United States Court of Appeals
Fifth Circuit
F I L E D
October 7, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
Clerk
FOR THE FIFTH CIRCUIT
No. 02-21210
STEPHEN LINDSEY MOODY,
Petitioner - Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of Texas, Houston
(H-00-CV-1450)
Before JONES, STEWART, and DENNIS, Circuit Judges.
CARL E. STEWART, Circuit Judge:*
Petitioner-Appellant Stephen Moody (“Moody”) was convicted of capital murder and
sentenced to death for the 1991 murder of Joseph Hall (“Hall”). He now applies for a certificate of
appealability (“COA”) on four issues as part of a petition for habeas corpus relief under 28 U.S.C.
*
Pursuant to 5TH CIR. R. 47.5, t he court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
§2254 based upon ineffective assistance of counsel. We deny Moody’s request for a certificate of
appealability on each contested issue.
FACTUAL SUMMARY AND PROCEDURAL HISTORY
The evidence adduced at trial established the following sequence of events. In late September
of 1991, Moody and his co-defendant, Calvin Doby (“Doby”) drove from Houston to Dayton, Texas
while accompanied by Melvin Ellis (“Ellis”) and Lloyd Larrieu (“Larrieu”). As the prosecution’s star
witness, Ellis testified that, while en route, Doby asked Larrieu from whom Larrieu was getting his
drugs, because Doby wanted to rob the individual. In response, Larrieu provided Doby with the
name and whereabouts of Hall. According to Ellis, Moody did not participate in the conversation.
On October 19, 1991, the day of the murder, Ellis, Doby, and Larrieu drove to Hall’s
residence where Larrieu pointed out Hall’s house and answered Doby’s questions regarding the
whereabouts of Hall’s drugs and money. Larrieu informed Doby that Hall lived with his girlfriend,
Rene McKeage (“McKeage”), kept his money in his pocket, and that Doby would know if Hall was
home by the Camaro in the driveway. Doby immediately contacted Moody by telephone and the two
of them met at Ellis’ residence an hour and half later. Moody and Doby then went to Hall’s residence
and murdered him with a shotgun blast to the chest. The Court of Criminal Appeals summarized the
facts of the murder as follows:
On the evening of [the murder], McKeage and Hall [were returning home from
dinner] when McKeage noticed two unknown men walking on the street away from
the front of their house...[Upon entering their residence,] Rene was sitting in the
bathroom when she heard Hall talking on the phone and then “somebody come rush
in the house.” She heard Hall yell out her name and then heard another man’s voice
screaming “Where is the money?” Rene stayed in the bathroom. She initially thought
that it was the police because of the drugs that were in the house. She heard Hall say,
“You’re not the cops. Let me see your badges.” Rene then heard some scuffling, and
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[Moody] walked into the bathroom and said, “stay there. Don’t move.” [Moody] was
pointing a sawed-off shotgun at Rene.
[Moody] left the bathroom and Rene heard him again ask Hall, “where is the money?”
Hall said the money was in his pocket, and he asked [Moody], “Please don’t shoot
me.”
[Moody] returned to the bathroom, and he again said to Rene, “Stay there, don’t
move.” Rene said, “Okay, I won’t move,” and [Moody] shut the bathroom door.
Rene then jumped out of the bathroom window, jumped the fence in the backyard,
and ran to the next-door residence of Arthur Jesse Flores. During this time, she heard
a gunshot come from inside the house. When Rene entered Mr. Flores’ residence, she
said that someone had shot Hall, and she called 911. Ms. Juarez and Ms. Chavez also
heard the gunshot and a scream, and saw two men walk out of the residence and back
down the street.
Following the murder, Doby and Moody returned to Ellis’ residence forty-five minutes later
and admitted to him that they murdered Hall. Ellis testified that Doby confessed, “Man, we had some
trouble over there,...we had to kill him.” Moody then responded, “Man, you know I didn’t - that I
had to do it,” to which Doby replied, “Man don’t worry. Shit happens.” Ellis asked the appellant
if the man was dead, and the appellant said, “Yeah, I shot him right in the heart.” Ellis also testified
that upon the departure of Moody and Doby, he noticed the stock of a shotgun in the vehicle on the
passenger’s side where the appellant was sitting.
