Moore v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
for the Fifth Circuit May 24, 2006

Charles R. Fulbruge III
Clerk
No. 05-70018

JOHNATHAN MOORE,

Petitioner-Appellant,

VERSUS

DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee.

Appeal from the United States District Court
for the Western District of Texas
(SA-02-CV-0579)

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Petitioner Johnathan Bryant Moore was convicted in Texas state

court of capital murder and sentenced to death. After exhausting

all available state remedies, Moore filed a petition for federal

habeas corpus relief in the U.S. District Court for the Western

District of Texas, claiming that he received ineffective assistance

*
Pursuant to 5TH CIR. R. 47.5, the 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opinion should not be published and is not precedent except under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.
of counsel in violation of the Sixth Amendment and that he was

sentenced to death in violation of the Seventh Amendment. The

district court denied the petition and declined to issue a

certificate of appealability (COA). Moore now requests that this

Court grant a COA as to his ineffective assistance of counsel claim

pursuant to 28 U.S.C. § 2253(c)(2). For the reasons stated below,

we deny Moore’s Application for a Certificate of Appealability.

I. Background

In October 1996, Petitioner Moore was convicted of capital

murder for the shooting of San Antonio police officer Fabian

Dominguez and sentenced to death. The facts of the murder, as

summarized by the Texas Court of Criminal Appeals (TCCA) on direct

appeal, are as follows:

On January 15, 1995, at approximately 5:00 a.m., San
Antonio police officer Fabian Dominguez went off duty and
began driving home in his personal vehicle. Officer
Dominguez lived in San Antonio with his wife and infant
twin daughters. Officer Dominguez was a few blocks from
home when he noticed suspicious activity at the residence
of William Braden. Based on what Officer Dominguez
observed, he took action to investigate what appeared to
be a burglary in progress. When he pulled into the Braden
driveway, blocking in the suspects’ vehicle, Paul
Cameron, Pete Dowdle, and [Moore] were concluding their
second trip to burglarize the Braden home.
In his voluntary written statement to Detective
James Holguin, [Moore] described the sequence of events
leading up to the murder of Officer Dominguez.
For some dumb reason we decided to go back to
the house on Country Flower. We went in Pete's
grandmother's car. . . . Pete drove. I was in
the front passenger side of the car and Paul
was in the backseat. Pete backed the car into
the driveway. Pete stayed out in the car. We
had accidently left the front door wide open
the first time. Me and Paul went in through

2
 the front door. We didn’t have any problem
with the dog. All three of us were wearing
gloves again. We had left some guns and a
compound bow were left (sic) from the first
time. We got those things. Me and Paul decided
to split form (sic) the inside. We walked
outside and we saw a car passing by. The car
stopped and I saw the reverse lights come on.
We all got into the car. Pete was behind the
wheel. I was in the front passenger seat and
Paul was in the backseat. The car pulled into
the driveway and pretty much blocked us in.
The police officer got out of the car and had
his gun pointing at Pete. I could see that
this guy was wearing a police uniform. The
officer said get out of the car now. I had my
window rolled down. The officer kept repeating
“get out of the car”. . . . I kept telling
Pete let’s split but he would not do it. By
the time the officer walked up to the car and
had the gun pointed at my head. (sic) The
officer was on the passenger side of Pete’s
car. The officer told Pete to give him the car
keys and Pete gave it to him. I scooted the
officer’s pistol away and I pulled out my gun
and shot at him. I believe I shot at him three
times. The officer fell to the ground. I
already had my gun in my hand when the officer
walked up. My gun is a .25 caliber automatic.
It’s plated and it’s a Lorcin brand. After I
shot the officer his gun fell into the front
rear seat of Pete’s car. I got out of the car
and I got the car keys and gave them to Pete.
I got the officer’s gun and shot the officer
three times in the head. I got back in the car
and Pete split. Paul was in the backseat
during the whole time. Pete didn’t want to get
into trouble after I shot the cop so he drove
away.
Neighbors across the street heard gunfire coming
from the Braden home. Upon receiving a 911 call, police
and emergency personnel were immediately dispatched.
Officer Dominguez was dead by the time firemen arrived on
the scene. The coroner later determined that Officer
Dominguez died from multiple gunshot wounds to the head.
Ballistics established that the wounds were inflicted by
one shot from [Moore]’s .25 caliber handgun, and three
shots from Officer Dominguez's .40 caliber service
weapon.

