Moore v. Johnson

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 95-20871

BOBBY JAMES MOORE,

Petitioner-Appellee,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
August 10, 1999
Before SMITH, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The Director of the Texas Department of Criminal Justice,

Institutional Division appeals from the district court’s final

judgment granting Bobby James Moore’s petition for habeas corpus

relief from his capital sentence and remanding to the state court

for a new punishment hearing.1 We affirm, as modified by this

opinion, and remand with instructions.

I.

The district court’s decision in this matter left the state

trial court’s judgment of guilt intact, but granted relief as to

1
The Director has custody of appellee Bobby James Moore
pursuant to a judgment and sentence of death entered by the 185th
Judicial District Court of Harris County, Texas.
punishment only by reversing that portion of the state trial

court’s judgment imposing the death penalty and remanding to the

state trial court for a new punishment hearing. This is the second

time we have been asked to review that decision. Our first

decision followed this Circuit’s then-existing precedent by

applying newly- enacted provisions of the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA) to Moore’s petition,

which was pending on the April 24, 1996 effective date of AEDPA.

See Moore v. Johnson, 101 F.3d 1069 (5th Cir. 1996), vacated, 117

S. Ct. 2504 (1997). In that decision, we concluded that the

district court failed to afford the state habeas court’s fact

findings the deference required by AEDPA’s stringent standard of

review. See Moore, 101 F.3d at 1076; see also 28 U.S.C. § 2254(d)

(providing that the Court may not grant habeas relief with respect

to any claim that was adjudicated on the merits in a state court

proceeding unless that adjudication “resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court

of the United States").

Shortly after our decision, the Supreme Court decided Lindh v.

Murphy, 117 S. Ct. 2059 (1997). Lindh holds that the provisions of

AEDPA relevant to this appeal do not apply to habeas corpus

petitions that, like Moore’s, were pending as of the April 24, 1996

effective date of AEDPA. Lindh, 117 S. Ct. at 2068. Lindh

overrules this Circuit’s pre-Lindh precedent, which held that AEDPA

applied to habeas claims pending at the time AEDPA became

2
effective. See, e.g., Drinkard v. Johnson, 97 F.3d 751 (5th Cir.

1996); see also United States v. Carter, 117 F.3d 262 (5th

Cir. 1997) (recognizing that Lindh overruled Drinkard and its

progeny).

After our initial decision, Moore petitioned for and the

Supreme Court granted a writ of certiorari, remanding the case to

our Court for reconsideration in light of Lindh and the more

lenient standards of review applicable under pre-AEDPA law.2 See

28 U.S.C. § 2254(d) (1994) (providing that state habeas court fact

findings are entitled to a presumption of correctness, but

permitting a federal court to reject state habeas court fact

2
Moore v. Texas, 117 S. Ct. 2504 (1997). Although Lindh
itself was a non-capital case, its holding extends to all cases
potentially controlled by Chapter 153 of AEDPA, which is codified
at 28 U.S.C. §§ 2241-2255. See Lindh, 117 S. Ct. at 2068 (“the new
provisions of Chapter 153 generally apply only to cases filed after
the Act became effective”). AEDPA contains a separate chapter,
Chapter 154, which is potentially applicable to habeas cases that
were pending on AEDPA’s effective date. See 28 U.S.C. §§ 2261-
2266. Chapter 154 provides for an expedited disposition of capital
habeas claims that is favorable to the state. Application of the
more favorable provisions is conditioned, however, upon state
compliance with statutory requirements intended to ensure that the
habeas petitioner is afforded adequate counsel. Texas has not
complied with the dictates of § 2261. Indeed, none of the three
states within the geographic province of this Court have opted to
comply with § 2261. For that reason, this Court has responded to
Lindh by applying pre-AEDPA law in those capital cases that were
pending at the time AEDPA became effective. See, e.g., Castillo v.
Johnson, 141 F.3d 218, 220 n.1 (5th Cir.), cert. denied, 119 S. Ct.
28 (1998); Cannon v. Johnson, 134 F.3d 683, 685 (5th Cir. 1998); De
La Cruz v. Johnson, 134 F.3d 299, 301 (5th Cir.), cert. denied, 118
S. Ct. 2352 (1998); Hogue v. Johnson, 131 F.3d 466, 469 n.1 (5th
Cir. 1997), cert. denied, 118 S. Ct. 1297 (1998); Green v. Johnson,
116 F.3d 1115, 1119 (5th Cir. 1997). Obviously, should the State
of Texas opt to comply with the statutory dictates of chapter 154,
this Court would be obliged to apply those provisions, without
regard to whether the petition for habeas corpus relief was filed
before the effective date of AEDPA.

3
findings that are “not fairly supported by the record”). Having

concluded a thorough re-examination of the record, we find that the

district court’s judgment is correct when examined in light of the

pre-AEDPA law applied therein. We therefore affirm the judgment of

the district court as modified by this opinion.

II.

The single issue before the Court for resolution is whether

Moore was deprived of his Sixth Amendment right to effective

assistance of trial counsel during his 1980 capital trial. Moore

claims that trial counsel were constitutionally deficient in their

pretrial investigation of and presentation of a false alibi

defense, and in their failure to investigate, develop, or present

mitigating evidence during the guilt or punishment phase of his

capital trial. Moore’s ineffective assistance of counsel claim is

governed by the familiar Strickland standard:

First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. Unless a defendant can make both
showings, it cannot be said that the conviction or
death sentence resulted from a breakdown in the
adversary process that renders the result
unreliable.

Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984).

“Judicial scrutiny of counsel's performance must be highly

4
deferential.” Id. at 2065. We therefore indulge a strong

presumption that strategic or tactical decisions made after an

adequate investigation fall within the wide range of objectively

reasonable professional assistance. Id. at 2065-66. Such

decisions are “virtually unchallengeable” and cannot be made the

basis of relief on a Sixth Amendment claim absent a showing that

the decision was unreasonable as a matter of law. See id. at 2066;

Loyd v. Whitley, 977 F.2d 149, 157 (5th Cir. 1992); Wilson v.

Butler, 813 F.2d 664, 672 (5th Cir. 1987). Strategic choices made

after less than complete investigation are reasonable only to the

extent that reasonable professional judgments support the

limitations on investigation. Strickland, 104 S. Ct. at 2066;

Whitley, 977 F.2d at 157-58.

The district court concluded that Moore’s counsel rendered

constitutionally deficient performance at both the guilt and

punishment phases of his trial, but found prejudice, and therefore

granted relief, as to Moore’s capital sentence only. The district

court’s decision is premised upon subsidiary findings that trial

counsel were deficient in the two major areas identified by Moore.

First, the district court found that counsel, in their presentation

of an illogical and incredible alibi defense: (1) conducted an

inadequate pretrial investigation, (2) ignored or excluded evidence

that the offense was accidental, rather than intentional, (3)

suborned perjury, and (4) elicited unduly damaging testimony

against Moore on cross-examination of a state witness. Second, the

district court found that counsel completely failed to investigate,

5
develop, or offer available mitigating evidence, including

previously redacted and exculpatory portions of Moore’s purported

confession, during the punishment phase of Moore’s capital trial.

On appeal, the Director maintains that the district court

impermissibly substituted its own de novo view of the state court

record for binding state habeas court fact findings, thus failing

to afford those fact findings the presumption of correctness

required by the pre-AEDPA version of 28 U.S.C. § 2254(d). With

respect to deficient performance, the Director maintains that both

the decision to pursue an alibi defense and the decision not to

present mitigating evidence were strategic decisions that are

entitled to deference under Strickland. With respect to prejudice,

the Director maintains that Moore cannot establish prejudice during

the punishment phase of his trial on the basis of deficient

performance during the guilt phase of his trial. Thus, the

Director maintains that deficient performance arising from

presentation of the alibi defense may not be imputed to the

punishment phase of Moore’s trial. The Director further argues

that admission of the mitigating evidence proposed by Moore would

not have affected the jury’s decision to impose the death penalty.

Finally, the Director argues that the district court exceeded its

authority by remanding with instructions that the state court

conduct a new punishment hearing.

Moore responds that the district court complied with

28 U.S.C. § 2254(d) by affording any relevant state habeas court

6
fact findings the deference justified by the record in this case.

See 28 U.S.C. § 2254(d)(8) (1994) (providing that the federal court

may, after a review of the relevant record, reject state habeas

court fact findings that are “not fairly supported by the record”).

Moore further responds that the record reflects counsel did not

make fully informed strategic decisions with regard to the

presentation of the alibi defense or the failure to present

mitigating evidence. To the contrary, Moore responds that counsel

failed to properly investigate the controlling facts and law, both

as to guilt and as to punishment, with the effect that available

and availing evidence was never developed. Moreover, Moore

responds that counsel’s decision to exclude the potentially

exculpatory evidence that was developed was both professionally

unreasonable and based upon an erroneous understanding of the

controlling legal principles. Thus, Moore maintains that there are

no reasonable strategic decisions entitled to this Court’s

deference under Strickland. With respect to prejudice, Moore

maintains that there is a reasonable probability that, but for

counsel’s deficient performance at both the guilt and punishment

phases of his capital trial, the jury would have reached a

different decision with respect to the appropriate sentence in his

case. Accordingly, Moore argues in support of the district court’s

determinations that trial counsel were ineffective in their

pretrial investigation and presentation of the alibi defense, and

in their failure to investigate, develop or present mitigating

evidence during the punishment phase of Moore’s trial.

7
 Significantly, Moore has not cross-appealed. We are therefore

limited to a review of the district court’s decision that there is

a reasonable probability that but for counsel’s deficient

performance at either the guilt phase or the punishment phase or

both, Moore would not have been sentenced to death. Given the

absence of a cross-appeal, the district court’s decision that Moore

failed to demonstrate prejudice as to the guilt phase of his

capital trial is not before this Court for review, and we are not

at liberty to expand upon the relief granted by the district court.

See United States v. Coscarelli, 149 F.3d 342 (5th Cir. 1998) (en

banc).

Having reviewed the record and the arguments of the parties we

affirm, with some modifications, the district court’s determination

that counsel’s performance was deficient during the guilt phase of

Moore’s trial. We likewise affirm the district court’s

determination that counsel’s failure to investigate, develop or

present mitigating evidence including exculpatory evidence that the

offense was accidental, during either phase of Moore’s capital

trial, constituted constitutionally deficient performance that

prejudiced the outcome of the punishment phase of Moore’s trial.

Accordingly, we affirm the district court’s grant of relief.

We agree, however, with the Director that the district court

exceeded its authority by ordering the state court of conviction to

conduct a new punishment hearing. The decision whether to pursue

a new punishment hearing pursuant to Texas Code of Criminal

Procedure article 44.29(c) is vested with the state court of

8
conviction. We therefore remand for entry of an order granting the

writ of habeas corpus, but permitting the state court of conviction

a reasonable time in which to cure the constitutional error by

imposing a sentence of less than death or conducting a new

punishment hearing as authorized by Texas state law.

III.

Moore’s case has been pending, in one court or another, for

almost twenty years. An extensive review of the various

proceedings, including the evidence adduced at Moore’s trial, is

essential to an understanding of our disposition.

A. The Offense

Moore was convicted of capital murder for the death of Jim

McCarble, which was committed in the course of a bungled robbery of

the Birdsall Super Market in Houston, Texas on April 25, 1980. On

that day, McCarble and his fellow employee Edna Scott were working

in the courtesy booth at the front of the store. Arthur Moreno and

Debra Salazar were checking groceries at nearby registers. Three

men, later identified as Willie “Rick” Koonce, Everett Anthony

Pradia, and petitioner Moore, entered the store. Koonce, who was

identified in pretrial line-ups and at trial by several witnesses,

entered the courtesy booth with a white cloth bank bag and ordered

McCarble to “[f]ill it up, man. You being robbed.” McCarble then

jumped to the left of Scott, which allowed Scott to see a second

man, later identified as Moore, standing outside the courtesy booth

and pointing a shotgun in her direction. The man holding the

9
shotgun was wearing a wig and sunglasses, which together with the

shotgun, obscured part of his face. The shotgun itself was

partially wrapped in two plastic bags. Neither Scott nor Moreno

nor Salazar was able to positively identify Moore as the man

holding the shotgun at either the pretrial line-up or at trial.

Scott testified that the man with the shotgun must have been

significantly taller than herself because she was able to look

directly into his eyes, notwithstanding the fact that she was

standing on the floor of the elevated courtesy booth. At trial, it

was demonstrated that Moore was approximately the same height, if

not slightly shorter, than Scott. Salazar’s testimony on the issue

of identity was the strongest. Salazar initially testified that

she was certain that Moore was the man pointing the shotgun into

the courtesy booth. But Salazar later qualified her testimony by

stating that she was not certain and could be mistaken. Leonard

Goldfield, the manager of the Birdsall Super Market, testified that

he only saw two men whom he suspected of participating in the

robbery. Goldfield positively identified those two men as Koonce

and Pradia.

When Scott observed the man with the shotgun, she shouted to

the assistant manager that there was a robbery in progress and then

dropped to the floor of the courtesy booth. Pradia, sensing that

the robbery was going wrong, fled the store. Moreno and Salazar

testified that they observed the man with the wig rise up on his

toes and aim the shotgun down into the courtesy booth. Scott

testified that she heard the shotgun discharge and observed

10
McCarble, who sustained a fatal wound to the head, fall to the

floor beside her.

