Revised November 16, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20871
BOBBY JAMES MOORE,
Petitioner-Appellee,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
October 27, 1999
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
ON REHEARING
Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
The original panel opinion (presently available at 185 F.3d
244 (5th Cir. Aug. 10, 1999)) is hereby withdrawn and replaced with
the following.
The Director of the Texas Department of Criminal Justice,
Institutional Division appeals from the district court’s final
judgment granting Bobby James Moore’s petition for habeas corpus
relief from his capital sentence and remanding to the state court
for a new punishment hearing.1 We affirm, as modified by this
opinion, and remand with instructions.
I.
The district court’s decision in this matter left the state
trial court’s judgment of guilt intact, but granted relief as to
punishment only by reversing that portion of the state trial
court’s judgment imposing the death penalty and remanding to the
state trial court for a new punishment hearing. This is the second
time we have been asked to review that decision. Our first
decision followed this Circuit’s then-existing precedent by
applying newly- enacted provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) to Moore’s petition,
which was pending on the April 24, 1996 effective date of AEDPA.
See Moore v. Johnson, 101 F.3d 1069 (5th Cir. 1996), vacated, 117
S. Ct. 2504 (1997). In that decision, we concluded that the
district court failed to afford the state habeas court’s fact
findings the deference required by AEDPA’s stringent standard of
review. See Moore, 101 F.3d at 1076; see also 28 U.S.C. § 2254(d)
1
The Director has custody of appellee Bobby James Moore
pursuant to a judgment and sentence of death entered by the 185th
Judicial District Court of Harris County, Texas.
2
(providing that the Court may not grant habeas relief with respect
to any claim that was adjudicated on the merits in a state court
proceeding unless that adjudication “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").
Shortly after our decision, the Supreme Court decided Lindh v.
Murphy, 117 S. Ct. 2059 (1997). Lindh holds that the provisions of
AEDPA relevant to this appeal do not apply to habeas corpus
petitions that, like Moore’s, were pending as of the April 24, 1996
effective date of AEDPA. Lindh, 117 S. Ct. at 2068. Lindh
overrules this Circuit’s pre-Lindh precedent, which held that AEDPA
applied to habeas claims pending at the time AEDPA became
effective. See, e.g., Drinkard v. Johnson, 97 F.3d 751 (5th Cir.
1996); see also United States v. Carter, 117 F.3d 262 (5th
Cir. 1997) (recognizing that Lindh overruled Drinkard and its
progeny).
After our initial decision, Moore petitioned for and the
Supreme Court granted a writ of certiorari, remanding the case to
our Court for reconsideration in light of Lindh and the more
lenient standards of review applicable under pre-AEDPA law.2 See
2
Moore v. Texas, 117 S. Ct. 2504 (1997). Although Lindh itself
was a non-capital case, its holding extends to all cases
potentially controlled by Chapter 153 of AEDPA, which is codified
at 28 U.S.C. §§ 2241-2255. See Lindh, 117 S. Ct. at 2068 (“the new
3
28 U.S.C. § 2254(d) (1994) (providing that state habeas court fact
findings are entitled to a presumption of correctness, but
permitting a federal court to reject state habeas court fact
findings that are “not fairly supported by the record”). Having
concluded a thorough re-examination of the record, we find that the
district court’s judgment is correct when examined in light of the
pre-AEDPA law applied therein. We therefore affirm the judgment of
the district court as modified by this opinion.
II.
The single issue before the Court for resolution is whether
provisions of Chapter 153 generally apply only to cases filed after
the Act became effective”). AEDPA contains a separate chapter,
Chapter 154, which is potentially applicable to habeas cases that
were pending on AEDPA’s effective date. See 28 U.S.C. §§ 2261-
2266. Chapter 154 provides for an expedited disposition of capital
habeas claims that is favorable to the state. Application of the
more favorable provisions is conditioned, however, upon state
compliance with statutory requirements intended to ensure that the
habeas petitioner is afforded adequate counsel. Texas has not
complied with the dictates of § 2261. Indeed, none of the three
states within the geographic province of this Court have opted to
comply with § 2261. For that reason, this Court has responded to
Lindh by applying pre-AEDPA law in those capital cases that were
pending at the time AEDPA became effective. See, e.g., Castillo v.
Johnson, 141 F.3d 218, 220 n.1 (5th Cir.), cert. denied, 119 S. Ct.
28 (1998); Cannon v. Johnson, 134 F.3d 683, 685 (5th Cir. 1998); De
La Cruz v. Johnson, 134 F.3d 299, 301 (5th Cir.), cert. denied, 118
S. Ct. 2352 (1998); Hogue v. Johnson, 131 F.3d 466, 469 n.1 (5th
Cir. 1997), cert. denied, 118 S. Ct. 1297 (1998); Green v. Johnson,
116 F.3d 1115, 1119 (5th Cir. 1997). Obviously, should the State
of Texas opt to comply with the statutory dictates of chapter 154,
this Court would be obliged to apply those provisions, without
regard to whether the petition for habeas corpus relief was filed
before the effective date of AEDPA.
4
Moore was deprived of his Sixth Amendment right to effective
assistance of trial counsel during his 1980 capital trial. Moore
claims that trial counsel were constitutionally deficient in their
pretrial investigation of and presentation of a false alibi
defense, and in their failure to investigate, develop, or present
mitigating evidence during the guilt or punishment phase of his
capital trial. Moore’s ineffective assistance of counsel claim is
governed by the familiar Strickland standard:
First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. Unless a defendant can make both
showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the
adversary process that renders the result
unreliable.
Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984).
“Judicial scrutiny of counsel's performance must be highly
deferential.” Id. at 2065. We therefore indulge a strong
presumption that strategic or tactical decisions made after an
adequate investigation fall within the wide range of objectively
reasonable professional assistance. Id. at 2065-66. Such
decisions are “virtually unchallengeable” and cannot be made the
basis of relief on a Sixth Amendment claim absent a showing that
5
the decision was unreasonable as a matter of law. See id. at 2066;
Loyd v. Whitley, 977 F.2d 149, 157 (5th Cir. 1992); Wilson v.
Butler, 813 F.2d 664, 672 (5th Cir. 1987). Strategic choices made
after less than complete investigation are reasonable only to the
extent that reasonable professional judgments support the
limitations on investigation. Strickland, 104 S. Ct. at 2066;
Whitley, 977 F.2d at 157-58.
The district court concluded that Moore’s counsel rendered
constitutionally deficient performance at both the guilt and
punishment phases of his trial, but found prejudice, and therefore
granted relief, as to Moore’s capital sentence only. The district
court’s decision is premised upon subsidiary findings that trial
counsel were deficient in the two major areas identified by Moore.
First, the district court found that counsel, in their presentation
of an illogical and incredible alibi defense: (1) conducted an
inadequate pretrial investigation, (2) ignored or excluded evidence
that the offense was accidental, rather than intentional, (3)
suborned perjury, and (4) elicited unduly damaging testimony
against Moore on cross-examination of a state witness. Second, the
district court found that counsel completely failed to investigate,
develop, or offer available mitigating evidence, including
previously redacted and exculpatory portions of Moore’s purported
confession, during the punishment phase of Moore’s capital trial.
6
On appeal, the Director maintains that the district court
impermissibly substituted its own de novo view of the state court
record for binding state habeas court fact findings, thus failing
to afford those fact findings the presumption of correctness
required by the pre-AEDPA version of 28 U.S.C. § 2254(d). With
respect to deficient performance, the Director maintains that both
the decision to pursue an alibi defense and the decision not to
present mitigating evidence were strategic decisions that are
entitled to deference under Strickland. With respect to prejudice,
the Director maintains that Moore cannot establish prejudice during
the punishment phase of his trial on the basis of deficient
performance during the guilt phase of his trial. Thus, the
Director maintains that deficient performance arising from
presentation of the alibi defense may not be imputed to the
punishment phase of Moore’s trial. The Director further argues
that admission of the mitigating evidence proposed by Moore would
not have affected the jury’s decision to impose the death penalty.
Finally, the Director argues that the district court exceeded its
authority by remanding with instructions that the state court
conduct a new punishment hearing.
Moore responds that the district court complied with
28 U.S.C. § 2254(d) by affording any relevant state habeas court
fact findings the deference justified by the record in this case.
See 28 U.S.C. § 2254(d)(8) (1994) (providing that the federal court
7
may, after a review of the relevant record, reject state habeas
court fact findings that are “not fairly supported by the record”).
Moore further responds that the record reflects counsel did not
make fully informed strategic decisions with regard to the
presentation of the alibi defense or the failure to present
mitigating evidence. To the contrary, Moore responds that counsel
failed to properly investigate the controlling facts and law, both
as to guilt and as to punishment, with the effect that available
and availing evidence was never developed. Moreover, Moore
responds that counsel’s decision to exclude the potentially
exculpatory evidence that was developed was both professionally
unreasonable and based upon an erroneous understanding of the
controlling legal principles. Thus, Moore maintains that there are
no reasonable strategic decisions entitled to this Court’s
deference under Strickland. With respect to prejudice, Moore
maintains that there is a reasonable probability that, but for
counsel’s deficient performance at both the guilt and punishment
phases of his capital trial, the jury would have reached a
different decision with respect to the appropriate sentence in his
case. Accordingly, Moore argues in support of the district court’s
determinations that trial counsel were ineffective in their
pretrial investigation and presentation of the alibi defense, and
in their failure to investigate, develop or present mitigating
evidence during the punishment phase of Moore’s trial.
8
Significantly, Moore has not cross-appealed. We are therefore
limited to a review of the district court’s decision that there is
a reasonable probability that but for counsel’s deficient
performance at either the guilt phase or the punishment phase or
both, Moore would not have been sentenced to death. Given the
absence of a cross-appeal, the district court’s decision that Moore
failed to demonstrate prejudice as to the guilt phase of his
capital trial is not before this Court for review, and we are not
at liberty to expand upon the relief granted by the district court.
See United States v. Coscarelli, 149 F.3d 342 (5th Cir. 1998) (en
banc).
Having reviewed the record and the arguments of the parties we
affirm, with some modifications, the district court’s determination
that counsel’s performance was deficient during the guilt phase of
Moore’s trial. We likewise affirm the district court’s
determination that counsel’s failure to investigate, develop or
present mitigating evidence including exculpatory evidence that the
offense was accidental, during either phase of Moore’s capital
trial, constituted constitutionally deficient performance that
prejudiced the outcome of the punishment phase of Moore’s trial.
Accordingly, we affirm the district court’s grant of relief.
We agree, however, with the Director that the district court
exceeded its authority by ordering the state court of conviction to
conduct a new punishment hearing. The decision whether to pursue
9
a new punishment hearing pursuant to Texas Code of Criminal
Procedure article 44.29(c) is vested with the state court of
conviction. We therefore remand for entry of an order granting the
writ of habeas corpus, but permitting the state court of conviction
a reasonable time in which to cure the constitutional error by
imposing a sentence of less than death or conducting a new
punishment hearing as authorized by Texas state law.
III.
Moore’s case has been pending, in one court or another, for
almost twenty years. An extensive review of the various
proceedings, including the evidence adduced at Moore’s trial, is
essential to an understanding of our disposition.
A. The Offense
Moore was convicted of capital murder for the death of Jim
McCarble, which was committed in the course of a bungled robbery of
the Birdsall Super Market in Houston, Texas on April 25, 1980. On
that day, McCarble and his fellow employee Edna Scott were working
in the courtesy booth at the front of the store. Arthur Moreno and
Debra Salazar were checking groceries at nearby registers. Three
men, later identified as Willie “Rick” Koonce, Everett Anthony
Pradia, and petitioner Moore, entered the store. Koonce, who was
identified in pretrial line-ups and at trial by several witnesses,
entered the courtesy booth with a white cloth bank bag and ordered
McCarble to “[f]ill it up, man. You being robbed.” McCarble then
10
jumped to the left of Scott, which allowed Scott to see a second
man, later identified as Moore, standing outside the courtesy booth
and pointing a shotgun in her direction. The man holding the
shotgun was wearing a wig and sunglasses, which together with the
shotgun, obscured part of his face. The shotgun itself was
partially wrapped in two plastic bags. Neither Scott nor Moreno
nor Salazar was able to positively identify Moore as the man
holding the shotgun at either the pretrial line-up or at trial.
Scott testified that the man with the shotgun must have been
significantly taller than herself because she was able to look
directly into his eyes, notwithstanding the fact that she was
standing on the floor of the elevated courtesy booth. At trial, it
was demonstrated that Moore was approximately the same height, if
not slightly shorter, than Scott. Salazar’s testimony on the issue
of identity was the strongest. Salazar initially testified that
she was certain that Moore was the man pointing the shotgun into
the courtesy booth. But Salazar later qualified her testimony by
stating that she was not certain and could be mistaken. Leonard
Goldfield, the manager of the Birdsall Super Market, testified that
he only saw two men whom he suspected of participating in the
robbery. Goldfield positively identified those two men as Koonce
and Pradia.
When Scott observed the man with the shotgun, she shouted to
the assistant manager that there was a robbery in progress and then
dropped to the floor of the courtesy booth. Pradia, sensing that
11
the robbery was going wrong, fled the store. Moreno and Salazar
testified that they observed the man with the wig rise up on his
toes and aim the shotgun down into the courtesy booth. Scott
testified that she heard the shotgun discharge and observed
McCarble, who sustained a fatal wound to the head, fall to the
floor beside her.
