IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40313
JAMES WALTER MORELAND
Petitioner-Appellant
versus
WAYNE SCOTT, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
May 10, 1999
Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit
Judges.
HIGGINBOTHAM, Circuit Judge:
James Walter Moreland seeks review of the district court’s
denial of his application for federal habeas relief from his
judgment of conviction in 1983 of capital murder and sentence of
death by the State of Texas. We will not describe the crime here.
It is sufficient to explain that the two victims were each stabbed
numerous times in a small area of the upper portion of their backs.
The pattern of wounds and absence of resistance are consistent with
their being asleep when stabbed.
Moreland’s first federal habeas petition was dismissed in
October 1995 for failure to exhaust state remedies. The state
denied on the merits his application for collateral relief on July
12, 1996, and the present federal suit followed. The district
court granted the state’s motion for summary judgment on the
recommendation of the magistrate judge, refused leave to amend the
application, and denied Moreland’s request for a certificate of
appealability. Moreland has applied to this court for a
certificate of appealability. Having filed his federal habeas
petition after November 14, 1996, the effective date of AEDPA, he
must obtain this certificate in order to appeal.
I
Moreland asks that we grant a certificate of appealability
upon eight issues.1 We decline to issue a COA on any issue except
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(1) Refusal by district court to allocate funds for
psychological testing
(2) Refusal by district court to permit discovery of
exculpatory evidence
(3) Refusal by district court to permit amendment of habeas
application
(4) Prosecution’s use of peremptory challenges to exclude
venirepersons expressing qualms about the death penalty
(5) Constitutionality of intoxication instruction, effect on
jury’s consideration of mens rea element
(6) Constitutionality of intoxication instruction, effect on
jury’s consideration whether to impose death penalty
(7) Constitutionality of statutory bar to informing jury
about eligibility for parole
(8) Denial of effective assistance of trial counsel
(a) Failure to move for dismissal of indictment
(b) Rejection of favorable plea bargain
(c) Failure to present corroborating testimony of
2
Moreland’s contention that he did not have the effective assistance
of counsel in making his decision to reject a tendered plea
bargain. We have the benefit of briefing and oral argument of
counsel and proceed directly to the question supported by a COA.
II
Moreland contends that his attorneys rendered ineffective
assistance in rejecting a favorable plea bargain. Moreland
contended in his habeas application that the state had offered him
a 50-year maximum sentence in exchange for his guilty plea.
Because he believed that a trial-court ruling, denying Moreland’s
motion to suppress a custodial statement, would be reversed on
appeal, Moreland’s attorney, Billy Bandy, urged him to reject the
offer. Mr. Bandy added that he would be running for district
attorney in the next election and would arrange for a more
favorable plea agreement after the conviction was reversed.
Moreland rejected the proposed plea bargain before trial.
Moreland contends that his attorney labored under a conflict
of interest because of his anticipated employment as the district
attorney. Under Cuyler v. Sullivan, 446 U.S. 335, 348 (1980),
prejudice is presumed if it is shown that an actual conflict of
family members to establish that defendant acted in
self-defense
(d) Failure to present mitigating evidence of long-term
alcoholism
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interest adversely affected counsel’s performance. Bandy was not
the district attorney at the time of the plea negotiations.2 He
did not then represent adverse interests. At most, Bandy had a
conflict related to his own interest in becoming the district
attorney. We have limited Cuyler to cases involving multiple
representation. See Beets v. Scott, 65 F.3d 1258, 1265-72 (5th
Cir. 1995) (en banc). Under Beets, cases in which it is alleged
that the attorney’s representation was affected by his own self-
interest are evaluated under the more relaxed Strickland standard.
See id. at 1271-72. Thus, Moreland must show that counsel’s errors
fell below an objective standard of reasonableness and prejudiced
his case. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
III
Moreland’s specification of ineffective assistance has two
distinct aspects; indeed he rolls two claims into one. First,
Moreland urges that Bandy was ineffective in that his plans to
become district attorney created a conflict of interest. Second,
Moreland argues that Bandy was ineffective in urging him to reject
the bargain based on Bandy’s judgment that an appellate court would
overturn any conviction resulting from a finding of guilty.
2
During the pendency of Moreland’s direct appeal, Bandy was
appointed to fill the unexpired term of District Attorney Melvin
Whitaker, effective January 1, 1984. Bandy was elected in the
General Election on November 6, 1984, as District Attorney of
Henderson County, Texas. The state’s brief was filed in December
1985.
