Moore v. Cockrell

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 19, 2002
• Docket: 01-41489
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 01-41489 _______________

ERIC LYNN MOORE,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________

Appeal from the United States District Court For the Eastern District of Texas m 99-CV-18 _________________________ November 18, 2002

Before SMITH, EMILIO M. GARZA, and Eric Moore was sentenced to die for mur- DENNIS, Circuit Judges. dering Helen Ayers. He appeals the denial of habeas corpus relief. We affirm. JERRY E. SMITH, Circuit Judge:* I. In 1990, Moore and three other men stopped at the rural home of Richard and * Helen Ayers. On a pretext of needing jumper Pursuant to 5TH CIR. R. 47.5, the court has cables, the four men gained access to the determined that this opinion should not be pub- lished and is not precedent except under the limited Ayers’ residence and robbed the couple at circumstances set forth in 5TH CIR. R. 47.5.4. gunpoint, then ushered them into the master bedroom. After ordering them to lie down on state judgment unless the state court’s decision their mattress, the men fired five shots from a was “contrary to, or involved an unreasonable single weapon, shooting Mrs. Ayers in the application of, clearly established Federal law,” head and Mr. Ayers in the shoulder. Mrs. or “resulted in a decision that was based on an Ayers died. Moore confessed to shooting Mr. unreasonable determination of the facts.” Ayers but claimed that one of the other three Riddle v. Cockrell, 288 F.3d 713, 716 (5th fired the shot that killed Mrs. Ayers. Cir.) (quoting 28 U.S.C. § 2254(d)(1)-(2)), cert. denied, 123 S. Ct. 420 (2002). The Texas Court of Criminal Appeals af- firmed, Moore v. State, 882 S.W.2d 844 (Tex. A state court decision is contrary to estab- Crim. App. 1994), cert. denied, 513 U.S. 1114 lished federal law if the state court “applies a (1995), and denied Moore’s state application rule that contradicts the governing law set for post-conviction relief, Ex parte Moore, forth in [the Court’s] cases,” or confronts facts No. 38,670-01 (Tex. Crim. App. 1998). Dur- that are “materially indistinguishable” from rel- ing state post-conviction proceedings, several evant Supreme Court precedent, yet reaches of Moore’s claims were found procedurally an opposite result. Williams v. Taylor, 529 barred because they had not been raised on di- U.S. 362, 405-06 (2000). Alternatively, a rect appeal, as required by Texas law. Moore state court “unreasonably applies” clearly es- then filed a federal habeas petition raising tablished federal law if it correctly identifies these same claims and two procedurally barred the governing precedent but unreasonably ap- claims under Penry v. Johnson (“Penry II”), plies it to the facts of a particular case. Id. at 532 U.S. 782 (2001). The district court de- 407-09. nied Moore’s petition for relief but granted a certificate of appealability (“COA”) with re- III. gard to eleven of the claims.1 Six of the claims are barred from federal review because Moore did not raise them dur- II. ing his state direct appeal or post-conviction We review the district court’s findings of proceedings. In stating five of the claims, fact for clear error and its conclusions of law Moore argues that he was denied the effective de novo. Martinez v. Johnson, 255 F.3d 229, assistance of counsel at various points during 237 (5th Cir. 2001), cert. denied, 534 U.S. his trial. Specifically, he avers that the follow- 1163 (2002). The Anti-Terrorism and Effec- ing actions by his attorney amounted to in- tive Death Penalty Act of 1996 (“AEDPA”) effective assistance: the failure (1) to discover limits the scope of federal habeas corpus re- or investigate evidence of Moore’s “bad acts”; view where the state provided a full and fair (2) to object to the trial court’s removal, for hearing on a petitioner’s claims. We may not cause, of prospective jurors Karen Eade and issue a writ for a defendant convicted under a Michael King; (3) to object to evidence that Moore had been diagnosed as a sociopath; (4) to object to evidence of conditions within 1 Moore unsuccessfully sought a COA from this the Texas prison system; and (5) to object to court to appeal a twelfth claim concerning whether an improper question asked by the state during he was constructively denied effective assistance of cross-examination regarding the percentage of counsel on direct appeal. Moore v. Cockrell, No. cases that the Court of Criminal Appeals over- 01-41489 (5th Cir. Mar. 22, 2002).

