IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2008
No. 08-70002
Charles R. Fulbruge III
Clerk
FRANK MOORE,
Petitioner-Appellant,
v.
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
No. SA-03-CA-405-RF
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Frank Moore was convicted of capital murder and sentenced to death. The
district court denied federal habeas corpus relief. Because no “reasonable jurist[]
would find the district court’s assessment of the constitutional claims debatable
No. 08-70002
or wrong,” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (internal citations and
quotations omitted), we deny Moore’s request for a certificate of appealability
(“COA”).
I.
A Texas jury convicted Moore of killing Samuel Boyd, 23, and Patrick
Clark, 15, after an altercation in the parking lot of the Wheels of Joy Club in San
Antonio around 2:00 one morning in January 1994. The state’s key witness was
Angela Wallace, who met Moore that night at the club and who knew Boyd and
Clark. Wallace testified that Boyd and Clark arrived at the club after she did
and acted in a socially appropriate manner and that there was no overt hostility
between them and MooreSSin fact, she reported that Boyd and Moore even shook
hands and shared a laugh. Near closing time, however, Wallace watched Ivory
Sheffield, apparently one of Moore’s friends, whisper something to Moore, after
which Moore and Sheffield left the club.
When Wallace exited to the parking lot, she saw a confrontation involving
Moore, Boyd, Clark, and another man. She recounted that after the initial
encounter, the men scattered, then Boyd and Clark returned in a white car and
parked next to Moore, who walked to the back of the car. Wallace neither saw
nor heard Boyd or Clark make any threats. Nonetheless, after Sheffield tossed
him a rifle that had been in the trunk of a nearby car, Moore started shooting
into the white car, discharging between six and ten rounds, killing Boyd and
Clark. Moore returned the rifle to Sheffield, got into a car, and left, with Shef-
field saying, “Who else wants some of this?”
A medical examiner testified that Boyd and Clark died of multiple gunshot
wounds and that the condition of the bodies was consistent with their being in
2
No. 08-70002
the car when shot, with the gunman standing toward the vehicle’s rear.1 An in-
vestigator at the scene found shell casings in a spot that suggested that the shots
were fired into the car from the left rear of the vehicle.2
II.
Moore was convicted of capital murder and sentenced to death, but his con-
viction was vacated by the Texas Court of Criminal Appeals (“CCA”) on the
ground that he was entitled to the inclusion of a pair of lesser included offenses
in his jury charge. See Moore v. State, 969 S.W.2d 4, 6 (Tex. Crim. App. 1998).
In his second trial, Moore called Robert Mays, a friend, as a witness. Mays
claimed to be at the club that night and said that he observed the scuffle in the
parking lot. He heard yelling about guns and saw two or three men run across
the street and jump into a white car whose driver tried more than once to run
down Mays, Moore, and others. The men in the car spoke about shooting Mays,
and if Moore had tried to run away from the altercation, they would have shot
him. Mays saw guns in the white car, including a rifle. He escaped before those
in the car were killed, so he did not see whether Moore fired the fatal shots.3
The jury again convicted Moore of capital murder in 1999. During the sen-
tencing phase, the state offered evidence that he had been convicted in the past
1
The medical examiner also stated that Boyd and Clark were acutely intoxicated.
2
Barbara Boyd, Clark’s older sister and Boyd’s sister-in-law, testified that she was told
of the shooting and arrived at the scene, tried to wake up Boyd, then called for medical help
and the police. At no time did she see anyone going through the white car or touching the bod-
ies.
3
The district court observed that Mays’s testimony was internally inconsistent. He
stated, for instance, that Moore was in the club when the white car tried to hit Mays, but he
also said that Moore was outside when it happened. Mays also claimed that he left before any
shots were fired but also that the men in the white car fired at least six shots at him while he
fled. To explain himself, he testified that first the car tried to hit him, then he went into the
club before shots were fired, then he left the club a second time, and then the people in the
white carSSwho by that time had exited the carSSstarted shooting at him as he ran home.
3
No. 08-70002
of negligent homicide, attempted murder, and drug possession and delivery. A
police officer also testified that Moore had been arrested for an unrelated matter
shortly before he was arrested for the murders of Boyd and Clark and that
during the first arrest, Moore was carrying a revolver in his waistband, and that
the officer personally had arrested Moore for being a felon in possession of a
firearm on yet another occasion. Moore was a member of the violent East Ter-
race Gangsters and was the “sergeant-at-arms” for the Black Panthers who was
responsible for procuring, hiding, and distributing weapons. While incarcerated,
Moore took an active role in a race riot, attacked a guard, and was violent in oth-
er ways and had been a member of the Crips gang since he was fourteen.