Koonce and Moore fled the store. On the way to the car, Moore
dropped one of the plastic bags covering the gun and the wig he was
wearing. Store customer Wulfrido Cazares observed the three
robbers get into a red and white car and made a mental note of the
license plate number. Cazares had the letters memorized, but had
two alternative configurations for the numerical portion of the
license plate. When those numbers were later given to the police,
one of the numbers was registered to a red and white Mercury Cougar
belonging to Koonce.
B. The Investigation
The plastic bag and wig dropped by the shooter were later
recovered from outside the store by police. Police also recovered
a second plastic bag that was left at the front of the courtesy
booth. The bag found in front of the courtesy booth contained a
second wig. One of the bags was found to contain a sales receipt
issued to Betty Nolan. The receipt was traced and police
interviewed Nolan. Nolan told the police that petitioner Moore
sometimes lived at her house, sharing a room with her son Michael
Pittman. Nolan told one of the officers that Moore had been at
12
Nolan’s house on the day of the offense. Moore and his sister both
testified that Moore moved out of Nolan’s house several months
before the offense because he had an argument with Pittman. Moore
and his sister also testified that he could not have returned to
the house because Nolan changed the locks after the argument
between Moore and Pittman.
Police searched Nolan’s home and recovered a shotgun between
the mattress and box springs of Moore’s bed. A ballistics expert
testified at trial that it is impossible to determine whether a
particular shotgun was used in an offense by examining the
projectiles, or shot, from the shotgun. Thus, the expert was
unable to determine, from the size 8 shot recovered from the floor
of the courtesy booth and from McCarble’s head, whether the shotgun
recovered from Nolan’s house was the weapon used to kill McCarble.
Several witnesses testified, however, that the shotgun recovered
from Nolan’s home was similar to or looked like the weapon that was
aimed into the courtesy booth during the robbery. The ballistics
expert also testified that one of the shells found with the shotgun
contained size 8 shot and that a single expended shell found with
the shotgun had indeed been fired from the shotgun recovered from
Nolan’s house.
Police were unable to find suitable fingerprints for
comparison to Moore’s on either the shotgun or the plastic bags.
Moore testified that Pittman owned the shotgun, which had been
stolen from one of Pittman’s former employers. The state did not
13
offer any evidence relating to whether the gun was registered or
whom the gun was registered to. Moore also testified that,
according to Pradia, Pittman was the third man who held the shotgun
during the robbery. Moore testified that Pittman had four prior
robbery convictions. Evidence offered at trial established that
Pittman was then incarcerated pursuant to a judgment of criminal
conviction for burglary of a building.
Police also discovered that Nolan had several wigs and wig
stands in her home. Photographs were made of six wig stands. Of
the six stands, only four had wigs. Thus, two wigs, the number
found at the crime scene, were missing. The two wigs secured at
the crime scene were tested for hair samples. Although some small
pieces of hair were obtained, the samples were too small for any
meaningful comparison to exemplar hairs from Moore’s head.
Meanwhile, police arrested Koonce based upon the store
customer’s description of the robbers’ car and license plate
number. Koonce gave a confession implicating Pradia and Moore.
Pradia’s billfold was found in Koonce’s car. When Pradia heard
police were looking for him, he turned himself in. Pradia also
gave a confession, and like Koonce, Pradia implicated Moore in the
robbery.
14
C. Moore’s Arrest and Interrogation
Based upon information received from Koonce and Pradia and the
evidence obtained from Nolan’s house, police obtained an arrest
warrant for Moore. Around the same time, police received a
telephone call from citizen Bobby White, who was an acquaintance of
Moore’s father, Ernest “Junior” Moore. White told police that he
had accompanied Junior Moore and petitioner Bobby Moore to Moore’s
grandmother’s house in Coushatta, Louisiana on the morning of
Tuesday, April 29, 1980, four days after the robbery and around the
time of Koonce’s and Pradia’s arrest. White told police that Moore
took luggage and that he remained in Coushatta when Junior Moore
and Bobby White returned to Houston on Wednesday, April 30, 1980.
Moore was still in Coushatta when Bobby White and Junior Moore made
a second trip to the grandmother’s house on May 1 and 2. When
White returned to Houston from the second trip, on Friday, May 2,
1980, he called the Houston police and told them that Bobby Moore
was in Coushatta at his grandmother’s house.
Houston police contacted the Louisiana State Police, who
arrested Moore at his grandmother’s house. On May 5, 1980, Houston
Police Officers D. W. Autrey and Larry Ott, who had been
investigating the robbery, traveled to Louisiana to bring Moore
back to Houston. Once the trio returned to Houston, Moore was
interrogated about his role in the crime. The Director claims that
this interrogation resulted in Moore’s confession, which was
introduced at trial. Moore claims that, although he was beaten to
15
induce his cooperation, he never signed a written statement. Moore
introduced a booking photo of himself taken three or four days
after the interrogation that reflects some swelling on the left
side of his face and head. Photos taken of a pretrial line-up done
on May 7, 1980, however, do not show any appreciable distortion in
Moore’s features.
D. The Trial
Moore’s case was called to trial in July 1980. Moore was
defended by Alfred J. Bonner, who was retained and paid by Moore’s
family, and C. C. Devine. Early in the trial, the state attempted
to introduce Moore’s confession through Officer Ott. Moore’s
counsel objected and the jury was removed from the courtroom while
the trial court considered whether Moore’s confession would be
admitted into evidence.
Moore’s purported confession recites that Koonce, Pradia, and
Moore were riding around in Koonce’s car looking for some place to
rob. After casing the store, the three men decided that Koonce
would enter the courtesy booth, that Pradia would remove money from
the registers, and that Moore was to guard the courtesy booth and
the front door with his shotgun. The confession recites that Moore
wore a wig and covered the shotgun with two plastic shopping bags
before entering the store. When Scott started shouting that there
was a robbery in progress, Moore shouted to Koonce that it was time
16
to leave. When Koonce did not respond, Moore approached the front
of the courtesy booth. About the actual shooting, the confession
states:
The old man in the booth leaned over to open a
drawer in the booth. I started trying to push him
back with the barrel of the shotgun. I was leaning
over the counter of the booth and I suddenly fell
backwards and the butt of the gun hit my arm and
the gun went off. I didn’t learn until later that
the man had been shot. I seen it on T.V. The man
must have been standing back up as I fell backwards
and the gun went off.
After the robbery, the confession states that the three men ran out
of the store and drove to Betty Nolan’s house. Moore stayed at
Nolan’s and Pradia and Koonce left. The confession also states:
I swear I was not trying to kill the old man and
the whole thing was an accident.
Officer Ott stated on voir dire by the state that both the
inculpatory portions of the confession, demonstrating Moore’s
involvement, and the exculpatory portions of the confession,
tending to establish that the shooting was an accident, were
verbatim recitals of Moore’s voluntary statements concerning his
participation in the crime. Officer Ott testified that he typed
Moore’s confession, which was executed on blue paper.
Moore testified on voir dire that he had refused to sign any
statement or confession. Moore further testified that his refusal
so angered the interrogating officers that he was struck repeatedly
on the left side of his face. Moore conceded that he eventually
signed two pieces of blank white paper, but only because the
17
officers told him he would be released if he did so. Moore
testified that he had not signed anything printed on blue paper and
that the signature on the blue confession being offered by the
state was not his own.
Moore’s counsel argued that the confession was inadmissible,
either because it was not signed by Moore or because it was
involuntarily given. The trial court denied Moore’s motion to
suppress and the confession was deemed admissible. Before the jury
was brought back in, however, the state informed the trial court
that it wished to exclude the exculpatory portions of the
confession quoted above, which tended to establish that the
shooting was accidental. Moore’s defense counsel stated that they
had not reached a decision with respect to whether they would be
offering the remainder of the confession. Moore’s counsel secured
a ruling from the trial court prohibiting the state from making any
reference to the portions of the confession that were being omitted
until that decision could be made. In response, the state agreed
to merely cover the exculpatory language when entering the
inculpatory portions of the confession, thus preserving the
language for later use by the defense. Once that agreement was
reached, however, Moore’s counsel inexplicably changed course,
stating that they would not use the exculpatory portions of the
confession and that those portions should be completely “cut out”
of the exhibit given to the jury. As a result, the exculpatory
passages in the confession were “whited out,” and the confession
18
presented to the jury contained no mention of the actual shooting.
Rather, the confession placed Moore at the crime scene, holding a
shotgun pointed in McCarble’s direction, and then, following a
conspicuously large blank space where the exculpatory text was
deleted, the confession described how the three men fled the store.
Defense counsel’s failure to offer the exculpatory portions of
Moore’s confession, at either the guilt phase or the punishment
phase of Moore’s trial, forms a significant part of Moore’s claim
that he received ineffective assistance of counsel.
In addition to the evidence described above, the state also
offered Pradia’s testimony against Moore in its case-in-chief.
Pradia testified pursuant to a plea bargain. Pradia testified that
the three men met at Betty Nolan’s house on the morning of April
25, 1980, and then rode around in Koonce’s car deciding upon a
store to rob. Pradia testified that he cased the store before the
robbery by going in to see who was working and whether the robbery
was feasible. Pradia’s testimony was corroborated by the testimony
of store employees who testified that they observed Pradia in the
store earlier in the day. Pradia’s testimony was also consistent
with many details contained in the inculpatory portions of Moore’s
confession which were submitted to the jury. Pradia told the jury
that when Koonce and Moore joined him in the car after the robbery,
Moore told Pradia that Moore shot someone inside the store. Pradia
testified that he did not believe Moore until he saw the news
coverage about McCarble’s death.
19
Moore’s counsel pursued an alibi defense. Moore claims in
this habeas action that his trial counsel knew that Moore’s
confession was true; that is, that Moore participated in the
robbery and that he unintentionally shot Jim McCarble. Moore
maintains that counsel nonetheless created a false alibi defense,
and then pressured Moore and his sisters Clara Jean Baker and
Colleen McNiese to testify falsely that Moore was in Coushatta,
Louisiana at his grandmother’s house on April 25, 1980, the date of
the offense. Clara Jean Baker and petitioner Moore eventually
testified before the jury in support of the fabricated defense.
Without regard to whether counsel knowingly suborned perjured
testimony, as Moore alleges, the presentation of the alibi defense
can only be described as pathetically weak. Moore’s sister, Baker,
initially testified that she drove Moore to Coushatta, Louisiana on
April 14, 1980 and picked him up the next Monday, April 21, 1980.
The problem with that testimony, of course, is that it did not
place Moore in Louisiana on the offense date, April 25, 1980.
Baker then changed her testimony to state that she drove Moore to
Louisiana on Monday, April 21, and did not pick him up until
Monday, April 28, 1980. Baker testified that Moore went to
Louisiana to care for his grandmother because Moore’s grandmother
was ill. Baker testified that she went to get him the next week
because he was bored. Notwithstanding Moore’s boredom in
Louisiana, Baker testified that she was aware Moore returned to
Louisiana the following morning, Tuesday, April 29, 1980, with his
20
father, Junior Moore, and Bobby White.
Moore also testified in support of the false alibi, telling
the jury that he was in Louisiana on the date of the alleged
offense. But on cross-examination, Moore testified that he was
certain he went to Louisiana on Monday, April 21, 1980, and that he
stayed there only four or five days. When confronted with the fact
that he could have therefore been back on April 25, the day of the
offense, Moore backtracked and said he returned with his sister
Baker on either April 26 or April 27. Thus, Moore’s own testimony
conflicted with that of Baker’s with respect to when he returned to
Houston. That inconsistency was compounded by Moore’s further
testimony that he returned to Louisiana with his father and Bobby
White on the same day he returned to Houston, rather than the
following day, as Baker had testified. Moore also repeated in
substance his voir dire testimony concerning the circumstances of
his arrest and interrogation, and his denial of the written
confession. Defense counsel attempted to bolster the floundering
alibi defense with the testimony of Houston Police Officer J. H.
Binford, who verified that neither Edna Scott nor Debra Salazar nor
Arthur Moreno was able to identify Moore in a pretrial line-up as
a person who participated in the robbery.
Not surprisingly, the state responded to Moore’s alibi defense
on rebuttal with evidence relating to extraneous conduct and
offenses involving similar conduct. See, e.g., Hughes v. State,
21
962 S.W.2d 89, 92 (Tex. App.--Houston [1st Dist.] 1997, pet. ref’d)
(subject to certain exceptions, evidence of similar extraneous
conduct may be admissible on the issue of identity once a defendant
raises an alibi defense). The state first used its cross-
examination of Moore to catalogue Moore’s prior convictions, three
for burglary and one for aggravated robbery. The state also called
three witnesses to two separate robberies of small grocery stores
in the Houston area. Those robberies occurred on April 11 and
April 18, 1980, the two Fridays preceding the Friday, April 25,
1980 robbery of the Birdsall Super Market. Store employees
positively identified Moore as being one of the perpetrators at
both robberies. As to the first robbery, a store employee
testified that Moore and two other black men entered the store, and
that Moore stood at the front of the courtesy booth holding a
shotgun. As to the second robbery, a store employee and a store
customer testified that Moore and another black man entered the
store, and that Moore held a shotgun during the robbery. This very
damaging testimony became admissible only because Moore pursued an
alibi defense. There is no dispute that the evidence would not
have been admissible had Moore pursued an accidental shooting
defense instead. The state also called a Louisiana State Police
Officer who knew Moore’s grandmother very well and who arrested
Moore at his grandmother’s house. That officer testified that,
contrary to Moore’s testimony and that of his sister, Moore’s
grandmother was and had been in good health. The officer also
22
testified that he had not seen Moore at the grandmother’s house or
in the vicinity of the small town of Coushatta before the date of
arrest.