Koonce and Moore fled the store. On the way to the car, Moore

dropped one of the plastic bags covering the gun and the wig he was

wearing. Store customer Wulfrido Cazares observed the three

robbers get into a red and white car and made a mental note of the

license plate number. Cazares had the letters memorized, but had

two alternative configurations for the numerical portion of the

license plate. When those numbers were later given to the police,

one of the numbers was registered to a red and white Mercury Cougar

belonging to Koonce.

B. The Investigation

The plastic bag and wig dropped by the shooter were later

recovered from outside the store by police. Police also recovered

a second plastic bag that was left at the front of the courtesy

booth. The bag found in front of the courtesy booth contained a

second wig. One of the bags was found to contain a sales receipt

issued to Betty Nolan. The receipt was traced and police

interviewed Nolan. Nolan told the police that petitioner Moore

sometimes lived at her house, sharing a room with her son Michael

Pittman. Nolan told one of the officers that Moore had been at

Nolan’s house on the day of the offense. Moore and his sister both

testified that Moore moved out of Nolan’s house several months

before the offense because he had an argument with Pittman. Moore

and his sister also testified that he could not have returned to

the house because Nolan changed the locks after the argument

11
between Moore and Pittman.

Police searched Nolan’s home and recovered a shotgun between

the mattress and box springs of Moore’s bed. A ballistics expert

testified at trial that it is impossible to determine whether a

particular shotgun was used in an offense by examining the

projectiles, or shot, from the shotgun. Thus, the expert was

unable to determine, from the size 8 shot recovered from the floor

of the courtesy booth and from McCarble’s head, whether the shotgun

recovered from Nolan’s house was the weapon used to kill McCarble.

Several witnesses testified, however, that the shotgun recovered

from Nolan’s home was similar to or looked like the weapon that was

aimed into the courtesy booth during the robbery. The ballistics

expert also testified that one of the shells found with the shotgun

contained size 8 shot and that a single expended shell found with

the shotgun had indeed been fired from the shotgun recovered from

Nolan’s house.

Police were unable to find suitable fingerprints for

comparison to Moore’s on either the shotgun or the plastic bags.

Moore testified that Pittman owned the shotgun, which had been

stolen from one of Pittman’s former employers. The state did not

offer any evidence relating to whether the gun was registered or

whom the gun was registered to. Moore also testified that,

according to Pradia, Pittman was the third man who held the shotgun

during the robbery. Moore testified that Pittman had four prior

robbery convictions. Evidence offered at trial established that

Pittman was then incarcerated pursuant to a judgment of criminal

12
conviction for burglary of a building.

Police also discovered that Nolan had several wigs and wig

stands in her home. Photographs were made of six wig stands. Of

the six stands, only four had wigs. Thus, two wigs, the number

found at the crime scene, were missing. The two wigs secured at

the crime scene were tested for hair samples. Although some small

pieces of hair were obtained, the samples were too small for any

meaningful comparison to exemplar hairs from Moore’s head.

Meanwhile, police arrested Koonce based upon the store

customer’s description of the robbers’ car and license plate

number. Koonce gave a confession implicating Pradia and Moore.

Pradia’s billfold was found in Koonce’s car. When Pradia heard

police were looking for him, he turned himself in. Pradia also

gave a confession, and like Koonce, Pradia implicated Moore in the

robbery.

C. Moore’s Arrest and Interrogation

Based upon information received from Koonce and Pradia and the

evidence obtained from Nolan’s house, police obtained an arrest

warrant for Moore. Around the same time, police received a

telephone call from citizen Bobby White, who was an acquaintance of

Moore’s father, Ernest “Junior” Moore. White told police that he

had accompanied Junior Moore and petitioner Bobby Moore to Moore’s

grandmother’s house in Coushatta, Louisiana on the morning of

Tuesday, April 29, 1980, four days after the robbery and around the

time of Koonce’s and Pradia’s arrest. White told police that Moore

took luggage and that he remained in Coushatta when Junior Moore

13
and Bobby White returned to Houston on Wednesday, April 30, 1980.

Moore was still in Coushatta when Bobby White and Junior Moore made

a second trip to the grandmother’s house on May 1 and 2. When

White returned to Houston from the second trip, on Friday, May 2,

1980, he called the Houston police and told them that Bobby Moore

was in Coushatta at his grandmother’s house.

Houston police contacted the Louisiana State Police, who

arrested Moore at his grandmother’s house. On May 5, 1980, Houston

Police Officers D. W. Autrey and Larry Ott, who had been

investigating the robbery, traveled to Louisiana to bring Moore

back to Houston. Once the trio returned to Houston, Moore was

interrogated about his role in the crime. The Director claims that

this interrogation resulted in Moore’s confession, which was

introduced at trial. Moore claims that, although he was beaten to

induce his cooperation, he never signed a written statement. Moore

introduced a booking photo of himself taken three or four days

after the interrogation that reflects some swelling on the left

side of his face and head. Photos taken of a pretrial line-up done

on May 7, 1980, however, do not show any appreciable distortion in

Moore’s features.

D. The Trial

Moore’s case was called to trial in July 1980. Moore was

defended by Alfred J. Bonner, who was retained and paid by Moore’s

family, and C. C. Devine. Early in the trial, the state attempted

to introduce Moore’s confession through Officer Ott. Moore’s

counsel objected and the jury was removed from the courtroom while

14
the trial court considered whether Moore’s confession would be

admitted into evidence.

Moore’s purported confession recites that Koonce, Pradia, and

Moore were riding around in Koonce’s car looking for some place to

rob. After casing the store, the three men decided that Koonce

would enter the courtesy booth, that Pradia would remove money from

the registers, and that Moore was to guard the courtesy booth and

the front door with his shotgun. The confession recites that Moore

wore a wig and covered the shotgun with two plastic shopping bags

before entering the store. When Scott started shouting that there

was a robbery in progress, Moore shouted to Koonce that it was time

to leave. When Koonce did not respond, Moore approached the front

of the courtesy booth. About the actual shooting, the confession

states:

The old man in the booth leaned over to open a
drawer in the booth. I started trying to push him
back with the barrel of the shotgun. I was leaning
over the counter of the booth and I suddenly fell
backwards and the butt of the gun hit my arm and
the gun went off. I didn’t learn until later that
the man had been shot. I seen it on T.V. The man
must have been standing back up as I fell backwards
and the gun went off.

After the robbery, the confession states that the three men ran out

of the store and drove to Betty Nolan’s house. Moore stayed at

Nolan’s and Pradia and Koonce left. The confession also states:

I swear I was not trying to kill the old man and
the whole thing was an accident.

Officer Ott stated on voir dire by the state that both the

inculpatory portions of the confession, demonstrating Moore’s

involvement, and the exculpatory portions of the confession,

15
tending to establish that the shooting was an accident, were

verbatim recitals of Moore’s voluntary statements concerning his

participation in the crime. Officer Ott testified that he typed

Moore’s confession, which was executed on blue paper.

Moore testified on voir dire that he had refused to sign any

statement or confession. Moore further testified that his refusal

so angered the interrogating officers that he was struck repeatedly

on the left side of his face. Moore conceded that he eventually

signed two pieces of blank white paper, but only because the

officers told him he would be released if he did so. Moore

testified that he had not signed anything printed on blue paper and

that the signature on the blue confession being offered by the

state was not his own.

Moore’s counsel argued that the confession was inadmissible,

either because it was not signed by Moore or because it was

involuntarily given. The trial court denied Moore’s motion to

suppress and the confession was deemed admissible. Before the jury

was brought back in, however, the state informed the trial court

that it wished to exclude the exculpatory portions of the

confession quoted above, which tended to establish that the

shooting was accidental. Moore’s defense counsel stated that they

had not reached a decision with respect to whether they would be

offering the remainder of the confession. Moore’s counsel secured

a ruling from the trial court prohibiting the state from making any

reference to the portions of the confession that were being omitted

until that decision could be made. In response, the state agreed

16
to merely cover the exculpatory language when entering the

inculpatory portions of the confession, thus preserving the

language for later use by the defense. Once that agreement was

reached, however, Moore’s counsel inexplicably changed course,

stating that they would not use the exculpatory portions of the

confession and that those portions should be completely “cut out”

of the exhibit given to the jury. As a result, the exculpatory

passages in the confession were “whited out,” and the confession

presented to the jury contained no mention of the actual shooting.

Rather, the confession placed Moore at the crime scene, holding a

shotgun pointed in McCarble’s direction, and then, following a

conspicuously large blank space where the exculpatory text was

deleted, the confession described how the three men fled the store.

Defense counsel’s failure to offer the exculpatory portions of

Moore’s confession, at either the guilt phase or the punishment

phase of Moore’s trial, forms a significant part of Moore’s claim

that he received ineffective assistance of counsel.

In addition to the evidence described above, the state also

offered Pradia’s testimony against Moore in its case-in-chief.

Pradia testified pursuant to a plea bargain. Pradia testified that

the three men met at Betty Nolan’s house on the morning of April

25, 1980, and then rode around in Koonce’s car deciding upon a

store to rob. Pradia testified that he cased the store before the

robbery by going in to see who was working and whether the robbery

was feasible. Pradia’s testimony was corroborated by the testimony

of store employees who testified that they observed Pradia in the

17
store earlier in the day. Pradia’s testimony was also consistent

with many details contained in the inculpatory portions of Moore’s

confession which were submitted to the jury. Pradia told the jury

that when Koonce and Moore joined him in the car after the robbery,

Moore told Pradia that Moore shot someone inside the store. Pradia

testified that he did not believe Moore until he saw the news

coverage about McCarble’s death.

Moore’s counsel pursued an alibi defense. Moore claims in

this habeas action that his trial counsel knew that Moore’s

confession was true; that is, that Moore participated in the

robbery and that he unintentionally shot Jim McCarble. Moore

maintains that counsel nonetheless created a false alibi defense,

and then pressured Moore and his sisters Clara Jean Baker and

Colleen McNiese to testify falsely that Moore was in Coushatta,

Louisiana at his grandmother’s house on April 25, 1980, the date of

the offense. Clara Jean Baker and petitioner Moore eventually

testified before the jury in support of the fabricated defense.

Without regard to whether counsel knowingly suborned perjured

testimony, as Moore alleges, the presentation of the alibi defense

can only be described as pathetically weak. Moore’s sister, Baker,

initially testified that she drove Moore to Coushatta, Louisiana on

April 14, 1980 and picked him up the next Monday, April 21, 1980.

The problem with that testimony, of course, is that it did not

place Moore in Louisiana on the offense date, April 25, 1980.

Baker then changed her testimony to state that she drove Moore to

Louisiana on Monday, April 21, and did not pick him up until

18
Monday, April 28, 1980. Baker testified that Moore went to

Louisiana to care for his grandmother because Moore’s grandmother

was ill. Baker testified that she went to get him the next week

because he was bored. Notwithstanding Moore’s boredom in

Louisiana, Baker testified that she was aware Moore returned to

Louisiana the following morning, Tuesday, April 29, 1980, with his

father, Junior Moore, and Bobby White.

Moore also testified in support of the false alibi, telling

the jury that he was in Louisiana on the date of the alleged

offense. But on cross-examination, Moore testified that he was

certain he went to Louisiana on Monday, April 21, 1980, and that he

stayed there only four or five days. When confronted with the fact

that he could have therefore been back on April 25, the day of the

offense, Moore backtracked and said he returned with his sister

Baker on either April 26 or April 27. Thus, Moore’s own testimony

conflicted with that of Baker’s with respect to when he returned to

Houston. That inconsistency was compounded by Moore’s further

testimony that he returned to Louisiana with his father and Bobby

White on the same day he returned to Houston, rather than the

following day, as Baker had testified. Moore also repeated in

substance his voir dire testimony concerning the circumstances of

his arrest and interrogation, and his denial of the written

confession. Defense counsel attempted to bolster the floundering

alibi defense with the testimony of Houston Police Officer J. H.

Binford, who verified that neither Edna Scott nor Debra Salazar nor

Arthur Moreno was able to identify Moore in a pretrial line-up as

19
a person who participated in the robbery.

Not surprisingly, the state responded to Moore’s alibi defense

on rebuttal with evidence relating to extraneous conduct and

offenses involving similar conduct. See, e.g., Hughes v. State,

962 S.W.2d 89, 92 (Tex. App.--Houston [1st Dist.] 1997, pet. ref’d)

(subject to certain exceptions, evidence of similar extraneous

conduct may be admissible on the issue of identity once a defendant

raises an alibi defense). The state first used its cross-

examination of Moore to catalogue Moore’s prior convictions, three

for burglary and one for aggravated robbery. The state also called

three witnesses to two separate robberies of small grocery stores

in the Houston area. Those robberies occurred on April 11 and

April 18, 1980, the two Fridays preceding the Friday, April 25,

1980 robbery of the Birdsall Super Market. Store employees

positively identified Moore as being one of the perpetrators at

both robberies. As to the first robbery, a store employee

testified that Moore and two other black men entered the store, and

that Moore stood at the front of the courtesy booth holding a

shotgun. As to the second robbery, a store employee and a store

customer testified that Moore and another black man entered the

store, and that Moore held a shotgun during the robbery. This very

damaging testimony became admissible only because Moore pursued an

alibi defense. There is no dispute that the evidence would not

have been admissible had Moore pursued an accidental shooting

defense instead. The state also called a Louisiana State Police

Officer who knew Moore’s grandmother very well and who arrested

20
Moore at his grandmother’s house. That officer testified that,

contrary to Moore’s testimony and that of his sister, Moore’s

grandmother was and had been in good health. The officer also

testified that he had not seen Moore at the grandmother’s house or

in the vicinity of the small town of Coushatta before the date of

arrest.