Moody was indicted on October 6, 1992 for capital murder under Texas Penal Code
§19.03(a) (7) (A). Following a jury trial, Moody was convicted and sentenced to death in March
1993. In 1996, the Texas Court of Criminal Appeals upheld Moody’s conviction and sentence on
direct appeal. See Moody v. State, No. 71687 (Tex. Crim. App. 1996). Moody did not seek
certiorari review in the Supreme Court. In June 1997, Moody filed an application for a writ of habeas
corpus in state court. On August 19, 1999, the state habeas court entered findings of fact and
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conclusions of law denying him relief. The Texas Court of Criminal Appeals affirmed his conviction
and sentence. See Ex Parte Stephen Lindsey Moody, No. 42832-01 (Tex. Crim. App. 1999).
On May 1, 2000, Moody filed his federal petition for a writ of habeas corpus in the district
court claiming that the State violated his equal protection rights by exercising a peremptory challenge
based on a prospective juror’s race and that his trial counsel rendered ineffective assistance of counsel
by failing to call Larrieu as a witness at trial and by failing to present mitigating evidence at the
punishment phase of his trial. On September 30, 2002, the district court rendered a final judgment
denying sua sponte a COA regarding Moody’s ineffective assistance of counsel claims and
provisionally granted Moody’s petition for a writ of habeas corpus with regards to his Batson claim.2
On appeal, Moody seeks a COA from this court solely on his claim that his counsel rendered
ineffective assistance of counsel by failing to call Larrieu as a witness.
STANDARD OF REVIEW
Moody filed his federal habeas petition after t he effective date of the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy, 521 U.S. 320, 326-27 (1997);
Robertson v. Cockrell, 325 F.3d 243, 247 (2003) (stating that the AEDPA applies to all cases
pending as of April 24, 1996). Under AEDPA, Moody must obtain a COA before he may receive
full appellate review of the district court’s denial of his request for habeas relief. 28 U.S.C. § 2253
(c) (1) (A) (2000) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by the State court.”).
2
Under Batson v. Kentucky, 476 U.S. 79 (1986), the State violates the equal protection
clause when it challenges potential jurors solely on the basis of race.
4
Under an application for a COA, an applicant must make a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). In seeking a COA, the applicant will not succeed
unless there is a showing of “something more than the absence of frivolity or the existence of mere
good faith.” Miller-El v. Cockrell, 123 S. Ct. 1029, 1040 (2003); quoting, Barefoot v. Estelle, 463
U.S. 880, 893 (1983). To prevail, the petitioner “must demonstrate that reasonable jurists would find
that the district court’s assessment of the constitutional claims debatable or wrong.” Miller-El, 123
S. Ct. at 1040; quoting, Slack v. McDaniel, 529 U.S. 473, 484 (2000). Indeed, the ultimate
determination turns on “the debatability of the underlying constitutional claim, not the resolution of
the debate.” Henry v. Cockrell, 327 F.3d 429, 431 (5th Cir. 2003).
Our review of whether Moody makes a substantial showing of a violation of a constitutional
right is also constrained by the applicable AEDPA standards of review. Moore v. Johnson, 225 F.3d
495, 501 (5th Cir. 2000), cert. denied, 532 U.S. 949 (2001). On questions of law, the state court’s
conclusions will be disturbed only upon a showing that they were “contrary to, or an unreasonable
application of, clearly established” Supreme Court precedent. 28 U.S.C. § 2254 (d) (1).
Furthermore, state court findings of fact are presumed correct unless the petitioner rebuts them by
clear and convincing evidence. Id. § 2254 (e) (1).
DISCUSSION
In order to show a deprivation of his Sixth Amendment right to effective assistance of
counsel, the Applicant must show: (1) that his counsel’s representation was deficient, and (2) actual
prejudice resulting from the deficient performance. See Kitchens v. Johnson, 190 F.3d 698, 701 (5th
Cir. 1999). In evaluating whether counsel’s performance was deficient, we look to whether the
challenged representation fell below an objective standard of professional norms. Id. To prove
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prejudice, Moody must show “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 703. As
articulated by the U.S. Supreme Court, the fundamental inquiry courts must follow in making their
determination in an ineffective assistance of counsel claim is whether counsel’s conduct so
undermined the proper functioning of the adversary process that the trial cannot be relied upon as
having produced a just result. Strickland v. Washington, 466 U.S. 668, 687 (1984).
A. Deficient Performance
Relying in part on Moody’s counsel’s affidavit, the state habeas court found that the
performance rendered by Moody’s counsel was not deficient. The relevant portion of the affidavit
is as follows:
I was aware of Lloyd Larrieu and Melvin Ellis prior to trial and I was aware of Ellis’
intended testimony. During my many conversations with the defendant, he never told
me that Larrieu could or would give testimony to support the defendant’s claim that
he did not do the shooting. We tried to find Larrieu and were not able to find him.
