UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 96-10645
_______________________
JOHN GLENN MOODY,
Petitioner-Appellant,
versus
GARY JOHNSON,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal From the United States District Court
for the Northern District of Texas
_________________________________________________________________
April 16, 1998
Before DAVIS, JONES, and DUHÉ, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Petitioner John Glenn Moody appeals from the judgment of
the district court denying his request for habeas relief. Moody’s
issues center around claims that he was incompetent to stand trial
and that the state’s expert witnesses on future dangerousness, Dr.
Grigson and Dr. Griffith, testified falsely. We affirm.
FACTUAL BACKGROUND
Moody was convicted of killing Maureen Maulden, a 77-
year-old widow for whom Moody occasionally did yard work. Mrs.
Maulden’s body was discovered in her home in Abilene, Texas by her
sister on July 4, 1988; she was nude with a telephone cord wrapped
tightly around her neck. Her dentures were loose and later tests
detected the presence of spermatozoa in her mouth, indicating that
she had been orally sodomized. Her home had been ransacked, and
her purse as well as two rings which she normally wore were
missing.
The day after Mrs. Maulden’s body was discovered, Moody
was arrested by local authorities on an unrelated charge of public
intoxication. At the time of his arrest, he had in his possession
the two rings missing from Mrs. Maulden. Testimony at Moody’s
trial indicated that a bloody fingerprint found on Mrs. Maulden’s
telephone belonged to Moody and that Mrs. Maulden’s neighbors had
seen a vehicle resembling Moody’s wife’s car driving slowly through
the neighborhood and parked in Mrs. Maulden’s driveway on the day
of the murder.
On February 28, 1989, a jury convicted Moody of capital
murder and sentenced him to death. His conviction and sentence
were affirmed by the Texas Court of Criminal Appeals. See Moody v.
State, 827 S.W.2d 875 (Tex. Crim. App.), cert. denied, 506 U.S. 839
(1992). In April of 1993, Moody, while represented by counsel,
filed a state application for writ of habeas corpus, in which he
2
raised fourteen claims. The state court denied him relief on
September 27, 1993. In December of 1993, Moody again petitioned
for state habeas relief, raising six additional claims. He was
again denied relief.
On March 3, 1994, Moody filed a petition for writ of
habeas corpus below, raising 23 grounds for relief. The magistrate
judge conducted a five-day evidentiary hearing on Moody’s request
for federal habeas relief, after which he recommended denial on all
grounds. The district court adopted the recommendation of the
magistrate judge and denied Moody’s claims. After Moody timely
filed a notice of appeal and applied for a certificate of probable
cause (“CPC”) with the district court, the district court granted
both a certificate of appealability (“COA”) and CPC.1
DISCUSSION
In an appeal from a request for habeas relief, we review
a district court’s findings of fact for clear error and issues of
law de novo. See Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.
1992), cert. denied, 506 U.S. 1057 (1993).
1
After Moody filed his application for a CPC, the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996), changed the jurisdictional
requirements for obtaining a CPC and now requires an applicant to
obtain a COA. See 28 U.S.C. 2253(c)(2), as amended (“A
certificate of appealability may issue . . . only if the applicant
has made a substantial showing of the denial of a constitutional
right.”). However, because Moody’s federal habeas action was
initiated on March 3, 1994, before the effective date of AEDPA, the
pre-AEDPA habeas standards apply to his appeal. See Lindh v.
Murphy, 521 U.S. ___, ___, 117 S. Ct. 2056, 2063 (1997). The
district court granted a CPC, so the case is before us on direct
appeal.
3
A. COMPETENCY TO STAND TRIAL
Moody first complains that at his state court trial his
right to due process of law was violated because he was tried while
incompetent. “It is well settled that due process prohibits
prosecution of a defendant who is not competent to stand trial.”
Washington v. Johnson, 90 F.3d 945, 949-50 (5th Cir. 1996) (citing
Cooper v. Oklahoma, ___ U.S. ___, ___, 116 S. Ct. 1373, 1377
(1996)), cert. denied, ___ U.S. ___, 117 S. Ct. 1259 (1997).
The constitutional standard for competency to stand trial
is whether the defendant “has sufficient present ability
to consult with his lawyer with a reasonable degree of
rational understanding -- and whether he has a rational
as well as a factual understanding of the proceedings
against him.”
