Moore v. Carlton, 95-5126

Citation74 F.3d 689
Decision Date29 January 1996
Docket NumberNo. 95-5126,95-5126
PartiesRobert S. MOORE, Petitioner-Appellant, v. Howard CARLTON, Warden, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Gregory Dale Smith (argued and briefed), Clarksville, TN, for petitioner-appellant.

Amy L. Tarkington (argued and briefed), Criminal Justice Div., Kimberly J. Dean, Asst. Attys. Gen., Civ. Rights and Claims Div., Nashville, TN, for respondents-appellees.

Before: SILER and MOORE, Circuit Judges; FORESTER, District Judge. *

SILER, Circuit Judge.

Robert Moore, petitioner, appeals the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. He argues that his appellate counsel's failure to file a complete trial transcript prejudiced his direct appeal and that there was insufficient proof of premeditation to support a first degree murder conviction. For the reasons stated herein, we affirm the decision of the district court.

I.

In 1983, Moore was convicted and sentenced to life imprisonment for first degree murder, assault with the intent to commit murder, and use of a firearm during the commission of a felony. The Tennessee Court of Criminal Appeals affirmed his convictions, and the Tennessee Supreme Court subsequently denied his petition to appeal. After Moore filed a post-conviction petition, the Tennessee Court of Criminal Appeals again affirmed and later denied his petition for a rehearing. For a second time, the Tennessee Supreme Court denied Moore permission to appeal.

Moore filed a petition for a writ of habeas corpus in the district court in 1989. After amending his petition to delete his unexhausted claims, Moore retained two claims: 1) ineffective assistance of counsel; and 2) insufficient proof of premeditation. The district court found his claims meritless and denied relief. Moore went back through the state courts with his second petition for post-conviction relief. Having failed a third time in the state courts, he filed this petition in 1992. The magistrate judge found all claims to be meritless except his claim of ineffective assistance of counsel. Even though the ineffective assistance of counsel claim had not been raised in the first petition for the writ, the magistrate judge nevertheless found "cause" and "prejudice," excusing the abuse of the writ and warranting a delayed appeal pursuant to Tenn.Code Ann. Sec. 40-30-120. The district court adopted the magistrate judge's recommendation and granted the writ on the claim of ineffective assistance of counsel for failure to file a complete record on direct appeal. The missing portion of the record contained the defense's proof, the state's rebuttal proof, and the trial court's jury charge.

The respondent 1 appealed to this court, which reversed the district court's grant of the writ and order of a delayed appeal. In Moore v. Rose, 1994 WL 102958 (6th Cir.1994) (unpublished), this court remanded the case to the district court to determine if the constitutional error of ineffective legal assistance "prejudiced" Moore's appeal. This court also noted that if the district court were to grant relief, the appropriate form is a conditional grant of the writ of habeas corpus ordering Moore's release unless the state grants him a delayed appeal. On remand, the district court found the failure to file a complete record to be harmless error. The district court rejected Moore's claims of ineffective assistance of counsel and insufficient proof of premeditation. The court below stated, "... even if the Tennessee Criminal Court of Appeals had considered the missing portion of the trial transcript containing [Moore's] proof, it would not have changed the appellate court's ultimate decision."

II.

The standard of review for issuance of a writ of habeas corpus is de novo, but any findings of fact made by the district court are reviewed for clear error. Sinistaj v. Burt 66 F.3d 804, 807 (6th Cir.1995). The central issue in this case requires a review of the district court's legal conclusion that Moore failed to show "prejudice" from the constitutional error of ineffective assistance of his counsel. The district court made no credibility determination or other apparent finding of fact; its decision was based upon the transcript of Moore's trial. As such, it is reviewed de novo. Perkins v. LeCureux, 58 F.3d 214, 218 (6th Cir.1995). 2

III.

