UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20871
BOBBY JAMES MOORE,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, Director, Texas Department of
Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
December 6, 1996
Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
In this capital case, the Director of the Texas Department of
Criminal Justice, Institutional Division appeals from an order by
the district court which reverses the judgment of the state trial
court, grants Petitioner Moore habeas corpus relief, and remands
the case for a new punishment hearing. Applying the new provisions
of the recently enacted Antiterrorism and Effective Death Penalty
Act of 1996, we reverse the judgment of the district court and
render judgment denying Moore’s petition for writ of habeas corpus.
BACKGROUND
on the afternoon of April 25, 1980, 72-year-old James “Jim”
McCarble was shot in the head and killed while working as a sales
associate at the Birdsall Super Market in Houston, Texas. Prior to
the shooting, McCarble and co-employee Edna Scott were working
inside the store courtesy booth when three men, later identified as
Willie Koonce, Everett Anthony Pradia, and Bobby Moore, entered the
store. Koonce entered the courtesy booth with a bag and said to
McCarble, “Fill it up, man. You being robbed.” McCarble then
jumped to the left of Scott which allowed Scott to see Moore, who
was apparently wearing a wig and facing Scott with a shotgun.
Scott shouted that a robbery was in progress and she dropped to the
floor of the courtesy booth. A gun shot sounded and McCarble,
having received a fatal wound to the head, fell to the floor beside
Scott. Koonce and Moore fled the store together losing both the
money bag and the wig during their escape. Pradia had fled the
store sometime before Koonce and Moore. A store customer saw the
three men get into a car and drive away. The customer noted the
license plate number of the car. The car was traced to Koonce who
was later arrested while driving it.
At trial, two store employees testified. One of the
employees, Deborah Salazar, identified Moore as the man who shot
McCarble. Another employee, Arthur Moreno, testified that he saw
Moore and Koonce flee the store and drop the bag and wig. Moreno
recovered both the bag and wig and gave them to the store owner
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who, in turn, gave them to the police. The bag was found to
contain a purchase receipt which was traced to the home of Betty
Nolan.
The police searched Nolan’s home and discovered that Moore was
living at this address. A shotgun similar to the one used in the
robbery was found under Moore’s bed.
After turning himself in to the police, co-defendant Pradia
entered into a plea agreement and testified that he, Moore, and
Koonce had planned and committed the robbery. Pradia testified to
the details of the robbery and further testified that, after the
robbery, Moore admitted to him that Moore had shot McCarble.
Upon information, Moore was arrested at his grandmother’s
house in Coushatta, Louisiana. Moore was returned to Houston where
he gave what the prosecution claims is his written confession. At
trial, however, Moore took the stand and testified that he had
never written a confession. He testified that, after being hit in
the face and jaw by the police, he was forced to sign two blank
white sheets of paper upon which his alleged confession was later
typed.1 Moore testified that he signed the blank confession papers
after a police officer told him that, if he did, he would be
released “within 74 minutes.” Moore testified that the signatures
on the blue confession sheets were forgeries. The trial court
admitted portions of Moore’s written confession into evidence.
1
The written confession offered by the prosecution is on blue
paper.
3
At trial, Moore was represented by Houston attorneys Al Bonner
and C. C. Devine.2 Moore’s defense was premised upon his alibi
that he did not shoot McCarble because he was in Louisiana at the
time of the robbery. At the guilt-innocence phase, the jury found
Moore guilty as charged. At the sentencing phase, the jury
answered the special questions in the affirmative and the court
sentenced Moore to death.
PROCEDURAL HISTORY
Moore’s conviction was affirmed by the Texas Court of Criminal
Appeals, Moore v. State, 700 S.W.2d 193 (Tex. Crim. App. 1985); he
was scheduled to be executed on February 26, 1986. On February 21,
1986, the Supreme Court denied Moore’s petition for certiorari and
application for stay of execution. Moore v. Texas, 106 S. Ct. 1167
(1986).
On February 24, 1986, Moore filed his first application for
writ of habeas corpus in state court. The Texas Court of Criminal
Appeals denied the writ. On February 25, 1986, Moore filed a
motion for a stay of execution and a petition for writ of habeas
corpus in federal district court. The district court granted
Moore’s stay of execution. On June 19, 1987, the federal district
court dismissed Moore’s petition without prejudice to allow Moore
the opportunity to properly present all of his claims in state
court. (Moore’s petition to the federal district court apparently
contained at least one unexhausted claim.)
2
Devine died shortly after the trial.
