IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-40313

JAMES WALTER MORELAND

Petitioner-Appellant

versus

WAYNE SCOTT, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Eastern District of Texas

May 10, 1999

Before KING, Chief Judge, and HIGGINBOTHAM and BARKSDALE, Circuit

Judges.

HIGGINBOTHAM, Circuit Judge:

James Walt er Moreland seeks review of the district court’s

denial of his application for fede ral habeas relief from his

judgment of conviction in 1983 of capital murder and sentence of

death by the State of Texas. We will not describe the crime here.

It is sufficient to explain that the two victims were each stabbed

numerous times in a small area of the upper portion of their backs.

The pattern of wounds and absence of resistance are consistent with

their being asleep when stabbed.1 (1) Refusal by district court to allocate funds for

psychological testing

(2) Refusal by district court to permit discovery of

exculpatory evidence

(3) Refusal by district court to permit amendment of habeas

application

(4) Prosecution’s use of peremptory challenges to exclude

venirepersons expressing qualms about the death penalty

(5) Constitutionality of intoxication instruction, effect on

jury’s consideration of mens rea element

(6) Constitutionality of intoxication instruction, effect on

jury’s consideration whether to impose death penalty

(7) Constitutionality of statutory bar to informing jury

about eligibility for parole

(8) Denial of effective assistance of trial counsel

(a) Failure to move for dismissal of indictment

(b) Rejection of favorable plea bargain

(c) Failure to present corroborating testimony of

2 Moreland’s f irst federal habeas petition was dismissed in

October 1995 for failure to exhaust state remedies. The state

denied on the merits his application for collateral relief on July

12, 1996, and the present federal suit followed. The district

court granted the state’s motion for summar y judgment on the

recommendation of the magistrate judge, refused leave to amend the

application, an d denied Moreland’s request for a certificate of

appealability. Moreland has applied to this court for a

c ertificate of appealability. Having filed his federal habeas

petition after November 14, 1996, the effective date of AEDPA, he

must obtain this certificate in order to appeal.

I

Moreland asks that we grant a certificate of appealability

upon eight issues. 1 We decline to issue a COA on any issue exceptfamily members to establish that defendant acted in

self-defense

(d) Failure to present mitigating evidence of long-term

alcoholism

3 Moreland’s contention that he did not have the effective assistance

of counsel in making his decision to reject a tendered plea

bargain. We have the benefit of briefing and oral argument of

counsel and proceed directly to the question supported by a COA.

II

Moreland contends that his attorneys rendered ineffective

assistance in rejecting a favorable plea bargain. Moreland

contended in his habeas application that the state had offered him

a 50-year maximum sentence in exchange for his guilty plea.

Because he believed that a trial-court ruling, denying Moreland’s

motion to suppress a custodial statement, would be reversed on

appeal, Moreland’s attorney, Billy Bandy, urged him to reject the

offe r. Mr. Bandy added that he would be running for district

attorney in the next election and would arrange for a more

favorable plea agreement after the conviction was reversed.

Moreland rejected the proposed plea bargain before trial.

Moreland contends that his attorney labored under a conflict

of interest because of his anticipated employment as the district

attorney. Under C uyler v. Sullivan

, 446 U.S. 335, 348 (1980),

prejudice is presumed if it is shown that an actua l conflict of2 During the pendency of Mor eland’s direct appeal, Bandy was

appointed to fill the unexp ired term of District Attorney Melvin

Whitaker, effective January 1, 1984. Bandy was elected in the

General Election on Novembe r 6, 1984, as District Attorney of

Henderson County, Texas. The state’s brief was filed in December

1985.

4 interest adversely affected counsel’s performance. Bandy was not

the district attorney at the time of the plea negotiations. 2 He

did not then represent adverse i nterests. At most, Bandy had a

conflict related to his own interest in be coming the district

attorney. We have limited Cuyler to cases involving multiple

representation. S ee Beets v. Scott

, 65 F.3d 1258, 1265-72 (5th

Cir. 1995) (en banc). Under B eets

, cases in which it is al leged

that the attorney’s representation wa s affected by his own selfinterest are evaluated under the more relaxed Strickland standard.

See id

. at 1271-72. Thus, Moreland must show that counsel’s errors

fell below an objective standard of reasonableness and prejudiced

his case. S ee Strickland v. Washington

, 466 U.S. 668, 694 (1984).

