Moore v. Marr, No. 00-1015

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtLUCERO
Citation254 F.3d 1235
Parties(10th Cir. 2001) STEPHEN MOORE, Petitioner - Appellant, v. RICHARD MARR and THE ATTORNEY GENERAL FOR THE STATE OF COLORADO, Respondents - Appellees
Docket NumberNo. 00-1015
Decision Date03 July 2001

Page 1235

254 F.3d 1235 (10th Cir. 2001)
STEPHEN MOORE, Petitioner - Appellant,
v.
RICHARD MARR and THE ATTORNEY GENERAL FOR THE STATE OF COLORADO, Respondents - Appellees.
No. 00-1015
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 3, 2001

Appeal from the United States District Court for the District of Colorado (D.C. No. 95-S-2454)

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Copyrighted Material Omitted

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Howard A. Pincus, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with him on the briefs), Denver, Colorado, for Petitioner- Appellant.

Paul E. Koehler, Assistant Attorney General (Ken Salazar, Attorney General, with him on the brief), Denver, Colorado, for Respondents-Appellees.

Before EBEL and LUCERO, Circuit Judges, and VRATIL,* District Judge.

LUCERO, Circuit Judge.

Stephen Moore was convicted in 1988 by a Colorado jury of first-degree assault, a crime of violence for stabbing, and one count of felony menacing for wielding a gun. He was sentenced to twenty-six years in prison. After exhausting his state court remedies, he sought habeas corpus relief in federal district court. The district court denied his request for habeas relief and also denied his request for a certificate of probable cause. Our jurisdiction is premised on 28 U.S.C. 1291 and 28

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U.S.C. 2253. Although we grant Moore's request for a certificate of appealability ("COA") on all issues,1 we affirm the district court's denial of his request for habeas relief.2

I

On July 4, 1987, Moore, accompanied by James Klevenz, went to the apartment of a friend and sometime employer, Kenneth Goudie, seeking $150 Goudie owed him. When Moore arrived, he found Goudie on his couch--Goudie had spent the entire night before drinking and playing cards. Moore came armed with a cane, a knife, and a gun, allegedly because he feared Goudie's temper.

Not surprisingly, the visit by the well-armed creditor to the intoxicated debtor soon took a violent turn. At trial, Moore admitted he began the scuffle, which later ended in Goudie's stabbing, by beating Goudie with the cane. Goudie managed to grab the cane from Moore and then beat Moore with the cane, breaking Moore's glasses and knocking Moore to his knees. While on his knees Moore stabbed Goudie in the chest, puncturing his lung and causing him to suffer cardiac arrest. After stabbing Goudie, Moore pointed a gun at him and demanded his money, pursuant to which Goudie gave him $200.

The sole factual dispute at trial was whether Moore stabbed Goudie in self-defense. Moore claimed that after he began beating Goudie with the cane, there was a break in the action. He alleged that Klevenz broke up the initial fight and then Goudie attacked him.

Moore raises three arguments in support of his appeal. First, he argues he was denied effective assistance of counsel at trial because his counsel failed to impeach Goudie with a prior inconsistent statement and failed to obtain testimony from two potential witnesses. Second, he alleges the state committed a Brady violation when it did not disclose that Goudie, the key witness for the prosecution, had applied for and received victim compensation payments. Finally, Moore asserts his Confrontation Clause rights were violated by the limits the state court placed on his ability to cross-examine Goudie.

II

A. Standard of Review

Appellant asserts that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") does not apply to his appeal because his original habeas corpus petition was filed before the effective date of the Act; appellees do not appear to disagree with that assertion. In Slack v. McDaniel, 529 U.S. 473, 48182 (2000), however, the Supreme Court clearly rejected appellant's position and held that post-AEDPA law governs the right to appeal in any case where the notice of appeal was filed after the effective date of AEDPA. See also English v. Cody, 241 F.3d 1279, 1281 (10th Cir. 2001); Tillman v. Cook, 215 F.3d 1116, 112021 (10th Cir. 2000).