Closing arguments followed. The state argued that Moore’s

confession was voluntary. The state also argued that Moore’s

confession was accurate, at least as to those portions submitted to

the jury. Contrary to its pre-submission agreement, the state

referred to the obviously omitted portions of the confession,

stating that the confession was edited because the state did not

want to vouch for exculpatory language Moore included in his

confession. Notwithstanding that position, the state argued that

Officer Ott would not have included exculpatory language in a

fraudulently prepared confession. Thus, the state relied upon the

existence of the undisclosed and excised exculpatory language to

support its argument that the confession was voluntary. The state

did not, however, clarify that the excluded language supported an

accidental shooting theory. To the contrary, the state tried to

negate any such impression by emphasizing that there had been no

contention in the case that the shooting was accidental.

Defense counsel Devine and Bonner made separate arguments,

which were in part contradictory. For example, Devine criticized

the police and their investigation while Bonner said he had no

complaint against the police. Devine’s argument was consistent

21
with Moore’s alibi defense. But Bonner essentially abandoned the

alibi defense, stating that it made no difference whether Moore’s

sister testified truthfully or whether Moore’s grandmother was in

fact in ill health. Bonner characterized the evidence relating to

Moore’s alibi as nothing more than a series of “rabbit trails.”

Bonner placed his focus instead upon the alleged forgery of Moore’s

confession, and upon whether the state’s other evidence was strong

enough to place Moore at the Birdsall Super Market on April 25,

1980.

The state’s rebuttal argument relied heavily upon the pitiful

failure of the alibi defense. The state also emphasized and made

use of defense counsel’s apparent inability to agree, and their

divergent positions in closing argument to the jury.

During deliberations, the jury sent out a note requesting that

they be provided with “[b]oth confessions of the Defendant.”

Notwithstanding that request and the available argument that the

state opened the door to submission of Moore’s unredacted

confession by relying upon redacted portions in its closing

argument, the state and defense counsel submitted, by agreement,

only the redacted confession. Three hours later, the jury returned

a verdict of guilty.

The punishment phase of Moore’s trial began immediately.

Under Texas law, Moore’s jury was required to return affirmative

answers to each of two special issues before the death penalty

could be imposed. Those issues were:

(1) whether the conduct of the defendant that
caused the death of the deceased was committed

22
 deliberately and with reasonable expectation that
the death of the deceased or another would result;
and

(2) whether there is a probability that the
defendant would commit criminal acts of violence
that would constitute a continuing threat to
society.

The state began by tendering all of the state’s guilt phase

evidence into the punishment phase record. The state then offered

Moore’s penitentiary package, which contained the details of

Moore’s prior criminal record. The state was permitted to explain

the penitentiary package to the jury, and the jury was again

instructed that Moore had three prior burglary convictions and one

prior aggravated robbery offense. Moore’s counsel did not likewise

offer any explanatory argument to the jury on the penitentiary

package, notwithstanding that: (1) Moore was sentenced for each of

the four offenses on the same day; (2) Moore began serving his

sentence for each of the four convictions on the same day; and (3)

Moore was released from serving the balance of the four

concurrently imposed sentences after only two years, a factor

clearly relevant on the issue of future dangerousness. To the

contrary, Moore’s counsel simply stipulated that the documents

comprising the penitentiary package were accurate. Besides failing

to respond to the state’s evidence, defense counsel offered no

evidence on the issue of punishment. The evidentiary portion of

the punishment phase of Moore’s capital punishment trial concluded

less than ten minutes after it had begun.

Counsel then made closing arguments to the jury. Once again,

defense counsel Devine and Bonner made separate and somewhat

23
contradictory arguments. Devine argued that the shooting was

accidental and unintentional. Devine supported that position with

argument relating to the nature and the location of McCarble’s

wound, the small amount of pressure required to discharge a

firearm, and other circumstances of the offense. Devine did not,

however, support that punishment phase argument with the best

available evidence that the shooting was indeed accidental --

Moore’s unredacted confession -- even though the record is clear

that an unredacted version of the confession was available and

could have been offered during the punishment phase of Moore’s

trial. Devine also argued that Moore would not present a

continuing threat of violence in the prison community. Devine

failed, however, to support that argument by focusing the jury upon

evidence in the penitentiary package that Moore was released early

from his only prior prison sentence.

Bonner encouraged the jury not to make too much from defense

counsel’s apparent disagreement. Bonner seemed to deride Devine’s

accidental shooting theory, stating that Devine only argued the

theory for the purpose of ensuring that defense counsel were not

lax in their duty. Contrary to both Moore’s confession and the

jury’s verdict, Bonner then attempted to focus the jury on the

defensive theory that the state’s evidence failed to show Moore was

at the scene of the crime. Neither Devine nor Bonner argued the

alibi defense that featured so prominently at the guilt phase of

trial. Together, Devine’s and Bonner’s arguments take up less than

fifteen pages of the punishment phase transcript.

24
 The state closed by highlighting defense counsel’s failure to

try and explain away Moore’s prior offenses, defense counsel’s

failure to call character witnesses, and the brevity of defense

counsel’s argument on the issue of punishment. The state relied

upon defense counsel’s failure to offer these types of evidence as

support for the proposition that no such evidence existed. After

deliberation, the jury returned affirmative answers to the special

issues as required under Texas law for imposition of the death

penalty.

One week later, Moore was sentenced to death. At sentencing,

counsel Devine expressed the desire to withdraw from his

representation of Moore. Devine died shortly thereafter. Bonner

expressed the desire to continue representing Moore on appeal,

provided the trial court would provide a record for that purpose.

E. Direct Appeal

Moore’s case was automatically appealed to the state’s highest

criminal court, the Texas Court of Criminal Appeals. In the two

and one-half year period between December 1980 and June 1983,

Bonner filed at least twelve motions seeking an extension of the

filing deadline for either Moore’s appellate brief or the statement

of facts. During that period, Bonner routinely missed filing

deadlines, failing to request an extension of time until he

received notice that the filing deadline had passed. Between

January and April 1983, Moore sent letters and pro se motions to

the Texas Court of Criminal Appeals complaining that Bonner refused

to communicate with him and requesting permission to file a pro se

25
brief on appeal. Moore’s pro se motions were denied. In May 1983,

Bonner requested a “final” extension of the brief filing deadline

until July 15, 1983. Bonner missed this deadline as well, and did

not file a brief on Moore’s behalf until July 27, 1983, three years

after Moore’s capital trial. The state filed a timely response

brief in August 1983.

Meanwhile, Moore continued to send correspondence to the Texas

Court of Criminal Appeals objecting to Bonner’s representation. In

October 1983, the Texas Court of Criminal Appeals ordered the trial

court to conduct a hearing to determine whether Moore was making an

informed decision to proceed pro se on appeal. In December 1983,

the trial court conducted a hearing to determine whether Bonner

should continue as Moore’s counsel. Moore rejected Bonner’s

representation and requested that another lawyer be appointed.

Accordingly, attorney John Ward was appointed to replace Bonner as

Moore’s counsel on appeal.

Between January 1984 and September 1984, counsel Ward filed

four additional motions for an extension of the brief filing

deadline. The Texas Court of Criminal Appeals granted those

motions. The final extension made the brief due on October 3,

1984. Ward missed the October 3 filing deadline. In December

1984, the Texas Court of Criminal Appeals issued a show cause order

instructing Ward to file the brief before January 7, 1985, or to

show cause why he should not be held in contempt of court. Ward

eventually filed the brief on the January 7, 1985 deadline. Ward’s

brief argued, inter alia, that Moore’s trial counsel rendered

26
ineffective assistance because they failed to investigate the

availability of mitigating background evidence and failed to

present available mitigating evidence at the punishment phase of

Moore’s capital trial.

During the time period for the state’s response, Moore filed

a pro se brief on his own behalf. Moore’s pro se brief argued,

inter alia, that trial counsel were ineffective for failing to call

additional alibi witnesses, such as his grandmother and his father.

In October 1985, more than five years after Moore’s capital

trial, the Texas Court of Criminal Appeals issued an opinion

affirming Moore’s conviction and death sentence. See Moore v.

State, 700 S.W.2d 193 (Tex. Crim. App. 1985). Noting the abundance

of briefs on appeal, the Texas Court of Criminal Appeals purported

to reach all of the arguments presented in the various briefs filed

by Bonner and Ward, and by Moore acting pro se. While the Court

made certain rulings with respect to Ward’s ineffective assistance

of counsel argument, the Texas Court of Criminal Appeals expressly

limited those holdings by noting that the record on direct appeal

is generally inadequately developed to reflect trial counsel’s

failings. See Moore, 700 S.W.2d at 204-05. Without precluding the

possibility that Moore’s ineffective assistance of counsel claims

might be beneficially developed in further proceedings, the Texas

Court of Criminal Appeals set forth rulings expressly “limited to

the record on appeal that is before us.” Id. at 205. Moore’s

execution date was thereafter set for February 26, 1986. Moore’s

petition to the Supreme Court for writ of certiorari and his

27
application for stay of execution were denied on February 21, 1986.

Moore v. Texas, 106 S. Ct. 1167 (1986).

F. Habeas Corpus Proceedings

On February 24, 1986, Moore, represented by new counsel, filed

an application for writ of habeas corpus and a motion for stay of

execution in state court. The state trial court denied both

Moore’s application for habeas corpus and Moore’s motion for a stay

of the February 26 execution date without a hearing. The Texas

Court of Criminal Appeals summarily affirmed that decision without

opinion.

On February 25, 1986, Moore filed a petition for habeas corpus

relief and a motion for stay of execution in federal district

court. The district court granted Moore a stay of execution. In

June 1987, the district court determined that Moore’s federal

habeas petition raised certain factual and legal theories that had

not been presented to the state courts. Accordingly, the district

court dismissed Moore’s first federal habeas petition, without

prejudice to refiling upon exhaustion.

In April 1992, Moore, now represented by three new lawyers,

filed his second application for state habeas relief. Moore’s

April 1992 petition alleged, inter alia, that Moore’s trial

counsel: (1) suborned perjury in the presentation of Moore’s alibi

defense; (2) failed to conduct an adequate pretrial investigation

by interviewing Koonce and Pradia and state witnesses to extraneous

conduct; (3) excluded exculpatory evidence that the shooting was

accidental on the basis of their erroneous belief that such

28
evidence was per se inconsistent with Moore’s alibi defense; (4)

unduly prejudiced Moore by eliciting damaging testimony on

essential elements of the offense that was not otherwise introduced

against Moore in their cross-examination of Officer Autrey; and (5)

failed to investigate, develop, or present available mitigating

evidence that would have swayed the jury’s decision on the special

issues in Moore’s favor.

On April 23, 1993, the state habeas court conducted an

evidentiary hearing on Moore’s various ineffective assistance of

counsel claims. The state habeas court heard evidence from Bonner,

Moore, Moore’s sisters Clara Jean Baker and Colleen McNiese, and

other witnesses concerning trial counsel’s conduct. The state

habeas court also heard substantial evidence from an expert witness

and Moore’s family members concerning Moore’s tortured family

background and his impaired mental functioning. After the

evidentiary hearing, the state habeas court entered findings of

fact and conclusions of law in support of its determination that

Moore did not receive ineffective assistance of counsel at his 1980

trial. On October 4, 1993, the Texas Court of Criminal Appeals

affirmed the state habeas court’s denial of habeas corpus relief.

On October 12, 1993, Moore filed his second federal petition

for federal habeas relief, raising the same claims that were

presented in the second state habeas application. On October 21,

1993, the district court denied Moore’s request for an evidentiary

hearing, reserving the right to revisit the issue should a hearing

become necessary. On September 29, 1995, the district court

29
entered an order holding that Moore’s trial counsel rendered

deficient performance at both the guilt and punishment phases of

Moore’s trial, and that counsel’s deficient performance prejudiced

Moore at the punishment phase of his trial. Accordingly, the

district court reversed the state court judgment against Moore as

to punishment only, and remanded to the state trial court for a new

punishment hearing. The Director appeals from that decision.

IV.

In making its determination that Moore received ineffective

assistance of counsel, the district court adopted some, but

considered and rejected other, factual determinations made by the

state habeas court. The Director contends that the district court

failed to afford these state habeas court fact findings the

deference required by the pre-AEDPA version of 28 U.S.C. § 2254(d).

The Director first argues that a federal district court may

not reject the factual determinations made by a state habeas court

without conducting its own evidentiary hearing. We disagree.

“Although the federal district courts are vested with broad power

on habeas to conduct evidentiary hearings, we cannot say that it

becomes the duty of the court to exercise that power where, as

here, the state trial court has afforded the applicant[] a full and

fair evidentiary hearing.” Heyd v. Brown, 406 F.2d 346, 347 (5th

Cir. 1969); see also West v. Johnson, 92 F.3d 1385, 1410 (5th Cir.

1996); Lincecum v. Collins, 958 F.2d 1271, 1278-80 (5th Cir. 1992);

Winfrey v. Maggio, 664 F.2d 550 (5th Cir. Unit A Dec. 1981) (all

30
holding that the federal district court is not required to hold an

evidentiary hearing when the record is clearly adequate to fairly

dispose of the claims presented). We find no error arising solely

from the fact that the district court chose to review the state

habeas court’s factual determinations without conducting an

evidentiary hearing on Moore’s claims.3

The Director also contends that the district court

impermissibly substituted its own view of the facts for state

habeas court findings entered after a full and fair litigation of

Moore’s claims in the state habeas court. Essentially, this

amounts to a contention that the district court failed to correctly

apply the pre-AEDPA version of 28 U.S.C. § 2254(d). We will first

define the deference required by the pre-AEDPA version of

§ 2254(d). Whether the district court inappropriately rejected

particular findings will be addressed in the context of the

specific areas of deficient performance identified by the district

court.