Carter v. Johnson, 131 F.3d 452, 459 (5th Cir. 1997)(quoting Dusky
v. United States, 362 U.S. 402, 402 (1960)); see Washington, 90
F.3d at 950. Before the federal district court has a duty to
investigate a habeas petitioner’s claim of incompetency, the
petitioner must show that there are sufficient facts to
“‘positively, unequivocally and clearly generate a real,
substantial and legitimate doubt as to the mental capacity of the
petitioner to meaningfully participate and cooperate with counsel
during trial.’” Washington, 90 F.3d at 950 (quoting Bruce v.
Estelle, 536 F.2d 1051, 1058-59 (5th Cir. 1976)). Once the
petitioner has presented enough probative evidence to raise a
substantial doubt as to his competency at the time of trial, he
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must then prove that incompetency by a preponderance of the
evidence. See id. (citing Bruce, 536 F.2d at 1059).
In Moody’s case, whether the magistrate judge determined
that Moody had presented enough probative evidence to raise a
substantial doubt as to his competency at the time of his trial is
unclear. In any event, the court held an evidentiary hearing which
lasted for five days. At the conclusion of that hearing, the court
ruled, first, that Moody had shown no basis to overcome the
presumption of correctness afforded state court findings and,
second, that even if he considered the evidence from the
evidentiary hearing, Moody did not prove that he was incompetent at
the time of his trial.
Moody complains that the court erred in according the
presumption of correctness to the state court determination of
competence because (a) competency is a mixed question of law and
fact that must be reviewed de novo by federal habeas courts and (b)
the presumption cannot apply where the state courts plainly failed
to adjudicate Moody’s claim. Additionally, he asserts, the court’s
alternative denial of relief on the merits was wrong. Each of
these arguments is seriously flawed.
No caselaw in the Supreme Court or in this circuit
requires a federal habeas court to review de novo the state court’s
determination of competency to stand trial. See Carter, 131 F.3d
at 460 (habeas petitioner is entitled to federal evidentiary
hearing only by offering clear and convincing evidence of a
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threshold doubt of competency). In this case, the magistrate
judge, barraged with evidence that was not fully and timely
presented to the state courts, elected to conduct an evidentiary
hearing. He was not inevitably required to do so, however, and he
was not bound, after having conducted the hearing, to deny the
presumption of correctness. See id.
Second, it is bold indeed for Moody to assert that there
should be no presumption of correctness because the state court
never adjudicated competency. Any lack of adjudication was largely
his fault. He raised competency in his second habeas petition,
describing in general terms his experience of parental neglect and
abuse, his chronic addiction to mind-altering substances, a family
history of brain aneurysms, and the conclusions of unspecified
mental health experts, then-recently retained, that he suffers from
mental illness, paranoid delusions, and brain damage. These
experts concluded, according to the generalized allegations of the
petition, that Moody was unable rationally to consult with trial
counsel.
The state’s response to this state petition cited Bruce
v. Estelle, supra, for the proposition that a petitioner who after
the fact claims incompetency to stand trial has a heavy burden of
proof and then noted:
Moody merely states conclusions that he may have had
genetically transmitted brain aneurysms and mental
illness, that a CAT SCAN in 1984 detected a likely brain
aneurysm. He does not present any evidence that he was
suffering from brain damage that rendered him incompetent
at the time of trial. Mr. Moody points to post-
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conviction evaluations in asserting that he suffers brain
damage and mental illness. Furthermore, Moody does not
offer any evidence in the form of affidavits or test
results, he merely promises to present some unspecified
expert testimony at a hearing to support a showing of
actual incompetence at the time of trial. Because Moody
has not met his burden, relief should be denied.
(citations to Moody’s pleadings omitted.)
The state habeas court and Texas Court of Criminal Appeals adopted
the state’s response and denied relief on the record before them.
Although Moody does not admit it, this is a finding that he did not
carry his burden of proof of incompetency at trial. A state
court’s finding against a habeas petitioner is not deprived of the
presumption of correctness simply because the petitioner disagrees
with the state court’s finding.2
But even if we accepted Moody’s contention that the
presumption of correctness does not apply, we would still affirm
the district court’s denial of relief on the merits. We review a
district court’s decision regarding the competency of a petitioner
to stand trial, when a hearing has been conducted in federal court,
as a mixed question of law and fact:
Whether a [p]etitioner suffers from a mental disorder or
incapacitating mental illness is a question of fact
reviewed under the clearly erroneous standard. However,
2
In view of the state court determination that Moody presented
insufficient evidence of incompetency to stand trial, the federal
habeas court probably was not required to conduct an evidentiary
hearing. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715,
1721 (1992) (petitioner is entitled to a federal evidentiary
hearing only if he can show cause for his failure to develop the
facts in state court proceedings and actual prejudice resulting
from that failure, or to avert a fundamental miscarriage of
justice).
