IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-60470

 

GARY MOAWAD

Petitioner-Appellant,

versus

JAMES V ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY;

MICHAEL MOORE, Attorney General of the State of Mississippi

Respondents-Appellees.

 

Appeal from the United States District Court

For the Northern District of Mississippi

 

June 15, 1998

Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Moawad petitions us for habeas relief from his state

convictions for murder and aggravated assault. Moawad’s primary

claim is that he was denied effective assistance of counsel at

trial and on appeal. His focus is a failure to object to a jury

instruction regarding presumed malice deemed improper under

Mississippi law. We affirm the district court’s denial of relief.

I

Moawad and Kathleen married in 1965. In 1975, Kathleen filed

for divorce. On November 13, 1975, Moawad and his youngest son,

Paul, one of their three children, went to the Tubbs’s family home

in Sardis, Mississippi to announce that he and Kathleen were
2

reunited. They found at home Kathleen’s father, mother, and

brother. Moawad visited with the Tubbs family in the living room

for approximately forty minutes and all seemed well.

According to the state’s evidence at trial, Moawad and Paul

went into the backyard. E.O. Tubbs, Kathleen’s father, moved from

the living room to the kitchen. After Moawad entered the kitchen

from the yard, Willodean, Kathleen’s mother, and Michael,

Kathleen’s brother, heard a single shot in the kitchen. Moawad

then went into the living room where he shot Willodean with a .32

caliber pistol. Moawad and Michael struggled for the gun. Moawad

struck Michael in the face causing lacerations, but Michael escaped

and ran to a neighbor’s house. Moawad grabbed Paul, left the

house, and drove to North Mississippi Legal Services in Oxford to

speak with an attorney. Michael returned to his house to find his

father dead in the kitchen from a single gunshot to the head and

his mother gravely wounded. See Moawad v. State, 531 So. 2d 632,

633-34 (Miss. 1988).

Moawad’s half-brother testified at trial that Moawad on the

day of the shooting told him that there was no hope for his

marriage; that he saw Moawad’s pistol in a baby diaper; and that

Moawad told him in a telephone call that he had gone to the Tubbs’s

house, broke E.O.’s arm, took his pistol, and killed him. After

the phone call, the step-brother searched the house he shared with

Moawad for Moawad’s .32 caliber gun and could not find it. See id.

at 633.
3

At trial, Moawad testified on his own behalf that he and E.O.

had an argument during which he was attacked by E.O. and Michael.

The gun fired several times during the struggle, killing E.O. and

injuring Willodean. Moawad stated that he struck Michael with an

ashtray during the incident. See id. at 634.

Moawad was charged with murder and two counts of aggravated

assault. Without objection, the jury was instructed on the murder

count as follows:

Instruction S-5

The Court instructs the Jury that malice

aforethought mentioned in the indictment may be presumed

from the unlawful and deliberate use of a deadly weapon.

Id. at 635. The trial judge excused the alternate jurors and the

jury entered deliberations at four o’clock. At approximately ten

o’clock that night, the jury returned a verdict convicting Moawad

on each count. The trial court sentenced him to life on the murder

charge and to twenty and five years, for the aggravated assaults of

Willodean and Michael, respectively, with the sentences to run

consecutively.

Eleven days after the trial judge adjourned the term of court,

Moawad’s trial counsel filed a motion for new trial on the grounds

that the trial court erred by recalling an alternate juror who had

been excused, not swearing in the alternate juror, and skipping the

first alternate juror on the replacement list and selecting the

second alternate. The trial court denied this motion as untimely.

Moawad’s trial counsel failed to file an appeal, an act resulting

in counsel receiving a two-year suspension from practicing law in
4

Mississippi. See Myers v. Mississippi State Bar, 480 So. 2d 1080

(Miss. 1985), cert. denied, 479 U.S. 813 (1986).

On February 26, 1986, the Mississippi Supreme Court granted

Moawad an out-of-time appeal. The Mississippi Supreme Court

affirmed Moawad’s conviction finding the challenge to jury

instruction S-5 to be procedurally barred because Moawad did not

object to it at trial. The court rejected for lack of evidence

Moawad’s contention that an alternate juror had replaced a regular

juror in the deliberations. Moawad, 531 So. 2d at 634-35. Two

justices specially concurred observing that under Mississippi law

jury instruction S-5 is not favored and should not be used where

the facts have been set forth, even on conflicting testimony,

because the question of malice should be left for the consideration

of the jury. See id. at 636 (Lee, J., specially concurring). The

concurring opinion noted that this instruction should only rarely

be given due to the difficulty the bench and bar have in discerning

when the circumstances surrounding a killing have been disclosed.

See id.

Moawad filed for postconviction relief with the Mississippi

Supreme Court and was allowed to proceed on his ineffective

assistance of counsel claims. The state circuit court denied his

petition. Moawad then filed a § 2254 petition which the district

court denied. Moawad timely filed a notice of appeal. The

district court granted his request for a COA; that it did not

specify the issues to be appealed is of no moment because Moawad

filed his § 2254 petition prior to the effective date of the AEDPA.
 