4
On April 6, 1992, Moore filed his second application for state
habeas relief. On April 23, 1993, the state trial court conducted
a post-conviction evidentiary hearing regarding Moore’s claim of
ineffective assistance of counsel. After the evidentiary hearing,
the state trial court entered findings of fact and conclusions of
law stating that Moore had failed to show ineffective assistance of
counsel. On October 4, 1993, the Texas Court of Criminal Appeals
denied Moore’s application for writ of habeas corpus.
On October 12, 1993, Moore filed a second petition for federal
habeas relief. The federal district court denied Moore’s request
for an evidentiary hearing but then held that Moore had received
ineffective assistance of counsel at the punishment phase of his
trial. The district court reversed the judgment of the state trial
court only as to punishment and remanded Moore’s case to the 185th
Judicial District Court of Harris County, Texas for a new
punishment hearing. The Director now appeals from this order.3
DISCUSSION
This appeal requires us to address two issues: (1) do the
amended standards of review found within § 104(d) of the recently
enacted Antiterrorism and Effective Death Penalty Act of 1996 (the
“AEDPA”) apply to our determination of this case, and (2) did Moore
satisfy the requirements of § 104(d) as to his claim of ineffective
3
Gary Johnson, the Director of the Texas Department of
Criminal Justice, Institutional Division, maintains custody of
Bobby James Moore pursuant to a judgment and sentence from the
185th Judicial District of Harris County, Texas.
5
assistance of counsel at the punishment phase of his trial. For
the following reasons, we hold that the standards of review found
within § 104(d) of the AEDPA do apply to our determination of this
case and, under those standards, Moore did not show that he is
entitled to habeas corpus relief on the basis of ineffective
assistance of counsel.
APPLICABILITY OF § 104(d)
While the appeal was pending, the President signed into law
the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214 (1996). Title I of the AEDPA contains
a series of amendments to existing federal habeas corpus law, many
of which affect the manner in which federal courts can review an
inmate’s petition for habeas corpus relief. Included among these
provisions is § 104(d) which amends 28 U.S.C. § 2254(d) and places
further restriction upon the ability of federal courts to grant
habeas corpus relief. Section 104(d) reads as follows:
(d) An application for a writ of habeas
corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim--
(1) 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; or
(2) resulted in a decision that was
based on an unreasonable determina-tion
of the facts in light of the evidence
presented in the State court proceeding.
6
AEDPA, § 104(d) (to be codified at 28 U.S.C. § 2254(d)).
Subsection 104(d), thus, precludes federal courts from granting
habeas corpus relief to state prisoners as to any claim that was
adjudicated on the merits in a state court proceeding, unless one
of its two express requirements is satisfied. Because 28 U.S.C. §
2254(d) was amended by § 104(d) after Petitioner’s trial and during
appeal of this habeas proceeding, we must determine whether the new
standards of review created by § 104(d) apply to the instant
appeal. Because Texas is not yet eligible to take advantage of the
provisions for expedited procedures found within § 107 of the
AEDPA, the amended standards of review found therein do not apply
to Moore’s case. Mata v. Johnson, 1996 WL 640508, *4 (5th Cir.
1996).
In Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994), the
Supreme Court clarified the analysis through which courts are to
determine whether retroactive application of a law is appropriate.
First, we must determine whether Congress has clearly expressed an
intent that the relevant provision of the statute be applied
retroactively. Landgraf, 114 S. Ct. at 1505. (“[A] requirement
that Congress first make its intention clear helps ensure that
Congress itself has determined that the benefits of retroactivity
outweigh the potential for disruption or unfairness.” Id. at
1498.) If Congress has clearly expressed an intention that a
statute be applied retroactively, then the statute should be
construed in accordance with that intent. Id. at 1505. If there
is no clear congressional expression of retroactivity, then we must
7
look to the nature of the statute presented. Mendez-Rosas v. INS,
87 F.3d 672, 673 (5th Cir. 1996) (interpreting the Landgraf
retroactivity analysis).
The AEDPA, which contains more than 100 pages, is organized by
Title, Section, and Sub-Section. Because there is no one effective
date which governs all of the provisions within the AEDPA, we must
look to each individual section within the AEDPA to see if that
particular section contains a clear Congressional expression
addressing retroactive application. In the instant case, we must
determine whether Congress has clearly expressed an effective date
for application of § 104(d). After carefully reviewing § 104(d),
Title I, and the AEDPA, we hold that Congress has not expressly
provided an effective application date for § 104(d).4 Drinkard v.
Johnson, 1996 WL 571122 (5th Cir. 1996).