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we take a ‘hard look’ at the ultimate competency finding.
Washington, 90 F.3d at 951 (citations omitted).
A review of the testimony presented at the evidentiary
hearing -- including evidence from Moody’s own expert witnesses --
indicates that at the time of Moody’s trial, he had sufficient
present ability to consult with his counsel with a reasonable
degree of rational understanding and that Moody had a rational as
well as a factual understanding of the proceedings against him. It
is unnecessary to analyze all the evidence presented at the federal
hearing. Moody relied on various experts who based their opinions
of his incompetence on intelligence and personality tests,
neuropsychological and neuropharmacological evaluations, reports of
lay witness interviews, and neuroradiological tests. Based on
these various methods, the experts concluded that because of one or
more experiences, such as multiple head injuries and severe
substance addiction, Moody suffered brain damage that caused him to
be unable to consult properly with his attorney before trial. The
state’s evidence contradicted these witnesses in various
particulars and added powerful direct evidence of Moody’s condition
between the time of his apprehension for Mrs. Maulden’s murder and
the prosecution. Moody assisted defense counsel, gave appropriate
responses in several transcribed interviews, was interviewed on
television, and wrote letters to the jury, to counsel, and to his
wife. A psychologist called by the state found no evidence of
paranoia or similar problems from a review of Moody’s writings and
8
words contemporaneous with the prosecution. Moody’s family gave
counsel no clue that mental illness might be present. Moody’s
attorney denied that he ever doubted Moody’s competency. The
evidence was disputed; the magistrate judge’s finding for the state
was not erroneous. Moody has failed to prove otherwise by a
preponderance of the evidence.
B. EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
Moody next complains that he received ineffective
assistance of counsel at both the guilt/innocence phase and the
punishment phase of his trial because his counsel failed to
investigate Moody’s mental health. To assert a successful
ineffectiveness claim, Moody is required to establish both (1)
constitutionally deficient performance by his counsel and (2)
actual prejudice as a result of his counsel’s ineffectiveness. See
Carter, 131 F.3d at 463 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). “Failure to prove either deficient performance
or actual prejudice is fatal to an ineffective assistance claim.”
Id. In order to satisfy the first prong of the Strickland
analysis, Moody must prove that his counsel’s performance fell
below an objective standard of reasonableness. See id. Reviewing
courts must give counsel’s performance high deference. See id.
The determination whether counsel was constitutionally ineffective
is a mixed question of law and fact that this court reviews de
novo. See id.
9
This claim of ineffectiveness is undermined by the
preceding discussion. Moody’s trial counsel could not have been
deficient in failing to discover his alleged incompetence where
there has been no satisfactory showing that Moody was incompetent.
Counsel made a reasonable investigation and, finding no evidence
that suggested the mental problems Moody now complains of,
reasonably decided not to request a mental evaluation. Cf. id. at
464 (“‘There can be no deficiency in failing to request a
competency hearing where there is no evidence of incompetency.’”
(quoting McCoy v. Lynaugh, 894 F.2d 954, 964 (5th Cir. 1989)).
C. ALLEGED IMPROPER CONTACT BETWEEN BAILIFF AND JUROR
Moody next complains that his trial was “tainted by an
improper and inherently prejudicial contact between a bailiff and
a juror during guilt-innocence deliberations” in violation of his
constitutional rights. This court reviews alleged improper
influence of the jury to determine whether the intrusion affected
the jury’s deliberations and thereby its verdict, while remaining
mindful that the Constitution does not mandate a new trial every
time that a juror is placed in a potentially compromising
situation. See United States v. Olano, 507 U.S. 725, 738-39 (1993)
(relying on Smith v. Phillips, 455 U.S. 209, 217 (1982)).
The facts underlying this claim were described by the
Texas Court of Criminal Appeals as follows:
[A]fter the jury was retired to deliberate at
guilt/innocence there was some conversation between one
of the jurors and the court bailiff. The record reflects
that after beginning deliberations, the jury submitted
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two written questions to the trial court wondering about
the meaning of “venue” in the context of the jury charge.
. . . After the trial court announced its intention to
submit [an] additional instruction, [Moody’s] attorneys
informed the court that it had come to their attention
that it had been related to the jury that there had been
a mistake in the jury charge which was going to be
corrected and that an individual juror had been asked if
they had arrived at a verdict yet, and if not, they would
be taken to supper by 7:00 o’clock (sic).