At sentencing, Moore only4 offered the testimony of Frederick
BuhlerSSwho also had been at the club that nightSSthat though he personally
witnessed Moore shoot Boyd and Clark five or six times, Moore did not provoke
the incident and that Boyd and Clark had a chance to leave “a long time” before
being killed but did not. Though he testified that the white car “skid[ded] across
the street and stop[ped] once, and then it [came] back again and it stop[ped]
again,” such that “[a]t that time it was within inches of [his] leg,” Buhler did not
say that Boyd and Clark began shooting at Moore before he killed them or that
there were any weapons in the car.
The jury found that there was a probability that Moore would commit
criminal acts of violence in the future and that there was insufficient mitigating
evidence to support a sentence of life imprisonment, so he was sentenced to
death. The CCA affirmed, Moore v. State, No. 73,526 (Tex. Crim. App. Jan. 9,
2002), and Moore did not petition for writ of certiorari. He filed a state habeas
corpus application asserting thirty-five grounds for relief. At the hearing, he
proffered no witnesses and presented no evidence; his lawyer said that the “alle-
4
Outside of the jury’s presence, Moore expressly advised the court on the record that
he did not want his attorney to present any additional mitigating evidence.
4
No. 08-70002
gations are established in the brief or in the writ . . . .” In February 2003, the
state habeas court issued an order containing its factual findings and legal con-
clusions, recommending that Moore’s application be denied, and the CCA adopt-
ed the recommendation. Ex parte Moore, No. 40,046-02 (Tex. Crim. App. May
14, 2003).
Moore petitioned for federal habeas corpus relief in March 2004. In No-
vember 2004, the district court granted his motion for a stay and to hold his peti-
tion in abeyance so he could return to state court and exhaust a claim under At-
kins v. Virginia, 536 U.S. 304 (2002), but the court ordered Moore to file his state
application within sixty days. In August 2005, the court directed the parties to
advise it regarding this successive application, and the state reported that Moore
had not yet filed it. In October 2005, Moore responded to the August order, stat-
ing that he intended to pursue a claim under Brady v. Maryland, 373 U.S. 83
(1963), but he said nothing about an Atkins claim.
In January 2006, the state moved to lift the stay, informing the district
court that Moore, who already had participated in numerous mental health ex-
aminations, had scheduled another exam for February. The court ordered Moore
to explain why the stay should not be lifted. Moore responded by saying that the
stay was necessary so that he could exhaust his Brady claim, but he did not ex-
plain his lackadaisical prosecution of his Atkins claim.
In August 2006, the court lifted the stay and ordered Moore to file his
amended petition within thirty days, but Moore did not. In September, the court
ordered Moore to show cause for the delay; Moore replied by filing his amended
petition, asserting twenty-two claims, none addressing Atkins. The state re-
sponded to the amended petition in January 2007, and Moore replied in May.
In March 2006, Moore again applied for state habeas relief, asserting that
state prosecutors and police had violated his rights under Brady. The CCA re-
jected that successive application as an abuse of the writ. Ex parte Moore, No.
5
No. 08-70002
40,046-03 (Tex. Crim. App. Sept. 13, 2006). In December 2007, the district court
denied relief on all claims, and in January 2008 it declined to grant a COA.
III.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a petitioner, as a matter of subject matter jurisdiction, Miller-El, 537
U.S. at 335-36, must secure a COA to appeal the denial of habeas relief, and a
COA will be granted only if he can make “a substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2). We conduct a “preliminary,
though not definitive” evaluationSSa so-called “threshold inquiry”5SSof the peti-
tioner’s arguments and must issue a COA if “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Mil-
ler-El, 537 U.S. at 336, 338 (internal citations and quotations omitted).
“[A] claim can be debatable even though every jurist of reason might agree,
after the COA has been granted and the case has received full consideration,
that petitioner will not prevail.” Id. at 338. Importantly, however, “issuance of
a COA must not be pro forma or a matter of course,” and “a prisoner seeking a
COA must prove ‘something more than the absence of frivolity.’” Id. at 337-38
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In death penalty cases,
any doubts as to whether the COA should issue are resolved in favor of the peti-
tioner. See Lamb v. Johnson, 179 F.3d 352, 356 (5th Cir. 1999).
Under general principles of federal habeas law, no relief can be granted on
“any claim adjudicated on the merits by a state court unless the state decision
was contrary to, or an unreasonable application of, clearly established federal
law as determined by the Supreme Court, or if the state court’s determination
5
See Miller-El, 537 U.S. at 336-37 (“This threshold inquiry does not require full consid-
eration of the factual or legal bases adduced in support of the claims. In fact, the statute
forbids it.”).