3
 After leaving the scene of the crime, [Moore],
Cameron, Dowdle, and [Moore]’s girlfriend, Meredith
Nichols, traveled to a plot of land near Pipe Creek,
Texas, where they disposed of both murder weapons and the
items stolen from the Braden residence.
The following day [Moore] was developed as a suspect
in the burglary. He was subsequently located and seen
driving a vehicle that belonged to Nichols. Nichols was
a passenger in the vehicle. While under police
surveillance, [Moore] committed numerous traffic
violations. When police officers signaled him to pull to
the side of the road, a high speed chase ensued. Twenty
miles later, [Moore] and Nichols were captured after
[Moore] careened to the side of the road. After a brief
struggle, San Antonio police officers arrested [Moore]
and took him into custody. In his voluntary statement to
Detective Holguin [Moore] explained his flight from
authorities, stating, “I figured pretty much that the
cops knew that I was the one that shot the cop.”

Moore v. State, 999 S.W.2d 385, 391-92 (Tex. Crim. App. 1999).

On direct appeal to the TCCA, Moore raised thirty-seven points

of error. The TCCA found no error and affirmed his conviction and

sentence. Moore’s petition for writ of certiorari to the U.S.

Supreme Court was denied. Moore subsequently filed an application

with the Texas trial court for a writ of habeas corpus, raising

eighteen grounds for habeas relief. After holding an evidentiary

hearing, the convicting court entered findings of fact and

conclusions of law recommending that Moore’s application be denied.

The TCCA adopted the convicting court’s recommended factual

findings and legal conclusions and denied Moore’s request for

habeas relief.

Moore subsequently filed a petition for a writ of habeas

corpus in federal district court. In his petition, he raised only

4
two grounds for relief, both of which were previously raised before

the state habeas court: (1) that he received ineffective assistance

of counsel in violation of the Sixth Amendment; and (2) that he was

sentenced to death in violation of the Seventh Amendment. The

district court denied relief and declined to issue a COA. Moore

thereafter filed an Application for a Certificate of Appealability

with this Court. He only seeks a COA as to the ineffective

assistance of counsel claim.

II. Facts Relating to Ineffective Assistance of Counsel Claim

Moore’s central claim is that he received ineffective

assistance of counsel at trial because his court-appointed

attorneys failed to present sufficient available evidence--namely,

the testimony of defense experts--to the trial judge to support

their request that a jury be empaneled to determine whether Moore

was competent to stand trial. The facts relevant to this claim are

drawn from the pretrial proceedings, the guilt-innocence and

punishment phases of trial, and the post-conviction proceedings.2

Pretrial, at a suppression hearing, Moore’s court-appointed

counsel, John Convery and Ronald Guyer, made an ex parte

application to the trial court for an examination of Moore on his

competency to stand trial. Counsel asked the court to consider, in

deciding whether to hold a competency hearing, inappropriate

2
We summarize the well-stated facts presented in the district
court’s order, Moore v. Dretke, No. SA-02-CA-0579 (W.D. Tex. Mar.
22, 2005), which reflect the state habeas court’s findings of fact.

5
outbursts and comments made by Moore during the suppression

hearing, Moore’s history of mental illness, including

hospitalization and treatment at a mental health facility, and

counsel’s general impression that Moore was not competent and did

not understand the proceedings against him. The court found

insufficient evidence to necessitate a competency hearing, but, “in

an abundance of caution,” appointed Dr. Michael Arambula to examine

Moore and give the court an opinion as to Moore’s competency.