Because Congress has not expressly provided an effective date
for § 104 (d), we must look to the nature of the statute. If the
statute affects the substantive rights of the parties (i.e.,
impairs rights a party possessed when he acted, increases a party’s
liability for past conduct, or imposes new duties with respect to
transactions already completed), it is deemed to have a
4
We note that § 107 of the AEDPA, which amends Title 28 of
the United States Code by inserting “Chapter 154-Special Habeas
Corpus Procedures in Capital Cases,” does contain an effective date
provision, which reads: “Chapter 154 of Title 28, United States
Code (as added by subsection (a)) shall apply to cases pending on
or after the date of enactment of the Act.” However, this
effective date provision only governs as to those amendments found
within § 107 (to be codified at 28 U.S.C. §§ 2261-2266). It does
not provide an effective date for those amendments found within §
104.
8
“retroactive effect” and we presume that the statute is not to be
applied retroactively unless Congress so specifies. Landgraf, 114
S. Ct. at 1505. However, if the statute addresses jurisdictional
or procedural rules, we presume that it is to be applied
retroactively unless Congress otherwise specifies. Id. at 1501-
02.5 Rebuttal of this presumption requires some finding that the
procedural nature of this statutory change curtailed one or more of
Petitioner’s substantive rights. Mendez-Rosas, 87 F.3d at 676.
In Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996), also a
capital habeas corpus petition, we recently addressed the issue of
whether the amended standard of review found within § 104(d)
applies retroactively to habeas corpus appeals which were pending
when the AEDPA was enacted. In applying the Landgraf retroactivity
analysis, we concluded that it does. Specifically, we held that,
the change in law at issue here has no plausible
connection to Drinkard’s conduct on the night of
the murder. Drinkard cannot argue that the new
standards of review attach new legal consequences
to that conduct by increasing his liability for
that conduct or by imposing new duties on him based
on that conduct. In other words, Drinkard
obviously cannot argue that he relied on the
existence of federal de novo review of claims
adjudicated on the merits in state court
proceedings the night he killed his three victims.
5
The jurisdictional exception to the presumption against
retroactivity is appropriate because application of a new
procedural rule usually “takes away no substantive right but simply
changes the tribunal that is to hear the case.” Landgraf, 114 S.
Ct. at 1502. The procedural exception to the presumption against
retroactive application is generally appropriate because of
“diminished reliance interests” in procedural changes. Id. at
1502. The fact that a new procedural rule was instituted after the
conduct giving rise to the suit does not, itself, make retroactive
application of the rule improper because rules of procedure
regulate secondary rather than primary conduct. Id.
9
This provision instead speaks to the power of the
federal courts to grant habeas relief to state
prisoners.
Drinkard, 1996 WL 571122, *12. We concluded that, “[a]s standards
of review governing our own review of Drinkard’s appeal, subsection
(d)(1) is easily classified as procedural in nature.” Id., citing
United States v. Mejia, 844 F.2d 209, 211 (5th Cir. 1988) (citation
omitted) (“A change in the standard of review is properly
characterized as procedural rather than substantive because it
neither increases the punishment nor changes the elements of the
offense or the facts that the government must prove at trial.”).
Accordingly, we held that “the change in procedural rules governing
federal habeas review raises no concerns of retroactivity.”
Drinkard, 1996 WL 571122, *12.
Having found that § 104(d) should apply, we next examined
whether such an application would deny Drinkard a substantive
right. Because the new rule involves federal standards of review
of state court decisions, we held that Drinkard must be able to
show that he relied to some extent upon the former federal
standards of habeas review in making strategic, tactical, or other
decisions during the state court litigation. We held that he could
not. In so finding, we concluded that,
Drinkard cannot argue credibly that he would have
proceeded any differently during his state post-
conviction proceedings had he known at the time of
those proceedings that the federal courts would not
review claims adjudicated on the merits in the
state court proceedings de novo. Because the new
standards of review do not have a retroactive
effect, we hold that they apply to our review of
Drinkard’s appeal from the district court’s denial
of his petition for writ of habeas corpus.
10
Drinkard, 1996 WL 571122, *12. Applying the Drinkard analysis to
the facts of the instant case, we reach the same conclusion. Moore
cannot argue credibly that he would have proceeded any differently
during his state post-conviction proceedings had he known at the
time of those proceedings that the federal courts would not review
his fully adjudicated state court claims de novo. Nor could he
argue credibly that he relied to some extent upon the former
federal standards of habeas review in making strategic, tactical,
or other decisions during the state court litigation. Accordingly,
we hold that the amended standards of review found within §
104(d)apply retroactively to his petition. Having so found, we
turn to the task of applying these new standards to the merits of
Moore’s appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
On collateral attack, Moore argued before the state trial
court that he received ineffective assistance of counsel because
his counsel made unreasonable strategic decisions and encouraged
Moore to commit perjury. After conducting an evidentiary hearing
on this issue, the state trial court entered detailed findings of
fact and conclusions of law holding that Moore had failed to show
ineffective assistance of counsel. The Texas Court of Criminal
Appeals accepted the findings of the state trial court and denied
Moore’s application for writ of habeas corpus.