6
No. 08-70002
of facts was unreasonable in light of the evidence.” Thompson v. Cain, 161 F.3d
802, 805 (5th Cir. 1998) (citing 28 U.S.C. § 2254(d)).6 A state court decision is
“contrary to . . . established federal law” if it “applies a rule that contradicts gov-
erning law set forth in [Supreme Court precedent]” or if it “confronts a set of
facts that are materially indistinguishable from a decision of [the] Court and
nevertheless arrives at a result different from . . . precedent.” Williams v. Tay-
lor, 529 U.S. 362, 405-06 (2000). Likewise, “[a] state-court decision that correctly
identifies the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case certainly would qualify as a decision ‘involv[ing] an un-
reasonable application of . . . clearly established Federal law.’” Id. at 407-08.
Where the district court has rejected a claim on a procedural ground, “the peti-
tioner must also demonstrate that jurists of reason would find it debatable
whether the district court was correct in the procedural ruling.” Henry v. Cock-
rell, 327 F.3d 429, 431 (5th Cir. 2003) (internal citations and quotations omit-
ted).
IV.
Moore claims that state officials withheld evidence favorable to his cause,
both as to guilt and punishment,7 contrary to Brady. “To establish a Brady vio-
lation, a defendant must make three showings: ‘The evidence at issue must be
favorable to the accused, either because it is exculpatory, or because it is im-
peaching; that evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued.’” United States v. Sipe, 388
6
See also Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007) (“The question under
AEDPA is not whether a federal court believes the state court’s determination was incorrect
but whether that determination was unreasonableSSa substantially higher threshold.”).
7
The government argues that Moore did not raise a punishment-related Brady claim
in the district court. We need not decide whether that argument is waived, however, because
it is meritless for the reasons stated below.
7
No. 08-70002
F.3d 471, 477 (5th Cir. 2004) (quoting Strickler v. Greene, 527 U.S. 263, 281-82
(1999)). For evidence to be materially prejudicial, “[t]he question is not whether
the defendant would more likely than not have received a different verdict with
the evidence, but whether in its absence he received a fair trial, understood as
a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S.
419, 434 (1995). We ask, therefore, whether “the favorable evidence could rea-
sonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Id. at 435. “In short, [a defendant] must show a ‘rea-
sonable probability of a different result.’” Banks v. Dretke, 540 U.S. 668, 699
(2004) (quoting Kyles, 514 U.S. at 434).
In his successive state habeas application, Moore offered an affidavit from
Warren Huel, the owner and operator of a pair of security companies. Huel
claimed he had “professional contact[s]” with Moore, Boyd, Clark, and Ernest
BedfordSSall individuals that he had heard were involved in the sale of crack co-
caine. Bedford, according to Huel, “bragged to all who would listen that he and
his crew were going to rob or kill” Moore. Huel also said that Boyd, Clark, and
Bedford were dangerous and had even beaten a man to death “several month
[sic] prior to the incident of 21 Jan 1994,” an event “witnessed by 40-50 youths
[of whom] none would stand as witness against Bedford and associates.”
The affidavit stated that on the night of the killings, before the police ar-
rived but after the shooting was over, some of Huel’s security-company employ-
ees interviewed witnesses and learned that in the hours leading up to the kill-
ings, Boyd, Clark, and others had tried to murder Moore in a drive-by shooting
and that at the club Bedford “let the crowd know that he was armed and contin-
ued to menace Moore.” His employees also allegedly told him that Boyd and
Clark were reported to have had handguns in the white car and that before
Moore started shooting, Bedford exited the car with a handgun. Sheffield then
brought an M-1 rifle to Moore, but Moore did not begin firing until after Bedford
8
No. 08-70002
fired a shot. In fact, according to Huel’s affidavit, his employees told him that
they had learned from undisclosed witnesses that instead of firing first, “Moore
[merely] returned fire and silenced the gunfire coming from the vehicle.”
Then, according to the affidavit, after the shooting ended, bystanders re-
moved the handguns used by Boyd and Clark. Huel speculates that bystanders
removed Bedford’s pistol that was allegedly hidden under a pool table in the club
but was not found despite attempts to locate it (thereby depriving Moore of phy-
sical evidence). According to Huel, after he learned that a warrant had been is-
sued for Moore, he informed police 8 that Boyd, Clark, and Bedford had fired at
Moore and that bullet holes in the building behind Moore confirmed that account
but that he was told that what he had to say did not matter, because “Moore was
a dope dealer and had to go to jail.”9
The CCA denied Moore’s successive state habeas application as an abuse
of the writ. Ex parte Moore, No. 40,046-03 (Tex. Crim. App. Sept. 13, 2006). The
district court also denied federal habeas relief, listing three reasons: first, that
this claim was procedurally defaulted; second, that it was barred by the statute
of limitations; and third, that it lacked merit in any case. The district court’s as-
sessment was undebatably correct, though we do not reach the limitations issue.
A.