Dr. Arambula examined Moore, but he never gave the trial court

an opinion as to Moore’s competency; rather, he and his colleague,

Dr. Margot Zuelzer, who also examined Moore, made reports only to

Moore’s counsel. While equivocal, they both reported that they felt

Moore was competent to stand trial. The only report on competency

submitted to the trial court was one prepared by Dr. John Sparks,

a psychiatrist appointed for the State to evaluate Moore’s

competency, sanity, and future dangerousness after Moore’s counsel

notified the court during voir dire of their intention to raise

insanity as a defense. Dr. Sparks stated in his report that he

thought Moore was competent to stand trial.

When trial commenced, Moore tried to discharge his attorneys,

expressing concern about being represented by lawyers who were

“paid for by the State.” The trial court discussed the

inadvisability of self-representation with Moore and gave him time

to meet with his attorneys over lunch to reassess whether he wanted

to discharge them. After lunch, Moore indicated that he would

6
proceed with Guyer and Convery as counsel. Moore’s competency was

not raised again at this time.

Moore’s chief defense at trial was insanity. His counsel put

Doctors Arambula and Zuelzer on the stand to testify as to Moore’s

mental state at the time of the offense. They both testified that

Moore suffered from schizoaffective disorder and that his illness

was severe, rendering him insane at the time he shot Officer

Dominguez. Neither doctor was asked on the stand about Moore’s

competence to stand trial. The State called Dr. Sparks and another

doctor--who evaluated detainees, including Moore, at the Bexar

County Jail--on rebuttal, and they testified that Moore suffered

from dysthymia, a minor depression, and possibly a borderline

personality disorder and that his illness did not render him

legally insane at the time of the shooting. Neither doctor called

by the State was asked on the stand about Moore’s competence to

stand trial. At the conclusion of the guilt-innocence phase of the

trial, the jury rejected Moore’s insanity defense and found Moore

guilty of capital murder.

At the punishment phase of trial, Moore again tried to

discharge his attorneys. This time, Moore was not persuaded by the

court’s admonition regarding the advisability of self-

representation; he insisted on representing himself. After

inquiring into Moore’s ability to choose intelligently and

voluntarily to self-represent, the trial court warned Moore about

the dangers of self-representation, noted that the record reflected

7
that he was mentally competent, and permitted him to proceed

without counsel. Guyer and Convery, whom the court appointed as

standby counsel in the event that Moore demonstrated an inability

to represent himself, moved at this time for a competency hearing

under Texas Code of Criminal Procedure article 46.02.3 However,

they did not present any new evidence regarding competence, relying

instead on the insanity evidence presented at trial and Moore’s

insistence on representing himself. Denying Guyer and Convery’s

motion, the trial court emphasized that Dr. Sparks had filed a

report with the court stating his opinion that Moore was competent

to stand trial and that a desire to self-represent did not in and

of itself suggest that Moore was incompetent. Later that day, Guyer

and Convery renewed their request for a competency hearing. The

trial court again denied their request, stating that it had heard

no evidence suggesting that Moore was incompetent.4

Moore represented himself during the first two days of the

punishment phase of trial, asking relevant questions and obtaining

favorable rulings on objections. On the second day, Moore decided

3
Article 46.02 provided at that time,
If during the trial evidence of the defendant's incompetency
is brought to the attention of the court from any source, the
court must conduct a hearing out of the presence of the jury
to determine whether or not there is evidence to support a
finding of incompetency to stand trial.
TEX. CODE CRIM. PROC. art. 46.02, § 2(b) (West 1996).
4
The record shows that Guyer informed the trial court that
“[counsel] might present Dr. Arambula on this matter,” but after a
brief recess advised the court that “[counsel is] not prepared to
go forward on that at this moment.”

8
to discontinue self-representation, and Guyer and Convery were

reinstated as counsel. Counsel then moved for a mistrial, based in

part on evidence of Moore’s competency. The motion was denied.