Closing arguments followed. The state argued that Moore’s
confession was voluntary. The state also argued that Moore’s
confession was accurate, at least as to those portions submitted to
the jury. Contrary to its pre-submission agreement, the state
referred to the obviously omitted portions of the confession,
stating that the confession was edited because the state did not
want to vouch for exculpatory language Moore included in his
confession. Notwithstanding that position, the state argued that
Officer Ott would not have included exculpatory language in a
fraudulently prepared confession. Thus, the state relied upon the
existence of the undisclosed and excised exculpatory language to
support its argument that the confession was voluntary. The state
did not, however, clarify that the excluded language supported an
accidental shooting theory. To the contrary, the state tried to
negate any such impression by emphasizing that there had been no
contention in the case that the shooting was accidental.
Defense counsel Devine and Bonner made separate arguments,
which were in part contradictory. For example, Devine criticized
the police and their investigation while Bonner said he had no
complaint against the police. Devine’s argument was consistent
with Moore’s alibi defense. But Bonner essentially abandoned the
alibi defense, stating that it made no difference whether Moore’s
23
sister testified truthfully or whether Moore’s grandmother was in
fact in ill health. Bonner characterized the evidence relating to
Moore’s alibi as nothing more than a series of “rabbit trails.”
Bonner placed his focus instead upon the alleged forgery of Moore’s
confession, and upon whether the state’s other evidence was strong
enough to place Moore at the Birdsall Super Market on April 25,
1980.
The state’s rebuttal argument relied heavily upon the pitiful
failure of the alibi defense. The state also emphasized and made
use of defense counsel’s apparent inability to agree, and their
divergent positions in closing argument to the jury.
During deliberations, the jury sent out a note requesting that
they be provided with “[b]oth confessions of the Defendant.”
Notwithstanding that request and the available argument that the
state opened the door to submission of Moore’s unredacted
confession by relying upon redacted portions in its closing
argument, the state and defense counsel submitted, by agreement,
only the redacted confession. Three hours later, the jury returned
a verdict of guilty.
The punishment phase of Moore’s trial began immediately.
Under Texas law, Moore’s jury was required to return affirmative
answers to each of two special issues before the death penalty
could be imposed. Those issues were:
(1) whether the conduct of the defendant that
caused the death of the deceased was committed
deliberately and with reasonable expectation that
24
the death of the deceased or another would result;
and
(2) whether there is a probability that the
defendant would commit criminal acts of violence
that would constitute a continuing threat to
society.
The state began by tendering all of the state’s guilt phase
evidence into the punishment phase record. The state then offered
Moore’s penitentiary package, which contained the details of
Moore’s prior criminal record. The state was permitted to explain
the penitentiary package to the jury, and the jury was again
instructed that Moore had three prior burglary convictions and one
prior aggravated robbery offense. Moore’s counsel did not likewise
offer any explanatory argument to the jury on the penitentiary
package, notwithstanding that: (1) Moore was sentenced for each of
the four offenses on the same day; (2) Moore began serving his
sentence for each of the four convictions on the same day; and (3)
Moore was released from serving the balance of the four
concurrently imposed sentences after only two years, a factor
clearly relevant on the issue of future dangerousness. To the
contrary, Moore’s counsel simply stipulated that the documents
comprising the penitentiary package were accurate. Besides failing
to respond to the state’s evidence, defense counsel offered no
evidence on the issue of punishment. The evidentiary portion of
the punishment phase of Moore’s capital punishment trial concluded
less than ten minutes after it had begun.
Counsel then made closing arguments to the jury. Once again,
25
defense counsel Devine and Bonner made separate and somewhat
contradictory arguments. Devine argued that the shooting was
accidental and unintentional. Devine supported that position with
argument relating to the nature and the location of McCarble’s
wound, the small amount of pressure required to discharge a
firearm, and other circumstances of the offense. Devine did not,
however, support that punishment phase argument with the best
available evidence that the shooting was indeed accidental --
Moore’s unredacted confession -- even though the record is clear
that an unredacted version of the confession was available and
could have been offered during the punishment phase of Moore’s
trial. Devine also argued that Moore would not present a
continuing threat of violence in the prison community. Devine
failed, however, to support that argument by focusing the jury upon
evidence in the penitentiary package that Moore was released early
from his only prior prison sentence.
Bonner encouraged the jury not to make too much from defense
counsel’s apparent disagreement. Bonner seemed to deride Devine’s
accidental shooting theory, stating that Devine only argued the
theory for the purpose of ensuring that defense counsel were not
lax in their duty. Contrary to both Moore’s confession and the
jury’s verdict, Bonner then attempted to focus the jury on the
defensive theory that the state’s evidence failed to show Moore was
at the scene of the crime. Neither Devine nor Bonner argued the
alibi defense that featured so prominently at the guilt phase of
26
trial. Together, Devine’s and Bonner’s arguments take up less than
fifteen pages of the punishment phase transcript.
The state closed by highlighting defense counsel’s failure to
try and explain away Moore’s prior offenses, defense counsel’s
failure to call character witnesses, and the brevity of defense
counsel’s argument on the issue of punishment. The state relied
upon defense counsel’s failure to offer these types of evidence as
support for the proposition that no such evidence existed. After
deliberation, the jury returned affirmative answers to the special
issues as required under Texas law for imposition of the death
penalty.
One week later, Moore was sentenced to death. At sentencing,
counsel Devine expressed the desire to withdraw from his
representation of Moore. Devine died shortly thereafter. Bonner
expressed the desire to continue representing Moore on appeal,
provided the trial court would provide a record for that purpose.
E. Direct Appeal
Moore’s case was automatically appealed to the state’s highest
criminal court, the Texas Court of Criminal Appeals. In the two
and one-half year period between December 1980 and June 1983,
Bonner filed at least twelve motions seeking an extension of the
filing deadline for either Moore’s appellate brief or the statement
of facts. During that period, Bonner routinely missed filing
deadlines, failing to request an extension of time until he
received notice that the filing deadline had passed. Between
27
January and April 1983, Moore sent letters and pro se motions to
the Texas Court of Criminal Appeals complaining that Bonner refused
to communicate with him and requesting permission to file a pro se
brief on appeal. Moore’s pro se motions were denied. In May 1983,
Bonner requested a “final” extension of the brief filing deadline
until July 15, 1983. Bonner missed this deadline as well, and did
not file a brief on Moore’s behalf until July 27, 1983, three years
after Moore’s capital trial. The state filed a timely response
brief in August 1983.
Meanwhile, Moore continued to send correspondence to the Texas
Court of Criminal Appeals objecting to Bonner’s representation. In
October 1983, the Texas Court of Criminal Appeals ordered the trial
court to conduct a hearing to determine whether Moore was making an
informed decision to proceed pro se on appeal. In December 1983,
the trial court conducted a hearing to determine whether Bonner
should continue as Moore’s counsel. Moore rejected Bonner’s
representation and requested that another lawyer be appointed.
Accordingly, attorney John Ward was appointed to replace Bonner as
Moore’s counsel on appeal.
Between January 1984 and September 1984, counsel Ward filed
four additional motions for an extension of the brief filing
deadline. The Texas Court of Criminal Appeals granted those
motions. The final extension made the brief due on October 3,
1984. Ward missed the October 3 filing deadline. In December
1984, the Texas Court of Criminal Appeals issued a show cause order
28
instructing Ward to file the brief before January 7, 1985, or to
show cause why he should not be held in contempt of court. Ward
eventually filed the brief on the January 7, 1985 deadline. Ward’s
brief argued, inter alia, that Moore’s trial counsel rendered
ineffective assistance because they failed to investigate the
availability of mitigating background evidence and failed to
present available mitigating evidence at the punishment phase of
Moore’s capital trial.
During the time period for the state’s response, Moore filed
a pro se brief on his own behalf. Moore’s pro se brief argued,
inter alia, that trial counsel were ineffective for failing to call
additional alibi witnesses, such as his grandmother and his father.
In October 1985, more than five years after Moore’s capital
trial, the Texas Court of Criminal Appeals issued an opinion
affirming Moore’s conviction and death sentence. See Moore v.
State, 700 S.W.2d 193 (Tex. Crim. App. 1985). Noting the abundance
of briefs on appeal, the Texas Court of Criminal Appeals purported
to reach all of the arguments presented in the various briefs filed
by Bonner and Ward, and by Moore acting pro se. While the Court
made certain rulings with respect to Ward’s ineffective assistance
of counsel argument, the Texas Court of Criminal Appeals expressly
limited those holdings by noting that the record on direct appeal
is generally inadequately developed to reflect trial counsel’s
failings. See Moore, 700 S.W.2d at 204-05. Without precluding the
29
possibility that Moore’s ineffective assistance of counsel claims
might be beneficially developed in further proceedings, the Texas
Court of Criminal Appeals set forth rulings expressly “limited to
the record on appeal that is before us.” Id. at 205. Moore’s
execution date was thereafter set for February 26, 1986. Moore’s
petition to the Supreme Court for writ of certiorari and his
application for stay of execution were denied on February 21, 1986.
Moore v. Texas, 106 S. Ct. 1167 (1986).
F. Habeas Corpus Proceedings
On February 24, 1986, Moore, represented by new counsel, filed
an application for writ of habeas corpus and a motion for stay of
execution in state court. The state trial court denied both
Moore’s application for habeas corpus and Moore’s motion for a stay
of the February 26 execution date without a hearing. The Texas
Court of Criminal Appeals summarily affirmed that decision without
opinion.
On February 25, 1986, Moore filed a petition for habeas corpus
relief and a motion for stay of execution in federal district
court. The district court granted Moore a stay of execution. In
June 1987, the district court determined that Moore’s federal
habeas petition raised certain factual and legal theories that had
not been presented to the state courts. Accordingly, the district
court dismissed Moore’s first federal habeas petition, without
prejudice to refiling upon exhaustion.
30
In April 1992, Moore, now represented by three new lawyers,
filed his second application for state habeas relief. Moore’s
April 1992 petition alleged, inter alia, that Moore’s trial
counsel: (1) suborned perjury in the presentation of Moore’s alibi
defense; (2) failed to conduct an adequate pretrial investigation
by interviewing Koonce and Pradia and state witnesses to extraneous
conduct; (3) excluded exculpatory evidence that the shooting was
accidental on the basis of their erroneous belief that such
evidence was per se inconsistent with Moore’s alibi defense; (4)
unduly prejudiced Moore by eliciting damaging testimony on
essential elements of the offense that was not otherwise introduced
against Moore in their cross-examination of Officer Autrey; and (5)
failed to investigate, develop, or present available mitigating
evidence that would have swayed the jury’s decision on the special
issues in Moore’s favor.
On April 23, 1993, the state habeas court conducted an
evidentiary hearing on Moore’s various ineffective assistance of
counsel claims. The state habeas court heard evidence from Bonner,
Moore, Moore’s sisters Clara Jean Baker and Colleen McNiese, and
other witnesses concerning trial counsel’s conduct. The state
habeas court also heard substantial evidence from an expert witness
and Moore’s family members concerning Moore’s tortured family
background and his impaired mental functioning. After the
evidentiary hearing, the state habeas court entered findings of
fact and conclusions of law in support of its determination that
31
Moore did not receive ineffective assistance of counsel at his 1980
trial. On October 4, 1993, the Texas Court of Criminal Appeals
affirmed the state habeas court’s denial of habeas corpus relief.
On October 12, 1993, Moore filed his second federal petition
for federal habeas relief, raising the same claims that were
presented in the second state habeas application. On October 21,
1993, the district court denied Moore’s request for an evidentiary
hearing, reserving the right to revisit the issue should a hearing
become necessary. On September 29, 1995, the district court
entered an order holding that Moore’s trial counsel rendered
deficient performance at both the guilt and punishment phases of
Moore’s trial, and that counsel’s deficient performance prejudiced
Moore at the punishment phase of his trial. Accordingly, the
district court reversed the state court judgment against Moore as
to punishment only, and remanded to the state trial court for a new
punishment hearing. The Director appeals from that decision.
IV.
In making its determination that Moore received ineffective
assistance of counsel, the district court adopted some, but
considered and rejected other, factual determinations made by the
state habeas court. The Director contends that the district court
failed to afford these state habeas court fact findings the
deference required by the pre-AEDPA version of 28 U.S.C. § 2254(d).
The Director first argues that a federal district court may
32
not reject the factual determinations made by a state habeas court
without conducting its own evidentiary hearing. We disagree.
“Although the federal district courts are vested with broad power
on habeas to conduct evidentiary hearings, we cannot say that it
becomes the duty of the court to exercise that power where, as
here, the state trial court has afforded the applicant[] a full and
fair evidentiary hearing.” Heyd v. Brown, 406 F.2d 346, 347 (5th
Cir. 1969); see also West v. Johnson, 92 F.3d 1385, 1410 (5th Cir.
1996); Lincecum v. Collins, 958 F.2d 1271, 1278-80 (5th Cir. 1992);
Winfrey v. Maggio, 664 F.2d 550 (5th Cir. Unit A Dec. 1981) (all
holding that the federal district court is not required to hold an
evidentiary hearing when the record is clearly adequate to fairly
dispose of the claims presented). We find no error arising solely
from the fact that the district court chose to review the state
habeas court’s factual determinations without conducting an
evidentiary hearing on Moore’s claims.3
The Director also contends that the district court
impermissibly substituted its own view of the facts for state
habeas court findings entered after a full and fair litigation of
Moore’s claims in the state habeas court. Essentially, this
amounts to a contention that the district court failed to correctly
3
Given Moore’s failure to cross-appeal, we do not decide
whether conflicts in the testimony before the state habeas court
supported Moore’s request for an evidentiary hearing in the
district court.