No reasonable jurist could argue that Brady was violated. The informa-
8
Whether Huel spoke with the police is a factual question that does not appear to be
answered in the record. All that we have is his affidavit. For purposes of this COA application,
we assume that Huel told the police what he claims in the affidavit to have told them.
9
Moore argues that not only did police officers fail to disclose Huel’s statement to
Moore, they also intimidated Huel such that he did not come to Moore sooner with the informa-
tion. Moore, however, offers no evidence, or even intimation of evidence, of intimidation. The
closest thing to threats in the affidavit are the statements that Huel’s information “did not
matter” and “Moore was a dope dealer and had to go to jail.” If those are threats, they are
heavily veiled.
9
No. 08-70002
tion in Huel’s affidavit always was available to Moore, because the affidavit in
all material respects concerned alleged facts that, if true, Moore already knew.
The government did not withhold material evidence, because Moore necessarily
knew that Boyd and Clark were shooting at him when he killed them, if that was
the case, because Moore was there and witnessed what happened. Moore thus
could have investigated and located witnesses to support his self-defense claim,
even without Huel’s information,10 and “[u]nder Brady, the prosecution has no
obligation to produce evidence or information already known to the defendant,
or that could be obtained through the defendant’s exercise of diligence.” Castillo
v. Johnson, 141 F.3d 218, 223 (5th Cir. 1998).11
It is consequently not debatable that the government’s failure to inform
Moore of Huel’s statement did not violate Brady, because Huel only gave the
police information that, if true, Moore should have already known or should have
obtained by his own reasonable investigation.12 It is not enough, as Moore
claims, that it is theoretically possible that had the police told him about Huel’s
hearsay-within-hearsay account of the shooting, he potentially might have
scoured more diligently than he otherwise would have (based on his own knowl-
10
Moore, as part of a reasonable defense investigation, also potentially could have con-
tacted Huel directly, especially if Huel and Moore “had ample opportunity to come into profes-
sional contact” with each other, as stated in Huel’s affidavit.
11
See also Brown v. Cain 104 F.3d 744, 750 (5th Cir. 1997); United States v. Roane, 378
F.3d 382, 402 (4th Cir. 2004) (“Tipton asserts that the prosecutors knew of, and yet also failed
to disclose, statements by the witnesses . . . providing Tipton an alibi on the night of the Stoney
Run murders. Tipton’s Brady claims must fail, however, because, where the exculpatory in-
formation is not only available to the defendant but also lies in a source where a reasonable
defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine.
We have explained that information actually known by the defendant falls outside the ambit
of the Brady rule. Obviously, Tipton knew who he was with on the evening of the Talley mur-
derSShe had no need for the Government to provide him with such information. Thus, no Bra-
dy violation has been shown, and we affirm the district court’s ruling on the issue.”) (internal
citations and quotations omitted).
12
Moore, for instance, could have looked at the building to see if there were bullet holes
in it consistent with Boyd’s and Clark’s firing first (or at all).
10
No. 08-70002
edge that he was innocent) and might have found a witness with admissible evi-
dence.
The highly speculative theorySSthat knowledge of Huel’s thirdhand state-
ment would have led Moore to find helpful evidence that his own reasonably con-
ducted investigation would not also have discovered and that he has not been
able to find after receiving Huel’s informationSSdoes not satisfy the materiality
requirement of Brady, because it is insufficient to “show a ‘reasonable probabil-
ity of a different result.’” Banks, 540 U.S. at 699 (quoting Kyles, 514 U.S. at
434).13 It is undebatable, therefore, that the state’s conduct did not unconstitu-
tionally “undermine confidence in the verdict.” Kyles, 514 U.S. at 435.
B.
Even if there were room for debate as to Brady, no reasonable jurist could
find it debatable that Moore’s claim is not procedurally defaulted. Because an
“important interest in finality [is] served by state procedural rules, and . . . sig-
nificant harm to the States . . . results from the failure of federal courts to re-
spect them,” procedural default occurs where a state court expressly bases its
dismissal of a claim on an independent and adequate state procedural ground.
13
Moore offered Buhler’s eyewitness testimony at sentencing, and that testimony con-
tradicts the third-hand tale recounted in Huel’s affidavit. BuhlerSSMoore’s own witness, and
one who was actually at the sceneSStestified that Boyd and Clark should have left “a long
time” before Moore started shooting, but he said nothing about Boyd’s, Clark’s, and Bedford’s
shooting at Moore first. This is in accord with the testimony of Walker, the government’s eye-
witness. The testimony of these two eyewitnesses further supports a conclusion that the
state’s failure to disclose Huel’s statement does not undermine confidence in the verdict.
