Moawad v. Anderson

• Decision Date: 15 June 1998
• Docket Number: No. 97-60470,97-60470
• Citation: 143 F.3d 942
• Parties: Gary MOAWAD, Petitioner-Appellant, v. James V. ANDERSON, Superintendent, Mississippi State Penitentiary; Michael Moore, Attorney General of the State of Mississippi, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 942

143 F.3d 942

Gary MOAWAD, Petitioner-Appellant, v. James V. ANDERSON, Superintendent, Mississippi State Penitentiary; Michael Moore, Attorney General of the State of Mississippi, Respondents-Appellees.

No. 97-60470.

United States Court of Appeals Fifth Circuit.

June 15, 1998.

Gary Moawad, Parchman, MS, pro se.

Jo Anne McFarland McLeod, Jackson, MS, for Respondents-Appellees.

Appeal from the United States District Court for the Northern District of Mississippi.

Before WISDOM, JOLLY and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Moawad petitions us for habeas relief from his state convictions for murder and aggravated assault. Moawad's primary claim is that he was denied effective assistance of counsel at trial and on appeal. His focus is a failure to object to a jury instruction regarding presumed malice deemed improper under Mississippi law. We affirm the district court's denial of relief.

I

Moawad and Kathleen married in 1965. In 1975, Kathleen filed for divorce. On November 13, 1975, Moawad and his youngest son, Paul, one of their three children, went to the Tubbs's family home in Sardis, Mississippi to announce that he and Kathleen were reunited. They found at home Kathleen's father, mother, and brother. Moawad visited with the Tubbs family in the living room for approximately forty minutes and all seemed well.

According to the state's evidence at trial, Moawad and Paul went into the backyard. E.O. Tubbs, Kathleen's father, moved from the living room to the kitchen. After Moawad entered the kitchen from the yard, Willodean, Kathleen's mother, and Michael, Kathleen's brother, heard a single shot in the kitchen. Moawad then went into the living room where he shot Willodean with a .32 caliber pistol. Moawad and Michael struggled for the gun. Moawad struck Michael in the face causing lacerations, but Michael escaped and ran to a neighbor's house. Moawad grabbed Paul, left the house, and drove to North Mississippi Legal Services in Oxford to speak with an attorney. Michael returned to his house to find his father dead in the kitchen from a single gunshot to the head and his mother gravely wounded. See Moawad v. State, 531 So.2d 632, 633-34 (Miss.1988).

Moawad's half-brother testified at trial that Moawad on the day of the shooting told him that there was no hope for his marriage; that he saw Moawad's pistol in a baby diaper; and that Moawad told him in a telephone call that he had gone to the Tubbs's house, broke E.O.'s arm, took his pistol, and killed him. After the phone call, the step-brother searched the house he shared with Moawad for Moawad's .32 caliber gun and could not find it. See id. at 633.

At trial, Moawad testified on his own behalf that he and E.O. had an argument during which he was attacked by E.O. and Michael. The gun fired several times during the struggle, killing E.O. and injuring Willodean. Moawad stated that he struck Michael with an ashtray during the incident. See id. at 634.

Moawad was charged with murder and two counts of aggravated assault. Without objection, the jury was instructed on the murder count as follows:

Instruction S-5

The Court instructs the Jury that malice aforethought mentioned in the indictment may be presumed from the unlawful and deliberate use of a deadly weapon.

Id. at 635. The trial judge excused the alternate jurors and the jury entered deliberations at four o'clock. At approximately ten o'clock that night, the jury returned a verdict convicting Moawad on each count. The trial court sentenced him to life on the murder charge and to twenty and five years, for the aggravated assaults of Willodean and Michael, respectively, with the sentences to run consecutively.

Eleven days after the trial judge adjourned the term of court, Moawad's trial counsel filed a motion for new trial on the grounds that the trial court erred by recalling an alternate juror who had been excused, not swearing in the alternate juror, and skipping the first alternate juror on the replacement list and selecting the second alternate. The trial court denied this motion as untimely. Moawad's trial counsel failed to file an appeal, an act resulting in counsel receiving a two-year suspension from practicing law in Mississippi. See Myers v. Mississippi State Bar, 480 So.2d 1080 (Miss.1985), cert. denied, 479 U.S. 813, 107 S.Ct. 64, 93 L.Ed.2d 23 (1986).