33
apply the pre-AEDPA version of 28 U.S.C. § 2254(d). We will first
define the deference required by the pre-AEDPA version of
§ 2254(d). Whether the district court inappropriately rejected
particular findings will be addressed in the context of the
specific areas of deficient performance identified by the district
court.
The pre-AEDPA version of 28 U.S.C. § 2254(d) obligates federal
habeas courts to afford state habeas court fact findings a
presumption of correctness, subject to an enumerated list of eight
exceptions. See 28 U.S.C. § 2254(d)(1)-(8) (1994). The first
seven exceptions in essence provide that the presumption of
correctness does not apply unless the petitioner’s habeas claims
have been fully and fairly litigated in a state habeas court with
jurisdiction to consider the matter.4 We have already determined,
and the parties do not dispute, that Moore’s ineffective assistance
of counsel claims received a full and fair adjudication on the
4
See 28 U.S.C. § 2254(d)(1) (1994) (presumption inapplicable
when the state habeas court failed to resolve the merits of a
factual dispute); id. § 2254(d)(2) (presumption inapplicable when
state habeas court employed inadequate fact finding procedure); id.
§ 2254(d)(3) (presumption inapplicable when material facts are not
adequately developed in state habeas proceeding); id. § 2254(d)(4)
(presumption inapplicable when state habeas court lacked
jurisdiction); id. § 2254(d)(5) (presumption inapplicable when
state habeas court deprived petitioner of his constitutional right
to counsel by failing to appoint counsel for an indigent
petitioner); id. § 2254(d)(6) (presumption inapplicable when
petitioner’s claim was not fully and fairly litigated in state
habeas court); id. § 2254(d)(7) (presumption inapplicable if
petitioner was otherwise denied due process of law in the state
habeas proceeding).
34
merits in the April 1993 evidentiary hearing conducted in the state
habeas court. See Moore, 101 F.3d at 1075. We therefore conclude
that none of the seven exceptions set forth as § 2254(d)(1) through
§ 2254(d)(7) are applicable in this case to excuse the presumption
of correctness otherwise required by § 2254(d).
Instead, the district court expressly tied its selective
rejection of the state habeas court’s factual determinations to
§ 2254(d)(8), the final exception in § 2254. Section 2254(d)(8)
provides that federal habeas courts need not defer to state habeas
court fact findings that the federal habeas court determines are
“not fairly supported by the record.” See 28 U.S.C. § 2254(d)(8)
(1994); Bryant v. Scott, 28 F.3d 1411, 1417 (5th Cir. 1994). Under
this pre-AEDPA standard, a federal habeas court may not reject
state court factual determinations merely on the basis that it
disagrees with the state court’s resolution. Marshall v.
Lonberger, 103 S. Ct. 843, 850 (1983); Loyd v. Smith, 899 F.2d
1416, 1425 (5th Cir. 1990). Indeed, the federal court may not
reject factual determinations unless it determines that they lack
even “fair support” in the record. Marshall, 103 S. Ct. at 850;
Smith, 899 F.2d at 1425. But the deference embodied in the pre-
AEDPA version of § 2254(d) does not require that the federal court
place blinders on its eyes before conducting a habeas corpus review
of a state record. To the contrary, the section merely erects a
starting place or presumption, that may be examined in light of the
35
state court record. See, e.g., Bryant, 28 F.3d at 1417-19. It is
worth noting that the pre-AEDPA standard is significantly less
deferential to state habeas court factual determinations in this
regard than its AEDPA counterpart, which prohibits the grant of
relief unless the state court’s factual determination is plainly
unreasonable in light of the evidence submitted to the state habeas
court. See 28 U.S.C. § 2544(d)(2); Trevino v. Johnson, 168 F.3d
173, 181 (5th Cir. 1999), pet. for cert. filed, (U.S. June 17,
1999) (No. 98-9936).
In addition, § 2254(d) does not require a federal habeas court
to defer to a state court’s legal conclusions. Once again, the
pre-AEDPA standard permits, in this regard, a far more liberal
review of state habeas court findings than is allowed by the
stringent standard of review embodied in AEDPA’s version of
§ 2254(d). Under AEDPA, a state court’s legal conclusion may not
be disturbed absent a showing that the state court conclusion is
contrary to, or involved an unreasonable application of, clearly
established law, as determined by the United States Supreme Court.
28 U.S.C. § 2254(d)(1). An application of federal law is
unreasonable only when “reasonable jurists considering the question
would be of one view that the state court ruling was incorrect."
Trevino, 168 F.3d at 181 (quoting Drinkard, 97 F.3d at 769). Thus,
AEDPA’s standard of review both restricts the federal habeas
court’s review of state factual determinations, and interjects
36
certain limitations upon the federal habeas court’s review of legal
conclusions that were not present under pre-AEDPA law.
When applying the pre-AEDPA standard to ineffective assistance
of counsel claims, this Court has held that whether counsel was
deficient, and whether the deficiency, if any, prejudiced the
petitioner within the meaning of Strickland, are legal conclusions
which both the district court and this Court review de novo. See
Bryant, 28 F.3d at 1414 (“a state court’s ultimate conclusion that
counsel rendered effective assistance is not a fact finding to
which a federal court must grant a presumption of correctness”);
see also Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997),
cert. denied, 118 S. Ct. 1567 (1998); Motley v. Collins, 18 F.3d
1223, 1226 (5th Cir. 1994); Black v. Collins, 962 F.2d 394, 401
(5th Cir. 1992); Mattheson v. King, 751 F.2d 1432, 1439 (5th Cir.
1985). The state court’s subsidiary findings of specific
historical facts and state court credibility determinations are,
however, entitled to a presumption of correctness under § 2254(d).
Carter, 131 F.3d at 4643; Bryant, 28 F.3d at 1414 n.3. Thus, a
state habeas court’s determination that counsel conducted a
pretrial investigation or that counsel’s conduct was the result of
a fully informed strategic or tactical decision is a factual
determination, while the adequacy of the pretrial investigation and
the reasonableness of a particular strategic or tactical decision
is a question of law, entitled to de novo review. See Horton v.
37
Zant, 941 F.2d 1449, 1462 (11th Cir. 1992); see also Bryant, 28
F.3d at 1414-19; Whitley, 977 F.2d at 158-59; Wilson, 813 F.2d at
672.
The Court is, therefore, not required to condone unreasonable
decisions parading under the umbrella of strategy, or to fabricate
tactical decisions on behalf of counsel when it appears on the face
of the record that counsel made no strategic decision at all.
Compare Mann v. Scott, 41 F.3d 968, 983-84 (5th Cir. 1994) (citing
record evidence for proposition that counsel made a strategic
decision not to offer mitigating evidence during the punishment
phase of a capital trial), with Whitley, 977 F.2d at 157-58
(concluding from the record that counsel’s failure to offer
mitigating evidence during the punishment phase of habeas
petitioner’s capital trial was not the result of a considered
strategic decision, and therefore not entitled to deference), and
Wilson, 813 F.2d at 672 (concluding that the existing record was
inadequate for purposes of determining whether counsel made a
strategic decision not to offer mitigating evidence during the
punishment phase of a capital trial or whether that decision was
professionally reasonable); see also Whitley, 977 F.2d at 158 (“The
crucial distinction between strategic judgment calls and plain
omissions has echoed in the judgments of this court.”); Profitt v.
Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987) (Strickland’s measure
of deference “must not be watered down into a disguised form of
38
acquiescence.”); id. at 1249 (refusing to indulge presumption of
reasonableness as to “tactical” decision that afforded no advantage
to the defense). Rather, the fundamental legal question is
whether, viewed with the proper amount of deference, counsel’s
performance was professionally reasonable in light of all the
circumstances. Strickland, 104 S. Ct. at 2066.
Having set forth the factual background of this case and the
appropriate standards governing both Moore’s substantive claim that
he received ineffective assistance of counsel and the district
court’s treatment of relevant findings by the state habeas court,
we now proceed to review the district court’s application of those
standards.
V.
A. Subornation of Perjury and Selection of Alibi Defense
Moore claims that trial counsel Bonner created a false alibi
defense, and then suborned perjury by pressuring Moore and his
sisters Clara Jean Baker and Colleen McNiese to testify in support
of the alibi. Moore claims that Bonner engaged in this conduct
notwithstanding Bonner’s knowledge that Moore’s confession
accurately portrayed the shooting as accidental, rather than
intentional. Moore identifies this conduct as deficient
performance within the meaning of Strickland.
Moore supported his habeas claim in the state habeas
39
evidentiary hearing with his own testimony, and that of his
sisters, to the effect that Bonner told them on the day of trial
that alibi was the only possible means of avoiding the death
penalty. McNiese testified that she did not understand what Bonner
was asking her to do. Baker testified that she understood, and
that she testified falsely at Moore’s criminal trial shortly after
talking to Bonner because she thought she was saving her brother’s
life.
The state habeas court heard conflicting evidence from Bonner
that the alibi defense was insisted upon by Moore and corroborated
by his family. Bonner also testified that he was skeptical of the
alibi defense at first because most of his clients initially
protested innocence, but that he became increasingly more
comfortable with using the defense when he determined in the course
of his pretrial investigation that none of the state’s witnesses
had been able to identify Moore, that Moore no longer lived with
Betty Nolan, that Nolan’s son, Michael Pittman, had a record, that
the shotgun recovered from Nolan’s house could not be definitively
linked to either Moore or the offense, and that the state was not
able to connect either of the wigs found at the crime scene to
Moore using exemplar hair samples.
The state habeas court resolved this conflicting evidence with
a credibility determination. The state court found that Bonner’s
testimony on the issue of subornation was credible, and that Bonner
did not suborn perjury or attempt to suborn perjury from Moore’s
40
sisters. Implicit in that fact finding is the additional
determination that Bonner likewise did not suborn perjury from
Moore.
The district court found deficient performance based upon
counsel’s presentation of a perjured alibi defense. The district
court identified the state habeas court’s factual determination
that Bonner did not suborn perjury, but stated that the fact
finding was not entitled deference because the state habeas court’s
finding was “confounded by overwhelming evidence to the contrary
and is not supported by the record.” The district court also found
that the “conduct of trial counsel was so contrary to the great
weight of evidence that only a foolish man would insist upon
presenting such a defense.” Both rationales for rejecting the
state habeas court’s factual determination are problematic.
With regard to the first rationale, we note that the state
court’s factual finding that Bonner did not suborn or attempt to
suborn perjury is a credibility determination made on the basis of
conflicting evidence that is virtually unreviewable by the district
court or our Court. Marshall, 103 S. Ct. at 850. Section 2254(d)
does not grant federal habeas courts a “license to redetermine
[the] credibility of witnesses whose demeanor has been observed by
the state trial court.” Id. at 851. Moreover, even though we may
share the district court’s skepticism, the state habeas court’s
credibility determination draws fair support from the record in the
41
form of Moore’s trial testimony and Bonner’s evidentiary hearing
testimony. For that reason, the district court’s first rationale
for rejecting the state habeas court’s credibility determination
and its contrary fact finding must be rejected as clearly
erroneous. See Bryant, 28 F.3d at 1414 n.3.
The district court’s second rationale is more subtle, but is
apparently driven by the underlying premise that a reasonably
competent attorney would have dissuaded Moore from pursuing an
alibi defense. The district court opined that trial counsel cannot
be permitted to evade their burden to provide reasonably effective
assistance under the constitution by shifting the blame for
selection of an implausible defense to the defendant.
Although we find ourselves somewhat in sympathy with the
district court’s comments, we cannot agree. Moore is presumed to
be the master of his own defense. See Faretta v. California, 95
S. Ct. 2525, 2533-34 (1975); United States v. Masat, 896 F.2d 88,
92 (5th Cir. 1990); Mulligan v. Kemp, 771 F.2d 1436, 1441-42 (11th
Cir. 1985). Were it otherwise, we might well face ineffective
assistance of counsel challenges anytime a chosen defense failed.
Moreover, Moore bears the burden of proving his allegation that the
alibi defense was unwillingly foisted upon him. See Brewer v.
Aiken, 935 F.2d 850, 860 (7th Cir. 1991) (“[W]e refuse to hold that
the presentation of perjured testimony at the request of the
defendant is adequate to constitute ineffective assistance of
42
counsel.”). The state habeas court found that Moore maintained his
innocence and endorsed the alibi defense at trial. That
determination is fairly supported by Moore’s trial testimony and
Bonner’s evidentiary hearing testimony. In addition to the evidence
described above, the state tendered excerpts from Moore’s pro se
brief on direct appeal into the record of the state court habeas
proceeding. Moore’s pro se brief argues at length that trial
counsel were ineffective for failing to call additional witnesses,
including his grandmother and father, who would have testified in
support of his alibi defense. When asked about this argument
during the evidentiary hearing in the state habeas court, Moore
conceded that he thought the argument should be raised. There is
every indication, as the state habeas court found, that Moore
maintained his innocence and insisted upon an alibi defense, both
during his trial and on direct appeal.
Neither can we accept Moore’s contention that counsel’s
decision to pursue an alibi defense was unreasonable as a matter of
law, without regard to who selected the defense, because it was at
odds with the known facts. We have already held that Moore chose
the alibi defense. Counsel will rarely be ineffective for merely
failing to successfully persuade an insistent defendant to abandon
an unlikely defense. See Mulligan, 771 F.2d at 1442. Moreover, we
cannot say that the alibi defense was necessarily at odds with the
evidence known to counsel at the time Moore’s trial began. None of
43
the state’s witnesses had been able to identify Moore. In
addition, Moore’s physical appearance did not match eye-witness
accounts of a taller man from Edna Scott. Neither the gun nor the
wigs nor the plastic bags could be tied to Moore by way of
fingerprints or exemplar hairs. The gun itself could not be
definitively tied to the offense. Moreover, Michael Pittman had a
significant prior record and was arguably as likely a suspect as
Moore.