However, I did not consider Larrieu’s testimony as critical, because, even if Larrieu
denied talking to Doby, it would not address the issue of the defendant’s and Doby’s
admissions to Ellis.
The statements Calvin Doby made to Lloyd Larrieu concerning the intended offense
did not inculpate the defendant. My concern was the statements which Doby and the
defendant made to Marvin Ellis outside of Larrieu’s presence. In other words, even
if Larrieu testified that he didn’t give Doby information about his drug dealer; and,
that Larrieu did not drive past the victim’s house with Ellis and Doby, it would have
had little, if any, impact on the entirety of Ellis’ prejudicial testimony concerning the
defendant’s and Doby’s admissions. As a matter of strategy, I wanted to impeach the
reliability of all identification testimony and impeach Ellis’ admissions. Viewed
strategically, it is likely that a juror would view Larrieu as less credible than Ellis
because Ellis presented plausible altruistic reasons for reporting a crime and, based
on Larrieu’s affidavit, Larrieu would just deny talking to Doby, driving to Dayton,
and driving past the victim’s house and Larrieu would have to admit that he knew
nothing about the shooting itself.
Moody v. State, slip op. at 1-3.
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The state habeas court found that Moody’s counsel “attempted to locate Larrieu” and “made
a reasonable, strategic decision to attempt to impeach Melvin Ellis with Ellis’ possible bias and motive
for testifying and to attack identification.” The district court accepted the state habeas court’s finding
that Moody’s counsel attempted to locate Larrieu. The district court highlighted the fact that Moody
attempted to locate Larrieu despite the fact that Moody did not tell him that Larrieu would have
provided material testimony.
Moody argues that the state court’s finding that his counsel attempted to locate Larrieu
should not be given deference because it “was not reasonable for the court to infer that trial counsel’s
attempts to locate Larrieu - whatever they might have been - fell within the wide range of responsible
professional performance.” The district court held that trial counsel’s unrebutted affidavit regarding
his efforts to locate Larrieu for trial supported the state court’s rejection of Moody’s ineffective
assistance of counsel claim. “Counsel for a criminal defendant is not required to pursue every path
until it bears fruit or until all conceivable hope withers.” Lovett v. State of Florida, 627 F.2d 706,
708 (5th Cir. 1980), see also, Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994). Although the record fails
to show what actions trial counsel took to locate Larrieu, this void does not establish that the state
court determination was contrary to, or an unreasonable application of federal law. Even if Moody
had established deficient performance, his claim was destined for failure.
B. Prejudice
The state habeas court further held that Moody’s counsel’s failure to call Larrieu as a witness
did not prejudice Moody’s defense. The district court also held that no prejudice resulted from
Moody’s counsel’s failure to call Larrieu as a witness.
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Moody argues that his counsel’s failure to call Larrieu prejudiced his defense because
Larrieu’s testimony would have rebutted Ellis’ testimony regarding the planning of the crime. Moody
points to Larrieu’s affidavit in which Larrieu stated that: (1) he had never been acquainted with
Joseph Hall; (2) he never drove with Ellis, Doby, or Moody to Houston; (3) he never spoke with
Doby about Hall, either in or out of the presence of Moody or Ellis; and (4) he would have testified
as to those facts on Moody’s behalf had he been contacted by Moody’s counsel. Although Larrieu’s
testimony would have rebutted Ellis’ testimony regarding the planning of the crime, Moody’s
counsel’s failure to call Larrieu did not prejudice Moody’s defense. As the district court stated,
Larrieu’s affidavit “only calls into question the manner in which [] Doby and Moody chose their
victim, it does not question their identity as the killers.” Moody’s counsel stated that he was
concerned with the “incriminating statements made by Moody and Doby to Ellis outside of Larrieu’s
presence, not the statements made in Larrieu’s presence.”
Moody further argues that his counsel’s failure to call Larrieu prejudiced his defense because
Larrieu’s testimony would have undermined the jury’s confidence in the identification of him as the
killer and thus, the confidence in the outcome of the proceedings against him. Moody contends that
Ellis’ and McKeage’s testimony was compromised. Specifically, Moody argues that Ellis was
psychotic, received immunity, and was a former drug user. As for McKeage, Moody highlights the
fact that: (1) her identification of him as the killer was less than definite; (2) she was a drug abuser;
(3) she broke into the scene of the crime with her companions looking for drugs and money following
Hall’s murder; (4) and that she made out with one of her companions at the scene of the crime.