The pre-AEDPA version of 28 U.S.C. § 2254(d) obligates federal

habeas courts to afford state habeas court fact findings a

presumption of correctness, subject to an enumerated list of eight

exceptions. See 28 U.S.C. § 2254(d)(1)-(8) (1994). The first

seven exceptions in essence provide that the presumption of

correctness does not apply unless the petitioner’s habeas claims

3
Given Moore’s failure to cross-appeal, we do not decide
whether conflicts in the testimony before the state habeas court
supported Moore’s request for an evidentiary hearing in the
district court.

31
have been fully and fairly litigated in a state habeas court with

jurisdiction to consider the matter.4 We have already determined,

and the parties do not dispute, that Moore’s ineffective assistance

of counsel claims received a full and fair adjudication on the

merits in the April 1993 evidentiary hearing conducted in the state

habeas court. See Moore, 101 F.3d at 1075. We therefore conclude

that none of the seven exceptions set forth as § 2254(d)(1) through

§ 2254(d)(7) are applicable in this case to excuse the presumption

of correctness otherwise required by § 2254(d).

Instead, the district court expressly tied its selective

rejection of the state habeas court’s factual determinations to

§ 2254(d)(8), the final exception in § 2254. Section 2254(d)(8)

provides that federal habeas courts need not defer to state habeas

court fact findings that the federal habeas court determines are

“not fairly supported by the record.” See 28 U.S.C. § 2254(d)(8)

(1994); Bryant v. Scott, 28 F.3d 1411, 1417 (5th Cir. 1994). Under

this pre-AEDPA standard, a federal habeas court may not reject

state court factual determinations merely on the basis that it

4
See 28 U.S.C. § 2254(d)(1) (1994) (presumption inapplicable
when the state habeas court failed to resolve the merits of a
factual dispute); id. § 2254(d)(2) (presumption inapplicable when
state habeas court employed inadequate fact finding procedure); id.
§ 2254(d)(3) (presumption inapplicable when material facts are not
adequately developed in state habeas proceeding); id. § 2254(d)(4)
(presumption inapplicable when state habeas court lacked
jurisdiction); id. § 2254(d)(5) (presumption inapplicable when
state habeas court deprived petitioner of his constitutional right
to counsel by failing to appoint counsel for an indigent
petitioner); id. § 2254(d)(6) (presumption inapplicable when
petitioner’s claim was not fully and fairly litigated in state
habeas court); id. § 2254(d)(7) (presumption inapplicable if
petitioner was otherwise denied due process of law in the state
habeas proceeding).

32
disagrees with the state court’s resolution. Marshall v.

Lonberger, 103 S. Ct. 843, 850 (1983); Loyd v. Smith, 899 F.2d

1416, 1425 (5th Cir. 1990). Indeed, the federal court may not

reject factual determinations unless it determines that they lack

even “fair support” in the record. Marshall, 103 S. Ct. at 850;

Smith, 899 F.2d at 1425. But the deference embodied in the pre-

AEDPA version of § 2254(d) does not require that the federal court

place blinders on its eyes before conducting a habeas corpus review

of a state record. To the contrary, the section merely erects a

starting place or presumption, that may be examined in light of the

state court record. See, e.g., Bryant, 28 F.3d at 1417-19. It is

worth noting that the pre-AEDPA standard is significantly less

deferential to state habeas court factual determinations in this

regard than its AEDPA counterpart, which prohibits the grant of

relief unless the state court’s factual determination is plainly

unreasonable in light of the evidence submitted to the state habeas

court. See 28 U.S.C. § 2544(d)(2); Trevino v. Johnson, 168 F.3d

173, 181 (5th Cir. 1999), pet. for cert. filed, (U.S. June 17,

1999) (No. 98-9936).

In addition, § 2254(d) does not require a federal habeas court

to defer to a state court’s legal conclusions. Once again, the

pre-AEDPA standard permits, in this regard, a far more liberal

review of state habeas court findings than is allowed by the

stringent standard of review embodied in AEDPA’s version of

§ 2254(d). Under AEDPA, a state court’s legal conclusion may not

be disturbed absent a showing that the state court conclusion is

33
contrary to, or involved an unreasonable application of, clearly

established law, as determined by the United States Supreme Court.

28 U.S.C. § 2254(d)(1). An application of federal law is

unreasonable only when “reasonable jurists considering the question

would be of one view that the state court ruling was incorrect."

Trevino, 168 F.3d at 181 (quoting Drinkard, 97 F.3d at 769). Thus,

AEDPA’s standard of review both restricts the federal habeas

court’s review of state factual determinations, and interjects

certain limitations upon the federal habeas court’s review of legal

conclusions that were not present under pre-AEDPA law.

When applying the pre-AEDPA standard to ineffective assistance

of counsel claims, this Court has held that whether counsel was

deficient, and whether the deficiency, if any, prejudiced the

petitioner within the meaning of Strickland, are legal conclusions

which both the district court and this Court review de novo. See

Bryant, 28 F.3d at 1414 (“a state court’s ultimate conclusion that

counsel rendered effective assistance is not a fact finding to

which a federal court must grant a presumption of correctness”);

see also Carter v. Johnson, 131 F.3d 452, 463 (5th Cir. 1997),

cert. denied, 118 S. Ct. 1567 (1998); Motley v. Collins, 18 F.3d

1223, 1226 (5th Cir. 1994); Black v. Collins, 962 F.2d 394, 401

(5th Cir. 1992); Mattheson v. King, 751 F.2d 1432, 1439 (5th Cir.

1985). The state court’s subsidiary findings of specific

historical facts and state court credibility determinations are,

however, entitled to a presumption of correctness under § 2254(d).

Carter, 131 F.3d at 4643; Bryant, 28 F.3d at 1414 n.3. Thus, a

34
state habeas court’s determination that counsel conducted a

pretrial investigation or that counsel’s conduct was the result of

a fully informed strategic or tactical decision is a factual

determination, while the adequacy of the pretrial investigation and

the reasonableness of a particular strategic or tactical decision

is a question of law, entitled to de novo review. See Horton v.

Zant, 941 F.2d 1449, 1462 (11th Cir. 1992); see also Bryant, 28

F.3d at 1414-19; Whitley, 977 F.2d at 158-59; Wilson, 813 F.2d at

672.

The Court is, therefore, not required to condone unreasonable

decisions parading under the umbrella of strategy, or to fabricate

tactical decisions on behalf of counsel when it appears on the face

of the record that counsel made no strategic decision at all.

Compare Mann v. Scott, 41 F.3d 968, 983-84 (5th Cir. 1994) (citing

record evidence for proposition that counsel made a strategic

decision not to offer mitigating evidence during the punishment

phase of a capital trial), with Whitley, 977 F.2d at 157-58

(concluding from the record that counsel’s failure to offer

mitigating evidence during the punishment phase of habeas

petitioner’s capital trial was not the result of a considered

strategic decision, and therefore not entitled to deference), and

Wilson, 813 F.2d at 672 (concluding that the existing record was

inadequate for purposes of determining whether counsel made a

strategic decision not to offer mitigating evidence during the

punishment phase of a capital trial or whether that decision was

professionally reasonable); see also Whitley, 977 F.2d at 158 (“The

35
crucial distinction between strategic judgment calls and plain

omissions has echoed in the judgments of this court.”); Profitt v.

Waldron, 831 F.2d 1245, 1248 (5th Cir. 1987) (Strickland’s measure

of deference “must not be watered down into a disguised form of

acquiescence.”); id. at 1249 (refusing to indulge presumption of

reasonableness as to “tactical” decision that afforded no advantage

to the defense). Rather, the fundamental legal question is

whether, viewed with the proper amount of deference, counsel’s

performance was professionally reasonable in light of all the

circumstances. Strickland, 104 S. Ct. at 2066.

Having set forth the factual background of this case and the

appropriate standards governing both Moore’s substantive claim that

he received ineffective assistance of counsel and the district

court’s treatment of relevant findings by the state habeas court,

we now proceed to review the district court’s application of those

standards.

V.

A. Subornation of Perjury and Selection of Alibi Defense

Moore claims that trial counsel Bonner created a false alibi

defense, and then suborned perjury by pressuring Moore and his

sisters Clara Jean Baker and Colleen McNiese to testify in support

of the alibi. Moore claims that Bonner engaged in this conduct

notwithstanding Bonner’s knowledge that Moore’s confession

accurately portrayed the shooting as accidental, rather than

intentional. Moore identifies this conduct as deficient

36
performance within the meaning of Strickland.

Moore supported his habeas claim in the state habeas

evidentiary hearing with his own testimony, and that of his

sisters, to the effect that Bonner told them on the day of trial

that alibi was the only possible means of avoiding the death

penalty. McNiese testified that she did not understand what Bonner

was asking her to do. Baker testified that she understood, and

that she testified falsely at Moore’s criminal trial shortly after

talking to Bonner because she thought she was saving her brother’s

life.

The state habeas court heard conflicting evidence from Bonner

that the alibi defense was insisted upon by Moore and corroborated

by his family. Bonner also testified that he was skeptical of the

alibi defense at first because most of his clients initially

protested innocence, but that he became increasingly more

comfortable with using the defense when he determined in the course

of his pretrial investigation that none of the state’s witnesses

had been able to identify Moore, that Moore no longer lived with

Betty Nolan, that Nolan’s son, Michael Pittman, had a record, that

the shotgun recovered from Nolan’s house could not be definitively

linked to either Moore or the offense, and that the state was not

able to connect either of the wigs found at the crime scene to

Moore using exemplar hair samples.

The state habeas court resolved this conflicting evidence with

a credibility determination. The state court found that Bonner’s

testimony on the issue of subornation was credible, and that Bonner

37
did not suborn perjury or attempt to suborn perjury from Moore’s

sisters. Implicit in that fact finding is the additional

determination that Bonner likewise did not suborn perjury from

Moore.

The district court found deficient performance based upon

counsel’s presentation of a perjured alibi defense. The district

court identified the state habeas court’s factual determination

that Bonner did not suborn perjury, but stated that the fact

finding was not entitled deference because the state habeas court’s

finding was “confounded by overwhelming evidence to the contrary

and is not supported by the record.” The district court also found

that the “conduct of trial counsel was so contrary to the great

weight of evidence that only a foolish man would insist upon

presenting such a defense.” Both rationales for rejecting the

state habeas court’s factual determination are problematic.

With regard to the first rationale, we note that the state

court’s factual finding that Bonner did not suborn or attempt to

suborn perjury is a credibility determination made on the basis of

conflicting evidence that is virtually unreviewable by the district

court or our Court. Marshall, 103 S. Ct. at 850. Section 2254(d)

does not grant federal habeas courts a “license to redetermine

[the] credibility of witnesses whose demeanor has been observed by

the state trial court.” Id. at 851. Moreover, even though we may

share the district court’s skepticism, the state habeas court’s

credibility determination draws fair support from the record in the

form of Moore’s trial testimony and Bonner’s evidentiary hearing

38
testimony. For that reason, the district court’s first rationale

for rejecting the state habeas court’s credibility determination

and its contrary fact finding must be rejected as clearly

erroneous. See Bryant, 28 F.3d at 1414 n.3.

The district court’s second rationale is more subtle, but is

apparently driven by the underlying premise that a reasonably

competent attorney would have dissuaded Moore from pursuing an

alibi defense. The district court opined that trial counsel cannot

be permitted to evade their burden to provide reasonably effective

assistance under the constitution by shifting the blame for

selection of an implausible defense to the defendant.

Although we find ourselves somewhat in sympathy with the

district court’s comments, we cannot agree. Moore is presumed to

be the master of his own defense. See Faretta v. California, 95

S. Ct. 2525, 2533-34 (1975); United States v. Masat, 896 F.2d 88,

92 (5th Cir. 1990); Mulligan v. Kemp, 771 F.2d 1436, 1441-42 (11th

Cir. 1985). Were it otherwise, we might well face ineffective

assistance of counsel challenges anytime a chosen defense failed.

Moreover, Moore bears the burden of proving his allegation that the

alibi defense was unwillingly foisted upon him. See Brewer v.

Aiken, 935 F.2d 850, 860 (7th Cir. 1991) (“[W]e refuse to hold that

the presentation of perjured testimony at the request of the

defendant is adequate to constitute ineffective assistance of

counsel.”). The state habeas court found that Moore maintained his

innocence and endorsed the alibi defense at trial. That

determination is fairly supported by Moore’s trial testimony and

39
Bonner’s evidentiary hearing testimony. In addition to the evidence

described above, the state tendered excerpts from Moore’s pro se

brief on direct appeal into the record of the state court habeas

proceeding. Moore’s pro se brief argues at length that trial

counsel were ineffective for failing to call additional witnesses,

including his grandmother and father, who would have testified in

support of his alibi defense. When asked about this argument

during the evidentiary hearing in the state habeas court, Moore

conceded that he thought the argument should be raised. There is

every indication, as the state habeas court found, that Moore

maintained his innocence and insisted upon an alibi defense, both

during his trial and on direct appeal.