Moore counters that the alibi defense became untenable and
should have been abandoned once his confession was ruled
admissible. The district court agreed. We agree that succeeding
on an alibi defense, particularly in the face of a defendant’s
admissible confession is “similar to one trying to climb by himself
the tallest mountain in the world.” Moore, 700 S.W.2d at 205. But
there is no obvious conflict in the record evidence. Moore
testified at trial before the jury that he did not sign the
confession. Moore testified at trial before the jury in support of
the alibi defense. Moore, acting pro se, pursued the alibi defense
on direct appeal. Whatever inherent inconsistency was created by
the admission of Moore’s confession was cured by his testimony that
the confession was invalid and his contemporaneous testimony that
he was somewhere else when the crime was committed.
For the foregoing reasons, we decline to find deficient
performance on the basis of Moore’s allegation that counsel
44
suborned or attempted to suborn perjury in their presentation of
the false alibi defense or that counsel should have persuaded Moore
to abandon the alibi defense.
B. Inadequate Pretrial Investigation
Moore also maintains that counsel’s decision to pursue an
alibi defense was unreasonable because counsel failed to conduct an
adequate pretrial investigation into the controlling law and facts.
Moore contends that counsel’s factual investigation of Moore’s
alibi defense was insufficient. This argument is divided into two
separate components. First, Moore maintains that counsel should
have determined that the support for Moore’s alibi, that he was
with his grandmother in Louisiana, was weak. Second, Moore argues
that counsel were ineffective for failing to contact or interview
or otherwise discern the testimony of state’s witnesses to
extraneous conduct committed by Moore.
With regard to the first argument, the state habeas court
concluded that counsel conducted a reasonable and independent
pretrial investigation. This conclusion of law rested upon factual
determinations that counsel discussed the alibi defense with Moore
and with Moore’s family members, and that Moore’s family supported
the defense. The district court accepted the premise that counsel
met with Moore and his family, but rejected the conclusion of law
that counsel’s pretrial investigation was therefore independent or
reasonable. We review that determination of law de novo.
45
Moore’s argument that counsel failed to conduct a sufficient
investigation into the facts underlying his alibi defense is
unavailing. As an initial matter, Moore’s ability to meet his
burden on this point is substantially weakened by our conclusion
that Moore himself chose and insisted upon the alibi defense.
Moore is essentially arguing that counsel should have expended
pretrial resources unearthing evidence to contradict their client’s
chosen defense. We are persuaded that the record adequately
supports the proposition that there was sufficient investigation,
at least as to the veracity of Moore’s alibi that he was in
Louisiana when the offense occurred. Moore selected the defense.
Bonner interviewed Moore and Moore’s family members. Bonner
traveled to Louisiana to interview Moore’s grandmother. In
addition, Bonner reviewed the state’s files, ascertaining that the
physical evidence, and the testimonial evidence to be offered in
the state’s case-in-chief were consistent with Moore’s alibi. To
the extent that the confession was inconsistent with the alibi
defense, Moore’s trial testimony that the confession was invalid
cured any problem. We therefore decline to find deficient
performance on the theory that counsel failed to adequately develop
facts contradicting the alibi defense.
Moore’s second argument is that counsel were ineffective for
failing to ascertain what evidence of similar extraneous conduct
the state might offer in rebuttal to his alibi defense. In
contrast to its case-in-chief, the state introduced substantial and
46
highly probative evidence that Moore, carrying a shotgun, robbed
two small grocery stores on the two Fridays preceding the Friday,
April 25, 1980, robbery of the Birdsall Super Market. All of the
state’s three rebuttal witnesses were able to positively identify
Moore. There can be no doubt that this evidence was critical to
Moore’s conviction. Prior to the state’s case on rebuttal, none of
the state’s witnesses had been able to unconditionally place Moore
at the scene of the crime. Moreover, it is undisputed that this
damaging evidence was admissible only because Moore chose the alibi
defense.
Moore argues that counsel acted unreasonably because they
simply did not understand that Texas law would permit the state to
rebut Moore’s alibi with evidence of similar extraneous conduct.
The state habeas court did not make any explicit findings of fact
with regard to this issue. The state habeas court did find,
however, that counsel made reasonable attempts to investigate
potentially admissible extraneous conduct. Thus, the state habeas
court implicitly found that counsel were aware of the controlling
principles of Texas law that made extraneous conduct admissible to
rebut a defendant’s alibi defense. That finding is consistent with
Bonner’s state habeas hearing testimony that he knew extraneous
conduct might come in and that he informed Moore of that
possibility. The district court did not expressly address this
implicit finding, but did conclude that counsel were unprepared to
meet extraneous offenses that came in as a result of alibi.
47
Moore supports this argument with citations to counsel’s trial
objections. In those objections, counsel maintained that the
extraneous conduct was inadmissible because not sufficiently
proven. Counsel reasserted those arguments, with considerable
persuasive force, on direct appeal. Moore, 700 S.W.2d at 198-201.
Indeed, the Texas Court of Criminal Appeals wrote at length about
both the general rule that extraneous conduct may be admissible to
rebut an alibi defense and the exceptions to that general rule, as
applied to Moore’s case. Id. Viewed in the context of the entire
trial record and the controlling principles of Texas law, we cannot
say that counsel’s trial objections demonstrate that counsel was
not aware that extraneous conduct might be offered on rebuttal. We
therefore conclude that the state habeas court’s fact finding that
Bonner was aware of the applicable principles of law is fairly
supported by the record, and therefore entitled to deference from
this Court.
Moore next argues that counsel had an affirmative duty to
identify the state’s witnesses to extraneous conduct and to
interview those witnesses if possible. See Bryant, 28 F.3d at 1415
(finding ineffective assistance of counsel based upon counsel’s
failure to interview potential witnesses); see also Gray v. Lucas,
677 F.2d 1086, 1093 n.5 (5th Cir. 1982) (noting that an ineffective
assistance of counsel claim may be based upon counsel’s failure to
interview critical witnesses). Bonner conceded in the state habeas
48
hearing that the state’s file included a list of witnesses slated
to testify that Moore had participated in similar extraneous
offenses. Notwithstanding that knowledge, Bonner admitted that he
made no attempt to contact those witnesses or to ascertain the
content of their potential testimony. See Bryant, 28 F.3d at 1417
(counsel’s failure to contact potential witnesses was uninformed by
any investigation and was therefore not a strategic choice entitled
to deference under Strickland).
Bonner testified that he did not know whether Devine had
contacted the extraneous witnesses. The state habeas court found,
on the force of Bonner’s testimony, that Devine interviewed the
extraneous witnesses. The district court did not address this
factual determination, aside from noting that counsel’s pretrial
investigation into extraneous conduct was inadequate in light of
the chosen alibi defense.
We agree. Bonner’s testimony is not probative with respect to
whether Devine contacted the extraneous witnesses. Bonner said he
did not know. He later qualified that testimony by stating that
Devine might have handled that part of the case, but that assertion
is contradicted by the fact that Bonner conducted the cross-
examination of one of the state’s star rebuttal witnesses.
Moreover, counsel’s trial objections and their pathetically weak
cross-examinations of the state’s rebuttal witnesses undermine
beyond any reasonable doubt the proposition that counsel followed
49
up on information in the state’s file by attempting to interview
the state’s witnesses to extraneous conduct or by independently
investigating the damaging allegation that Moore was involved in
two very similar robberies on the two Fridays preceding the
Birdsall Super Market robbery. In counsel’s own words: “We haven’t
had a chance to prepare a defense about things that have occurred
at other places. We don’t even know what is going on here.” For
the foregoing reasons, the state habeas court’s fact finding that
Devine contacted the state’s witnesses to extraneous conduct is not
fairly supported by the record, and is therefore not entitled to
deference under § 2254(d).
Moreover, and without regard to whether Devine actually
contacted the state’s witnesses to extraneous conduct, the record
quite plainly establishes that counsel failed to include any
consideration of the state’s evidence of extraneous conduct when
counseling Moore about the alibi defense. Thus, even if the
investigation was adequate, counsel’s response to the admissible
evidence was so unreasonable as to fall well outside the bounds of
reasonable professional performance. For the foregoing reasons, we
find deficient performance on the basis that counsel failed to
50
investigate the substance of evidence to be introduced on rebuttal
in response to Moore’s alibi defense, or proceeded unreasonably in
light of that evidence.5
C. Exclusion of Exculpatory Language in Moore’s Confession
Moore contends that his counsel provided constitutionally
deficient performance in their handling of his confession during
the guilt phase of trial. Moore’s confession contained the
following exculpatory language:
The old man in the booth leaned over to open a
drawer in the booth. I started trying to push him
back with the barrel of the shotgun. I was leaning
over the counter of the booth and I suddenly fell
backwards and the butt of the gun hit my arm and
the gun went off. I didn’t learn until later that
the man had been shot. I seen it on T.V. The man
must have been standing back up as I fell backwards
and the gun went off.
* * *
I swear I was not trying to kill the old man and
the whole thing was an accident.
5
Moore also argues that counsel were deficient for failing to
interview Moore’s fellow perpetrators, Koonce and Pradia, for the
purpose of determining what evidence those individuals might have
offered against Moore. Bonner testified that he attempted to
contact Koonce and Pradia, but that the contact was forbidden by
their lawyers. The state habeas court also reviewed conflicting
affidavit testimony from Koonce’s lawyers that neither Bonner nor
Devine ever contacted them. The state court resolved this conflict
in the evidence by finding that Bonner attempted to contact Koonce
and Pradia, but was precluded from interviewing them by their
counsel. While Bonner’s testimony is frankly incredible on this
point, the state habeas court’s fact finding finds some support in
the record. We are therefore precluded from substituting our own
judgment for that of the state habeas court, which received
Bonner’s live testimony. For that reason, we find no deficiency in
counsel’s performance on the theory that they failed to contact
Koonce and Pradia.
51
No one disputes that the exculpatory language quoted above has
obvious relevance to the guilt phase issue of intent, as well as
the punishment phase special issue of deliberateness.
Moore’s confession was introduced through one of the arresting
officers, Officer Ott. Officer Ott testified on voir dire that all
of the statements in Moore’s confession were Moore’s own
statements. The state nonetheless wanted to limit its tender to
those portions of the confession that were inculpatory. Moore’s
counsel initially stated that they had not decided whether they
would use the remaining exculpatory portions. After the state
agreed to temporarily cover the exculpatory language, Moore’s
counsel inexplicably agreed not to use the exculpatory language and
requested that the portions quoted above be excised from his
confession. As a result, the jury received a confession that
describes Moore pointing a shotgun in McCarble’s direction, sets
forth a conspicuous white space where the crime should have been
described, and then describes Moore fleeing the store after
McCarble was shot. Moore’s counsel did not attack the veracity or
completeness of the confession by cross-examining Officer Ott and
did not offer the excluded exculpatory language at any later stage
of Moore’s trial.
Bonner was asked why the exculpatory language was excised from
the confession during the state habeas evidentiary hearing. He
testified as follows:
52
Well, maybe it was taken out by the state. I don’t
know who took it out, really. It doesn’t have my
signature down there that I actually took it out.
Maybe the Court took it out prior to even having it
introduced. I don’t suggest to you that I did
that.
When recalled by the state, Bonner testified there “may have been”
statements in the confession that were inconsistent with the chosen
strategy of alibi. When prodded further, he stated that Moore’s
statements that the shooting was accidental might fall into that
category.
Bonner was also asked why the exculpatory language, which
supported Devine’s jury argument during the punishment phase, would
not have been introduced during the punishment phase of the trial.
Bonner testified “I don’t know.” Bonner further testified that the
exculpatory portions of Moore’s confession: (1) could have been
introduced at the punishment phase, (2) would have been relevant in
the punishment stage, and (3) given the jury’s guilty verdict,
would not in this case have been inconsistent with the chosen
theory of alibi at the punishment phase. Based upon this evidence,
the state habeas court found that counsel’s decision to excise
exculpatory portions of the confession was “consistent with” the
alibi defense. The state habeas court also concluded that
counsel’s use of the alibi defense rendered any use of the
exculpatory language “illogical.” Thus, the state court implicitly
concluded that counsel made a reasonable strategic decision that
Moore’s exculpatory statements were inconsistent with his chosen
53
theory of alibi. The Director argues that this Court is bound by
that mixed finding of fact and conclusion of law.
The district court cited record evidence supporting Moore’s
claim that the shooting was accidental, including the location of
the wound, and testimony that Moore and the people in the booth
moved suddenly just before the shot was fired. The district court
noted that such evidence was consistent with Moore’s confession,
which stated that he was trying to push McCarble back from a drawer
in the booth when he suddenly fell back. The district court
reviewed and rejected the state court’s legal conclusion that
counsel’s decision to exclude the exculpatory language was
reasonable, holding that counsel’s failure to introduce this
potentially mitigating evidence was unconscionable to the point
that it transcended even the rigorous standard for ineffective
lawyering.
To the extent that the state habeas court made an implicit
fact finding that counsel made a strategic decision to exclude
exculpatory portions of the confession, we reject that finding as
not fairly supported by the record. Bonner testified that he had
no idea why the exculpatory language was excluded, or even who had
requested that the exculpatory language be excluded. There is,
therefore, no support, let alone fair support, for such a fact
finding.