Our review of Larrieu’s affidavit and the state habeas court’s review of Larrieu’s testimony
at Doby’s trial reveals that Larrieu’s testimony would not have undermined the jury’s confidence of
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Moody as the killer because Larrieu would not have testified as to the facts surrounding the murder
of Hall.3 Moreo ver, Larrieu’s credibility would have been called into question because of his
extensive criminal history.4 On this issue, the state habeas court rejected as speculative “[Moody’s]
assertion that Larrieu’s and Ellis’ background[s] were equally bad so it [is]likely that the jury would
have found Larrieu just as credible as Ellis.” It should also be noted that Moody’s counsel
unsuccessfully attempted to impeach the reliability of all of the identification testimony, including
Ellis’ and McKeage’s.
The state habeas court further found that Moody corroborated Ellis’ testimony. As Moody’s
counsel stated:
[D]uring the testimony of Melvin Ellis, the defendant made an audible outburst in
front of the jury which it was obvious that the jury heard. When Ellis testified that
Charles Doby and the defendant left Ellis $100 of the stolen money after splitting the
money at Ellis’ house, the defendant told me that “he’s a lying son of a bitch, he got
$900.”
3
Moody asserts that the state habeas court denied him relief because Larrieu’s testimony at
Doby’s trial resulted in a guilty verdict. Although the state habeas court reviewed Larrieu’s testimony
from Doby’s trial, it did not base its prejudice finding on the fact that Doby was ultimately convicted.
4
The trial court found, during the punishment phase of the subsequent trial of the applicant’s
co-defendant Calvin Charles Doby, Lloyd Larrieu admitted during cross-examination that he used
names other than Lloyd Larrieu; that he was convicted of burglary of a building in 1958; that he
committed theft during the offense and was sentenced to eight years in prison; that he was convicted
of burglary of a building with the intent to commit theft in 1964 and sentenced to four years in prison;
that he was convicted of breaking into an auto in 1968 and sentenced to two years in prison; that he
was convicted of burglary of a habitation in 1976 and was sentenced to twenty years in prison; that
he was indicted as an habitual criminal in the 1976 offense which means an automatic possibility of
a life sentence; that he was convicted of possession of a controlled substance in 1984 and sentenced
to two years in prison; that he was convicted of unauthorized use of a motor vehicle in 1988 and
sentenced to fifteen years in prison; that he was convicted of the federal offense of theft of U.S. mail
in 1991 and sentenced to eighteen months in federal priso n; and, that he violated his subsequent
parole and was incarcerated in federal prison at the time of his testimony. (CD. VII - 807-15).
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To the district court this outburst “only validated the fact that Moody killed the victim, robbed
the house, and brought the proceeds to Mr. Ellis’ house.”
Finally, the state habeas court noted that the identification of Moody as the shooter and the
elements of the primary offense were established by other evidence, including the testimony of
Josephine G. Juarez, Eduardo Bellas, and Ray Klein. Moody contends that the state habeas court
incorrectly utilized the sufficiency of the evidence test in determining whether trial counsel’s
performance prejudiced him. Although Moody correctly asserts that the “sufficiency of the evidence”
standard is inapplicable in analyzing the existence of prejudice under Strickland, his argument fails
because the state habeas court did not solely base its prejudice determination on the fact that other
witnesses identified him as Hall’s killer. See Johnson v. Scott, 68 F.3d 106, 109-10 (5th Cir. 1995)
(holding that sufficiency of the evidence analysis in evaluating whether prejudice resulted from an
attorney’s actions does not comport with the Strickland prejudice standard).
Assuming arguendo that Moody’s assertion that the state habeas court utilized the incorrect
prejudice standard is correct, it is clear that a proper application of the prejudice standard to Moody’s
case still results in a finding that Moody was not prejudiced by his counsel’s failure to call Larrieu as
a witness. Moody’s counsel made a strategic decision to impeach Ellis’ testimony that identified
Moody as the shooter. In his view, Larrieu’s testimony would have only discredited Ellis’ testimony
regarding the planning of the crime, not Ellis’ testimony regarding the actual shooting. Stated
differently, “[e]ven if Larrieu testified, it would not have had any impact on the Ellis’ prejudicial
testimony concerning Moody’s and Doby’s admissions.” Thus, there is “no reasonable probability
that the result of the proceedings would have been different” if Larrieu was called as a witness.
Kitchens, 190 F.3d at 703. As a result, Moody failed to show that “the district court’s assessment
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of his constitutional claim was debatable or wrong.” Accordingly, we deny Moody’s request for
COA on this issue.
CONCLUSION
As Moody’s counsel’s performance did not prejudice Moody’s defense, we deny his request
for a COA on his ineffective assistance of counsel claim.
DENIED.
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