Counsel continued to represent Moore throughout the remainder of

his trial. On October 25, 1996, Moore was sentenced to death.

On appeal to the TCCA, Moore’s conviction and sentence were

upheld. Addressing one of many points of error, the TCCA found that

Moore was competent to stand trial and that the combination of

Moore’s courtroom outbursts, his mental health history, his self-

representation, and nonspecific concerns about his ability to

communicate with his attorneys did not raise a bona fide doubt as

to his competency such that a competency hearing was warranted in

the court below. The Supreme Court denied Moore’s petition for writ

of certiorari.

Finally, Moore filed an application for a writ of habeas

corpus with the Texas trial court, arguing, in part, that he was

convicted and sentenced while incompetent and that he received

ineffective assistance of counsel. The court conducted an

evidentiary hearing and took testimony from Moore’s trial counsel

and Doctors Arambula and Zuelzer regarding Moore’s competency and

the effectiveness of his counsel. Convery and Guyer testified that

throughout trial, it became increasingly difficult to communicate

with Moore. Convery testified that he suspected Moore was mentally

ill from the first time he met him; Guyer similarly testified that

he initially suspected Moore was mentally ill and had a difficult

9
time getting Moore to talk to him about the crime. The lawyers’

testimony shows that they disagreed about when to bring evidence of

Moore’s incompetency to the attention of the court. Convery wanted

to present competency as an issue right away, whereas Guyer wanted

to delay bringing forward evidence of incompetency until after they

presented Moore’s insanity defense. However, Guyer testified that

by the time of jury selection, Moore had begun to cooperate with

his attorneys and they had enough information to proceed. Doctor

Arambula testified that he found Moore competent to stand trial

when he examined him in May 1996, but he noted that he was

concerned Moore could decompensate and shared that concern with

Moore’s counsel. Dr. Arambula further testified that under a

hypothetical situation in which Moore’s paranoia and delusions

caused him to become so suspicious of his attorneys that he refused

to communicate with them, kept his head down, flipped through

magazines and books during trial, and eventually chose to represent

himself, he could have testified that Moore was incompetent.

However, Dr. Arambula noted that he had only reached this

conclusion just prior to the writ hearing. Dr. Zuelzer similarly

testified that she was concerned about Moore’s competence and that

she communicated her concerns to Dr. Arambula, although not to

Moore’s attorneys. Dr. Zuelzer further testified that after hearing

about Moore’s conduct during trial, she felt he had become

incompetent. The state habeas court recommended that the TCCA deny

all claims for relief, concluding that Moore had failed to prove

10
that he was incompetent in fact and failed to establish either

deficient performance or prejudice under Strickland v. Washington,

466 U.S. 668 (1984). According to the court, Moore’s counsel were

not deficient in raising Moore’s competency because the state writ

hearing testimony of Moore’s defense experts--which Moore claimed

would have raised a bona fide doubt as to his competency--was not

reasonably available to counsel during trial; moreover, their

performance did not prejudice Moore’s defense because he failed to

establish that he was incompetent in fact. The TCCA adopted the

state habeas court’s findings of fact and conclusions of law and

denied all claims for relief. Moore timely filed a petition for a

writ of habeas corpus with the U.S. District Court for the Western

District of Texas on December 31, 2002. That court also denied

relief, finding that the TCCA’s determination regarding Moore’s

ineffective assistance of counsel claim was not contrary to and did

not involve an unreasonable application of clearly established

federal law under 28 U.S.C. § 2254(d)(1) because his counsel’s

performance was not deficient and their performance was not

prejudicial. The district court agreed that Moore’s failure to

establish that he was incompetent in fact decided the prejudice

issue, citing Carter v. Johnson, 131 F.3d 452 (5th Cir. 1997). The

district court concluded that Moore was not entitled to a COA

because there was no basis for disagreement among jurists of reason

regarding the court’s disposition of the ineffective assistance of

11
counsel claim. Moore asks us to grant a COA and ultimately reverse

the district court’s denial of habeas relief.