To the extent that the state habeas court entered a legal
conclusion that counsel’s decision to exclude exculpatory portions
54
of Moore’s confession was professionally reasonable, we likewise
reject that determination and affirm the district court. Both the
state habeas court’s findings and the Director’s arguments on
appeal defend counsel’s decision with the statement that it was
“consistent with” the chosen trial strategy of alibi. But it was
Moore’s confession, rather than the exculpatory language contained
therein, that was fatally inconsistent with the alibi defense.
Surely the inculpatory portions of the confession, which placed
Moore at the scene of the crime with a firearm pointed at McCarble,
were as inconsistent with Moore’s alibi defense as those
exculpatory portions excluded by counsel. Once the confession was
deemed admissible, there was no justification and no potential
benefit to the defense to be obtained from excluding the
exculpatory language. The jury could only accept or reject the
confession. The inclusion of exculpatory language concerning a
plausible alternative defensive theory that was supported by some
evidence, and that could have raised a reasonable doubt in the
jury’s mind, could in no way have further imperiled Moore’s
defense.
Moreover, the criminal law does not preclude alternative, or
even inconsistent, defensive theories. Indeed, the most successful
criminal attorneys are often those who can create a reasonable
doubt in the jurors’ minds by throwing up one or two or more
plausible alternatives to the defendant’s guilt. Individual jurors
need not be persuaded by the same plausible alternative to guilt to
55
vote an acquittal. Thus, the premise underlying the state habeas
court’s conclusion and the Director’s arguments on appeal that
Moore’s own choice of the alibi defense required the exclusion of
the exculpatory language is simply wrong as a matter of law.
Counsel’s decision to exclude that language, which produced no
conceivable benefit to the defense and prejudiced Moore by
precluding reliance upon a plausible alternative defensive theory
that was supported by other evidence in the record, was
professionally unreasonable. See Whitley, 977 F.2d at 158-59 & nn.
21-22; Profitt, 831 F.2d at 1249; Lyons v. McCotter, 770 F.2d 529,
534-35 (5th Cir. 1985) (Strickland does not require deference when
there is no conceivable strategic purpose that would explain
counsel’s conduct).
For the forgoing reasons, we find that Moore’s trial counsel
provided constitutionally deficient performance with respect to
their handling of Moore’s confession during the guilt phase of
Moore’s trial.6
D. Damaging Cross-Examination of Officer Autrey
Moore maintains that trial counsel Devine provided deficient
performance by eliciting damaging evidence against Moore during his
cross-examination of the state’s first witness, arresting officer
6
We also find counsel’s failure to tender Moore’s complete and
unredacted confession during the punishment phase of Moore’s trial
to be a component of counsel’s deficient performance. That holding
is discussed in section V.E. below.
56
Autrey.
The state called arresting officer Autrey to identify pictures
taken at the crime scene and to place the crime in context. The
state’s direct examination is brief and takes up only eleven pages
of the transcript. Trial counsel Devine’s extensive cross-
examination of Autrey went far beyond the scope of direct,
providing either the first mention or the only evidence of the
following important facts: (1) that size 8 shotgun pellets were
found on the floor of the courtesy booth; (2) that police recovered
plastic bags from the scene of the crime, including one containing
a wig and one containing a receipt traced to Moore’s “play mama”
Betty Nolan; (3) hearsay testimony that the bag containing Nolan’s
receipt was dropped during the offense, and not at some other time;
(4) hearsay testimony that Moore came to Nolan’s house on April 25,
1980, the day of the offense, and stayed there that night; (5) that
police recovered a shotgun from under Moore’s bed at Nolan’s house;
(6) that the shotgun recovered from under Moore’s bed was found
with one expended shell and one shell containing size 8 shot, the
same size shot used in the offense; (7) hearsay testimony that
witnesses to the offense heard only one shot; and (8) that police
received a telephone call from a citizen named White, who informed
police that Moore was at his grandmother’s house in Louisiana, and
that police subsequently arrested Moore there. Devine also
elicited testimony that was not otherwise offered by the state
through Autrey concerning the accuracy of the police investigation,
57
including: (1) testimony that a store customer took down the
robbers’ license plate number; (2) testimony that Koonce was
arrested in a car identified by the customer’s information; (3)
testimony that Koonce gave a confession; and (4) other testimony
about the apprehension and arrest of Koonce and Pradia. This
damaging testimony tied Moore to the crime and supported the
accuracy and credibility of the police investigation. All of this
very damaging evidence was elicited by Moore’s own trial counsel
from the state’s first witness.
Devine died shortly after trial and long before the 1993 state
evidentiary hearing. Although the issue was presented to the state
habeas court, Bonner did not advance any explanation for the
damaging cross-examination during the state habeas hearing.
Indeed, the issue did not receive any significant development
during the hearing and, aside from denying relief as to the entire
petition, the state habeas court did not enter any potentially
binding findings of fact with respect to this issue. The district
court found deficient performance, concluding that counsel’s cross-
examination of the state’s first witness obliterated Moore’s alibi
defense, long before Moore’s confession was deemed admissible. We
review the factual component of that holding for clear error and
the legal component of that holding de novo. Bryant, 28 F.3d at
1414 & n.3.
We find no error in the district court’s holding. Devine’s
58
cross-examination of Autrey elicited some of the most damaging
testimony against Moore. None of that testimony was elicited by
the state on direct examination. Some of that testimony was never
repeated by any other state witness, and no witness provided such
a detailed and chronological account of Moore’s guilt. The
district court’s factual determination that Devine’s cross-
examination of the state’s first witness effectively destroyed
Moore’s alibi defense, long before the state offered such probative
evidence and long before Moore’s confession was deemed admissible,
is not clearly erroneous. Moreover, neither the record nor common
sense supports the proposition that Devine’s approach to Autrey’s
testimony was motivated by any strategic purpose that could
conceivably have yielded any benefit to the defense. See Whitley,
977 F.2d at 158-59 & nn. 21-22; Profitt, 831 F.2d at 1249; Lyons,
770 F.2d at 534-35. To the contrary, Devine’s cross-examination of
Autrey does nothing but set forth, from the mouth of Moore’s own
trial counsel, the state’s best case against Moore. While perhaps
not sufficient standing alone to support conviction, the evidence
thus elicited would have contributed significantly to a guilty
verdict, even if Moore’s confession had been later deemed
inadmissible. For the foregoing reasons, we affirm the district
court’s conclusion that Devine’s ineffective cross-examination of
Autrey constitutes deficient performance as defined in Strickland.
59
E. Failure to Investigate, Develop, or Present
Mitigating Evidence
Moore claims that trial counsel were ineffective for failing
to investigate, develop, or present available and availing
mitigating evidence during the punishment phase of his trial.
Moore’s claim encompasses counsel’s: (1) failure to investigate and
failure to present any mitigating background evidence, despite
knowledge that should have given rise to such a duty; (2) failure
to present previously redacted and exculpatory evidence that the
shooting was accidental, despite counsel’s abandonment of the alibi
defense during closing argument at the guilt phase, and despite
counsel’s decision to argue accidental shooting as a plausible
alternative defensive theory at the punishment phase of Moore’s
trial; and (3) counsel’s insufficient, internally inconsistent, and
incompetent argument at the punishment phase of Moore’s trial.
Mitigating evidence concerning a particular defendant’s
character or background plays a constitutionally important role in
producing an individualized sentencing determination that the death
penalty is appropriate in a given case. See Woodson v. North
Carolina, 96 S. Ct. 2978, 2991 (1976); see also Eddings v.
Oklahoma, 102 S. Ct. 869, 875 (1982). At the state court
evidentiary hearing, Moore presented substantial evidence that
could have been offered as mitigating evidence during the
punishment phase of his trial. Moore produced substantial evidence
from several sources that his childhood was marked by physical and
60
emotional deprivation and abuse. See Penry v. Lynaugh, 109 S. Ct.
2934, 2947 (1989) (quoting California v. Brown, 107 S. Ct. 837, 841
(1987) (O’Connor, J. concurring) for proposition that “evidence
about the defendant’s background is relevant because of the belief,
long held by this society, that defendants who commit criminal acts
that are attributable to a disadvantaged background, or to
emotional and mental problems, may be less culpable than defendants
who have no such excuse”); id. at 2948-52 (discussing the
significance that mitigating evidence of childhood abuse and mental
retardation have with respect to the individualized sentencing
determination required by the Eighth Amendment for imposition of
the death penalty);7 Eddings, 102 S. Ct. at 877 (“evidence of a
turbulent family history, of beatings by a harsh father, and of
severe emotional disturbance is particularly relevant” to an
individualized sentencing determination). Specifically, Moore
offered evidence from several sources that his father, Ernest
Moore, Jr., was an abusive alcoholic who was often absent and
rarely provided his family with financial support, even when
present. The evidence further established that Ernest Moore, Jr.
routinely beat his children with his hands, and with whatever other
7
Moore and the defendant in Penry were tried three months
apart. Both were tried under Texas laws that the Supreme Court
declared in Penry failed to allow a “reasoned moral response” to
mitigating evidence offered during the penalty phase of a capital
trial as required by the Eighth and Fourteenth Amendments. Penry,
109 S. Ct. at 2952.
61
household effects or furniture happened to be close at hand. The
evidence established that Ernest Moore, Jr. targeted petitioner
Moore more often than Moore’s other siblings because Moore
attempted to intervene in physical altercations between his parents
to protect his mother. Moore’s mother was likewise an absent
parent, being forced to hold down two jobs to support Moore and his
brothers and sisters. After one particularly violent altercation,
Moore was forced to leave the house for good when he was fourteen
years of age. After that, family members sometimes defied the
father by permitting Moore to slip into the house late at night or
by sneaking him food, but Moore largely survived by sleeping on the
street and stealing food to survive.
Moore’s school records corroborate the neglect, deprivation,
and physical abuse that characterized Moore’s early childhood.
School records describe a morose and withdrawn child who rarely
participated in classroom activities. School records likewise
describe Moore as suffering from severe developmental delays,
perhaps resulting from poor nutrition and inadequate parenting.
Moore never passed any year and was granted only social promotions
until he dropped out altogether shortly after he was kicked out of
the house at age fourteen.
Moore also produced substantial evidence of impaired mental
development and functioning, and some evidence of organic brain
damage resulting from severe trauma. See Zant v. Stephens, 103
62
S. Ct. 2733, 2747 (1983) (mental illness militates in favor of a
lesser penalty); Whitley, 977 F.2d at 157 (granting relief where
counsel failed to develop independent evidence of mental disease or
defect). Moore offered the testimony of Dr. Robert Borda, who
holds a Ph.D. in psychology and a Ph.D. in physiology. Borda
reviewed Moore’s school records, as well as psychological testing
performed when Moore was in school, and psychological testing
conducted while Moore was incarcerated for this offense in 1989.
Both sets of tests indicate that Moore’s intelligence is in the
borderline retarded range. Borda testified that Moore’s
performance on other tests, such as the Bender-Gestalt, indicate
that Moore’s ability to perform in an uncontrolled environment is
actually lower than indicated by his borderline IQ, and would very
likely fall squarely within the retarded range. Borda also
testified that the psychological testing performed when Moore was
in school suggested that Moore suffered a severe trauma to the head
or brain. Borda testified that such an injury would have impaired
Moore’s ability to function beyond the limitations reflected in the
intelligence testing alone. Based upon the materials reviewed, Dr.
Borda testified that Moore’s mental age at the time of the offense
was estimated to be fourteen, as compared to his still relatively
youthful biological age of nineteen. In addition to the school
records and psychological testing described, Moore also offered
evidence that the Texas Rehabilitation Commission conducted a
63
psychological evaluation on Moore when he was released from prison
in 1979. Although the records of that psychological evaluation
were destroyed in 1984, they would have been available for
counsel’s review at the time of Moore’s 1980 capital trial.
Moore also maintained in the state evidentiary hearing that
counsel could have relied upon his prison record and early release,
as evidence tending to negate the state’s burden on the future
dangerousness issue. Skipper v. South Carolina, 106 S. Ct. 1669
(1986) (evidence that a prisoner would not pose a future danger in
the prison community if spared the death penalty and imprisoned for
life must be considered potentially mitigating in a capital case).
The penitentiary package introduced by the state demonstrated that
Moore was first arrested three years after he left home, at age
seventeen. Moore was convicted and sentenced to eight years.
Moore was nonetheless released after only two years. The state was
permitted to interpret Moore’s record for the jury, and relied upon
that interpretation in closing argument. Specifically, the state
noted that Moore had four separate convictions, and argued that
Moore’s prior record demonstrated a pattern that required an
affirmative finding on the special issue of future dangerousness.
As noted above, Moore’s counsel did not respond with their own
interpretation of the penitentiary package. Neither did counsel
clarify that Moore was sentenced for each of the four offenses on
the same day, that Moore began serving his sentence for each of the
64
four convictions on the same day, or that Moore was released from
serving the balance of the four concurrently imposed sentences
after only two years. In fact, Moore’s counsel simply stipulated
that the documents comprising the penitentiary package, and by
inference the state’s interpretation of those documents, was
correct.
