Moore v. Johnson, 95-20871

• Decision Date: 06 December 1996
• Docket Number: No. 95-20871,95-20871
• Citation: 101 F.3d 1069
• Parties: Bobby James MOORE, Petitioner-Appellee, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1069

101 F.3d 1069

Bobby James MOORE, Petitioner-Appellee, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellant.

No. 95-20871.

United States Court of Appeals, Fifth Circuit.

Dec. 6, 1996.

Richard Royce Fletcher, Kristi Franklin Hyatt, Cotton, Bledsoe, Tighe & Dawson, Midland, TX, for petitioner-appellee.

Reneau Jean Longoria, Office of the Attorney General for the State of Texas, Austin, TX, for respondent-appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In this capital case, the Director of the Texas Department of Criminal Justice, Institutional Division appeals from an order by the district court which reverses the judgment of the state trial court, grants Petitioner Moore habeas corpus relief, and remands the case for a new punishment hearing. Applying the new provisions of the recently enacted Antiterrorism and Effective Death Penalty Act of 1996, we reverse the judgment of the district court and render judgment denying Moore's petition for writ of habeas corpus.

BACKGROUND

On the afternoon of April 25, 1980, 72-year-old James "Jim" McCarble was shot in At trial, two store employees testified. One of the employees, Deborah Salazar, identified Moore as the man who shot McCarble. Another employee, Arthur Moreno, testified that he saw Moore and Koonce flee the store and drop the bag and wig. Moreno recovered both the bag and wig and gave them to the store owner who, in turn, gave them to the police. The bag was found to contain a purchase receipt which was traced to the home of Betty Nolan.

                the head and killed while working as a sales associate at the Birdsall Super Market in Houston, Texas.  Prior to the shooting, McCarble and co-employee Edna Scott were working inside the store courtesy booth when three men, later identified as Willie Koonce, Everett Anthony Pradia, and Bobby Moore, entered the store.  Koonce entered the courtesy booth with a bag and said to McCarble, "Fill it up, man.  You being robbed."   McCarble then jumped to the left of Scott which allowed Scott to see Moore, who was apparently wearing a wig and facing Scott with a shotgun.  Scott shouted that a robbery was in progress and she dropped to the floor of the courtesy booth.  A gun shot sounded and McCarble, having received a fatal wound to the head, fell to the floor beside Scott.  Koonce and Moore fled the store together losing both the money bag and the wig during their escape.  Pradia had fled the store sometime before Koonce and Moore.  A store customer saw the three men get into a car and drive away.  The customer noted the license plate number of the car.  The car was traced to Koonce who was later arrested while driving it
                

The police searched Nolan's home and discovered that Moore was living at this address. A shotgun similar to the one used in the robbery was found under Moore's bed.

After turning himself in to the police, co-defendant Pradia entered into a plea agreement and testified that he, Moore, and Koonce had planned and committed the robbery. Pradia testified to the details of the robbery and further testified that, after the robbery, Moore admitted to him that Moore had shot McCarble.

Upon information, Moore was arrested at his grandmother's house in Coushatta, Louisiana. Moore was returned to Houston where he gave what the prosecution claims is his written confession. At trial, however, Moore took the stand and testified that he had never written a confession. He testified that, after being hit in the face and jaw by the police, he was forced to sign two blank white sheets of paper upon which his alleged confession was later typed. ¹ Moore testified that he signed the blank confession papers after a police officer told him that, if he did, he would be released "within 74 minutes." Moore testified that the signatures on the blue confession sheets were forgeries. The trial court admitted portions of Moore's written confession into evidence.

At trial, Moore was represented by Houston attorneys Al Bonner and C.C. Devine. ² Moore's defense was premised upon his alibi that he did not shoot McCarble because he was in Louisiana at the time of the robbery. At the guilt-innocence phase, the jury found Moore guilty as charged. At the sentencing phase, the jury answered the special questions in the affirmative and the court sentenced Moore to death.