Before reaching the merits of the ineffective assistance claim, the prior panel of this court addressed whether Moore's petition was an abuse of the writ. Moore, 1994 WL 102958. Generally, a petitioner must show both cause and actual prejudice to excuse abuse of the writ, McCleskey v. Zant, 499 U.S. 467, 493-95, 111 S.Ct. 1454, 1469-71, 113 L.Ed.2d 517 (1991), which is essentially the same standard as "cause and prejudice" for excusing procedural defaults under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). McCleskey, 499 U.S. at 493, 111 S.Ct. at 1470. To fulfill the "cause" requirement, Moore must show "some objective factor external to the defense impeded counsel's efforts" to raise the claim in the earlier federal petition. Id. Then, he had to show " 'actual prejudice' resulting from the errors of which he complains." Id. at 494, 111 S.Ct. at 1470 (citation omitted). 3 Applying Maupin v. Smith, 785 F.2d 135 (6th Cir.1986), the prior panel upheld the district court's determination that there was sufficient "cause" and "prejudice" excusing Moore's failure to raise his ineffective assistance claim in his first petition. Moore, 1994 WL 102958, at * 4-5. This court remanded the case to the district court, however, in order to complete the analysis under Maupin by evaluating the merits of his underlying constitutional claim, ineffective assistance of counsel.

In Maupin, the petitioner, claiming ineffective assistance of trial counsel, alleged that his murder conviction was invalid because of insufficient evidence. Maupin, 785 F.2d at 136. The district court in Maupin found counsel's failure to move for a directed verdict satisfied the "cause" prong of the procedural default test. 4 As for the second prong of the test, Maupin provides a step-by-step guide when the prejudice is an alleged constitutional violation:

First, ... the prejudice that must be shown must be a result of the alleged constitutional violation and not a result of the trial counsel's failure to meet state procedural guidelines.

* * *

Second, the burden is on the petitioner to show that he was prejudiced by the alleged constitutional error.... Moreover, he must show that there was actual prejudice not merely a possibility of prejudice.

* * *

Third, in analyzing a petitioner's contention of prejudice, the court should assume that the petitioner has stated a meritorious constitutional claim.

Id. at 139 (citations omitted). With regard to the third step, the Maupin court first assumed the existence of insufficient evidence to determine prejudice and concluded: "Given this assumption, there can be no doubt that Maupin would have been prejudiced by such a constitutional violation. It is self-evident that a conviction based on insufficient evidence would be actually prejudicial to the petitioner." Id. at 139-40. Having determined that petitioner satisfied the cause and prejudice test, the Maupin court addressed the merits of the underlying claim of insufficient evidence. Id. at 140.

In the present case, the prior panel noted that the district court had found both "cause and prejudice" to excuse an abuse of the writ, but that it did not decide the merits of the constitutional claim of ineffective assistance of counsel, including the "prejudice prong" of ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Moore, 1994 WL 102958, at * 5. The reason "prejudice" for abuse of the writ purposes was satisfied but "prejudice" for ineffective assistance purposes was not yet satisfied lies in the application of the third step of Maupin: "in analyzing a petitioner's contention of prejudice, the court should assume that the petitioner has stated a meritorious constitutional claim." 785 F.2d at 139. In this case, the constitutional claim was ineffective assistance of counsel. Therefore, because ineffective assistance includes a prejudice requirement, the district court assumed a meritorious constitutional claim of ineffective assistance of counsel, and hence assumed prejudice. In other words, the district court found "prejudice" to excuse abuse of the writ by first assuming without deciding that the "prejudice prong" of ineffective assistance of counsel was satisfied, in accordance with Maupin 's third step. Upon appeal, the prior panel then found that the district court had not completed the step after Maupin 's third step: a determination on the merits as to whether prejudice for ineffective assistance was in fact satisfied. Moore, 1994 WL 102958, at * 5. On remand, the district court completed the final step and found Moore's underlying claims to be meritless. As in Maupin, we review the district court's decision with respect to each of the underlying substantive claims.

IV.

The first substantive claim is ineffective assistance of counsel. The two prongs of this claim are: 1) "performance," meaning counsel was deficient; and 2) "prejudice," meaning the deficient performance deprived petitioner of a fair proceeding. Moore must show that his attorney's performance was so inadequate as to violate his Sixth Amendment rights. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). 5 To prove prejudice, Moore must show a reasonable probability, 6 not just a possibility, that but for his attorney's failure to file a complete record, the result of his direct appeal would have been different. Id. at 694, 104 S.Ct. at 2068. An error by counsel does not authorize setting aside the judgment of the criminal...

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