Huel’s information, which was not based on personal knowledge, would have been im-
portant at trial only if Moore could find a witness that could testify convincingly that Moore
acted in self-defense. But the fact that two independent people testified that Moore did not act
in self-defense tends to suggest that no witness exists who could testify otherwise; Moore has
not found one, even after receiving Huel’s information. Given that Moore personally knows
much about what happened that night, but that his investigation has failed to produce a wit-
ness that could say that he acted in self-defense, it is unlikely that such a witness exists.
11
No. 08-70002
Coleman v. Thompson, 501 U.S. 722, 750, 735 n.1 (1991). Here, the CCA expli-
citly dismissed Moore’s successive application (where he first raised Brady) as
an abuse of the writ, and “Texas’s abuse of the writ doctrine is a valid state pro-
cedural bar foreclosing federal habeas review.” Coleman v. Quarterman, 456
F.3d 537, 542 (5th Cir. 2006), cert. denied, 127 S. Ct. 2030 (2007).
The question, thus, is whether Moore can show “cause and actual preju-
dice” for his failure to comply with Texas’s procedures, or that a refusal to ad-
dress the merits of his Brady claim would result in a “fundamental miscarriage
of justice.” Thompson, 501 U.S. at 750. To show “cause,” Moore must establish
that an external factor objectively impeded his ability to comply with Texas’s
procedural rule. Id. at 753. To show “actual prejudice,” he must establish “not
merely that the errors at his trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170
(1982); see also Smith v. Quarterman, 515 F.3d 392, 403 (5th Cir. 2008).
It is undebatable that Moore cannot satisfy the cause and actual prejudice
standard. The information in Huel’s affidavit always was available to Moore, for
reasons already stated. Moore, thus, cannot establish that any assumed Brady
violation “worked to his actual and substantial disadvantage, infecting his entire
trial with error of constitutional dimensions” or that there was a reason why he
did not present evidence of the type mentioned in the affidavit. The suggestion
that if Moore had known about Huel, he might have then been able to locate a
corroborating witness that he would not have otherwise found as part of his own
investigation is far too speculative to satisfy the “actual prejudice standard,” be-
cause “merely [establishing] that the errors . . . created a possibility of prejudice”
unequivocally is not enough.
Moreover, no reasonable jurist could debate that Moore cannot satisfy the
“miscarriage of justice” exception to procedural default. See Thompson, 501 U.S.
12
No. 08-70002
at 750. If Moore could show “actual innocence,” by means of “new reliable evi-
denceSSwhether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidenceSSthat was not presented at trial,”14 then
that also could serve as an exception to the procedural-default doctrine, Schlup
v. Delo, 513 U.S. 298, 324 (1995), but we note how “narrow” this exception is:
“The Supreme Court consistently has employed the cause and prejudice test,
even for ‘constitutional claims that call into question the reliability of an adjudi-
cation of guilt,’ expressing its confidence that the cause and prejudice standard
is adequate to protect against miscarriages of justice.” United States v. Shaid,
937 F.2d 228, 236 (5th Cir. 1991) (en banc) (quoting Murray v. Carrier, 477 U.S.
478, 495-96 (1986)).15 Were we not to preserve this separate “miscarriage of jus-
tice” exception “for [only] ‘an extraordinary case, where a constitutional violation
has probably resulted in the conviction of one who is actually innocent,’” we
would “undermine the proper finality of criminal convictions” and “eviscerate the
cause prong of the cause and prejudice test . . . .” Id. (quoting Carrier, 477 U.S.
14
In assessing actual innocence, we must assess more than just the new evidence:
[T]he habeas court must consider all the evidence, old and new, incriminating
and exculpatory, without regard to whether it would necessarily be admitted un-
der rules of admissibility that would govern at trial. Based on this total record,
the court must make a probabilistic determination about what reasonable,
properly instructed jurors would do. The court’s function is not to make an inde-
pendent factual determination about what likely occurred, but rather to assess
the likely impact of the evidence on reasonable jurors.
House v. Bell, 547 U.S. 518, 537-38 (2006) (internal citations and quotations omitted). Moore
offered very little evidence at trial, primarily the testimony of Mays, who said he was not there
when Moore began shooting, and Buhler, who did not testify that Moore acted in self-defense.
15
In Schlup, 513 U.S. at 323-24, the Court held that the lower Carrier “probably” stan-
dard applies in death penalty casesSSas opposed to the higher “clear and convincing evidence
standard” in Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
13
No. 08-70002
at 496) (emphasis added).16
The district court’s assessment of Moore’s argument is undebatably cor-
rect: “At best, the ‘newly discovered’ information . . . consists of hearsay within
hearsay statements made by unidentified persons to unidentified employees . . .