On February 26, 1986, the Mississippi Supreme Court granted Moawad an out-of-time appeal. The Mississippi Supreme Court affirmed Moawad's conviction finding the challenge to jury instruction S-5 to be procedurally barred because Moawad did not object to it at trial. The court rejected for lack of evidence Moawad's contention that an alternate juror had replaced a regular juror in the deliberations. Moawad, 531 So.2d at 634-35. Two justices specially concurred observing that under Mississippi law jury instruction S-5 is not favored and should not be used where the facts have been set forth, even on conflicting testimony, because the question of malice should be left for the consideration of the jury. See id. at 636 (Lee, J., specially concurring). The concurring opinion noted that this instruction should only rarely be given due to the difficulty the bench and bar have in discerning when the circumstances surrounding a killing have been disclosed. See id.

Moawad filed for postconviction relief with the Mississippi Supreme Court and was allowed to proceed on his ineffective assistance of counsel claims. The state circuit court denied his petition. Moawad then filed a § 2254 petition which the district court denied. Moawad timely filed a notice of appeal. The district court granted his request for a COA; that it did not specify the issues to be appealed is of no moment because Moawad filed his § 2254 petition prior to the effective date of the AEDPA. We treat Moawad's COA as a CPC, which raises on appeal all of the issues presented below. ¹ See Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir.1997) (applying pre-AEDPA law to § 2254 petition filed before April 24, 1996); Sherman v. Scott, 62 F.3d 136, 139 (5th Cir.1995) (CPC gives circuit court jurisdiction over the entire judgment entered by the district court), cert. denied, 516 U.S. 1180, 116 S.Ct. 1279, 134 L.Ed.2d 225 (1996). We have jurisdiction under 28 U.S.C. § 1291.

II

To succeed on an ineffective assistance claim against either his trial or appellate counsel, Moawad must satisfy both prongs of the Strickland test. See Ellis v. Lynaugh, 873 F.2d 830, 839 (5th Cir.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d 384 (1989). First, the defendant must demonstrate that counsel's performance was deficient. This task requires a "showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Moawad must establish that counsel's acts "fell beneath an objective standard of reasonable professional assistance." Gray v. Lynn, 6 F.3d 265, 268 (5th Cir.1993) (citations omitted). This court gives " 'great deference to counsel's assistance, strongly presuming that counsel has exercised reasonable professional judgment.' " Id. (quoting Ricalday v. Procunier, 736 F.2d 203, 206 (5th Cir.1984)). "Second, the defendant must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. "[Moawad] must demonstrate 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Gray, 6 F.3d at 269 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). "[B]oth components of this inquiry are mixed questions of law and fact; accordingly, [this court] generally 'must make an independent determination of whether counsel's representation passed constitutional muster.' " Id. at 268 (quoting Ricalday, 736 F.2d at 206).

A

Moawad asserts that his trial counsel was ineffective in failing to object to jury instruction S-5, long condemned by the Mississippi Supreme Court as relieving the prosecution of the burden of proving malice aforethought on the part of the defendant. See Tran v. State, 681 So.2d 514, 517 (Miss.1996); Stewart v. State, 226 So.2d 911, 912 (Miss.1969). Moawad urges that the instruction violated his Due Process rights under the Fourteenth Amendment. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). Given the disfavored status of the presumed malice instruction in Mississippi jurisprudence, we agree with Moawad that counsel's failure to object to instruction S-5 was deficient performance under Strickland. See Gray, 6 F.3d at 269 (holding that counsel's failure to challenge erroneous instruction under Louisiana law met first prong of Strickland ). We turn to Strickland 's second prong.

Moawad argues that but for the erroneous instruction the jury would have convicted him of manslaughter instead of murder; that the record does not support a finding of malice. According to Moawad, if the jurors had not been instructed that they could presume malice from his use of a deadly weapon, then there is a reasonable probability that they would not have convicted him of murder.

We disagree with Moawad's contention. We have refused habeas relief from a state conviction where "overwhelming" evidence of the petitioner's guilt was presented even though trial counsel failed to object to a jury instruction warranting automatic reversal under state law even without an objection. See Ricalday, 736 F.2d at 207-09; see also Lewis v. Procunier, 746 F.2d 1073 (5th Cir.1984) (following Ricalday ), cert. denied, 471 U.S. 1022, 105 S.Ct. 2034, 85 L.Ed.2d 315 (1985). In this case, the jury was instructed on the elements of murder and on...