III. Discussion

Moore filed his federal petition for a writ of habeas corpus

after the effective date of the Antiterrorism and Effective Death

Penalty Act (AEDPA). Accordingly, his petition is subject to

AEDPA’s requirements. Lindh v. Murphy, 521 U.S. 320, 336 (1997).

Under AEDPA, a petitioner must apply for and obtain a COA before

appealing a district court’s denial of habeas relief. 28 U.S.C.

§ 2253(c).

To obtain a COA, an applicant must make “a substantial showing

of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2);

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and to meet this

standard, the applicant must demonstrate that “‘reasonable jurists

could debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the issues

presented were “adequate to deserve encouragement to proceed

further,”’” Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel,

529 U.S. 473, 484 (2000)). We recognize that the inquiry in which

this Court must engage “is a threshold inquiry only, and does not

require full consideration of the factual and legal bases of [the

petitioner’s] claim[s].” Neville v. Dretke, 423 F.3d 474, 482 (5th

Cir. 2005) (citing Miller-El, 537 U.S. at 336). We will issue a COA

if Moore can demonstrate that “the [d]istrict [c]ourt’s application

12
of AEDPA to [his] constitutional claims . . . was debatable among

jurists of reason.” Miller-El, 537 U.S. at 336. A claim can be

debatable “even though every jurist of reason might agree, after

the COA has been granted and the case has received full

consideration, that petitioner will not prevail.” Id. at 338.

Because Moore was sentenced to death, “we must resolve any doubts

as to whether a COA should issue in his favor.” Martinez v.

Dretke, 404 F.3d 878, 884 (5th Cir. 2005).

In evaluating the district court’s application of AEDPA to

Moore’s constitutional claims, we keep in mind the standard of

review imposed by AEDPA on the district court. First,

A district court may grant habeas relief only if it
determines that the state court’s 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” or “in a
decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the
State court proceeding.”

Leal v. Dretke, 428 F.3d 543, 548 (5th Cir. 2005) (quoting 28

U.S.C. § 2254(d)(1), (2)). Second, “a determination of a factual

issue made by [the] State court shall be presumed to be correct”

unless the petitioner rebuts the presumption by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

Moore argues that he is entitled to a COA, and ultimately

habeas relief, because (1) his conviction and sentence offend the

Assistance of Counsel Clause of the Sixth Amendment in that his

trial attorneys failed to present sufficient available evidence of

13
his incompetence to the trial court to support their request for a

competency hearing, (2) the courts of Texas were unreasonable to

hold that the state writ hearing testimony of Moore’s defense

experts, which Moore argues would have raised a bona fide doubt as

to his competency to stand trial, was not reasonably available to

Moore’s attorneys during trial, and (3) the courts of Texas

unreasonably applied the wrong rule of decision in holding that

Moore was not prejudiced by the failure of his defense attorneys to

produce during trial the testimony of defense experts on the

question of his competency to stand trial.5 Respondent Dretke

contends that Moore’s second and third arguments are attacks on the

TCCA’s analysis of the ineffective assistance of counsel claim and

that as such, they are not reviewable. See Neal v. Puckett, 286

F.3d 230, 246 (5th Cir. 2002) (“[A] federal habeas court is

authorized by Section 2254(d) to review only a state court’s

‘decision,’ and not the written opinion explaining that

decision.”). While we recognize that we cannot second guess a state

court’s decision just because its reasoning is wrong, we do not

face such a problem here because we agree with the state court’s

resolution of the prejudice issue and find that reasonable jurists

5
The TCCA held that Moore failed to establish prejudice because
he failed to establish at the writ hearing that he was incompetent
to stand trial, citing Edwards v. State, 993 S.W.2d 171 (Tex. App.-
-El Paso 1999, pet. ref’d), Brown v. State, 960 S.W.2d 772 (Tex.
App.--Dallas 1997, pet. ref’d), and Taylor v. State, 948 S.W.2d 827
(Tex. App.--San Antonio 1997, pet. ref’d).