In the state hearing, Bonner admitted that he was aware of
some aspects of Moore’s troubled childhood. Bonner conceded that,
despite this knowledge, he did not conduct any investigation for
the purpose of developing mitigating evidence. Bonner justified
this failure to investigate with his view that mitigating evidence
of a troubled family background or impaired mental functioning is
per se inconsistent with an alibi defense. Bonner also suggested
that this was a “guilt/innocence” case rather than a “punishment”
case. Somewhat inconsistently, Bonner also testified that there
was no reason not to offer the previously redacted and exculpatory
portions of Moore’s confession once the jury had rejected Moore’s
alibi defense with the guilty verdict. Indeed, Bonner testified
that the jury’s rejection of Moore’s alibi defense made the
exculpatory portions of Moore’s unredacted confession admissible
and relevant on the issue of punishment. Based upon this evidence,
the state habeas court found that counsel made a strategic decision
not to present mitigating background evidence at the punishment
phase of Moore’s trial. The state habeas court did not make any
fact finding with respect to counsel’s failure to offer Moore’s
65
unredacted confession during the punishment phase of the trial.
The district court considered and rejected the state court’s
fact finding that trial counsel made an informed strategic decision
not to present mitigating evidence. The district court noted that
counsel’s purported decision was neither informed by an adequate
investigation nor undergirded by any logical strategic purpose.
For the reasons that follow, we affirm the district court.
Notwithstanding the constitutional stature of appropriate
mitigating evidence in a capital case, counsel’s failure to develop
or present mitigating background evidence is not per se deficient
performance. See Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir.),
cert. denied, 118 S. Ct. 361 (1997); West, 92 F.3d at 1408; King v.
Puckett, 1 F.3d 280, 284 (5th Cir. 1993). To the contrary, a
considered strategic or tactical decision not to present mitigating
evidence that is made after a thorough investigation of the law and
facts relevant to all plausible lines of defense is presumed to be
within the wide range of professionally reasonable assistance
defined by Strickland. Strickland, 104 S. Ct. at 2066; Whitley,
977 F.2d at 158; Drew v. Collins, 964 F.2d 411, 422 (5th Cir.
1992); Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992);
McCoy v. Lynaugh, 874 F.2d 954, 964 (5th Cir. 1989) (counsel’s
decision not to present mitigating evidence is entitled to
deference when based upon an informed and reasoned practical
judgment). Stated differently, Strickland requires that we defer
66
to counsel’s decision not to present mitigating evidence or not to
present a certain line of mitigating evidence when that decision is
both fully informed and strategic, in the sense that it is
expected, on the basis of sound legal reasoning, to yield some
benefit or avoid some harm to the defense. Strickland does not,
however, require deference to decisions that are not informed by an
adequate investigation into the controlling facts and law.
Whitley, 977 F.2d at 157-58; see also Andrews v. Collins, 21 F.3d
612, 623 (5th Cir. 1994) (counsel’s strategic decision entitled to
deference because supported by an adequate investigation which
included contact with at least 27 people); Whitley, 977 F.2d at 157
(counsel’s failure to pursue crucial line of defense held to be
professionally unreasonable); Drew, 964 F.2d at 423 (counsel’s
strategic decision entitled to deference because counsel made
“reasonable inquiries” into Drew’s mental state); Wilkerson, 950
F.2d at 1064-65 (affording strategic decision deference where
record established the counsel retained an investigator to explore
whether mitigating evidence relating to defendant’s background or
mental ability was available); Bouchillon v. Collins, 907 F.2d 589,
597 (5th Cir. 1990) (“Tactical decisions must be made in the
context of a reasonable amount of investigation, not in a
vacuum.”); McCoy, 874 F.2d at 964 (finding scope of investigation
reasonable where counsel investigated possibility of mitigating
evidence by interviewing everyone on a list provided by the capital
67
defendant and determined none of them had anything good to say
about the defendant); Jones v. Thigpen, 788 F.2d 1101, 1103 (5th
Cir. 1986) (“counsel either neglected or ignored critical matters
of mitigation"). Similarly, Strickland does not require deference
to those decisions of counsel that, viewed in light of the facts
known at the time of the purported decision, do not serve any
conceivable strategic purpose. See Strickland, 104 S. Ct. at 2061
(“Counsel may not exclude certain lines of defense for other than
strategic reasons.”); Boyle v. Johnson, 93 F.3d 180 (5th Cir. 1996)
(explaining basis for counsel’s strategic decision not to offer
mitigating evidence identified by the defendant), cert. denied, 117
S. Ct. 968 (1997); Whitley, 977 F.2d at 158 (“Whether counsel’s
omission served a strategic purpose is a pivotal point in
Strickland and its progeny. The crucial distinction between
strategic judgment calls and just plain omissions has echoed in the
judgments of this court.”) (footnote omitted); Profitt, 831 F.2d at
1249 (Strickland does not require deference to decisions which do
not yield any conceivable benefit to the defense); Bell v. Lynaugh,
828 F.2d 1085, 1090 (5th Cir. 1987) (when counsel makes an informed
and considered decision not to present mitigating evidence, the
issue becomes whether the decision was reasonable ); Wilson, 813
F.2d at 672 (remanding for evidentiary hearing because record did
not reflect whether counsel made a sound strategic decision not to
present mitigating evidence of troubled background and mental
68
impairment); Lyons, 770 F.2d at 534-35 (finding deficient
performance because there was no sound strategic basis for
counsel’s failure to object to evidence of prior offenses);
Mattheson, 751 F.2d at 1439-40 (explaining strategic purpose
motivating counsel’s decision to exclude evidence of mental
impairment from sentencing phase); Moore v. Maggio, 740 F.2d 308,
315-19 (5th Cir. 1984) (explaining basis of counsel’s considered
decision to limit investigation by excluding implausible lines of
mitigating evidence).8
Moore maintains that counsel’s failure to present mitigating
evidence is not entitled to a presumption of reasonableness because
it was neither informed by a reasonable investigation nor supported
by any logical position that such failure would benefit Moore’s
defense. We agree. “[C]ounsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.” Strickland, 104 S. Ct. at
2066; Mattheson, 751 F.2d at 1439-40; Bell, 828 F.2d at 1088.
Counsel is "not required to pursue every path until it bears fruit
or until all conceivable hope withers." Lovett v. Florida, 627
F.2d 706, 708 (5th Cir. 1980). But strategic decisions made
8
We are dealing, in this case, with the deference required to
counsel’s decisions. Obviously, a competent defendant may, as
master of his or her own defense, elect to forgo the presentation
of mitigating evidence. See, e.g., Lowenfield v. Phelps, 817 F.2d
285, 290 (5th Cir. 1987), aff’d, 108 S. Ct. 546 (1988); Mattheson,
751 F.2d at 1439-40; see also Strickland, 104 S. Ct. at 2066.
69
without an adequate investigation into the facts and law
controlling plausible defensive theories are reasonable only to the
extent that reasonable professional judgment supports counsel’s
limitation on the investigation. Strickland, 104 S. Ct. at 2066;
Ransom, 126 F.3d at 723; Whitley, 977 F.2d at 157-58; Bouchillon,
907 F.2d at 597; Bell, 828 F.2d at 1088. With those principles in
mind, we note at the outset that this is not a case in which
counsel had no notice and no reason to suspect that a background
investigation would produce potentially valuable mitigating
evidence. Compare Bouchillon, 907 F.2d at 597-98 (counsel’s
failure to investigate despite knowledge that further investigation
might be fruitful constituted deficient performance), with Ransom,
126 F.3d at 723; West, 92 F.3d at 1408; Andrews, 21 F.3d at 623-24
(failure to investigate not deficient performance where counsel had
no reason to believe that further investigation might be fruitful).
Bonner testified that he was aware of Moore’s troubled background
at trial. That awareness, which included knowledge that Moore’s
family was physically abusive, should have triggered some sort of
inquiry into Moore’s background. See Motley, 18 F.3d at 1228
(counsel’s awareness of and decision to present evidence of child
abuse while failing to investigate “neurological damage and other
evidence that would have been in the same vein” as the child abuse
evidence actually presented may have been unreasonable). Moreover,
this is not a case in which counsel made some limited inquiry, and
70
the defendant is alleging that counsel should have focused upon
additional areas of inquiry or unearthed some obscure or
tangentially relevant evidence. Compare Whitley, 977 F.2d at 159
(granting relief based upon counsel’s complete and total failure to
investigate a critical issue), and Jones, 788 F.2d at 1103
(granting relief where counsel completely abdicated the
responsibility to investigate the availability of mitigating
evidence), with Bell, 828 F.2d at 1088 (denying relief where
counsel conducted a thorough independent investigation into
defendant’s mental state because, notwithstanding the additional
evidence offered by the defendant on collateral review, there was
no evidence counsel neglected or ignored the defendant’s mental
state), and Thompson v. Cain, 161 F.3d 802, 813 (5th Cir. 1998)
(rejecting petitioner’s contention that counsel should have delved
further into his mental state in case where sociologist testified
regarding the petitioner’s background and relationships). To the
contrary, Bonner conceded in the state evidentiary hearing that he
made no inquiry into Moore’s background for the purpose of
developing mitigating background evidence of any sort. Likewise,
although Moore’s confession made accidental shooting a plausible
alternative defensive theory at both the guilt and punishment
phases of Moore’s trial, counsel never made any investigation
intended to test that theory. To be clear, we are dealing here
with counsel’s complete, rather than partial, failure to
71
investigate whether there was potentially mitigating evidence that
could be presented during the punishment phase of Moore’s trial.
That fact distinguishes this case from those cases in which we have
rejected similar claims because the record established counsel
conducted an adequate investigation, but made an informed trial
decision not to use the potentially mitigating evidence because it
could have a prejudicial backlash effect on the defense. See,
e.g., Darden v. Wainwright, 106 S. Ct. 2464, 2474 (1986) (counsel’s
failure to present mitigating evidence relating to defendant’s
character, psychiatric evaluation and history as a family man did
not constitute deficient performance where such evidence would have
opened the door to otherwise excluded evidence that defendant had
prior criminal convictions, was diagnosed as a sociopathic
personality, and had in fact abandoned his family); Mattheson, 751
F.2d at 1439-40 (counsel made reasonable strategic decision to omit
presentation of mitigating evidence of mental impairment where such
evidence would have opened door to known evidence that defendant
was a violent sociopath). Given that counsel’s conduct in failing
to develop or present mitigating evidence was not informed by any
investigation and not supported by reasonably professional limits
upon investigation, we find that there is no decision entitled to
a presumption of reasonableness under Strickland. Moreover, the
record does not otherwise contain any justification for limiting,
or in this case, completely omitting, any investigation into
72
Moore’s background or the facts that might support counsel’s
accidental shooting argument during the punishment phase of the
trial.9 We therefore find counsel’s complete failure to
investigate Moore’s background and the facts underlying the
accidental shooting theory argued during the punishment phase to be
professionally unreasonable and deficient performance in the
context of this case.
Of equal importance, we agree with the district court that
counsel’s decision not to present any mitigating evidence was not
motivated or justified by any strategic or tactical rationale. See
Whitley, 977 F.2d at 158-59 & nn. 21-22; Profitt, 831 F.2d at 1249;
Lyons, 770 F.2d at 534-35 (Strickland does not require deference
when there is no conceivable strategic purpose that would explain
counsel’s conduct). The state habeas court’s fact finding, to the
extent it is contrary, finds no support in the record and was
properly rejected by the district court. See 28 U.S.C. § 2254(d)
(1994).
Bonner’s only justification for completely failing to develop
or offer available mitigating evidence was that mitigating evidence
of any type or quantity is per se inconsistent with an alibi
9
The record does suggest that counsel were unprepared and did
not expect to proceed to the punishment phase of Moore’s trial
immediately after the guilty verdict was returned late in the
afternoon. Rather than requesting a continuance, however, counsel
agreed to proceed. The evidentiary portion of the punishment phase
was concluded only ten minutes later.
73
defense. Bonner’s view is overbroad and insufficient alone,
without any reference to why that justification would apply in this
case, to justify counsel’s complete failure to investigate for the
purpose of making an informed decision and failure to offer any
mitigating evidence. See Stafford v. Saffle, 34 F.3d 1557 (10th
Cir. 1994) (finding deficient performance and rejecting argument
that an alibi defense during the guilt phase is per se inconsistent
with mitigating evidence relating to the defendant’s personal
background); Brewer, 935 F.2d 850 (granting relief on claim that
counsel failed to offer mitigating evidence during the sentencing
phase in case involving an alibi defense at the guilt phase).
On appeal, the Director tries to put the best face on Bonner’s
justification by arguing that counsel made a strategic decision not
to present mitigating evidence based upon the possibility that the
jury entertained a “residual doubt” about Moore’s alibi defense.
This Court has recognized that, in an appropriate capital case,
counsel’s decision to rely upon the jury’s residual doubt about the
defendant’s guilt may be not only reasonable, but highly
beneficial, to a capital defendant. See, e.g., Andrews, 21 F.3d at
623 n.21.
This is not a residual doubt case. Moore’s alibi defense
failed miserably. The testimony in support of that defense was
internally inconsistent and failed for the most part to place Moore
in Louisiana at the time the offense was committed. The state
74
responded with overwhelming evidence of Moore’s involvement in
similar extraneous offenses as well as narrowly tailored rebuttal
evidence refuting Moore’s alibi. In what was undoubtedly one of
his most reasonable decisions as trial counsel, Bonner himself
essentially abandoned the alibi defense during closing argument at
the guilt phase by telling the jury that it did not matter whether
Moore and his sister testified truthfully. The jury deliberated
briefly, asking only for copies of Moore’s “confessions,” then
rejected Moore’s alibi defense by returning a verdict of guilty.