PROCEDURAL HISTORY

Moore's conviction was affirmed by the Texas Court of Criminal Appeals, Moore v. State, 700 S.W.2d 193 (Tex.Crim.App.1985); he was scheduled to be executed on February 26, 1986. On February 21, 1986, the Supreme Court denied Moore's petition for certiorari and application for stay of execution. Moore v. Texas, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 289 (1986).

On February 24, 1986, Moore filed his first application for writ of habeas corpus in state court. The Texas Court of Criminal Appeals denied the writ. On February 25, 1986, Moore filed a motion for a stay of execution and a petition for writ of habeas corpus in federal district court. The district court granted Moore's stay of execution. On June On April 6, 1992, Moore filed his second application for state habeas relief. On April 23, 1993, the state trial court conducted a post-conviction evidentiary hearing regarding Moore's claim of ineffective assistance of counsel. After the evidentiary hearing, the state trial court entered findings of fact and conclusions of law stating that Moore had failed to show ineffective assistance of counsel. On October 4, 1993, the Texas Court of Criminal Appeals denied Moore's application for writ of habeas corpus.

19, 1987, the federal district court dismissed Moore's petition without prejudice to allow Moore the opportunity to properly present all of his claims in state court. (Moore's petition to the federal district court apparently contained at least one unexhausted claim.)

On October 12, 1993, Moore filed a second petition for federal habeas relief. The federal district court denied Moore's request for an evidentiary hearing but then held that Moore had received ineffective assistance of counsel at the punishment phase of his trial. The district court reversed the judgment of the state trial court only as to punishment and remanded Moore's case to the 185th Judicial District Court of Harris County, Texas for a new punishment hearing. The Director now appeals from this order. ³

DISCUSSION

This appeal requires us to address two issues: (1) do the amended standards of review found within § 104(d) of the recently enacted Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") apply to our determination of this case, and (2) did Moore satisfy the requirements of § 104(d) as to his claim of ineffective assistance of counsel at the punishment phase of his trial. For the following reasons, we hold that the standards of review found within § 104(d) of the AEDPA do apply to our determination of this case and, under those standards, Moore did not show that he is entitled to habeas corpus relief on the basis of ineffective assistance of counsel.

APPLICABILITY OF § 104(d)

While the appeal was pending, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996). Title I of the AEDPA contains a series of amendments to existing federal habeas corpus law, many of which affect the manner in which federal courts can review an inmate's petition for habeas corpus relief. Included among these provisions is § 104(d) which amends 28 U.S.C. § 2254(d) and places further restriction upon the ability of federal courts to grant habeas corpus relief. Section 104(d) reads as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

AEDPA, § 104(d) (to be codified at 28 U.S.C. § 2254(d)). Subsection 104(d), thus, precludes federal courts from granting habeas corpus relief to state prisoners as to any claim that was adjudicated on the merits in a state court proceeding, unless one of its two express requirements is satisfied. Because 28 U.S.C. § 2254(d) was amended by § 104(d) after Petitioner's trial and during appeal of this habeas proceeding, we must determine whether the new standards of review created by § 104(d) apply to the instant appeal. Because Texas is not yet eligible to take advantage of the provisions for expedited procedures found within § 107 of the AEDPA, the amended standards of review found therein do not apply to Moore's case. Mata v. Johnson, 99 F.3d 1261, 1266-67 (5th Cir.1996).

In Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Supreme Court clarified the analysis through which courts are to determine whether retroactive application of a law is appropriate. First, we must determine whether Congress has clearly expressed an intent that the relevant provision of the statute be applied retroactively. Landgraf, 511 U.S. at ----, 114 S.Ct. at 1505. ("[A] requirement that Congress first make its intention clear helps ensure that Congress itself has determined that the benefits of retroactivity outweigh the potential for disruption or unfairness." Id. at ----, 114 S.Ct. at 1498.) If Congress has clearly expressed an intention that a statute be applied retroactively, then the statute should be construed in...