14
could not debate the district court’s conclusion as to the same.

A criminal defendant has a right to counsel under the Sixth

Amendment, and the right to counsel entails the right to effective

assistance of counsel. Strickland, 466 U.S. at 684-86. To prove

ineffective assistance of counsel under Strickland, a defendant

must show (1) “that counsel’s performance was deficient,” and (2)

“that the deficient performance prejudiced the defense.” Id. at

687. A finding of deficient performance requires a showing that

“‘counsel made errors so serious that counsel was not functioning

as the “counsel” guaranteed the defendant by the Sixth Amendment,’”

Leal, 428 F.3d at 548 (quoting Strickland, 466 U.S. at 687), that

is, petitioner must show that counsel’s performance fell below an

objective standard of reasonableness, as measured by prevailing

professional norms, Strickland, 466 U.S. at 688. Deficient

performance is prejudicial “only if, but for counsel’s errors,

there is a reasonable probability that the final result would have

been different and confidence in the reliability of the verdict has

been undermined.” Leal, 428 F.3d at 548 (citing Little v. Johnson,

162 F.3d 855, 860-61 (5th Cir. 1998)). Failure to prove either

deficient performance or prejudice will defeat an ineffective

assistance of counsel claim, id., and if a case can be decided on

the prejudice prong, it should be, Bouchillon v. Collins, 907 F.2d

589, 595 (5th Cir. 1990) (“The central purpose in examining any

claim of ineffective assistance of counsel is to ensure that the

15
defendant was accorded due process, ‘not to grade counsel’s

performance.’” (quoting Strickland, 466 U.S. at 697)).

Because we find that the prejudice prong decides this case, we

do not address the reasonableness of counsel’s performance.

Reasonable jurists could not debate the district court’s conclusion

that counsel’s performance in this case was not prejudicial. The

TCCA found that Moore failed to establish that he was incompetent

to stand trial--considering all the evidence brought forward in the

state writ hearing, including the defense experts’ testimony--and

this factual finding is entitled to a presumption of correctness.

See Thompson v. Keohane, 516 U.S. 99, 111 (1995) (noting competency

to stand trial is a “factual issue,” the resolution of which is

entitled “presumptive weight” (citing Maggio v. Fulford, 462 U.S.

111, 117 (1983))); Demosthenes v. Baal, 495 U.S. 731, 735 (1990)

(same); Carter, 131 F.3d at 464 (holding that the state habeas

court’s decision regarding competency was entitled to a presumption

of correctness). Moore has failed to rebut this presumption with

clear and convincing evidence. Therefore, “it necessarily follows

that [Moore’s] trial counsel were not constitutionally

ineffective.” Carter, 131 F.3d at 464.

Moore argues that Bouchillon v. Collins necessitates a

different result because there the Court held that a petitioner

“need only demonstrate a ‘reasonable probability’ that he was

incompetent”; he need not prove incompetence by a preponderance of

16
the evidence. 907 F.2d at 595. However, Bouchillon and the instant

case are distinguishable because here we are bound by the state

court’s factual determination that Moore is competent, whereas

there was no such binding factual determination in Bouchillon. Id.

at 593-94. Furthermore, Bouchillon stands for the proposition that

a defendant can show prejudice by demonstrating a reasonable

probability that the state court would have found the defendant to

be incompetent, had the attorney not performed ineffectively. See

Strickland, 466 U.S. at 694 (“The defendant must show that there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A

reasonable probability is a probability to undermine confidence in

the outcome.”). Here, because we must presume the correctness of

the state court determination that Moore was, in fact, competent to

stand trial, Moore has not met this standard.

IV. Conclusion

Petitioner Moore has not demonstrated that reasonable jurists

could debate the district court’s conclusion that Moore did not

receive ineffective assistance of counsel. Accordingly, Moore’s

Application for a Certificate of Appealability is DENIED.

17