Neither can we accept Moore’s contention that counsel’s

decision to pursue an alibi defense was unreasonable as a matter of

law, without regard to who selected the defense, because it was at

odds with the known facts. We have already held that Moore chose

the alibi defense. Counsel will rarely be ineffective for merely

failing to successfully persuade an insistent defendant to abandon

an unlikely defense. See Mulligan, 771 F.2d at 1442. Moreover, we

cannot say that the alibi defense was necessarily at odds with the

evidence known to counsel at the time Moore’s trial began. None of

the state’s witnesses had been able to identify Moore. In

addition, Moore’s physical appearance did not match eye-witness

accounts of a taller man from Edna Scott. Neither the gun nor the

wigs nor the plastic bags could be tied to Moore by way of

fingerprints or exemplar hairs. The gun itself could not be

40
definitively tied to the offense. Moreover, Michael Pittman had a

significant prior record and was arguably as likely a suspect as

Moore.

Moore counters that the alibi defense became untenable and

should have been abandoned once his confession was ruled

admissible. The district court agreed. We agree that succeeding

on an alibi defense, particularly in the face of a defendant’s

admissible confession is “similar to one trying to climb by himself

the tallest mountain in the world.” Moore, 700 S.W.2d at 205. But

there is no obvious conflict in the record evidence. Moore

testified at trial before the jury that he did not sign the

confession. Moore testified at trial before the jury in support of

the alibi defense. Moore, acting pro se, pursued the alibi defense

on direct appeal. Whatever inherent inconsistency was created by

the admission of Moore’s confession was cured by his testimony that

the confession was invalid and his contemporaneous testimony that

he was somewhere else when the crime was committed.

For the foregoing reasons, we decline to find deficient

performance on the basis of Moore’s allegation that counsel

suborned or attempted to suborn perjury in their presentation of

the false alibi defense or that counsel should have persuaded Moore

to abandon the alibi defense.

B. Inadequate Pretrial Investigation

Moore also maintains that counsel’s decision to pursue an

alibi defense was unreasonable because counsel failed to conduct an

adequate pretrial investigation into the controlling law and facts.

41
 Moore contends that counsel’s factual investigation of Moore’s

alibi defense was insufficient. This argument is divided into two

separate components. First, Moore maintains that counsel should

have determined that the support for Moore’s alibi, that he was

with his grandmother in Louisiana, was weak. Second, Moore argues

that counsel were ineffective for failing to contact or interview

or otherwise discern the testimony of state’s witnesses to

extraneous conduct committed by Moore.

With regard to the first argument, the state habeas court

concluded that counsel conducted a reasonable and independent

pretrial investigation. This conclusion of law rested upon factual

determinations that counsel discussed the alibi defense with Moore

and with Moore’s family members, and that Moore’s family supported

the defense. The district court accepted the premise that counsel

met with Moore and his family, but rejected the conclusion of law

that counsel’s pretrial investigation was therefore independent or

reasonable. We review that determination of law de novo.

Moore’s argument that counsel failed to conduct a sufficient

investigation into the facts underlying his alibi defense is

unavailing. As an initial matter, Moore’s ability to meet his

burden on this point is substantially weakened by our conclusion

that Moore himself chose and insisted upon the alibi defense.

Moore is essentially arguing that counsel should have expended

pretrial resources unearthing evidence to contradict their client’s

chosen defense. We are persuaded that the record adequately

supports the proposition that there was sufficient investigation,

42
at least as to the veracity of Moore’s alibi that he was in

Louisiana when the offense occurred. Moore selected the defense.

Bonner interviewed Moore and Moore’s family members. Bonner

traveled to Louisiana to interview Moore’s grandmother. In

addition, Bonner reviewed the state’s files, ascertaining that the

physical evidence, and the testimonial evidence to be offered in

the state’s case-in-chief were consistent with Moore’s alibi. To

the extent that the confession was inconsistent with the alibi

defense, Moore’s trial testimony that the confession was invalid

cured any problem. We therefore decline to find deficient

performance on the theory that counsel failed to adequately develop

facts contradicting the alibi defense.

Moore’s second argument is that counsel were ineffective for

failing to ascertain what evidence of similar extraneous conduct

the state might offer in rebuttal to his alibi defense. In

contrast to its case-in-chief, the state introduced substantial and

highly probative evidence that Moore, carrying a shotgun, robbed

two small grocery stores on the two Fridays preceding the Friday,

April 25, 1980, robbery of the Birdsall Super Market. All of the

state’s three rebuttal witnesses were able to positively identify

Moore. There can be no doubt that this evidence was critical to

Moore’s conviction. Prior to the state’s case on rebuttal, none of

the state’s witnesses had been able to unconditionally place Moore

at the scene of the crime. Moreover, it is undisputed that this

damaging evidence was admissible only because Moore chose the alibi

defense.

43
 Moore argues that counsel acted unreasonably because they

simply did not understand that Texas law would permit the state to

rebut Moore’s alibi with evidence of similar extraneous conduct.

The state habeas court did not make any explicit findings of fact

with regard to this issue. The state habeas court did find,

however, that counsel made reasonable attempts to investigate

potentially admissible extraneous conduct. Thus, the state habeas

court implicitly found that counsel were aware of the controlling

principles of Texas law that made extraneous conduct admissible to

rebut a defendant’s alibi defense. That finding is consistent with

Bonner’s state habeas hearing testimony that he knew extraneous

conduct might come in and that he informed Moore of that

possibility. The district court did not expressly address this

implicit finding, but did conclude that counsel were unprepared to

meet extraneous offenses that came in as a result of alibi.

Moore supports this argument with citations to counsel’s trial

objections. In those objections, counsel maintained that the

extraneous conduct was inadmissible because not sufficiently

proven. Counsel reasserted those arguments, with considerable

persuasive force, on direct appeal. Moore, 700 S.W.2d at 198-201.

Indeed, the Texas Court of Criminal Appeals wrote at length about

both the general rule that extraneous conduct may be admissible to

rebut an alibi defense and the exceptions to that general rule, as

applied to Moore’s case. Id. Viewed in the context of the entire

trial record and the controlling principles of Texas law, we cannot

say that counsel’s trial objections demonstrate that counsel was

44
not aware that extraneous conduct might be offered on rebuttal. We

therefore conclude that the state habeas court’s fact finding that

Bonner was aware of the applicable principles of law is fairly

supported by the record, and therefore entitled to deference from

this Court.

Moore next argues that counsel had an affirmative duty to

identify the state’s witnesses to extraneous conduct and to

interview those witnesses if possible. See Bryant, 28 F.3d at 1415

(finding ineffective assistance of counsel based upon counsel’s

failure to interview potential witnesses); see also Gray v. Lucas,

677 F.2d 1086, 1093 n.5 (5th Cir. 1982) (noting that an ineffective

assistance of counsel claim may be based upon counsel’s failure to

interview critical witnesses). Bonner conceded in the state habeas

hearing that the state’s file included a list of witnesses slated

to testify that Moore had participated in similar extraneous

offenses. Notwithstanding that knowledge, Bonner admitted that he

made no attempt to contact those witnesses or to ascertain the

content of their potential testimony. See Bryant, 28 F.3d at 1417

(counsel’s failure to contact potential witnesses was uninformed by

any investigation and was therefore not a strategic choice entitled

to deference under Strickland).

Bonner testified that he did not know whether Devine had

contacted the extraneous witnesses. The state habeas court found,

on the force of Bonner’s testimony, that Devine interviewed the

extraneous witnesses. The district court did not address this

factual determination, aside from noting that counsel’s pretrial

45
investigation into extraneous conduct was inadequate in light of

the chosen alibi defense.

We agree. Bonner’s testimony is not probative with respect to

whether Devine contacted the extraneous witnesses. Bonner said he

did not know. He later qualified that testimony by stating that

Devine might have handled that part of the case, but that assertion

is contradicted by the fact that Bonner conducted the cross-

examination of one of the state’s star rebuttal witnesses.

Moreover, counsel’s trial objections and their pathetically weak

cross-examinations of the state’s rebuttal witnesses undermine

beyond any reasonable doubt the proposition that counsel followed

up on information in the state’s file by attempting to interview

the state’s witnesses to extraneous conduct or by independently

investigating the damaging allegation that Moore was involved in

two very similar robberies on the two Fridays preceding the

Birdsall Super Market robbery. In counsel’s own words: “We haven’t

had a chance to prepare a defense about things that have occurred

at other places. We don’t even know what is going on here.” For

the foregoing reasons, the state habeas court’s fact finding that

Devine contacted the state’s witnesses to extraneous conduct is not

fairly supported by the record, and is therefore not entitled to

deference under § 2254(d).

Moreover, and without regard to whether Devine actually

contacted the state’s witnesses to extraneous conduct, the record

quite plainly establishes that counsel failed to include any

consideration of the state’s evidence of extraneous conduct when

46
counseling Moore about the alibi defense. Thus, even if the

investigation was adequate, counsel’s response to the admissible

evidence was so unreasonable as to fall well outside the bounds of

reasonable professional performance. For the foregoing reasons, we

find deficient performance on the basis that counsel failed to

investigate the substance of evidence to be introduced on rebuttal

in response to Moore’s alibi defense, or proceeded unreasonably in

light of that evidence.5

C. Exclusion of Exculpatory Language in Moore’s Confession

Moore contends that his counsel provided constitutionally

deficient performance in their handling of his confession during

the guilt phase of trial. Moore’s confession contained the

following exculpatory language:

The old man in the booth leaned over to open a
drawer in the booth. I started trying to push him
back with the barrel of the shotgun. I was leaning
over the counter of the booth and I suddenly fell
backwards and the butt of the gun hit my arm and
the gun went off. I didn’t learn until later that
the man had been shot. I seen it on T.V. The man

5
Moore also argues that counsel were deficient for failing
to interview Moore’s fellow perpetrators, Koonce and Pradia, for
the purpose of determining what evidence those individuals might
have offered against Moore. Bonner testified that he attempted to
contact Koonce and Pradia, but that the contact was forbidden by
their lawyers. The state habeas court also reviewed conflicting
affidavit testimony from Koonce’s lawyers that neither Bonner nor
Devine ever contacted them. The state court resolved this conflict
in the evidence by finding that Bonner attempted to contact Koonce
and Pradia, but was precluded from interviewing them by their
counsel. While Bonner’s testimony is frankly incredible on this
point, the state habeas court’s fact finding finds some support in
the record. We are therefore precluded from substituting our own
judgment for that of the state habeas court, which received
Bonner’s live testimony. For that reason, we find no deficiency in
counsel’s performance on the theory that they failed to contact
Koonce and Pradia.

47
 must have been standing back up as I fell backwards
and the gun went off.

* * *

I swear I was not trying to kill the old man and
the whole thing was an accident.

No one disputes that the exculpatory language quoted above has

obvious relevance to the guilt phase issue of intent, as well as

the punishment phase special issue of deliberateness.

Moore’s confession was introduced through one of the arresting

officers, Officer Ott. Officer Ott testified on voir dire that all

of the statements in Moore’s confession were Moore’s own

statements. The state nonetheless wanted to limit its tender to

those portions of the confession that were inculpatory. Moore’s

counsel initially stated that they had not decided whether they

would use the remaining exculpatory portions. After the state

agreed to temporarily cover the exculpatory language, Moore’s

counsel inexplicably agreed not to use the exculpatory language and

requested that the portions quoted above be excised from his

confession. As a result, the jury received a confession that

describes Moore pointing a shotgun in McCarble’s direction, sets

forth a conspicuous white space where the crime should have been

described, and then describes Moore fleeing the store after

McCarble was shot. Moore’s counsel did not attack the veracity or

completeness of the confession by cross-examining Officer Ott and

did not offer the excluded exculpatory language at any later stage

of Moore’s trial.

Bonner was asked why the exculpatory language was excised from

48
the confession during the state habeas evidentiary hearing. He

testified as follows:

Well, maybe it was taken out by the state. I don’t
know who took it out, really. It doesn’t have my
signature down there that I actually took it out.
Maybe the Court took it out prior to even having it
introduced. I don’t suggest to you that I did
that.

When recalled by the state, Bonner testified there “may have been”

statements in the confession that were inconsistent with the chosen

strategy of alibi. When prodded further, he stated that Moore’s

statements that the shooting was accidental might fall into that

category.

Bonner was also asked why the exculpatory language, which

supported Devine’s jury argument during the punishment phase, would

not have been introduced during the punishment phase of the trial.

Bonner testified “I don’t know.” Bonner further testified that the

exculpatory portions of Moore’s confession: (1) could have been

introduced at the punishment phase, (2) would have been relevant in

the punishment stage, and (3) given the jury’s guilty verdict,

would not in this case have been inconsistent with the chosen

theory of alibi at the punishment phase. Based upon this evidence,

the state habeas court found that counsel’s decision to excise

exculpatory portions of the confession was “consistent with” the

alibi defense. The state habeas court also concluded that

counsel’s use of the alibi defense rendered any use of the

exculpatory language “illogical.” Thus, the state court implicitly

concluded that counsel made a reasonable strategic decision that

Moore’s exculpatory statements were inconsistent with his chosen

49
theory of alibi. The Director argues that this Court is bound by

that mixed finding of fact and conclusion of law.

The district court cited record evidence supporting Moore’s

claim that the shooting was accidental, including the location of

the wound, and testimony that Moore and the people in the booth

moved suddenly just before the shot was fired. The district court

noted that such evidence was consistent with Moore’s confession,

which stated that he was trying to push McCarble back from a drawer

in the booth when he suddenly fell back. The district court

reviewed and rejected the state court’s legal conclusion that

counsel’s decision to exclude the exculpatory language was

reasonable, holding that counsel’s failure to introduce this

potentially mitigating evidence was unconscionable to the point

that it transcended even the rigorous standard for ineffective

lawyering.