The jury returned it verdict shortly after this conversation before
7:00 p.m. that evening. Moody asserts that the exchange between
the bailiff and one of the jurors violated his constitutional
rights because it had the effect of hastening the jury’s
deliberative process.
The determination of whether there was any improper
conduct and its affect, if any, on juror impartiality are questions
of historical fact that “must be determined, in the first instance,
by state courts and deferred to, in the absence of ‘convincing
evidence’ to the contrary, by the federal courts.” Rushen v.
Spain, 464 U.S. 114, 120 (1983) (citing Marshall v. Lonberger, 459
U.S. 422, 433 (1983)). After conducting two hearings on this
issue, the state trial court determined that any conversation
between the bailiff and one of the jurors did not impact the jury’s
deliberations; the court therefore denied Moody’s motion for a new
trial. Likewise, when presented with this issue on direct appeal,
the Texas Court of Criminal Appeals was unable to discern any
injury to Moody caused by this contact between the bailiff and the
juror and held that the State had sufficiently discharged its
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burden of rebutting any presumption that Moody’s jury was
influenced by such contact. See Moody, 827 S.W.2d at 899-900.
There is more than adequate support in the record for the
factual conclusions reached by state courts. We defer to these
factual determinations and affirm the ruling of the district court
that no constitutional error occurred.
D. DR. GRIGSON’S TESTIMONY
Moody attacks the testimony of Dr. James Grigson, an
expert who testified for the prosecution that Moody would be a
future danger. Moody asserts that at the time of trial, Dr.
Grigson was in possession of a report “that bore heavily on Dr.
Grigson’s claimed ability to accurately predict ‘future
dangerousness’ in capital cases” and that as a result, Dr. Grigson
presented materially false and misleading testimony at Moody’s
trial. Moody also asserts that the prosecution’s failure to
disclose the report as impeachment material violated Brady v.
Maryland, 373 U.S. 83 (1963).
It is well settled that the State is not permitted to
present false evidence or allow the presentation of false evidence
to go uncorrected. See Giglio v. United States, 405 U.S. 150, 153,
(1972) (citing Napue v. Illinois, 360 U.S. 264 (1959) and Mooney v.
Holohan, 294 U.S. 103 (1935)). However, if false evidence is
presented by the prosecution at trial, a new trial is warranted
only if the false testimony could have, in any reasonable
likelihood, affected the jury’s determination. See id. at 154.
12
Similarly, under Brady, the prosecution’s failure to disclose
information to the defense is a constitutional violation only if
the evidence was material to either guilt or punishment.
The district court concluded that there was no showing that
either the prosecution or Dr. Grigson presented any false
testimony. After a thorough review of the proceedings, we agree.
Dr. Grigson’s failure to mention every report of which he was
aware, when he was never asked to do so, does not constitute false
testimony.
We also note that even if Dr. Grigson’s testimony might
have been misleading, there is not a reasonable likelihood that its
correction would have affected the jury’s verdict.3 Prior to Dr.
Grigson’s testimony at the punishment phase, Moody had been
convicted of the brutal rape and strangulation of a 77-year-old
woman. Additional evidence presented at the sentencing phase of
his trial included the rape of his ten-year-old stepdaughter, a
lengthy criminal history, and evidence of repeated escapes from
incarceration. In the face of such compelling testimony, it is
unlikely that the jury’s ultimate determination would have been
different.
E. DR. CLAY GRIFFITH
3
For purposes of this discussion we assume arguendo that the
possession of the “report” on subsequent criminal acts by ten
convicts, at some of whose trials Dr. Grigson had testified, was
subject to Brady although it was possessed not by the Taylor County
D.A.’s office, which prosecuted Moody, but by the Dallas County
D.A.’s office (which wrote the “report”) and by Dr. Grigson.
13
Moody’s final complaint concerns the testimony of
prosecution witness Dr. Clay Griffith, a member of the American
Psychiatric Association (“APA”), who also testified at the
sentencing phase as to Moody’s potential for being dangerous in the
future. Moody claims that the prosecution permitted Dr. Griffith
to testify falsely as to the APA’s position on the prediction of
future dangerousness in capital cases.
The district court found that Moody did not establish
that Dr. Griffith testified falsely and assuming, arguendo, that he
did testify falsely, the State did not know that the testimony was
false when presented. We have thoroughly reviewed the record and
again agree with the district court that no false testimony was
presented.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court denying habeas relief.
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