2 turns.2 In addition, Moore contends that there on review, the Court of Criminal Appeals ex- is a reasonable probability that the result of the plicitly adopted the trial court’s conclusions of punishment phase of his trial would have been law. Federal review is therefore barred.5 different if Officer Frank Svoboda had testified truthfully. Still, if a petitioner can show cause for a procedural default, and ensuing prejudice, his Procedural default exists where a state failure to raise a claim in state proceedings will court clearly and expressly bases its dismissal not bar federal habeas review. Murray v. on a state procedural rule that provides an in- Carrier, 477 U.S. 478, 485 (1986). A peti- dependent and adequate ground for the dis- tioner demonstrates cause for failing to raise a missal.3 Coleman v. Thompson, 501 U.S. 722, claim in state court if “some objective factor 731-32 (1991). Notably, Texas law precludes external to the defense impeded counsel’s ef- habeas relief for all record-based claims that forts to comply with the state’s procedural are not raised on direct appeal. E.g., Finley v. rule.” Id. at 488. Johnson, 243 F.3d 215, 219 (5th Cir. 2001); Rojas v. State, 981 S.W.2d 690, 691 (Tex. If, however, the “basis of the constitutional Crim. App. 1998). claim is available, and other defense counsel have perceived and litigated that claim,” a par- During post-conviction proceedings, the ticular petitioner’s lack of knowledge of the le- state trial court found, as a matter of law, that gal basis for the claim does not constitute the six claims were procedurally barred be- cause for the failure to raise the claim below. cause they were never raised on direct appeal;4 Engle v. Issac, 456 U.S. 107, 134 (1982). Moore does not suggest a reason, nor can we determine one from the record, why he would 2 have been impeded from bringing his ineffec- In addition, Moore argues that his appellate tive assistance of counsel claims, and the counsel’s failure to raise the improper cross-ex- amination question on direct appeal constituted in- perjured-testimony claim. effective assistance of counsel. Because Moore makes no argument in support of this claim, how- IV. ever, we consider it waived. See FED. R. APP. P. Moore claims that had his trial counsel ob- 28(a)(9)(A); United States v. Thames, 214 F.3d jected to the state’s comments, during voir 608, 611 n.3 (5th Cir. 2000) (noting the rule). dire, concerning the possibility of parole, the 3 In his brief, Moore does not address the issue 4 of procedural default. Nor did he file a reply brief (...continued) in response to the government’s argument that the state court alternatively reaches the merits of a these six claims are procedurally defaulted. claim. Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Fisher v. Texas, 169 F.3d 295, 300 (5th 4 After declaring that the claims were procedur- Cir. 1999). ally defaulted, the state trial court discussed the 5 merits of the claims in the alternative. Neverthe- In the district court, the state argued that less, the claims are still procedurally defaulted. An Moore’s claims are procedurally barred. Cf. Fish- express state court procedural ruling is an inde- er, 169 F.3d at 300-301 (declining to apply pro- pendent and adequate bar to federal review, even if cedural bar where state did not raise procedural (continued...) default in district court).

3 result of the punishment phase of his trial not generally prejudicial where the jury later is would have been different. The district court instructed to disregard the subject matter of reviewed this claim de novo because of the the improper comments. Sawyer v. Butler, state court’s supposed failure to make specific 848 F.2d 582, 590-91 (5th Cir. 1988). Here, findings of fact or conclusions of law. Our the jury was correctly and timely instructed not review of the state court opinion and state to consider parole eligibility.7 Therefore, habeas petition reveals, however, that Moore assuming that the prosecutor’s comments were never raised this claim during state proceed- improper, we cannot say that there was a ings. Because the claim is therefore unex- reasonable probability that the outcome of the hausted, and Moore offers no reason why he punishment phase would have been different could not have raised it in state court, we need had defense counsel objected.8 not consider it. Nevertheless, because the state does not argue that the claim is unex- V. hausted, we address its merits. The district court denied Moore leave to amend his petition to add a Penry II claim, Moore claims that during voir dire, the finding that the claim was procedurally barred. state improperly referenced the possibility that Moore argues that the procedural default he might receive parole “somewhere far down should be excused because his trial and state the road.”6 To prevail on an ineffective assis- post-conviction counsels’ failure to raise a tance of counsel claim, Moore bears the bur- Penry II claim constituted ineffective assis- den of establishing a reaso nable probability tance of counsel, or in the alternative, that the that had counsel objected to the comment, the issue was novel. We reject both arguments. result in the punishment phase would have been different. Strickland v. Washington, 466 A. U.S. 668, 694 (1984). In Penry v. Lynaugh (“Penry I”), 492 U.S. 302 (1989), the Court held that jury instruc- Importantly, the failure to object to a prose- tions used by Texas courts in capital sentenc- cutor’s improper comments during voir dire is ing proceedings were unconstitutional in cases in which the defendant introduced evidence of mental retardation and childhood abuse. To 6 The prosecutor stated the following to Frances comply with Penry I, Texas courts amended Myrene Locust Corley, who was seated as the sixth their instructions in capital cases by providing juror: an additional instruction regarding the effect of mitigating evidence, although the new instruc- In this case, you obviously know there were only two punishments available, you either get the death penalty or you receive life imprisonment. That would probably indi- 7 Generally it is presumed that juries will follow cate to you that rehabilitation in that scheme instructions. Zafiro v. United States, 506 U.S. may not be that big of an issue, because life 534, 540 (1993). in prison is there and although, SS 8 possibility of parole may exist somewhere Because Moore’s other ineffective assistance far down the road, that is really not of counsel claims are procedurally barred, we need probably something that is going to be of not address his claim that the cumulative effects of primary concern. defense counsel’s errors violated due process.

