selected proved to be a fraud.

Moore cannot show prejudice here. He does not dispute that his attorneys researched his background and presented four witnesses who testified regarding his childhood at his sentencing hearing. Another psychologist did interview Moore for three to four hours, and testified that Moore had various problems that began to emerge during childhood, including impulsiveness, poor judgment, behavior control, anger, and harmful emotional attachment to others. The district court noted that this testimony "cast Moore as an easily angered, impulsive, out-of-control emotional leech with poor judgment." So introducing more evidence of this background, as Moore desired, would likely have made him look even worse to the jury. Thus counsel's failure to seek or present more background evidence was not even deficient performance, let alone prejudicial. See Strickland, 466 U.S. at 691 (no deficiency where defendant gives counsel reason to believe that "pursuing certain investigations would be fruitless or even harmful").3

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The cases Moore cites as comparable to his own are not. All three involve situations in which counsel failed entirel...

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