and address matters which, by their very nature, were within the personal
knowledge of the petitioner . . . .” This is not the type of evidence that, if ex-
cluded, a miscarriage of justice would result, especially given that “there is no
presumption of innocence at a habeas proceeding.” Bosley v. Cain, 409 F.3d 657,
664 (5th Cir. 2005).17
Not only was the information in Huel’s affidavit not “new” (given that it
was always within the reach of Moore’s personal knowledge or reasonable inves-
tigation), it also hardly counted as “evidence,” given that it almost entirely con-
sisted of inadmissable hearsay, and, importantly, it was vague to boot, lacking
any specificity as to the identity of any particular witness.18 The thirdhand in-
formation in Huel’s affidavit likewise was contrary to the accounts of two eyewit-
nesses, Walker and Buhler, which further undermines Moore’s claim that any
“constitutional violation has probably resulted in the conviction of one who is ac-
16
This standard is so stringent that it “does not merely require a showing that a rea-
sonable doubt exists in the light of the new evidence, but rather that no reasonable juror would
have found the defendant guilty.” Schlup, 513 U.S. at 329. “To establish the requisite proba-
bility, the petitioner must show that it is more likely than not that no reasonable juror would
have convicted him in the light of the new evidence.” Id. at 327.
17
To show “actual innocence,” as with showing “actual prejudice,” requires something
more than pointing to “[a] mere possibility of prejudice,” because a speculative claim “will not
satisfy the actual prejudice prong of the cause and prejudice test, much less demonstrate actual
innocence.” Shaid, 937 F.2d at 236 (emphasis added).
18
Though “[i]n assessing the adequacy of petitioner’s showing . . . the district court is
not bound by the rules of admissibility that would govern at trial,” the court is permitted to
consider the “unreliability” of the proffered evidence. Schlup, 513 U.S. at 327-28 (internal cita-
tions and quotations omitted). In assessing Huel’s affidavit, reasonable jurists would not de-
bate that the persuasiveness of the affidavit should be discounted, because it consists primarily
of vague third-party statements.
14
No. 08-70002
tually innocent.” Carrier, 477 U.S. at 496. Because the best source of Moore’s
self-defense argument is and always has been Moore himself, no reasonable jur-
ist could debate that his Brady claim is procedurally defaulted and that no ex-
ception to the procedural-default doctrine permits federal review of this claim.19
V.
Moore requests a COA based on several comments uttered during his sec-
ond trial that referred to his first trial. From them, he claims that the state trial
court’s decision to deny his motions for a mistrial violated his right to a pre-
sumption of innocence. No reasonable jurist could find it debatable that Moore’s
constitutional rights were not violated.
During the guilt phase of the second trial, police officer Steven Patterson
testified as follows on cross-examination:
Q. Now, you have no idea what Officer Glen testified to in front
of this jury about what the scene looked like when he arrived, do
you? Because you were outside and you were under the Rule; is that
right?
A. Yes, sir.
Q. So then whatever he told the jury about what the scene was
like when arrived, you have no idea what he told them, correct?
A. Other than what I’ve heard over the past five years.
19
Moore also argues that it contravenes the Eighth Amendment to sentence him to
death, because he is actually innocent of the crime. Though acknowledging that this argument
is “inextricably linked” to his Brady claim, he offers it as a separate reason a COA should issue.
This is wrong, and undebatably so. “Herrera [v. Collins, 506 U.S. 390 (1993)] does not overrule
previous holdings (nor draw them into doubt) that a claim of actual innocence based on newly
discovered evidence fails to state a claim in federal habeas corpus.” Lucas v. Johnson, 132 F.3d
1069, 1074 (5th Cir. 1998). In any event, undebatably, Moore in no way can show that he is
actually innocent.
15
No. 08-70002
Q. But as far as today?
A. No, sir.
Q. And you are aware, are you not, that Officer Glenn has never
testified in any court proceeding or anything involving this case?
A. I wouldn’tSSI wasn’t sure if he testified in the last trial, or not.
Q. Now, do you know an Officer Reyes, probationary Officer Rey-
es, who was there that night?
A. I justSSI couldn’t pick him out today. I haven’t seen him prob-
ably since then, a person [sic] since that last trial.
Mr. Moran: And, Your Honor, may we approach the bench?
The trial court, after considering argument, denied the motion for mistrial
but instructed the jury as follows:
Ladies and gentlemen of the jury, I ask you not to consider, for
any purpose whatsoever, any reference or remark that you have
heard concerning a prior hearing in this case. It has absolutely
nothing to do with this case. You are to concern yourself with the
evidence in this case and only in this case and arrive at at [sic] fair
and impartial verdict based strictly on the evidence that you hear
here.
During the punishment phase, Mark Hicks, an employee of the state jail,
testified as follows:
Q. And then I think you had mentioned something about the
gangs and prostitution and all this kind of stuff and everything.
And actually, the records are contained in those exhibits, that have
already been introduced, show that on several different occasions,
Mr. Moore has been evaluated, as far as sexual orientation, and has
always been found to be appropriate by the sociologist who inter-
viewed him, hasn’t he?