Appellees' failure to object to appellant's argued-for standard of review is understandable. As the Court concluded in Slack, AEDPA codifies the pre-AEDPA certificate of probable cause standard announced

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in Barefoot v. Estelle, 463 U.S. 880 (1983), with the exception that AEDPA's requirement for the right to appeal is a "substantial showing of the denial of a constitutional right," 28 U.S.C. 2253(c)(2), while the pre-AEDPA requirement was a "substantial showing of the denial of a federal right." Slack, 529 U.S. at 48384. In Tillman we reviewed the Court's ruling in Slack and determined that although it "may have some effect on non-constitutional claims" raised in petitions for habeas corpus, it does not change the standard for reviewing constitutional claims. Tillman, 215 F.3d at 1120. The standard for reviewing a habeas petitioner's right to appeal announced in Barefoot is as follows:

[P]etitioner need not show that he should prevail on the merits. He has already failed in that endeavor. Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.

463 U.S. at 883 n.4 (citations and internal quotations omitted). We will grant habeas relief only if petitioner shows the alleged state court error "'deprived him of fundamental rights guaranteed by the Constitution of the United States.'" Tillman, 215 F.3d at 1121 (quoting Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999)).

To clear up any future confusion in cases where a petition for habeas corpus was filed with the district court prior to AEDPA and the notice of appeal was filed with this Court after AEDPA, we note that Slack overrules our prior precedent holding that AEDPA did not apply in such situations. See, e.g., Rodgers v. Wyo. Att'y Gen., 205 F.3d 1201, 1202 n.1 (10th Cir. 2000); Fowler v. Ward, 200 F.3d 1302, 1307 (10th Cir. 2000).

Although AEDPA clearly governs Moore's right to appeal in this case, pre-AEDPA law governs our review of petitioner's claims. See English, 241 F.3d at 1281; Tillman, 215 F.3d at 1121. We review legal issues de novo and the federal district court's findings of fact for clear error. Tillman, 215 F.3d at 1121. Under pre-AEDPA law, any findings of fact made by the state courts are entitled to a presumption of correctness. Id.; see also 28 U.S.C. 2254(d) (1994).

B. Effective Assistance of Counsel

Moore claims his trial counsel was ineffective because he failed to impeach Goudie with a prior inconsistent statement and because he failed to obtain the testimony of two potential witnesses for trial. Moore's ineffective assistance of counsel claim is a mixed question of law and fact that we review de novo. Sellers v. Ward, 135 F.3d 1333, 1344 (10th Cir. 1998).

The test for establishing constitutionally ineffective assistance of counsel is twofold. Petitioner must demonstrate that his counsel's performance fell below an objective standard of reasonableness and that counsel's substandard performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 688 (1984). To meet the first prong, petitioner must demonstrate that the omissions of his counsel fell "outside the wide range of professionally competent assistance." Id. at 690. This standard is "highly demanding." Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). Strategic or tactical decisions on the part of counsel are presumed correct, Strickland, 466 U.S. at 689, unless they were "completely unreasonable, not merely wrong, so that [they] bear no relationship to a possible defense strategy," Fox v. Ward, 200 F.3d 1286, 1296 (10th Cir. 2000) (quotation and citations

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omitted) (alteration in Fox). To prevail on the second, prejudice prong, petitioner "must show there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. This, in turn, requires the court to focus on "the question whether counsel's deficient performance render[ed] the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).

1. Failure to Impeach

During the prosecution's direct examination, Goudie admitted he had been drinking all night before his encounter with Moore and had not gone to sleep until 10 a.m. on July 4. He also testified he had not been using any drugs, aside from alcohol, nor had anybody else at the party. He reiterated this during cross-examination, asserting further that he did not use drugs as a general matter. Although Moore's counsel had access to Goudie's medical records, counsel did not attempt to impeach Goudie by cross-examining him on his admission to hospital personnel the day of the stabbing that he had been drinking and had "snorted coke."3 (II R.O.A., IV State R. Def.'s ex. 23 at 3.)

