Moon v. Head

• Decision Date: 18 March 2002
• Docket Number: No. 99-14546.,99-14546.
• Citation: 285 F.3d 1301
• Parties: Larry Eugene MOON, Petitioner-Appellant, v. Frederick J. HEAD, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

285 F.3d 1301

Larry Eugene MOON, Petitioner-Appellant, v. Frederick J. HEAD, Warden, Georgia Diagnostic and Classification Prison, Respondent-Appellee.

No. 99-14546.

United States Court of Appeals, Eleventh Circuit.

March 18, 2002.

COPYRIGHT MATERIAL OMITTED

Charles Winfield Surasky (Court-Appointed), Smith, Currie & Hancock, Brian Mendelsohn and Paul S. Kish (Court-Appointed), Fed. Def. Program, Inc., Atlanta, GA, for Petitioner-Appellant.

Susan V. Boleyn, State Law Dept., Atlanta, GA, for Respondent-Appellee.

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

Before TJOFLAT, CARNES and HULL, Circuit Judges,

TJOFLAT, Circuit Judge:

Petitioner in this case, a Georgia prison inmate, seeks a writ of habeas corpus setting aside his death sentence. The United States District Court for the Northern District of Georgia denied the writ. We affirm.

I.

A.

In March of 1987, Larry Eugene Moon, the petitioner, was indicted in Catoosa County, Georgia, for the armed robbery and murder of Ricky Callahan. After pleading not guilty, he went to trial before a jury in the Superior Court of Catoosa County on January 15, 1988. According to the Supreme Court of Georgia, the following facts were established during the guilt phase of the trial:¹

At 10:30 p.m. on November 24, 1984, the victim, Ricky Callahan, drove a 1978 Ford LTD to a convenience store to purchase headache medicine for his wife. He never returned. His body was found the next morning in a chert pit, shot twice in the head. Larry Moon left his motel room late in the evening of November 24, 1984, for the announced purpose of making a telephone call. He returned later, driving the victim's car. He removed approximately $60 from the victim's wallet, and discarded the wallet. Moon and his companion then drove to Chattanooga, Tennessee, where she left him. On November 26, 1984, a 1980 Buick Riviera was stolen from the parking lot of a shopping mall in Decatur, Alabama. The Callahan car was discovered abandoned three miles west of Decatur, Alabama, on November 28, 1984. On December 14, 1984, a 1982 Buick LeSabre was stolen from a parking lot in Oneida, Tennessee. The local police knew the owner and the car, and it was soon spotted in Oneida. After a high-speed chase through the surrounding countryside, the police apprehended the car and its driver, Larry Moon. A number of guns were recovered from the interior of the stolen automobile, including one later identified as the murder weapon in this case. Soon after Moon's capture, the police recovered from another parking lot in Oneida the 1980 Buick Riviera that had been stolen in Decatur, Alabama. The keys to this car were found on Moon when he was arrested. Inside this car were cassette tapes that had been inside Callahan's Ford LTD before it was stolen.

Moon v. State, 258 Ga. 748, 375 S.E.2d 442, 445 (1988), cert. denied, 499 U.S. 982, 111 S.Ct. 1638, 113 L.Ed.2d 733 (1991).

The jury found Moon guilty as charged, and, after a brief recess, the sentencing phase of the trial (on the murder count) began. The prosecution produced further information about Moon's activities both before and after Callahan's killing. Evidence was presented that on November 15 1984, Moon shot and killed Jimmy Hutcheson at Brown's Tavern in Chattanooga, Tennessee. Ronald Wilbanks, a friend of both Moon and Hutcheson, testified that Moon had confessed to him that he killed Hutcheson, telling Wilbanks that he (Moon) had "sent a guy in [the tavern] to get Jimmy Hutcheson to tell him to come outside, somebody wanted to talk to him, and that's when [Moon] shot him."² Shortly after this killing Moon traveled to Catoosa County, Georgia, where the Callahan homicide occurred. About one week later, on December 1, Moon returned to Chattanooga and, at 3:00 a.m., robbed at gunpoint Peeper's Adult Bookstore. Upon leaving the store, Moon kidnapped Terry Lee Elkins, who was using the telephone at the store and was dressed as a female impersonator. Moon drove Elkins back to Georgia, where he stopped the car and sodomized his captive by the side of the road, threatening to kill him if he refused to submit.

Moon then returned Elkins to Chattanooga and, still using the Buick Riviera he had stolen in Alabama, drove to Gatlinburg, Tennessee. A few minutes after midnight the next day, December 2, as he was driving through Gatlinburg, he encountered Thomas DeJose and his fiancée, Darryl Ehrlanger. Ehrlanger, who was employed at a Gatlinburg restaurant, had just gotten off work and met DeJose, who had been at a bar. The couple stood on a street corner, debating how they would get home, which was several miles outside of Gatlinburg, near Cosby. About that time Moon pulled the car up alongside the couple and, according to Ehrlanger, offered them a ride. DeJose got in the front passenger's seat; Ehrlanger sat in the back seat, directly behind him.