On October 12, 1993, Moore filed for habeas corpus relief in
federal district court. On October 21, 1993, the district court
11
denied Moore’s request for an evidentiary hearing. On September
29, 1995, the district court entered an order holding that Moore
had received ineffective assistance of counsel at the punishment
phase of his trial. A review of the docket sheet does not indicate
any significant activity on this case between the denial of the
evidentiary hearing and the entry of this order. In granting
habeas corpus relief, the district court applied the pre-AEDPA
standards of review for habeas corpus petitions6 and, after a de
novo review of the record, held that the record did not support the
state trial court’s factual findings. In addition to reversing the
factual findings of the state trial court, the district court
determined, inter alia, that Moore’s counsel had (1) suborned
perjury; (2) failed to conduct a reasonable pretrial investigation;
(3) failed to effectively cross-examine a police officer; and (4)
failed to include mitigating evidence at the punishment phase.
On appeal, the Director argues that the new standards of
review set forth in the AEDPA require reversal of the district
court’s order granting habeas corpus relief. For the following
reasons, we agree.
In applying § 104(d), we first must determine whether Moore’s
claim regarding ineffective assistance of counsel was adjudicated
6
The pre-AEDPA standard of review applied by the district
court is set forth in 28 U.S.C. § 2254 and states, in relevant
part: “[A] determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction ... shall be
presumed to be correct ... unless ... the Federal court on a
consideration of such part of the record as a whole concludes that
such factual determination is not fairly supported by the record.”
28 U.S.C. § 2254(d).
12
on the merits during the state court proceedings. Drinkard, 1996
WL 571122, *14. Our review of the state post-conviction record
indicates that there is no question that Moore’s ineffective
assistance of counsel claim received a full and fair adjudication
on the merits by the state trial court. The state trial court
conducted an evidentiary hearing, heard testimony and received
evidence from both parties, and issued detailed findings of fact
and conclusions of law in support of its judgment. Neither party
claims that Moore’s claim for ineffective assistance of counsel was
not adjudicated on the merits by the state court.
Having so found, we next turn to the ultimate question of
whether, under the newly amended standards of review set forth in
the AEDPA, Moore is entitled to habeas corpus relief because he
received ineffective assistance of counsel during the punishment
phase of his trial. Ineffective assistance of counsel claims are
analyzed under the well-settled standard set forth in Strickland v.
Washington, 104 S. Ct. 2052 (1984):
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.
Id. at 2064. In deciding whether counsel’s performance was
deficient, we apply a standard of objective reasonableness, keeping
13
in mind that judicial scrutiny of counsel’s performance must be
highly deferential. Id. at 2064-64. “A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 2065.
“Because of the difficulties inherent in making the evaluation, a
court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound
trial strategy.” Id. (citations omitted). Ultimately, the focus
of inquiry must be on the fundamental fairness of the proceedings
whose result is being challenged. Id. at 2069. From our review of
the state court’s findings of fact and conclusions of law after the
habeas hearing, we are satisfied that the state court was clearly
aware of these principles of federal law.
Because Petitioner’s ineffective assistance of counsel claim
is a mixed question of law and fact, Strickland, 104 S. Ct. at
2070, subsection (1) of § 104(d) governs and dictates that we
cannot grant habeas corpus relief unless we determine that the
state court’s determination involved an unreasonable application of
the law to the facts. Drinkard, 1996 WL 571122, *14. As we held
in Drinkard, “an application of law to facts is unreasonable only
when it can be said that reasonable jurists considering the
question would be of one view that the state court ruling was
14
incorrect.” Drinkard, 1996 WL 571122, *15. “In other words, we
can grant habeas relief only if a state court decision is so
clearly incorrect that it would not be debatable among reasonable
jurists.”7 Id.
After thoroughly reviewing the entire record, we cannot say
that reasonable jurists considering the question would be of one
view that the state court determination -- holding that Moore had
failed to show that he received ineffective assistance of counsel
-- was incorrect. We certainly cannot say that the state court
decision was so clearly incorrect as not to be debatable among
reasonable jurists. Accordingly, we conclude, as we must, that 28
U.S.C. § 2254, as amended by § 104(d) of the Antiterrorism and
Effective Death Penalty Act, bars habeas corpus relief. For these
reasons, the order of the district court granting Petitioner habeas
corpus relief is REVERSED.
7
Our review of state court factual determinations is governed
by § 104(d)(2) which states that habeas corpus relief is barred if
the state court adjudication of the claim resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence. AEDPA, § 104(d); Drinkard, 1996 WL 571122,
*13.
15