Moore argues his Sixth Amendment right to effective assistance of counsel was violated by his trial counsel's failure to impeach Goudie, the prosecution's key witness. If counsel had cross-examined Goudie on the basis of his prior inconsistent statement in his medical record, Moore argues, counsel could have destroyed Goudie's credibility with the jury. Since the trial's outcome depended on the jury's assessment of Goudie's word against Moore's concerning the allegation that Moore acted in self-defense, the argument continues, counsel's failure to impeach Goudie, or even to attempt to do so, was ineffective as well as prejudicial.

In order to assess Moore's ineffective assistance of counsel claim, we briefly review the evidence presented at trial. It is uncontroverted that Moore came over to Goudie's house bearing three weapons: a gun, a knife, and a cane. It is further uncontested that Moore beat Goudie with the cane, stabbed him with the knife, and pointed the gun at him.4 At...

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  • Bullock v. Carver, No. 00-4023.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 23, 2002
    ...has been granted. See id. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 481-82, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Moore v. Marr, 254 F.3d 1235, 1238 (10th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 670, 151 L.Ed.2d 584 (2001). The district court declined to grant a COA on any of th......
  • Trevino v. Evans, No. 94CV1913 IEG (RBB).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 18, 2007
    ...tactical decisions are "presumed correct, unless they were completely unreasonable[.]" (See R & R, at 1138-39 (quoting Moore v. Marr, 254 F.3d 1235, 1tA9 (10th Cir.2001).)) The, Tenth Circuit applies this highly deferential standard Only in cases where counsel's strategic decision was "adeq......
  • U.S. v. Dago, No. 04-1184.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 30, 2006
    ...consistent with the defense theory that defendant was not the principal in the alleged crime), overruled on other grounds, Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir.2001); Hale v. Gibson, 227 F.3d 1298, 1323 (10th Cir. 2000) (holding that defense counsel "made a reasonable strategic deci......
  • Le v. Mullin, No. 00-6333.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 26, 2002
    ...overruled on other grounds by Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (as recognized by Moore v. Marr, 254 F.3d 1235, 1239 (10th 2. Hooks v. Oklahoma, 19 P.3d 294, 314 (Okla. Crim.App.2001) ("Prosecutors misused evidence in the first stage of the trial and en......
  • Request a trial to view additional results
98 cases
  • Bullock v. Carver, No. 00-4023.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 23, 2002
    ...has been granted. See id. § 2253(c)(1); Slack v. McDaniel, 529 U.S. 473, 481-82, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Moore v. Marr, 254 F.3d 1235, 1238 (10th Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 670, 151 L.Ed.2d 584 (2001). The district court declined to grant a COA on any of th......
  • Trevino v. Evans, No. 94CV1913 IEG (RBB).
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • September 18, 2007
    ...tactical decisions are "presumed correct, unless they were completely unreasonable[.]" (See R & R, at 1138-39 (quoting Moore v. Marr, 254 F.3d 1235, 1tA9 (10th Cir.2001).)) The, Tenth Circuit applies this highly deferential standard Only in cases where counsel's strategic decision was "adeq......
  • U.S. v. Dago, No. 04-1184.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 30, 2006
    ...consistent with the defense theory that defendant was not the principal in the alleged crime), overruled on other grounds, Moore v. Marr, 254 F.3d 1235, 1239 (10th Cir.2001); Hale v. Gibson, 227 F.3d 1298, 1323 (10th Cir. 2000) (holding that defense counsel "made a reasonable strategic deci......
  • Le v. Mullin, No. 00-6333.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 26, 2002
    ...overruled on other grounds by Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (as recognized by Moore v. Marr, 254 F.3d 1235, 1239 (10th 2. Hooks v. Oklahoma, 19 P.3d 294, 314 (Okla. Crim.App.2001) ("Prosecutors misused evidence in the first stage of the trial and en......
  • Request a trial to view additional results

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