16
No. 08-70002
A. As far as I know, yes, sir.
Q. Now, thisSSwell, this exhibit here, numberSSif I have it. Did
you help in putting this exhibit together?
A. Yes, sir, I did, at the last trial.
Mr. Moran: May we approach the bench?
The court again instructed the jury that they were “not to consider for any pur-
pose whatsoever the matter concerning any previous hearing or any previous
proceeding in this case.”
These three references to the prior trial are the only ones cited by Moore.
He argues that the denials of his mistrial motions violated his right to the pre-
sumption of innocence under the Fifth Amendment. The CCA heard and reject-
ed that argument on direct appeal, holding that the statements were “passing
and vague references,” that they did not inform the jury of the outcome of the
earlier trial, that Hicks’s statement occurred after Moore had already been con-
victed and thus that the presumption of innocence did not apply, and that what-
ever prejudice resulted was cured by the prompt curative instructions. See
Moore v. State, No. 73,526, at 8-9 (Tex. Crim. App. Jan. 9, 2002).
In support of this claim, Moore cites United States v. Aragon, 962 F.2d 439
(5th Cir. 1992), and United States v. Faulkner, 17 F.3d 747 (5th Cir. 1994), both
dealing with mid-trial publicity. Neither was a habeas case, and neither even
purported to apply “clearly established federal law as determined by the Su-
preme Court . . . .” 28 U.S.C. § 2254(d). In neither was the prejudicial extra-
judicial material anywhere near as innocuous as the statements at issue here.
In Aragon, we held that a district court abused its discretion by failing to
inquire whether jurors had read a newspaper article concerning the defendants’
criminal history, 962 F.2d at 441, and in Faulkner, we held that a trial court did
not abuse its discretion when it failed to inquire whether jurors had seen a tele-
17
No. 08-70002
vision report that spoke of a prior trial, because of the court’s repeated directions
to the jury to disregard media reports, 17 F.3d at 763-65. We are aware of no
precedent by the Supreme Court that requires that a mistrial motion be granted
whenever that fact that there was a previous trial is mentioned to a jury, espe-
cially where absolutely no other information about that past trial is provided,
and much less where the trial court quickly issues a curative instruction. No
reasonable jurist could find it debatable that this claim has merit.20
VI.
Moore contends a COA should issue on whether he received constitution-
ally effective assistance of counsel. In particular, he argues that his trial counsel
failed to investigate adequately the facts surrounding the shooting. Moore
claims that his lawyer should have questioned Josie Wilford and Darlene Hop-
kins, who were at the club before the shooting, and Edmond Davis, who could
have testified that Clark and Boyd were armed that night. Moore also urges
20
Not only could no reasonable jurist find it debatable that “clearly established” law
might support Moore’s claim, no reasonable jurist could conclude that the Constitution was
even violated. Here, the only information that was conveyed to the jury was that Moore had
been tried before. The jury did not learn that he was convicted before; in fact, it did not learn
any specific information at all. For instance, a juror would not have known whether the refer-
ence to “last trial” even was an allusion to a trial for Moore, as opposed to one for Sheffield.
Likewise, even if the jury believed it was an allusion to a previous trial for Moore, the jury did
not know that Moore had been convicted, thereby prejudicing Moore’s defense; it just as easily
could have believed that an earlier jury was deadlocked as to Moore’s guilt. Any prejudice to
Moore thus was slight.
Balanced against that slight prejudice were the trial court’s explicit and comprehensive
curative instructions. Given that juries are presumed to follow instructions, Zafiro v. United
States, 506 U.S. 534, 540-41 (1993), no reasonable jurist could debate that Moore’s constitu-
tional rights were not violated.
Because the law is so pellucid on these points, we need not delve into whether Moore’s
attorney invited Patterson’s reference to the prior trial by asking whether he knew whether
“Officer Glenn ha[d] never testified in any court proceeding or anything involving this case?”
We also need not decide whether Hicks’s statement, made after Moore was convicted but before
he was sentenced, unconstitutionally deprived Moore of the presumption of innocence.