To the extent that the state habeas court made an implicit

fact finding that counsel made a strategic decision to exclude

exculpatory portions of the confession, we reject that finding as

not fairly supported by the record. Bonner testified that he had

no idea why the exculpatory language was excluded, or even who had

requested that the exculpatory language be excluded. There is,

therefore, no support, let alone fair support, for such a fact

finding.

To the extent that the state habeas court entered a legal

conclusion that counsel’s decision to exclude exculpatory portions

of Moore’s confession was professionally reasonable, we likewise

50
reject that determination and affirm the district court. Both the

state habeas court’s findings and the Director’s arguments on

appeal defend counsel’s decision with the statement that it was

“consistent with” the chosen trial strategy of alibi. But it was

Moore’s confession, rather than the exculpatory language contained

therein, that was fatally inconsistent with the alibi defense.

Surely the inculpatory portions of the confession, which placed

Moore at the scene of the crime with a firearm pointed at McCarble,

were as inconsistent with Moore’s alibi defense as those

exculpatory portions excluded by counsel. Once the confession was

deemed admissible, there was no justification and no potential

benefit to the defense to be obtained from excluding the

exculpatory language. The jury could only accept or reject the

confession. The inclusion of exculpatory language concerning a

plausible alternative defensive theory that was supported by some

evidence, and that could have raised a reasonable doubt in the

jury’s mind, could in no way have further imperiled Moore’s

defense.

Moreover, the criminal law does not preclude alternative, or

even inconsistent, defensive theories. Indeed, the most successful

criminal attorneys are often those who can create a reasonable

doubt in the jurors’ minds by throwing up one or two or more

plausible alternatives to the defendant’s guilt. Individual jurors

need not be persuaded by the same plausible alternative to guilt to

vote an acquittal. Thus, the premise underlying the state habeas

court’s conclusion and the Director’s arguments on appeal that

51
Moore’s own choice of the alibi defense required the exclusion of

the exculpatory language is simply wrong as a matter of law.

Counsel’s decision to exclude that language, which produced no

conceivable benefit to the defense and prejudiced Moore by

precluding reliance upon a plausible alternative defensive theory

that was supported by other evidence in the record, was

professionally unreasonable. See Whitley, 977 F.2d at 158-59 & nn.

21-22; Profitt, 831 F.2d at 1249; Lyons v. McCotter, 770 F.2d 529,

534-35 (5th Cir. 1985) (Strickland does not require deference when

there is no conceivable strategic purpose that would explain

counsel’s conduct).

For the forgoing reasons, we find that Moore’s trial counsel

provided constitutionally deficient performance with respect to

their handling of Moore’s confession during the guilt phase of

Moore’s trial.6

D. Damaging Cross-Examination of Officer Autrey

Moore maintains that trial counsel Devine provided deficient

performance by eliciting damaging evidence against Moore during his

cross-examination of the state’s first witness, arresting officer

Autrey.

The state called arresting officer Autrey to identify pictures

taken at the crime scene and to place the crime in context. The

state’s direct examination is brief and takes up only eleven pages

6
We also find counsel’s failure to tender Moore’s complete
and unredacted confession during the punishment phase of Moore’s
trial to be a component of counsel’s deficient performance. That
holding is discussed in section V.E. below.

52
of the transcript. Trial counsel Devine’s extensive cross-

examination of Autrey went far beyond the scope of direct,

providing either the first mention or the only evidence of the

following important facts: (1) that size 8 shotgun pellets were

found on the floor of the courtesy booth; (2) that police recovered

plastic bags from the scene of the crime, including one containing

a wig and one containing a receipt traced to Moore’s “play mama”

Betty Nolan; (3) hearsay testimony that the bag containing Nolan’s

receipt was dropped during the offense, and not at some other time;

(4) hearsay testimony that Moore came to Nolan’s house on April 25,

1980, the day of the offense, and stayed there that night; (5) that

police recovered a shotgun from under Moore’s bed at Nolan’s house;

(6) that the shotgun recovered from under Moore’s bed was found

with one expended shell and one shell containing size 8 shot, the

same size shot used in the offense; (7) hearsay testimony that

witnesses to the offense heard only one shot; and (8) that police

received a telephone call from a citizen named White, who informed

police that Moore was at his grandmother’s house in Louisiana, and

that police subsequently arrested Moore there. Devine also

elicited testimony that was not otherwise offered by the state

through Autrey concerning the accuracy of the police investigation,

including: (1) testimony that a store customer took down the

robbers’ license plate number; (2) testimony that Koonce was

arrested in a car identified by the customer’s information; (3)

testimony that Koonce gave a confession; and (4) other testimony

about the apprehension and arrest of Koonce and Pradia. This

53
damaging testimony tied Moore to the crime and supported the

accuracy and credibility of the police investigation. All of this

very damaging evidence was elicited by Moore’s own trial counsel

from the state’s first witness.

Devine died shortly after trial and long before the 1993 state

evidentiary hearing. Although the issue was presented to the state

habeas court, Bonner did not advance any explanation for the

damaging cross-examination during the state habeas hearing.

Indeed, the issue did not receive any significant development

during the hearing and, aside from denying relief as to the entire

petition, the state habeas court did not enter any potentially

binding findings of fact with respect to this issue. The district

court found deficient performance, concluding that counsel’s cross-

examination of the state’s first witness obliterated Moore’s alibi

defense, long before Moore’s confession was deemed admissible. We

review the factual component of that holding for clear error and

the legal component of that holding de novo. Bryant, 28 F.3d at

1414 & n.3.

We find no error in the district court’s holding. Devine’s

cross-examination of Autrey elicited some of the most damaging

testimony against Moore. None of that testimony was elicited by

the state on direct examination. Some of that testimony was never

repeated by any other state witness, and no witness provided such

a detailed and chronological account of Moore’s guilt. The

district court’s factual determination that Devine’s cross-

examination of the state’s first witness effectively destroyed

54
Moore’s alibi defense, long before the state offered such probative

evidence and long before Moore’s confession was deemed admissible,

is not clearly erroneous. Moreover, neither the record nor common

sense supports the proposition that Devine’s approach to Autrey’s

testimony was motivated by any strategic purpose that could

conceivably have yielded any benefit to the defense. See Whitley,

977 F.2d at 158-59 & nn. 21-22; Profitt, 831 F.2d at 1249; Lyons,

770 F.2d at 534-35. To the contrary, Devine’s cross-examination of

Autrey does nothing but set forth, from the mouth of Moore’s own

trial counsel, the state’s best case against Moore. While perhaps

not sufficient standing alone to support conviction, the evidence

thus elicited would have contributed significantly to a guilty

verdict, even if Moore’s confession had been later deemed

inadmissible. For the foregoing reasons, we affirm the district

court’s conclusion that Devine’s ineffective cross-examination of

Autrey constitutes deficient performance as defined in Strickland.

E. Failure to Investigate, Develop, or Present
Mitigating Evidence

Moore claims that trial counsel were ineffective for failing

to investigate, develop, or present available and availing

mitigating evidence during the punishment phase of his trial.

Moore’s claim encompasses counsel’s: (1) failure to investigate and

failure to present any mitigating background evidence, despite

knowledge that should have given rise to such a duty; (2) failure

to present previously redacted and exculpatory evidence that the

shooting was accidental, despite counsel’s abandonment of the alibi

defense during closing argument at the guilt phase, and despite

55
counsel’s decision to argue accidental shooting as a plausible

alternative defensive theory at the punishment phase of Moore’s

trial; and (3) counsel’s insufficient, internally inconsistent, and

incompetent argument at the punishment phase of Moore’s trial.

Mitigating evidence concerning a particular defendant’s

character or background plays a constitutionally important role in

producing an individualized sentencing determination that the death

penalty is appropriate in a given case. See Woodson v. North

Carolina, 96 S. Ct. 2978, 2991 (1976); see also Eddings v.

Oklahoma, 102 S. Ct. 869, 875 (1982). At the state court

evidentiary hearing, Moore presented substantial evidence that

could have been offered as mitigating evidence during the

punishment phase of his trial. Moore produced substantial evidence

from several sources that his childhood was marked by physical and

emotional deprivation and abuse. See Penry v. Lynaugh, 109 S. Ct.

2934, 2947 (1989) (quoting California v. Brown, 107 S. Ct. 837, 841

(1987) (O’Connor, J. concurring) for proposition that “evidence

about the defendant’s background is relevant because of the belief,

long held by this society, that defendants who commit criminal acts

that are attributable to a disadvantaged background, or to

emotional and mental problems, may be less culpable than defendants

who have no such excuse”); id. at 2948-52 (discussing the

significance that mitigating evidence of childhood abuse and mental

retardation have with respect to the individualized sentencing

determination required by the Eighth Amendment for imposition of

56
the death penalty);7 Eddings, 102 S. Ct. at 877 (“evidence of a

turbulent family history, of beatings by a harsh father, and of

severe emotional disturbance is particularly relevant” to an

individualized sentencing determination). Specifically, Moore

offered evidence from several sources that his father, Ernest

Moore, Jr., was an abusive alcoholic who was often absent and

rarely provided his family with financial support, even when

present. The evidence further established that Ernest Moore, Jr.

routinely beat his children with his hands, and with whatever other

household effects or furniture happened to be close at hand. The

evidence established that Ernest Moore, Jr. targeted petitioner

Moore more often than Moore’s other siblings because Moore

attempted to intervene in physical altercations between his parents

to protect his mother. Moore’s mother was likewise an absent

parent, being forced to hold down two jobs to support Moore and his

brothers and sisters. After one particularly violent altercation,

Moore was forced to leave the house for good when he was fourteen

years of age. After that, family members sometimes defied the

father by permitting Moore to slip into the house late at night or

by sneaking him food, but Moore largely survived by sleeping on the

street and stealing food to survive.

Moore’s school records corroborate the neglect, deprivation,

7
Moore and the defendant in Penry were tried three months
apart. Both were tried under Texas laws that the Supreme Court
declared in Penry failed to allow a “reasoned moral response” to
mitigating evidence offered during the penalty phase of a capital
trial as required by the Eighth and Fourteenth Amendments. Penry,
109 S. Ct. at 2952.

57
and physical abuse that characterized Moore’s early childhood.

School records describe a morose and withdrawn child who rarely

participated in classroom activities. School records likewise

describe Moore as suffering from severe developmental delays,

perhaps resulting from poor nutrition and inadequate parenting.

Moore never passed any year and was granted only social promotions

until he dropped out altogether shortly after he was kicked out of

the house at age fourteen.

Moore also produced substantial evidence of impaired mental

development and functioning, and some evidence of organic brain

damage resulting from severe trauma. See Zant v. Stephens, 103

S. Ct. 2733, 2747 (1983) (mental illness militates in favor of a

lesser penalty); Whitley, 977 F.2d at 157 (granting relief where

counsel failed to develop independent evidence of mental disease or

defect). Moore offered the testimony of Dr. Robert Borda, who

holds a Ph.D. in psychology and a Ph.D. in physiology. Borda

reviewed Moore’s school records, as well as psychological testing

performed when Moore was in school, and psychological testing

conducted while Moore was incarcerated for this offense in 1989.

Both sets of tests indicate that Moore’s intelligence is in the

borderline retarded range. Borda testified that Moore’s

performance on other tests, such as the Bender-Gestalt, indicate

that Moore’s ability to perform in an uncontrolled environment is

actually lower than indicated by his borderline IQ, and would very

likely fall squarely within the retarded range. Borda also

testified that the psychological testing performed when Moore was

58
in school suggested that Moore suffered a severe trauma to the head

or brain. Borda testified that such an injury would have impaired

Moore’s ability to function beyond the limitations reflected in the

intelligence testing alone. Based upon the materials reviewed, Dr.

Borda testified that Moore’s mental age at the time of the offense

was estimated to be fourteen, as compared to his still relatively

youthful biological age of nineteen. In addition to the school

records and psychological testing described, Moore also offered

evidence that the Texas Rehabilitation Commission conducted a

psychological evaluation on Moore when he was released from prison

in 1979. Although the records of that psychological evaluation

were destroyed in 1984, they would have been available for

counsel’s review at the time of Moore’s 1980 capital trial.

Moore also maintained in the state evidentiary hearing that

counsel could have relied upon his prison record and early release,

as evidence tending to negate the state’s burden on the future

dangerousness issue. Skipper v. South Carolina, 106 S. Ct. 1669

(1986) (evidence that a prisoner would not pose a future danger in

the prison community if spared the death penalty and imprisoned for

life must be considered potentially mitigating in a capital case).

The penitentiary package introduced by the state demonstrated that

Moore was first arrested three years after he left home, at age

seventeen. Moore was convicted and sentenced to eight years.

Moore was nonetheless released after only two years. The state was

permitted to interpret Moore’s record for the jury, and relied upon

that interpretation in closing argument. Specifically, the state

59
noted that Moore had four separate convictions, and argued that

Moore’s prior record demonstrated a pattern that required an

affirmative finding on the special issue of future dangerousness.

As noted above, Moore’s counsel did not respond with their own

interpretation of the penitentiary package. Neither did counsel

clarify that Moore was sentenced for each of the four offenses on

the same day, that Moore began serving his sentence for each of the

four convictions on the same day, or that Moore was released from

serving the balance of the four concurrently imposed sentences

after only two years. In fact, Moore’s counsel simply stipulated

that the documents comprising the penitentiary package, and by

inference the state’s interpretation of those documents, was

correct.

