UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60320
Summary Calendar
GARRY LEE MOORE,
Petitioner-Appellant,
VERSUS
JAMES V. ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE
PENITENTIARY; ATTORNEY GENERAL STATE OF MISSISSIPPI,
Respondents-Appellees.
Appeal from the United States District Court
for the Northern District of Mississippi
(1:94-CV-177)
July 28, 1998
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
A jury convicted Garry Lee Moore, Mississippi prisoner #
65396, of forgery. The state trial court concluded that Moore was
an habitual offender and sentenced him to a fifteen-year term of
imprisonment without parole. Moore exhausted all of his state
court remedies without success. He then sought relief in federal
district court under 28 U.S.C. §2254. The magistrate judge denied
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except in
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Moore’s petition, and the district court adopted the magistrate
judge’s report. Moore timely filed notice of appeal. We affirm.
Moore raises several assignments of error; none has merit.
First, he argues that his trial counsel was ineffective for failing
to preserve his right to a speedy trial. Though 15 months elapsed
between the time of his arrest and his trial, Moore has not
demonstrated that his defense was impaired. His naked assertion
that the government delayed his trial for the sole purpose of
reindicting him as an habitual offender is unpersuasive. There is
simply no evidence in the record to suggest that the government
would not have charged him as an habitual offender had he been
brought to trial sooner. Because he suffered no prejudice, his
ineffective assistance of counsel claim fails.2
Second, Moore argues that his counsel’s heavy caseload
prevented him from rendering constitutionally-adequate assistance
on his behalf. The record, however, reflects that counsel was
well-versed in the facts of Moore’s case and that he provided
effective assistance at all stages of the prosecution.
Third, Moore argues that his counsel was ineffective because
he failed to object properly to the prosecution’s introduction of
inadmissible evidence of other crimes. Again, Moore has failed to
demonstrate that he suffered any prejudice. Given the substantial
amount of admissible, inculpatory evidence marshaled against him,
2
See Strickland v. Washington, 466 U.S. 668, 687 (1984).
2
he cannot prevail on this claim.
Fourth, Moore argues that his counsel rendered ineffective
assistance because he failed to object properly to the court’s
decision to classify Moore as an habitual offender. The
government, however, introduced certified copies of Moore’s
conviction records to the trial court. Since Moore’s identity was
not in question, we cannot say that counsel’s failure to object to
the habitual offender classification was inappropriate, much less
constitutionally-substandard.
Fifth, Moore argues that the district court erred in according
a presumption of correctness to the state court’s finding that his
confession was voluntarily made. While the Due Process Clause of
the Fifth Amendment prohibits the introduction of any confession
which is not the product of a rational intellect and a free will,3
Moore has not made any showing that his confession was less than
voluntary and intelligent. The trial court made sufficient
credibility determinations on this issue. We do not disturb those
findings.
Sixth, Moore argues that the trial judge’s refusal to recuse
himself rendered his trial unfair. Moore specifically alleges that
his pending lawsuit against the trial judge created judicial
prejudice. Moore has not, however, produced evidence that would
cause a reasonable person to doubt the trial judge’s impartiality.
3
See Lynumn v. Illinois, 372 U.S. 528, 534 (1963).
3
As the trial judge commented, Moore had “filed lawsuits against
everyone I think that is a member of the Clay County Bar, as well
as the Court, and others, being law enforcement officers.” Moore
has not made a colorable showing that the trial judge should have
recused himself.
Finally, Moore argues that the district court erred in failing
to hold an evidentiary hearing with respect to his § 2254 petition.
“An evidentiary hearing is not ‘required when the record is
complete or the petitioner has raised only legal claims that can be
resolved without the taking of additional evidence.’”4 In this
case, the record before the district court was sufficient for the
resolution of Moore’s claims.
AFFIRMED.
4
Lawrence v. Lensing, 42 F.3d 255, 259 (5th Cir. 1994)
(citation omitted).
4