18
No. 08-70002
that if the lawyer would have but “exercised greater diligence, it is possible that
he may have also discovered the existence of Warren Huel.” If his lawyer would
have investigated competently what happened, Moore claims that he could have
presented more effectively his claim that he shot Boyd and Clark out of self-de-
fense or, alternately, out of sudden passion.21
To demonstrate that his lawyer’s conduct fell below what is constitution-
ally acceptable, Moore “must show that [his] counsel’s performance was defi-
cient, and that the deficiency prejudiced the defense,” and “[t]o establish defi-
cient performance,” he “must demonstrate that [the] representation fell below
an objective standard of reasonableness[, with] the proper measure of attorney
performance [being] simply reasonableness under prevailing professional
norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citations and quo-
tations omitted). “[T]o establish prejudice, a ‘defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” Id. at 534
(quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
We must be mindful that “[t]he measure of performance is highly defer-
ential, calibrated to escape ‘the distorting effect of hindsight.’ We must ‘indulge
a strong presumption that counsel’s conduct falls within the wide range of rea-
sonable professional assistance’ and that the ‘challenged action might be consid-
ered sound trial strategy.’” Belyeu v. Scott, 67 F.3d 535, 538 (5th Cir. 1995)
(quoting Washington, 466 U.S. at 689). To prevail, therefore, Moore must “al-
lege[ or] tender[] evidence of concrete facts sufficient to overcome [the] presump-
tion[].” West v. Johnson, 92 F.3d 1385, 1409 (5th Cir. 1996).
21
When Moore raised this claim in his state habeas application, an evidentiary hearing
was held, and, as a result of that hearing, the CCA denied the claim for the reasons stated by
the state habeas trial court. See Ex parte Moore, No. 40,046-02 (Tex. Crim. App. May 14,
2003).
19
No. 08-70002
Moore cannot meet this burden, and undebatably so. When he made his
Washington claim in his state habeas application, the court held an evidentiary
hearing. Moore failed to provide any evidence at all regarding the thought pro-
cess underlying his trial counsel’s decisionmaking. He made no effort to inquire
of his attorney as to what steps were taken to investigate the shooting, so we do
not know whether the counsel made a strategic decision not to speak with these
witnesses or what might have been the basis of that decision.
Crucially, we also do not know what Moore told his lawyer; if the lawyer
learned from Moore directly that the killings were not in self-defense, it would
not be surprising that the lawyer did not dredge unceasingly for witnesses who
would say otherwise. If there was potentially exculpatory or mitigatory evidence
SSwhich we do not know that there was, because Moore has never produced itSS
we do not know why his counsel did not present it at trial. Moore did not avail
himself of the opportunity to present evidence of ineffective assistance in the
Texas courts.
We also do not know what Wilford, Hopkins, or Davis would have testified
to, because Moore did not call them during that evidentiary hearing. He argues
that they would have said something favorable, but we do not know that, and,
for all we know, neither does Moore.22 This complete failure to present any evi-
dence strongly argues against Moore’s present claims that his trial counsel’s de-
cisions were not objectively reasonable or that he was prejudiced.23
22
The state habeas trial court found that Moore presented no evidence that Wilford,
Hopkins, or Davis was available to testify or personally possessed relevant knowledge. Thus,
the court found that Moore did not satisfy his burden under Washington, and the CCA adopted
those findings and conclusions. Ex parte Moore, No. 40,046-02 (Tex. Crim. App. May 14, 2003).
23
See, e.g., Anderson v. Collins, 18 F.3d 1208, 1221 (5th Cir. 1994) (“Anderson again
makes only brief and conclusory allegations that [his lawyer’s] representation was deficient be-
cause of his failure to investigate and develop useful evidence. Typically, he does not specify
what this investigation would have divulged or why it would have been likely to make any dif-
ference in his trial or sentencing . . . . [W]ithout a specific, affirmative showing of what the
(continued...)
20
No. 08-70002
After all, absent at least some evidence that an objectively reasonable at-
torney would have interviewed these potential witnesses and tirelessly investi-
gated the facts of the shooting with an eye towards self-defense, no one can say
that Moore’s attorney’s choices were objectively unreasonable. Likewise, without
a showing of at least some evidence, it is impossible to determine whether there
was prejudice. No reasonable jurist, therefore, could debate that the CCA failed
to apply Washington in an objectively reasonable manner.24
The application for a COA is DENIED.
23
(...continued)
missing evidence or testimony would have been, ‘a habeas court cannot even begin to apply
[Washington’s] standards’ because ‘it is very difficult to assess whether counsel’s performance
was deficient, and nearly impossible to determine whether the petitioner was prejudiced by
any deficiencies in counsel’s performance.’”) (quoting United States ex rel. Partee v. Lane, 926
F.2d 694, 701 (7th Cir. 1991)). See also Neal v. Puckett, 286 F.3d 230, 237 (5th Cir. 2002) (en
banc) (“In assessing counsel’s performance, we look to such factors as what counsel did to pre-
pare for sentencing, what mitigating evidence he had accumulated, what additional ‘leads’ he
had, and what results he might reasonably have expected from these leads.”).
24
See, e.g., Bell v. Cone, 535 U.S. 685, 699 (2002) (holding that the burden is on the pe-
titioner to do more than just “convince a federal habeas court that, in its independent judg-
ment, the state-court decision applied[Washington] incorrectly,” but instead the petitioner
“must show that the [state court] applied [Washington] to the facts of his case in an objectively
unreasonable manner”).
21