In the state hearing, Bonner admitted that he was aware of

some aspects of Moore’s troubled childhood. Bonner conceded that,

despite this knowledge, he did not conduct any investigation for

the purpose of developing mitigating evidence. Bonner justified

this failure to investigate with his view that mitigating evidence

of a troubled family background or impaired mental functioning is

per se inconsistent with an alibi defense. Bonner also suggested

that this was a “guilt/innocence” case rather than a “punishment”

case. Somewhat inconsistently, Bonner also testified that there

was no reason not to offer the previously redacted and exculpatory

portions of Moore’s confession once the jury had rejected Moore’s

alibi defense with the guilty verdict. Indeed, Bonner testified

that the jury’s rejection of Moore’s alibi defense made the

60
exculpatory portions of Moore’s unredacted confession admissible

and relevant on the issue of punishment. Based upon this evidence,

the state habeas court found that counsel made a strategic decision

not to present mitigating background evidence at the punishment

phase of Moore’s trial. The state habeas court did not make any

fact finding with respect to counsel’s failure to offer Moore’s

unredacted confession during the punishment phase of the trial.

The district court considered and rejected the state court’s

fact finding that trial counsel made an informed strategic decision

not to present mitigating evidence. The district court noted that

counsel’s purported decision was neither informed by an adequate

investigation nor undergirded by any logical strategic purpose.

For the reasons that follow, we affirm the district court.

Notwithstanding the constitutional stature of appropriate

mitigating evidence in a capital case, counsel’s failure to develop

or present mitigating background evidence is not per se deficient

performance. See Ransom v. Johnson, 126 F.3d 716, 723 (5th Cir.),

cert. denied, 118 S. Ct. 361 (1997); West, 92 F.3d at 1408; King v.

Puckett, 1 F.3d 280, 284 (5th Cir. 1993). To the contrary, a

considered strategic or tactical decision not to present mitigating

evidence that is made after a thorough investigation of the law and

facts relevant to all plausible lines of defense is presumed to be

within the wide range of professionally reasonable assistance

defined by Strickland. Strickland, 104 S. Ct. at 2066; Whitley,

977 F.2d at 158; Drew v. Collins, 964 F.2d 411, 422 (5th Cir.

1992); Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir. 1992);

61
McCoy v. Lynaugh, 874 F.2d 954, 964 (5th Cir. 1989) (counsel’s

decision not to present mitigating evidence is entitled to

deference when based upon an informed and reasoned practical

judgment). Stated differently, Strickland requires that we defer

to counsel’s decision not to present mitigating evidence or not to

present a certain line of mitigating evidence when that decision is

both fully informed and strategic, in the sense that it is

expected, on the basis of sound legal reasoning, to yield some

benefit or avoid some harm to the defense. Strickland does not,

however, require deference to decisions that are not informed by an

adequate investigation into the controlling facts and law.

Whitley, 977 F.2d at 157-58; see also Andrews v. Collins, 21 F.3d

612, 623 (5th Cir. 1994) (counsel’s strategic decision entitled to

deference because supported by an adequate investigation which

included contact with at least 27 people); Whitley, 977 F.2d at 157

(counsel’s failure to pursue crucial line of defense held to be

professionally unreasonable); Drew, 964 F.2d at 423 (counsel’s

strategic decision entitled to deference because counsel made

“reasonable inquiries” into Drew’s mental state); Wilkerson, 950

F.2d at 1064-65 (affording strategic decision deference where

record established the counsel retained an investigator to explore

whether mitigating evidence relating to defendant’s background or

mental ability was available); Bouchillon v. Collins, 907 F.2d 589,

597 (5th Cir. 1990) (“Tactical decisions must be made in the

context of a reasonable amount of investigation, not in a

vacuum.”); McCoy, 874 F.2d at 964 (finding scope of investigation

62
reasonable where counsel investigated possibility of mitigating

evidence by interviewing everyone on a list provided by the capital

defendant and determined none of them had anything good to say

about the defendant); Jones v. Thigpen, 788 F.2d 1101, 1103 (5th

Cir. 1986) (“counsel either neglected or ignored critical matters

of mitigation"). Similarly, Strickland does not require deference

to those decisions of counsel that, viewed in light of the facts

known at the time of the purported decision, do not serve any

conceivable strategic purpose. See Strickland, 104 S. Ct. at 2061

(“Counsel may not exclude certain lines of defense for other than

strategic reasons.”); Boyle v. Johnson, 93 F.3d 180 (5th Cir. 1996)

(explaining basis for counsel’s strategic decision not to offer

mitigating evidence identified by the defendant), cert. denied, 117

S. Ct. 968 (1997); Whitley, 977 F.2d at 158 (“Whether counsel’s

omission served a strategic purpose is a pivotal point in

Strickland and its progeny. The crucial distinction between

strategic judgment calls and just plain omissions has echoed in the

judgments of this court.”) (footnote omitted); Profitt, 831 F.2d at

1249 (Strickland does not require deference to decisions which do

not yield any conceivable benefit to the defense); Bell v. Lynaugh,

828 F.2d 1085, 1090 (5th Cir. 1987) (when counsel makes an informed

and considered decision not to present mitigating evidence, the

issue becomes whether the decision was reasonable ); Wilson, 813

F.2d at 672 (remanding for evidentiary hearing because record did

not reflect whether counsel made a sound strategic decision not to

present mitigating evidence of troubled background and mental

63
impairment); Lyons, 770 F.2d at 534-35 (finding deficient

performance because there was no sound strategic basis for

counsel’s failure to object to evidence of prior offenses);

Mattheson, 751 F.2d at 1439-40 (explaining strategic purpose

motivating counsel’s decision to exclude evidence of mental

impairment from sentencing phase); Moore v. Maggio, 740 F.2d 308,

315-19 (5th Cir. 1984) (explaining basis of counsel’s considered

decision to limit investigation by excluding implausible lines of

mitigating evidence).8

Moore maintains that counsel’s failure to present mitigating

evidence is not entitled to a presumption of reasonableness because

it was neither informed by a reasonable investigation nor supported

by any logical position that such failure would benefit Moore’s

defense. We agree. “[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Strickland, 104 S. Ct. at

2066; Mattheson, 751 F.2d at 1439-40; Bell, 828 F.2d at 1088.

Counsel is "not required to pursue every path until it bears fruit
or until all conceivable hope withers." Lovett v. Florida, 627

F.2d 706, 708 (5th Cir. 1980). But strategic decisions made

without an adequate investigation into the facts and law

controlling plausible defensive theories are reasonable only to the

8
We are dealing, in this case, with the deference required
to counsel’s decisions. Obviously, a competent defendant may, as
master of his or her own defense, elect to forgo the presentation
of mitigating evidence. See, e.g., Lowenfield v. Phelps, 817 F.2d
285, 290 (5th Cir. 1987), aff’d, 108 S. Ct. 546 (1988); Mattheson,
751 F.2d at 1439-40; see also Strickland, 104 S. Ct. at 2066.

64
extent that reasonable professional judgment supports counsel’s

limitation on the investigation. Strickland, 104 S. Ct. at 2066;

Ransom, 126 F.3d at 723; Whitley, 977 F.2d at 157-58; Bouchillon,

907 F.2d at 597; Bell, 828 F.2d at 1088. With those principles in

mind, we note at the outset that this is not a case in which

counsel had no notice and no reason to suspect that a background

investigation would produce potentially valuable mitigating

evidence. Compare Bouchillon, 907 F.2d at 597-98 (counsel’s

failure to investigate despite knowledge that further investigation

might be fruitful constituted deficient performance), with Ransom,

126 F.3d at 723; West, 92 F.3d at 1408; Andrews, 21 F.3d at 623-24

(failure to investigate not deficient performance where counsel had

no reason to believe that further investigation might be fruitful).

Bonner testified that he was aware of Moore’s troubled background

at trial. That awareness, which included knowledge that Moore’s

family was physically abusive, should have triggered some sort of

inquiry into Moore’s background. See Motley, 18 F.3d at 1228

(counsel’s awareness of and decision to present evidence of child

abuse while failing to investigate “neurological damage and other

evidence that would have been in the same vein” as the child abuse

evidence actually presented may have been unreasonable). Moreover,

this is not a case in which counsel made some limited inquiry, and

the defendant is alleging that counsel should have focused upon

additional areas of inquiry or unearthed some obscure or

tangentially relevant evidence. Compare Whitley, 977 F.2d at 159

(granting relief based upon counsel’s complete and total failure to

65
investigate a critical issue), and Jones, 788 F.2d at 1103

(granting relief where counsel completely abdicated the

responsibility to investigate the availability of mitigating

evidence), with Bell, 828 F.2d at 1088 (denying relief where

counsel conducted a thorough independent investigation into

defendant’s mental state because, notwithstanding the additional

evidence offered by the defendant on collateral review, there was

no evidence counsel neglected or ignored the defendant’s mental

state), and Thompson v. Cain, 161 F.3d 802, 813 (5th Cir. 1998)

(rejecting petitioner’s contention that counsel should have delved

further into his mental state in case where sociologist testified

regarding the petitioner’s background and relationships). To the

contrary, Bonner conceded in the state evidentiary hearing that he

made no inquiry into Moore’s background for the purpose of

developing mitigating background evidence of any sort. Likewise,

although Moore’s confession made accidental shooting a plausible

alternative defensive theory at both the guilt and punishment

phases of Moore’s trial, counsel never made any investigation

intended to test that theory. To be clear, we are dealing here

with counsel’s complete, rather than partial, failure to

investigate whether there was potentially mitigating evidence that

could be presented during the punishment phase of Moore’s trial.

That fact distinguishes this case from those cases in which we have

rejected similar claims because the record established counsel

conducted an adequate investigation, but made an informed trial

decision not to use the potentially mitigating evidence because it

66
could have a prejudicial backlash effect on the defense. See,

e.g., Darden v. Wainwright, 106 S. Ct. 2464, 2474 (1986) (counsel’s

failure to present mitigating evidence relating to defendant’s

character, psychiatric evaluation and history as a family man did

not constitute deficient performance where such evidence would have

opened the door to otherwise excluded evidence that defendant had

prior criminal convictions, was diagnosed as a sociopathic

personality, and had in fact abandoned his family); Mattheson, 751

F.2d at 1439-40 (counsel made reasonable strategic decision to omit

presentation of mitigating evidence of mental impairment where such

evidence would have opened door to known evidence that defendant

was a violent sociopath). Given that counsel’s conduct in failing

to develop or present mitigating evidence was not informed by any

investigation and not supported by reasonably professional limits

upon investigation, we find that there is no decision entitled to

a presumption of reasonableness under Strickland. Moreover, the

record does not otherwise contain any justification for limiting,

or in this case, completely omitting, any investigation into

Moore’s background or the facts that might support counsel’s

accidental shooting argument during the punishment phase of the

trial.9 We therefore find counsel’s complete failure to

investigate Moore’s background and the facts underlying the

9
The record does suggest that counsel were unprepared and did
not expect to proceed to the punishment phase of Moore’s trial
immediately after the guilty verdict was returned late in the
afternoon. Rather than requesting a continuance, however, counsel
agreed to proceed. The evidentiary portion of the punishment phase
was concluded only ten minutes later.

67
accidental shooting theory argued during the punishment phase to be

professionally unreasonable and deficient performance in the

context of this case.

Of equal importance, we agree with the district court that

counsel’s decision not to present any mitigating evidence was not

motivated or justified by any strategic or tactical rationale. See

Whitley, 977 F.2d at 158-59 & nn. 21-22; Profitt, 831 F.2d at 1249;

Lyons, 770 F.2d at 534-35 (Strickland does not require deference

when there is no conceivable strategic purpose that would explain

counsel’s conduct). The state habeas court’s fact finding, to the

extent it is contrary, finds no support in the record and was

properly rejected by the district court. See 28 U.S.C. § 2254(d)

(1994).

Bonner’s only justification for completely failing to develop

or offer available mitigating evidence was that mitigating evidence

of any type or quantity is per se inconsistent with an alibi

defense. Bonner’s view is overbroad and insufficient alone,

without any reference to why that justification would apply in this

case, to justify counsel’s complete failure to investigate for the

purpose of making an informed decision and failure to offer any

mitigating evidence. See Stafford v. Saffle, 34 F.3d 1557 (10th

Cir. 1994) (finding deficient performance and rejecting argument

that an alibi defense during the guilt phase is per se inconsistent

with mitigating evidence relating to the defendant’s personal

background); Brewer, 935 F.2d 850 (granting relief on claim that

counsel failed to offer mitigating evidence during the sentencing

68
phase in case involving an alibi defense at the guilt phase).

On appeal, the Director tries to put the best face on Bonner’s

justification by arguing that counsel made a strategic decision not

to present mitigating evidence based upon the possibility that the

jury entertained a “residual doubt” about Moore’s alibi defense.

This Court has recognized that, in an appropriate capital case,

counsel’s decision to rely upon the jury’s residual doubt about the

defendant’s guilt may be not only reasonable, but highly

beneficial, to a capital defendant. See, e.g., Andrews, 21 F.3d at
623 n.21.

This is not a residual doubt case. Moore’s alibi defense

failed miserably. The testimony in support of that defense was

internally inconsistent and failed for the most part to place Moore

in Louisiana at the time the offense was committed. The state

responded with overwhelming evidence of Moore’s involvement in

similar extraneous offenses as well as narrowly tailored rebuttal

evidence refuting Moore’s alibi. In what was undoubtedly one of

his most reasonable decisions as trial counsel, Bonner himself
essentially abandoned the alibi defense during closing argument at

the guilt phase by telling the jury that it did not matter whether

Moore and his sister testified truthfully. The jury deliberated

briefly, asking only for copies of Moore’s “confessions,” then

rejected Moore’s alibi defense by returning a verdict of guilty.