More importantly, Moore’s counsel did not adhere to the alibi
defense during the punishment phase of Moore’s trial. Although
Bonner challenged the quantum of the state’s proof, neither Bonner
nor Devine attempted to resurrect the defeated alibi defense. To
the contrary, counsel Devine earnestly argued that the shooting was
accidental. Thus, counsel made an entirely reasonable decision to
pursue the accidental shooting theory as a plausible alternative to
alibi during the punishment phase of Moore’s trial. Given these
facts, there was no logical or factual support for and no
conceivable strategic purpose to be achieved by excluding the
potentially mitigating background evidence identified by Moore.
Furthermore, there is more in this case than simply a general
failure to conduct an investigation or to present mitigating
evidence of the type traditionally found in capital cases. In this
case, counsel also failed to make use of readily available
evidence. Specifically, counsel failed to support their punishment
75
phase jury argument that the shooting was accidental with the best
evidence of that theory, Moore’s own statements that the shooting
was accidental. Counsel also failed to capitalize on the
opportunity to argue Moore’s early release from prison as a factor
mitigating against an affirmative response on the special issue of
future dangerousness. Finally, the effect of counsel’s deficient
performance is not reduced by any guilt phase or punishment phase
evidence that can be construed as potentially mitigating. Compare
Jones, 788 F.2d at 1103 (finding ineffective assistance where
counsel presented no mitigating evidence at all), with Motley, 18
F.3d at 1228 (refusing to find deficient performance where proposed
mitigating evidence is cumulative of other testimony offered during
guilt phase of capital trial). As with counsel’s failure to
investigate, we are dealing here with a complete, rather than
partial, failure to offer any mitigating evidence on Moore’s
behalf. Our decision that counsel failed to make a strategic
decision entitled to deference under Strickland, and that counsel’s
conduct was in this case professionally unreasonable, is heavily
influenced by these additional omissions, for which neither the
record nor common sense can provide any answer.
For the foregoing reasons, we affirm the district court’s
holding that counsel did not make an informed or strategic decision
not to investigate, develop or present mitigating evidence that is
entitled to deference under Strickland. We likewise affirm the
76
district court’s holding that counsel’s failure to investigate or
offer available mitigating evidence was professionally unreasonable
and constituted deficient performance within the meaning of
Strickland.
VI.
Finally, we come to the prejudice prong of the Strickland
analysis. The Director argues that neither counsel’s failure to
investigate extraneous offenses admissible only because Moore chose
the alibi defense, nor counsel’s redaction of exculpatory
statements in the otherwise admissible and otherwise inculpatory
confession, nor counsel’s obliteration of the alibi defense in
their cross-examination of Officer Autrey is relevant to the
district court’s grant of relief, that is, a new punishment
hearing. The Director’s argument may be reduced to the premise
that deficient performance occurring at the guilt phase of a
capital trial may not be deemed to prejudice a capital defendant
during the punishment phase of a capital trial. We reject this
notion. When, as here, the same jury considered guilt and
punishment, the question is whether the cumulative errors of
counsel rendered the jury’s findings, either as to guilt or
punishment, unreliable. See Strickland, 104 S. Ct. at 2064 (relief
is appropriate when “the conviction or death sentence resulted from
77
a breakdown in the adversary process that renders the result
unreliable”).
The district court declined to find prejudice at the guilt
phase of the trial, a legal conclusion with which we agree. Like
the district court, we too are concerned by the multiple lapses of
trial counsel, and by the fact that much of the evidence against
Moore came in as a result of counsel’s pathetically weak
presentation of the alibi defense or as a direct result of
counsel’s deficient performance. Nonetheless, we are unable to
state that any particular deficiency in trial counsel’s performance
at the guilt phase, or even the cumulative effect of all
deficiencies at the guilt phase, is sufficient to render the guilty
verdict in Moore’s case unreliable.
The district court reached a different result with respect to
the punishment phase of Moore’s trial, holding (1) that the
aggregate effect of counsel’s deficient performance resulted in a
certain death sentence, and (2) that, absent counsel’s deficient
performance, the jury would likely have sentenced Moore to life
imprisonment. On appeal, we must determine whether there is a
reasonable probability that, but for counsel’s deficient
performance, the jury might have answered the special issues
submitted in the punishment phase differently. Whitley, 977 F.2d
at 159; Duhamel v. Collins, 955 F.2d 962, 965-66 (5th Cir. 1992);
Wilkerson, 950 F.2d at 1065; Profitt, 831 F.2d at 1249. For the
78
reasons that follow, we conclude that such a reasonable probability
exists.
We conclude that counsel’s deficient performance, including
counsel’s performance during the guilt phase of Moore’s trial,
prejudiced the outcome of the punishment phase of Moore’s trial.
Counsel was deficient for failing to investigate and respond to
information in the state’s file about extraneous offenses that
counsel knew would be admissible directly as a result of Moore’s
chosen alibi defense. As a result, counsel were completely
unprepared to address the state’s rebuttal evidence and completely
unprepared to cross-examine the state’s damaging rebuttal
witnesses, who testified that Moore was involved in two similar
robberies on the two Fridays preceding the April 25, 1980 robbery
of the Birdsall Super Market. This damaging evidence, which was
virtually untested by defense counsel, has obvious relevance to the
punishment phase special issues of deliberateness and future
dangerousness, and was offered by the state in argument as support
for an affirmative finding on those issues. See Bryant, 28 F.3d at
1415 (finding ineffective assistance of counsel based upon
counsel’s failure to interview potential witnesses). Nonetheless,
and notwithstanding counsels’ decision to abandon the ill-fated
alibi defense during the penalty phase of Moore’s trial, counsel
was completely unprepared to question or otherwise answer any
aspect of this damaging evidence as it related to the jury’s
79
deliberation of Moore’s punishment. While counsels’ deficiency in
this regard is insufficient, standing alone, to support a finding
of Strickland prejudice, counsels’ failure to investigate by
interviewing witnesses disclosed to counsel by the state and
counsels’ failure to proceed reasonably in light of that evidence
once disclosed, when viewed in light of counsels’ other failures,
does play a supporting role in our determination that Moore was
prejudiced during the penalty phase of his capital trial.
Counsel rendered deficient performance with respect to their
handling of Moore’s confession during the guilt phase of Moore’s
trial. Specifically, counsel made an illogical and irrational
decision to exclude exculpatory language, permitting only the
state’s version of events to go to the jury. Counsel then made no
objection when the state breached its pre-submission agreement not
to rely upon the excluded portions of the confession, by arguing to
the jury that the excluded portions supported the state’s theory
that the confession was valid. Counsel continued to stand by
silently as the state misled the jury by stating, in the context of
its discussion of the excluded portions of the confession, that
there was no contention in the case that the shooting was
accidental. Notwithstanding that conduct, counsel then switched
tracks almost immediately thereafter by arguing to the jury during
the punishment phase that the shooting was indeed accidental.
Counsel’s unreasonable decision to remove the accidental shooting
80
theory from the jury, coupled with their failure to object to the
state’s misleading argument, and their failure to offer the
unredacted confession during the penalty phase, which would have
impeached the state’s argument that accidental shooting was not at
issue and supported counsel’s punishment phase argument, prejudiced
Moore because it removed Moore’s contention that the shooting was
accidental from the jury’s consideration. There is a reasonable
probability that evidence supporting counsel’s argument that the
shooting was accidental, which was the only plausible defensive
theory at the punishment phase, would have influenced the jury’s
deliberations on the issue of deliberateness. See Whitley, 977
F.2d at 158-60; Jones, 788 F.2d at 1103.
Counsel rendered deficient performance by eliciting damaging
evidence far beyond the scope of direct examination in their cross
examination of the state’s first witness, Officer Autrey.
Counsel’s cross-examination of Autrey established many elements of
the State’s case-in-chief against Moore through the state’s first
witness. To the extent that some details were likewise elicited
from another state witness, Officer Ott, they were likewise
elicited by Moore’s own counsel on cross-examination. Although
Autrey’s detailed and damaging testimony was primarily relevant on
the issue of Moore’s guilt, no other witness provided the same
detailed account of the details of Moore’s offense. We therefore
conclude that the testimony elicited from Autrey by Moore’s counsel
81
was also relevant to and probably contributed in some measure to
the jury’s determination of the punishment phase special issues of
deliberateness and future dangerousness.
Finally, counsel rendered deficient performance by failing to
investigate, develop, or present available mitigating evidence
relating to Moore’s background, Moore’s contention that the
shooting was accidental, and Moore’s prison record during the
punishment phase of Moore’s trial. Moore submitted substantial
mitigating background evidence in the state habeas corpus
evidentiary hearing. That evidence has no demonstrated prejudicial
or double-edged characteristics in the context of this case, and
counsel failed to offer any reasonable justification for their
failure to investigate whether such evidence existed. While we are
troubled by counsel’s complete and total failure to investigate
Moore’s background, despite knowledge placing counsel on notice
that such an inquiry would be fruitful, our ultimate determination
that counsel’s failures in this regard prejudiced Moore rests
heavily upon the fact that counsel also failed to use what limited
mitigating evidence was readily available. Specifically, counsel
failed to submit Moore’s unredacted confession to the jury in
support of the punishment phase argument that the shooting was
accidental. Once again, counsel’s omission effectively removed the
only plausible defensive theory from the jury’s consideration.
Moreover, counsel failed to respond to the state’s prejudicial and
misleading arguments about the effect of Moore’s penitentiary
82
package by clarifying the duration and extent of Moore’s criminal
history and by highlighting Moore’s early release. Moore’s prison
record was clearly relevant on the issue of future dangerousness.
See Skipper, 106 S. Ct. 1669. While merely permitting, without
objection, the admission of the penitentiary package, might not
have independently constituted deficient performance or created the
probability of prejudice, there is a reasonable probability that
counsel’s failure to respond to specific misleading argument by the
state about Moore’s prison record impacted the outcome of the
jury’s deliberations on the issue of both punishment phase special
issues of deliberateness and future dangerousness.
This is not a case in which the nature of the offense or the
strength of the state’s punishment phase evidence requires the
conclusion that the specific evidence proposed by the petitioner
would not have made any difference with respect to the outcome of
the punishment phase. Cf. Strickland, 104 S. Ct. at 2071 (finding
no prejudice where state’s overwhelming presentation of evidence
relating to aggravating factors supporting imposition of death
penalty); Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999) (finding
no prejudice where the brutal and lengthy nature of the murder, the
defendant’s confessions, and the lack of other mitigating evidence
required the conclusion that counsel’s failure to present the
proposed evidence would not have made any difference with respect
to the outcome of the sentencing phase), pet. for cert. filed,
83
(U.S. June 17, 1999) (No. 98-9808); Sharp v. Johnson, 107 F.3d 282
(5th Cir. 1997) (finding no prejudice where horrendous nature of
crime and circumstances would have overwhelmed mitigating evidence
identified by defendant). Given the facts of this case, we have no
trouble concluding that, taken together, counsel’s failure to
investigate Moore’s proposed defense by interviewing and preparing
for the state witnesses to Moore’s extraneous conduct, counsel’s
inexplicable and illogical failure to require submission of
exculpatory language in Moore’s confession together with the
inculpatory language submitted to the jury, counsel’s damaging
cross-examination of Officer Autrey, which in and of itself
established most elements of the case-in-chief against Moore, and
counsel’s complete failure to either investigate, develop, or
present available and potentially availing mitigating evidence
supporting counsel’s argument that the shooting was accidental,
during the punishment phase of Moore’s trial, including counsel’s
failure to offer an unredacted and available copy of Moore’s
purported confession in support of counsel’s closing argument
during the punishment phase that the shooting was accidental, are
sufficient to demonstrate prejudice within the meaning of
Strickland. Absent those inexcusable and unreasonable failures,
there is a reasonable probability that the outcome of Moore’s
punishment phase would have been different. Whitley, 977 F.2d at
159; Duhamel, 955 F.2d at 965-66; Wilkerson, 950 F.2d at 1065;
84
Profitt, 831 F.2d at 1249. We therefore conclude that trial
counsel’s cumulative errors rendered the result of Moore’s
punishment phase unreliable and affirm the district court’s grant
of relief as to punishment only.
VII.
The district court granted the writ of habeas corpus and
ordered that the state court of conviction grant Moore a new trial
on the issue of punishment only. On appeal, the Director argues
that the district court exceeded its authority by ordering the
state court to conduct a new punishment trial.
We agree. A federal habeas court has the power to grant a
writ of habeas corpus. Duhamel, 955 F.2d at 968. The federal
habeas court is without power, however, to order that the state
conduct a new punishment hearing. King, 1 F.3d at 287. When
relief in a capital case is limited to punishment only, as in this
case, the proper course is to enter an order granting the writ, but
permitting the state court of conviction a reasonable period of
time in which to decide whether: (1) to hold a new trial on the
issue of punishment only, as permitted by TEX. CODE CRIM. PROC. art.
44.29(c), or (2) to vacate the habeas petitioner’s sentence and to
impose a sentence less than death. Granviel v. Estelle, 655 F.2d
673 (5th Cir. Sept. 1981); see also Whitley, 977 F.2d at 161;
Jones, 788 F.2d at 1103. We therefore remand with instructions to
85
enter such an order.
CONCLUSION
For the foregoing reasons, the district court’s determination
that Moore’s trial counsel rendered constitutionally deficient
performance which prejudiced the outcome of the punishment phase of
Moore’s capital trial is AFFIRMED as modified by this opinion. The
cause is REMANDED to the district court with instructions to enter
an order granting the writ of habeas corpus, but conditioning the
issuance of that writ upon the passage of a reasonable but certain
period of time during which the state court of conviction may cure
the constitutional error by vacating Moore’s death sentence and
imposing a sentence less than death, or by conducting a new
punishment hearing pursuant to Texas Code of Criminal Procedure
art. 44.29(c).
86