4
Bandy’s judgment proved to be wrong. Our question is whether that
judgment was beyond the range of competence demanded by the Sixth
Amendment. If it was not, that is the end of the matter. Whatever
role the prospect that Bandy would be the district attorney played
in Moreland’s decision to reject the bargain, the possibility of
Bandy’s official influence was never realized because Moreland’s
appeal was rejected. The risk Moreland took in declining the plea
bargain was the likelihood of appellate success, and he took it
believing counsel’s prediction about his chances on appeal would
prove to be accurate. Thus, our inquiry focuses on the soundness
of that advice.
1
Bandy had to evaluate the chances of persuading the appellate
courts that Moreland’s statements to the police should not have
been admitted. Moreland did not prevail, but he had a strong
argument. After holding the case for ten years, the Texas Court of
Criminal Appeals found, as predicted, that Moreland’s arrest was
illegal under state law and that the admissibility of Moreland’s
confession turned on whether the taint from the arrest was
sufficiently attenuated. In answering this determinative question
the court applied a test with four factors: (1) whether Miranda
warnings were given; (2) the temporal proximity of the arrest and
confession; (3) the presence of intervening circumstances; and (4)
the purpose and flagrancy of the official misconduct. Moreland v.
State, No. 69,223 (Tex. Crim. App. Jan. 13, 1993) (unpublished) at
5
14. The court held that two of those four factors “weigh[ed]
heavily in appellant’s favor.” Moreland v. State, slip op. at 14.
However, it then affirmed. Bandy’s alleged prediction, although
ultimately incorrect, was not very far wrong. Before ultimately
holding against Moreland on his complaint, the Court of Criminal
Appeals observed that in Bell v. State, 724 S.W.2d 780, 790 (Tex.
Crim. App. 1986), it had “concluded that the taint of an illegal
arrest was unattenuated with respect to appellant’s first
confession where, just as [in Moreland’s case], the first and
fourth . . . factors militated in favor of the State and the second
and third factors ‘militate[d] heavily against admission of [the]
confession.’” Moreland v. State, slip op. at 16. Thus, Moreland’s
appeal proved to be a close case, but not a winner. We conclude
that Bandy’s advice was not unreasonable, but in reaching this
judgment, we have assumed the truth of Moreland’s factual
assertions regarding his counsel’s advice. We turn now to that
assumption.
2
Magistrate Judge Robert W. Faulkner found that Moreland’s
claims about Bandy’s advice were not credible, and we agree. In a
careful opinion, Judge Faulkner pointed out that the claims at
issue here regarding Bandy’s advice were not made until after
Bandy’s death and that the claims are silent about Skelton, Bandy’s
co-counsel. Indeed, after Moreland’s conviction in October 1983,
the extent of Moreland’s ineffective assistance allegation in his
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pro se motion was that counsel had “failed to inform him of the
benefits of accepting an agreed plea bargain.”
A review of the record reveals that Moreland’s initial basis
for his ineffective assistance claim was without merit. At the
outset of the trial Moreland was examined on the record outside the
jury’s presence by counsel and the presiding state trial judge
regarding Moreland’s understanding of the tendered plea bargain.
The transcript records a detailed examination of Moreland’s
understanding, including the following exchange:
THE COURT: And the Board of Pardons and Paroles has
certain policies and procedures, and they change from
time to time?
DEFENDANT: Yes.
THE COURT: You understand that?
DEFENDANT: (Nods head up and down.)
THE COURT: What I’m telling you is, that nobody can tell
you for sure how long you will stay in prison if you take
the plea bargain; you may stay less.
DEFENDANT: Less than fifteen?
THE COURT: Then -- no, less than what Mr. Skelton said,
or more.
DEFENDANT: Okay. Yes, I understand that.
THE COURT: Knowing that, you still wish to turn down the
plea bargain?
DEFENDANT: Yes, sir.
IV
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Judging counsel’s performance without benefit of hindsight,
see Strickland, 466 U.S. at 689, we cannot say that Bandy’s advice,
even strongly put, to decline the bargain was objectively
unreasonable. The purchase of Bandy’s plan to become the district
attorney with its prospect of a less hostile climate turned on the
outcome of Moreland’s appeal -- and did not affect those chances.
Nor did it add much persuasive force to Bandy’s advice to reject
the plea. If the appeal had succeeded, the original plea bargain
or better would have been available -- whether or not Bandy was the
district attorney at the time. At least that is a reasonable
judgment. We reach this judgment even if we assume that Moreland’s
present factual assertions regarding the rejected plea bargain are
credible, and, as the trial judge below, we are not persuaded that
they are.
We decline to issue a COA on any remaining issues for
essentially the reasons stated by the courts below.
AFFIRMED.
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