4 tion did not provide jurors with plain guidance viction excuses his failure to raise the issue in on how to apply such evidence. In Penry v. state court. It is true that “where a constitu- Johnson (“Penry II”), 532 U.S. 782 (2001), tional claim is so novel that its legal basis is the Court held that Texas jury instructions not reasonably available to counsel, a defen- were still unconstitutional where a defendant dant has cause for his failure to raise the claim introduced evidence of mental retardation and in accordance with applicable state proce- childhood abuse. dures.” Ross, 468 U.S. at 16. As we have noted, however, Penry II claims had already At trial in 1991, Moore introduced evi- been brought and rejected during the pendency dence of mental retardation and childhood of Moore’s state post-conviction proceedings. abuse. He was sentenced under the instruction E.g., Fuller, 829 S.W.2d at 209. With the used by Texas courts in the wake of Penry I. constitutional question already tried and test- Because Moore never argued in state court ed, it cannot be that counsel “had no reason- that the instruction was unconstitutional, the able basis upon which to formulate a constitu- claim is unexhausted. As we have said, unex- tional question.” Selvage v. Collins, 975 F.2d hausted claims cannot be brought in a federal 131, 134 (5th Cir. 1992) (quoting Ross, 468 habeas petition unless the petitioner can show U.S. at 14-15). cause for not raising the issue in state court, or a miscarriage of justice if the claims were not Instead, Moore argues that the “hostility” considered. Coleman, 501 U.S. at 735. of Texas courts to Penry II-type claims ren- dered these claims novel during his state post- B. conviction proceedings. In Engle, 456 U.S. at Moore argues that his procedural default 130, however, the Court held that a defendant should be excused because of ineffective as- who “perceives a constitutional claim and sistance of counsel. To succeed on this claim, believes it may find favor in the federal courts, he first must demonstrate that his counsel’s . . . may not bypass the state courts simply actions fell below an objective standard of rea- because he thinks they will be unsympathetic sonableness. Washington, 466 U.S. at 690. to the claim.” In other words, federal courts During the pendency of Moore’s post-trial will not designate claims as novel merely be- proceedings, the Court of Criminal Appeals al- cause state courts have rejected them;9 a pe- ready had rejected Penry II-type claims. E.g., titioner who recognizes the constitutional basis San Miguel v. State, 864 S.W.2d 493, 495 for a claim must first bring the claim in state (Tex. Crim. App. 1993); Fuller v. State, 829 court. In light of Engle, the Court of Criminal S.W.2d 191, 209 (Tex. Crim. App. 1992). Therefore, we agree with the district court that it was not objectively unreasonable for 9 Before Penry II, we held that “the unsuccess- Moore’s counsel to forgo bringing a Penry II ful advancement of ‘Penry’ claims by defense claim where precedent dimmed the possibility counsel as early as 1980 demonstrates that such of victory. claims were reasonably available at that time.” Selvage v. Collins, 975 F.2d 131, 133 (5th Cir. C. 1992). In several cases, we declined to find cause In the alternative, Moore contends that the under Ross even where a habeas action was ini- novelty of a Penry II claim following his con- tiated before Penry I. E.g., id.; Cuevas v. Collins, 932 F.2d 1078, 1081-82 (5th Cir. 1991).

5 Appeals’ rejection of Penry II-type claims did not render this claim novel in any sense of the word.10

AFFIRMED.

10 Because Moore was not granted a COA as to whether Dr. Walter Quijano impermissibly used race as a factor in assessing Moore’s future dan- gerousness, we decline to address this issue. See United States v. Kimler, 150 F.3d 429, 430-31 & n.1 (5th Cir. 1998).