Ehrlanger testified that after turning into the private, dirt road that led to their residence, Moon stopped the car and got out. When DeJose got out of the car to check on Moon, Moon pushed DeJose. Moon then reached in and grabbed Ehrlanger, still in the back seat, pulled her out of the seat, and retrieved a rifle from the back, driver's-side floorboard. Ehrlanger testified that Moon "shot the gun up in the air," while DeJose ran around to the driver's side to reach across the front seat and try to pull Ehrlanger back into the car. Ehrlanger, still on the passenger's side of the car with Moon, began to fight him. With a gun to Ehrlanger's head, Moon told DeJose to get out of the car, or he would "blow her [Ehrlanger] away." DeJose got out and walked to the back of the car, where, according to Ehrlanger, Moon shot him in the chest. Ehrlanger started toward DeJose, but he ordered her to run away. As she ran down the road and into the woods, Ehrlanger heard the firing of shots. After Moon had driven away, Ehrlanger returned to where DeJose lay, but he was already dead.

The State also put on as a witness David Davenport, an investigator for the Tennessee Bureau of Investigation ("TBI") and the case agent for the DeJose killing. Davenport's testimony established that DeJose had been shot four times in the head and chest by a .22 pistol and a rifle. After Moon was eventually arrested, Davenport testified, he took possession of the stolen Buick Riviera that Moon had been driving at the time of DeJose's killing. According to Davenport, the Buick's front-seat headrest was stained with blood, which, based on TBI lab results, were consistent with the blood of DeJose. Davenport also acknowledged in his testimony that a knife had been found among DeJose's personal effects.

Further evidence was presented at the sentencing hearing that on December 7, about five days after the DeJose killing, Moon was again in Chattanooga. On that day, he robbed a convenience store owned by Ray York. Moon took over $900 from the store as well as York's billfold and .357 magnum pistol. This pistol was recovered from the stolen car Moon was driving, the 1982 Buick LeSabre, when he was arrested the following week, on December 14.

The sentencing phase of the trial took three days. After deliberating for three hours and three minutes, the jury returned a verdict calling for the death penalty.

B.

On January 21, 1988, the superior court sentenced Moon to death for the murder of Ricky Callahan. Moon appealed, and, on November 30, 1988, the Georgia Supreme Court affirmed his convictions and death sentence. See Moon v. State, 258 Ga. 748, 375 S.E.2d 442 (1988). On April 22, 1991, the United States Supreme Court denied his petition for a writ of certiorari. Moon v. Georgia, 499 U.S. 982, 111 S.Ct. 1638, 113 L.Ed.2d 733 (1991), reh'g denied by 501 U.S. 1224, 111 S.Ct. 2841, 115 L.Ed.2d 1010 (1991).

Moon then turned to the Superior Court of Butts County, Georgia, (the "state habeas court") for relief, filing a petition for a writ of habeas corpus. His petition contained fifty-one claims; some addressed his convictions, some his death sentence. The court held an evidentiary hearing on March 15, 1993, and in an order dated July 30, 1993, found three of Moon's claims meritorious and granted the writ, setting aside his convictions (and therefore his sentences).³ In its order, the court reserved ruling on the remaining forty-eight claims in Moon's petition. The State appealed the superior court's decision to the Georgia Supreme Court. On February 28, 1994, the supreme court reversed, finding no merit in the grounds relied on by the superior court in granting the writ, and remanded the case for a decision on Moon's remaining claims. Zant v. Moon, 264 Ga. 93, 440 S.E.2d 657 (1994). Moon immediately petitioned the United States Supreme Court for a writ of certiorari. The Court denied his petition on October 31, 1994. Moon v. Zant, 513 U.S. 968, 115 S.Ct. 437, 130 L.Ed.2d 348 (1994), reh'g denied by 513 U.S. 1104, 115 S.Ct. 783, 130 L.Ed.2d 676 (1995). The superior court, on remand, subsequently denied Moon's remaining claims on April 5, 1995. It denied his motion for reconsideration on October 20, 1995.

On April 22, 1996, Moon filed the petition for writ of habeas corpus now before us. His petition contained thirty-three claims. The district court conducted an evidentiary hearing on February 23, 1999, and on August 2, 1999, denied relief. Moon then sought a Certificate of Probable Cause ("CPC") to appeal the court's judgment.⁴ On January 27, 2000, the district court granted Moon a Certificate of Appealability ("COA") with respect to four claims.⁵ Moon then filed an unopposed motion to convert the COA to a CPC and to expand the issues on appeal. We granted his motion on February 23, 2000.

On April 26, 2000, however, the United States Supreme Court ruled that the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended 28 U.S.C. § 2253, applies to all appeals initiated after AEDPA's effective date, April...