Moore v. Johnson

• Decision Date: 23 August 2000
• Docket Number: No. 99-50927,99-50927
• Citation: 225 F.3d 495
• Parties: (5th Cir. 2000) Michael Patrick Moore, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 495

225 F.3d 495 (5th Cir. 2000)

Michael Patrick Moore, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 99-50927

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 23, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Appeal from the United States District Court for the Western District of Texas

Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Michael Moore seeks a certificate of appealability ("COA") to allow him to present six claims to this court. Because Moore's claims lack merit under the requisite standard, we deny a COA.

I.

Moore was convicted of capital murder and sentenced to death. He directly appealed his conviction and sentence to the Texas Court of Criminal Appeals, then petitioned the United States Supreme Court for review, but was denied both times. Moore then filed an application for a writ of habeas corpus in the state courts and federal district court but was denied again at each stage. See Moore v. State, 935 S.W.2d 124, 126-27 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1219 (1997).

The Court of Criminal Appeals's opinion denying Moore's direct appeal set out the following facts underlying his conviction and sentencing:

Armed with a gun and a knife, appellant entered the victim's home at about 2:20 am and headed toward the bedrooms. At the time he entered the home, appellant knew it was occupied. He was dressed in black so that he would not be seen in the dark. Appellant encountered the victim and a struggle ensued between them. The victim was stabbed several times by appellant who then dropped his knife. The victim was screaming so appellant drew his revolver and shot her. Because of the number and depth of the wounds the victim received, the medical examiner characterized the murder as "overkill" and "particularly brutal." The victim's fourteen year old son discovered her body. Appellant then fled the scene of the crime. Shortly thereafter, a police officer spotted appellant driving without his headlights. The officer attempted to get appellant to pull over, but appellant led the police on a high-speed car chase followed by a pursuit on foot. After appellant was apprehended, the police found a .22 caliber pistol and 50 rounds of ammunition in appellant's car. While the facts of the crime itself are perhaps not alone sufficient to support an affirmative finding to the future dangerousness special issue, additional evidence introduced at trial does support such a finding.

At the punishment phase the State introduced records from the Conners Children's Home, where appellant resided during part of his childhood, containing information about appellant when he was a child. The records indicate appellant twice set fire to his house and once to the Children's Home, threatened to kill his parents and blame their deaths on his younger brother, and tried to stab his younger brother with a pair of scissors. As a child, appellant continuously exhibited violent and improper sexual behavior. While serving in the Navy, appellant was on unauthorized absence three times and was convicted of grand larceny. The State also introduced appellant's notebook entitled "The Girls of Copperas Cove" in which he listed the names and addresses of 300 teenaged girls of Copperas Cove. Many of these girls including T.R., the victim's daughter, testified that appellant stalked, harassed, and threatened them. The State introduced evidence of various extraneous offenses, including several burglaries which of ten took place while the victims were home, perpetrated against the girls listed in the notebook. Letters that appellant wrote to several of the girls in which he threatened to rape them were introduced into evidence, including one letter written to a junior high student threatening to rape her and her best friend. Appellant's notebook also contained the license plate numbers of a Coryell County Justice of the Peace and a Copperas Cove police sergeant. Appellant testified that the notebook was not in its "final form." On direct examination, appellant admitted to being involved in a physical altercation while in jail.

The State also called Dr. Coons, a psychiatrist, to testify to appellant's future danger to society. He noted appellant's childhood displays of anger and violence and his lawless behavior. Dr. Coons reviewed the State's files and records of appellant, as well as appellant's psychological and psychiatric records, and was presented a hypothetical question embodying the significant facts of the case. Based on this information, Dr. Coons stated that appellant lacks a conscience, is a continuing threat to society, and would continue to commit criminal acts of violence. He stated violence and anger were well integrated into appellant's personality and that appellant's behavior would carry over into prison society. Dr. Coons testified that appellant would be manipulative, vindictive, and a threat to smaller prisoners.

Moore, 935 S.W.2d at 126-27.

In response to this testimony, Moore presented evidence that he had been beaten and neglected by his mother in his infancy, cared for by his maternal grandmother for a period, placed in foster care, and eventually returned to his family, where abuse began anew. He dropped out of school, attempted suicide, and joined the Navy. After honorable discharge, he moved in again with his mother and her new husband and found employment and a fiancee. Two weeks before he was to be married, however, he found that his fiancee was seeing another man. Moore presented witnesses who testified that he was not violent or aggressive, including Dr. Windel Dickerson, a licensed psychologist, and a social worker from Moore's foster home, who testified that Moore would not be a continuing threat in a prison setting.

Following denial of the habeas petition, the district court denied Moore a COA. He now seeks one from this court.

II.

Under 28 U.S.C. § 2253(c)(1)(A), Moore must first obtain a COA before he may receive full appellate review of the denial of habeas relief. A COA can issue only if Moore makes "a substantial showing of the denial of a constitutional right, a demonstration that . . . includes showing that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000) (internal quotation marks and citation omitted).¹ Uncertainly about the propriety of granting a COA is resolved in Moore's favor, and the severity of his prescribed penalty colors our consideration of whether he has met his "substantial showing" burden. Hill, 210 F.3d at 484.

In assessing whether [a petitioner] is entitled to a COA, we must keep in mind the deference scheme laid out in 28 U.S.C. § 2254(d). See Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.), cert. denied, . . .120 S.Ct. 22 . . .(1999). Under that scheme, we review pure questions of law and mixed questions of law and fact under § 2254(d)(1), and review questions of fact under § 2254(d)(2), provided that the state court adjudicated the claim on the merits. See 28 U.S.C. § 2254(d). . . .[ ² ]

As a result, we must defer to the state court unless its decision "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A decision is contrary to clearly established Federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, . . . 120 S. Ct. 1495, 1523 . . .(2000). Under § 2254(d)(1)'s "unreasonable application" language, a writ may issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams, 120 S. Ct. at 1523. Factual findings are presumed to be correct, see 28 U.S.C. § 2254(e)(1), and we will give deference to the state court's decision unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d)(2).

Id. at 484-85.

III.

Moore seeks a COA with regard to four related claims, which at their root argue that he should have been afforded, by the state, expert assistance in jury selection and development of mitigation evidence. Because this is a question of law, the district court could have issued a writ of habeas corpus only if Texas's review procedures are "contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). We can grant a COA only if courts could objectively disagree with regard to whether Texas has so erred, or if our jurisprudence would be ennobled by further consideration of the question.

With regard to the mitigation expert, it appears that the trial court provided Moore the opportunity to present additional information to demonstrate that the expert "would be significantly more effective in marshaling the evidence in [Moore]'s behalf than his own counsel," but that "no further request or showing of necessity for a mitigation expert was made." Moore, as a result, did not enjoy the benefits of a mitigation expert. Later, before the Court of Criminal Appeals, Moore again failed to argue that he should have been provided a mitigation expert. That court held that "since appellant does not make any arguments regarding expert assistance on this issue, we will only address expert assistance on the jury selection issue." M...