III

Moreland’s specification of ineffective assistance has two

distinct aspects; indeed he rolls two claims into one. First,

Moreland urges that Bandy was ineffective in that his plans to

become district attorney created a conflict of interest. Second,

Moreland argues that Bandy was ineffective in urging him to reject

the bargain based on Bandy’s judgment that an appellate court would

overturn any conviction resulting from a find ing of guilty.5

Bandy’s judgment proved to be wrong. Our question is whether that

judgment was beyond the range of competence demanded by the Sixth

Amendment. If it was not, that is the end of the matter. Whatever

role the prospect that Bandy would be the district attorney played

in Moreland’s decision to reject the ba rgain, the possibility of

Bandy’s official influence was never realized because Moreland’s

appeal was rejected. The risk Moreland took in declining the plea

bargain was the likelihood of appellate success, and he took it

believing couns el’s prediction about his chances on appeal would

prove to be accurate. Thus, our inquiry focuses on the soundness

of that advice.

1

Bandy had to evaluate the chances of persuading the appellate

c ourts that Moreland’s statements to the police should not have

been admitted. Moreland did not prevail, but he had a strong

argument. After holding the case for ten years, the Texas Court of

Criminal Appeals found, as pred icted, that Moreland’s arrest was

illegal u nder state law and that the admissibility of Moreland’s

confession turned on whether the taint from the arres t was

sufficiently attenuated. In answering this determinative question

the court applied a test with four factors: (1) whether Miranda

warnings were given; (2) the temporal proximity of the arrest and

confession; (3) the presence of intervening circumstances; and (4)

the purpose and flagrancy of the official misconduct. M oreland v.

State

, No. 69,223 (Tex. Crim. App. Jan. 13, 1993) (unpublished) at6

14. The court held that two of those four factors “weigh[ed]

heavily in appellant’s favor.” M oreland v. State

, slip op. at 14.

However, it then af firmed. Bandy’s alleged prediction, although

u ltimately incorrect, was not very far wrong. Before ultimately

holding against Moreland on his complai nt, the Court of Criminal

Appeals observed that in Bell v. State , 724 S.W.2d 780, 790 (Tex.

Crim. App. 1986), it had “concluded that the taint of an illegal

arrest was un attenuated with respect to appellant’s first

confession where, just as [in Moreland’s case], the first and

fourth

. . . factors militated in favor of the State and the second

and third factors ‘militate[d] heavily against admission of [the]

confession.’” Moreland v. State

, slip op. at 16. Thus, Moreland’s

appeal proved to be a close case, but not a winner. We conclude

that Bandy’s advice was not unreasonable, but in reaching this

judgment, we have assumed the truth of Moreland’s factual

assertions regarding his counsel’s advice. We turn now to that

assumption.

2

Magistrate Judge Robert W. Faulkner fou nd that Moreland’s

claims about Bandy’s advice were not credible, and we agree. In a

careful opinion, Judge Faulkner pointed out that the claims at

issue here regarding Bandy’s advice were not made until after

Bandy’s death and that the claims are silent about Skelton, Bandy’s

co-counsel. Indeed, after Moreland’s conviction in October 1983,

the extent of Moreland’s ineffective assistance allegation in his7

pro se motion was that counsel had “failed to inform him of the

benefits of accepting an agreed plea bargain.”

A review of the record reveals that Moreland’s initial basis

for his ineffective assistance claim was without merit. At the

outset of the trial Moreland was examined on the record outside the

jury’s presence by counsel and the presiding state trial judge

regarding Moreland’s understanding of the tendered plea bar gain.

The transcript records a detailed examination of Moreland’s

understanding, including the following exchange:

THE COURT: And the Board of Pardons and Paroles has

certain policies and procedures, and they chang e from

time to time?

DEFENDANT: Yes.

THE COURT: You understand that?

DEFENDANT: (Nods head up and down.)

THE COURT: What I’m telling you is, that nobody can tell

you for sure how long you will stay in prison if you take

the plea bargain; you may stay less.

DEFENDANT: Less than fifteen?

THE COURT: Then -- no, less than what Mr. Skelton said,

or more.

DEFENDANT: Okay. Yes, I understand that.

THE COURT: Knowing that, you still wish to turn down the

plea bargain?

DEFENDANT: Yes, sir.

IV8

Judging counsel’s performance without benefit of hindsight,

see Strickland

, 466 U.S. at 689, we cannot say that Bandy’s advice,

even strongly put, to decline the bargain was objectively

unreasonable. The purchase of Bandy’s plan to become the district

attorney with its prospect of a less hostile climate turned on the

outcome of Moreland’s appeal -- and did not affect those chances.

Nor did it add much persuasive force to Bandy’s advice to reject

the plea. If the appeal had succeeded, the original plea bargain

or better would have been available

-- whether or not Bandy was the

distric t attorney at the time. At least that is a reasonable

judgment. We reach this judgment even if we assume that Moreland’s

present factual assertions regarding the rejected plea bargain are

credible, and, as the trial judge below, we are not persuaded that

they are.

We decline to issue a COA on any remaining issues for

essentially the reasons stated by the courts below.

AFFIRMED.