More importantly, Moore’s counsel did not adhere to the alibi

defense during the punishment phase of Moore’s trial. Although

Bonner challenged the quantum of the state’s proof, neither Bonner

69
nor Devine attempted to resurrect the defeated alibi defense. To

the contrary, counsel Devine earnestly argued that the shooting was

accidental. Thus, counsel made an entirely reasonable decision to

pursue the accidental shooting theory as a plausible alternative to

alibi during the punishment phase of Moore’s trial. Given these

facts, there was no logical or factual support for and no

conceivable strategic purpose to be achieved by excluding the

potentially mitigating background evidence identified by Moore.

Furthermore, there is more in this case than simply a general

failure to conduct an investigation or to present mitigating

evidence of the type traditionally found in capital cases. In this

case, counsel also failed to make use of readily available

evidence. Specifically, counsel failed to support their punishment

phase jury argument that the shooting was accidental with the best

evidence of that theory, Moore’s own statements that the shooting

was accidental. Counsel also failed to capitalize on the

opportunity to argue Moore’s early release from prison as a factor

mitigating against an affirmative response on the special issue of

future dangerousness. Finally, the effect of counsel’s deficient

performance is not reduced by any guilt phase or punishment phase

evidence that can be construed as potentially mitigating. Compare

Jones, 788 F.2d at 1103 (finding ineffective assistance where

counsel presented no mitigating evidence at all), with Motley, 18

F.3d at 1228 (refusing to find deficient performance where proposed

mitigating evidence is cumulative of other testimony offered during

guilt phase of capital trial). As with counsel’s failure to

70
investigate, we are dealing here with a complete, rather than

partial, failure to offer any mitigating evidence on Moore’s

behalf. Our decision that counsel failed to make a strategic

decision entitled to deference under Strickland, and that counsel’s

conduct was in this case professionally unreasonable, is heavily

influenced by these additional omissions, for which neither the

record nor common sense can provide any answer.

For the foregoing reasons, we affirm the district court’s

holding that counsel did not make an informed or strategic decision

not to investigate, develop or present mitigating evidence that is

entitled to deference under Strickland. We likewise affirm the

district court’s holding that counsel’s failure to investigate or

offer available mitigating evidence was professionally unreasonable

and constituted deficient performance within the meaning of

Strickland.

VI.

Finally, we come to the prejudice prong of the Strickland

analysis. The Director argues that neither counsel’s failure to

investigate extraneous offenses admissible only because Moore chose

the alibi defense, nor counsel’s redaction of exculpatory

statements in the otherwise admissible and otherwise inculpatory

confession, nor counsel’s obliteration of the alibi defense in

their cross-examination of Officer Autrey is relevant to the

district court’s grant of relief, that is, a new punishment

hearing. The Director’s argument may be reduced to the premise

71
that deficient performance occurring at the guilt phase of a

capital trial may not be deemed to prejudice a capital defendant

during the punishment phase of a capital trial. We reject this

notion. When, as here, the same jury considered guilt and

punishment, the question is whether the cumulative errors of

counsel rendered the jury’s findings, either as to guilt or

punishment, unreliable. See Strickland, 104 S. Ct. at 2064 (relief

is appropriate when “the conviction or death sentence resulted from

a breakdown in the adversary process that renders the result

unreliable”).

The district court declined to find prejudice at the guilt

phase of the trial, a legal conclusion with which we agree. Like

the district court, we too are concerned by the multiple lapses of

trial counsel, and by the fact that much of the evidence against

Moore came in as a result of counsel’s pathetically weak

presentation of the alibi defense or as a direct result of

counsel’s deficient performance. Nonetheless, we are unable to

state that any particular deficiency in trial counsel’s performance

at the guilt phase, or even the cumulative effect of all

deficiencies at the guilt phase, is sufficient to render the guilty

verdict in Moore’s case unreliable.

The district court reached a different result with respect to

the punishment phase of Moore’s trial, holding (1) that the

aggregate effect of counsel’s deficient performance resulted in a

certain death sentence, and (2) that, absent counsel’s deficient

performance, the jury would likely have sentenced Moore to life

72
imprisonment. On appeal, we must determine whether there is a

reasonable probability that, but for counsel’s deficient

performance, the jury might have answered the special issues

submitted in the punishment phase differently. Whitley, 977 F.2d

at 159; Duhamel v. Collins, 955 F.2d 962, 965-66 (5th Cir. 1992);

Wilkerson, 950 F.2d at 1065; Profitt, 831 F.2d at 1249. For the

reasons that follow, we conclude that such a reasonable probability

exists.

We conclude that counsel’s deficient performance, including

counsel’s performance during the guilt phase of Moore’s trial,

prejudiced the outcome of the punishment phase of Moore’s trial.

Counsel was deficient for failing to investigate and respond to

information in the state’s file about extraneous offenses that

counsel knew would be admissible directly as a result of Moore’s

chosen alibi defense. As a result, counsel were completely

unprepared to address the state’s rebuttal evidence and completely

unprepared to cross-examine the state’s damaging rebuttal

witnesses, who testified that Moore was involved in two similar

robberies on the two Fridays preceding the April 25, 1980 robbery

of the Birdsall Super Market. This damaging evidence, which was

virtually untested by defense counsel, has obvious relevance to the

punishment phase special issues of deliberateness and future

dangerousness, and was offered by the state in argument as support

for an affirmative finding on those issues. See Bryant, 28 F.3d at

1415 (finding ineffective assistance of counsel based upon

counsel’s failure to interview potential witnesses).

73
 Counsel rendered deficient performance with respect to their

handling of Moore’s confession during the guilt phase of Moore’s

trial. Specifically, counsel made an illogical and irrational

decision to exclude exculpatory language, permitting only the

state’s version of events to go to the jury. Counsel then made no

objection when the state breached its pre-submission agreement not

to rely upon the excluded portions of the confession, by arguing to

the jury that the excluded portions supported the state’s theory

that the confession was valid. Counsel continued to stand by

silently as the state misled the jury by stating, in the context of

its discussion of the excluded portions of the confession, that

there was no contention in the case that the shooting was

accidental. Notwithstanding that conduct, counsel then switched

tracks almost immediately thereafter by arguing to the jury during

the punishment phase that the shooting was indeed accidental.

Counsel’s unreasonable decision to remove the accidental shooting

theory from the jury, coupled with their failure to object to the

state’s misleading argument, and their failure to offer the

unredacted confession during the penalty phase, which would have

impeached the state’s argument that accidental shooting was not at

issue and supported counsel’s punishment phase argument, prejudiced

Moore because it removed Moore’s contention that the shooting was

accidental from the jury’s consideration. There is a reasonable

probability that evidence supporting counsel’s argument that the

shooting was accidental, which was the only plausible defensive

theory at the punishment phase, would have influenced the jury’s

74
deliberations on the issue of deliberateness. See Whitley, 977

F.2d at 158-60; Jones, 788 F.2d at 1103.

Counsel rendered deficient performance by eliciting damaging

evidence far beyond the scope of direct examination in their cross

examination of the state’s first witness, Officer Autrey.

Counsel’s cross-examination of Autrey established many elements of

the State’s case-in-chief against Moore through the state’s first

witness. To the extent that some details were likewise elicited

from another state witness, Officer Ott, they were likewise

elicited by Moore’s own counsel on cross-examination. Although

Autrey’s detailed and damaging testimony was primarily relevant on

the issue of Moore’s guilt, no other witness provided the same

detailed account of the details of Moore’s offense. We therefore

conclude that the testimony elicited from Autrey by Moore’s counsel

was also relevant to and probably contributed in some measure to

the jury’s determination of the punishment phase special issues of

deliberateness and future dangerousness.

Finally, counsel rendered deficient performance by failing to

investigate, develop, or present available mitigating evidence

relating to Moore’s background, Moore’s contention that the

shooting was accidental, and Moore’s prison record during the

punishment phase of Moore’s trial. Moore submitted substantial

mitigating background evidence in the state habeas corpus

evidentiary hearing. That evidence has no demonstrated prejudicial

or double-edged characteristics in the context of this case, and

counsel failed to offer any reasonable justification for their

75
failure to investigate whether such evidence existed. While we are

troubled by counsel’s complete and total failure to investigate

Moore’s background, despite knowledge placing counsel on notice

that such an inquiry would be fruitful, our ultimate determination

that counsel’s failures in this regard prejudiced Moore rests

heavily upon the fact that counsel also failed to use what limited

mitigating evidence was readily available. Specifically, counsel

failed to submit Moore’s unredacted confession to the jury in

support of the punishment phase argument that the shooting was

accidental. Once again, counsel’s omission effectively removed the

only plausible defensive theory from the jury’s consideration.

Moreover, counsel failed to respond to the state’s prejudicial and

misleading arguments about the effect of Moore’s penitentiary

package by clarifying the duration and extent of Moore’s criminal

history and by highlighting Moore’s early release. Moore’s prison

record was clearly relevant on the issue of future dangerousness.

See Skipper, 106 S. Ct. 1669. While merely permitting, without

objection, the admission of the penitentiary package, might not

have independently constituted deficient performance or created the

probability of prejudice, there is a reasonable probability that

counsel’s failure to respond to specific misleading argument by the

state about Moore’s prison record impacted the outcome of the

jury’s deliberations on the issue of both punishment phase special

issues of deliberateness and future dangerousness.

This is not a case in which the nature of the offense or the

strength of the state’s punishment phase evidence requires the

76
conclusion that the specific evidence proposed by the petitioner

would not have made any difference with respect to the outcome of

the punishment phase. Cf. Strickland, 104 S. Ct. at 2071 (finding

no prejudice where state’s overwhelming presentation of evidence

relating to aggravating factors supporting imposition of death

penalty); Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999) (finding

no prejudice where the brutal and lengthy nature of the murder, the

defendant’s confessions, and the lack of other mitigating evidence

required the conclusion that counsel’s failure to present the

proposed evidence would not have made any difference with respect

to the outcome of the sentencing phase), pet. for cert. filed,

(U.S. June 17, 1999) (No. 98-9808); Sharp v. Johnson, 107 F.3d 282

(5th Cir. 1997) (finding no prejudice where horrendous nature of

crime and circumstances would have overwhelmed mitigating evidence

identified by defendant). Given the facts of this case, we have no

trouble concluding that, taken together, counsel’s failure to

investigate Moore’s proposed defense by interviewing and preparing

for the state witnesses to Moore’s extraneous conduct, counsel’s

inexplicable and illogical failure to require submission of

exculpatory language in Moore’s confession together with the

inculpatory language submitted to the jury, counsel’s damaging

cross-examination of Officer Autrey, which in and of itself

established most elements of the case-in-chief against Moore, and

counsel’s complete failure to either investigate, develop, or

present available and potentially availing mitigating evidence

supporting counsel’s argument that the shooting was accidental,

77
during the punishment phase of Moore’s trial, including counsel’s

failure to offer an unredacted and available copy of Moore’s

purported confession in support of counsel’s closing argument

during the punishment phase that the shooting was accidental, are

sufficient to demonstrate prejudice within the meaning of

Strickland. Absent those inexcusable and unreasonable failures,

there is a reasonable probability that the outcome of Moore’s

punishment phase would have been different. Whitley, 977 F.2d at

159; Duhamel, 955 F.2d at 965-66; Wilkerson, 950 F.2d at 1065;

Profitt, 831 F.2d at 1249. We therefore conclude that trial

counsel’s cumulative errors rendered the result of Moore’s

punishment phase unreliable and affirm the district court’s grant

of relief as to punishment only.

VII.

The district court granted the writ of habeas corpus and

ordered that the state court of conviction grant Moore a new trial

on the issue of punishment only. On appeal, the Director argues

that the district court exceeded its authority by ordering the

state court to conduct a new punishment trial.

We agree. A federal habeas court has the power to grant a

writ of habeas corpus. Duhamel, 955 F.2d at 968. The federal

habeas court is without power, however, to order that the state

conduct a new punishment hearing. King, 1 F.3d at 287. When

relief in a capital case is limited to punishment only, as in this

case, the proper course is to enter an order granting the writ, but

78
permitting the state court of conviction a reasonable period of

time in which to decide whether: (1) to hold a new trial on the

issue of punishment only, as permitted by TEX. CODE CRIM. PROC. art.

44.29(c), or (2) to vacate the habeas petitioner’s sentence and to

impose a sentence less than death. Granviel v. Estelle, 655 F.2d

673 (5th Cir. Sept. 1981); Whitley, 977 F.2d at 161; Jones, 788

F.2d at 1103. We therefore remand with instructions to enter such

an order.

CONCLUSION

For the foregoing reasons, the district court’s determination

that Moore’s trial counsel rendered constitutionally deficient

performance which prejudiced the outcome of the punishment phase of

Moore’s capital trial is AFFIRMED as modified by this opinion. The

cause is REMANDED to the district court with instructions to enter

an order granting the writ of habeas corpus, but conditioning the

issuance of that writ upon the passage of a reasonable but certain

period of time during which the state court of conviction may cure

the constitutional error by vacating Moore’s death sentence and

imposing a sentence less than death, or by conducting a new

punishment hearing pursuant to Texas Code of Criminal Procedure

art. 44.29(c).

79