1Though we treat Moawad’s COA as a CPC, we will only review

those issues presented in his appellate brief. See United States

v. Pierce, 959 F.2d 1297, 1300 n.5 (5th Cir.), cert. denied, 506

U.S. 1007 (1992). Before us, Moawad only asserts claims of

ineffective assistance of counsel and thus waives all other

arguments he tendered below. See id.

5

We treat Moawad’s COA as a CPC, which raises on appeal all of the

issues presented below.1 See Green v. Johnson, 116 F.3d 1115,

1119-20 (5th Cir. 1997) (applying pre-AEDPA law to § 2254 petition

filed before April 24, 1996); Sherman v. Scott, 62 F.3d 136, 139

(5th Cir. 1995) (CPC gives circuit court jurisdiction over the

entire judgment entered by the district court), cert. denied, 516

U.S. 1180 (1996). We have jurisdiction under 28 U.S.C. § 1291.

II

To succeed on an ineffective assistance claim against either

his trial or appellate counsel, Moawad must satisfy both prongs of

the Strickland test. See Ellis v. Lynaugh, 873 F.2d 830, 839 (5th

Cir.), cert. denied, 493 U.S. 970 (1989). First, the defendant

must demonstrate that counsel’s performance was deficient. This

task requires a “showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the

defendant by the Sixth Amendment.” Strickland v. Washington, 466

U.S. 668, 687 (1984). Moawad must establish that counsel’s acts

“fell beneath an objective standard of reasonable professional

assistance.” Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993)

(citations omitted). This court gives “‘great deference to

counsel’s assistance, strongly presuming that counsel has exercised

reasonable professional judgment.’” Id. (quoting Ricalday v.
6

Procunier, 736 F.2d 203, 206 (5th Cir. 1984)). “Second, the

defendant must show that the deficient performance prejudiced the

defense.” Strickland, 466 U.S. at 687. “[Moawad] must demonstrate

‘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.’” Gray, 6 F.3d at 269 (quoting

Strickland, 466 U.S. at 694). “[B]oth components of this inquiry

are mixed questions of law and fact; accordingly, [this court]

generally ‘must make an independent determination of whether

counsel’s representation passed constitutional muster.’” Id. at

268 (quoting Ricalday, 736 F.2d at 206).

A

Moawad asserts that his trial counsel was ineffective in

failing to object to jury instruction S-5, long condemned by the

Mississippi Supreme Court as relieving the prosecution of the

burden of proving malice aforethought on the part of the defendant.

See Tran v. State, 681 So. 2d 514, 517 (Miss. 1996); Stewart v.

State, 226 So. 2d 911, 912 (Miss. 1969). Moawad urges that the

instruction violated his Due Process rights under the Fourteenth

Amendment. See In re Winship, 397 U.S. 358, 364 (1969). Given the

disfavored status of the presumed malice instruction in Mississippi

jurisprudence, we agree with Moawad that counsel’s failure to

object to instruction S-5 was deficient performance under

Strickland. See Gray, 6 F.3d at 269 (holding that counsel’s
7

failure to challenge erroneous instruction under Louisiana law met

first prong of Strickland). We turn to Strickland’s second prong.

Moawad argues that but for the erroneous instruction the jury

would have convicted him of manslaughter instead of murder; that

the record does not support a finding of malice. According to

Moawad, if the jurors had not been instructed that they could

presume malice from his use of a deadly weapon, then there is a

reasonable probability that they would not have convicted him of

murder.

We disagree with Moawad’s contention. We have refused habeas

relief from a state conviction where “overwhelming” evidence of the

petitioner’s guilt was presented even though trial counsel failed

to object to a jury instruction warranting automatic reversal under

state law even without an objection. See Ricalday, 736 F.2d at

207-09; see also Lewis v. Procunier, 746 F.2d 1073 (5th Cir. 1984)

(following Ricalday), cert. denied, 471 U.S. 1022 (1985). In this

case, the jury was instructed on the elements of murder and on

manslaughter and explicitly told that “[i]f . . . the . . .

prosecution has failed to prove malice aforethought in presenting

its case against Moawad for murder, you must return a verdict of

not guilty . . . on the charge of murder.” There was substantial

evidence showing that Moawad acted maliciously. See Ricalday, 736

F.2d at 208-09. The jury did not accept Moawad’s version of the

facts. We cannot conclude that Moawad’s trial was rendered

fundamentally unfair by trial counsel’s failure to object to

instruction S-5. See Lockhart v. Fretwell, 506 U.S. 364, 842-43
 

2Moawad included, however, all three arguments in his

objections to the magistrate judge’s recommendation and report

forwarded to the district court.

8

(1993) (emphasizing that fundamental right to a fair trial is the

touchstone of Sixth Amendment right to counsel). There was then no

denial of Moawad’s constitutional right to counsel.

B

Moawad claims that his trial counsel was ineffective for

failing to object to three alleged incidents of jury tampering,

viz., (1) six members of the jury were not on the Special Venire

Facias; (2) people were going in and out of the jury room after the

jury retired to consider its verdict; and (3) the second alternate

juror on the substitute list replaced a juror several hours after

deliberations had started and the alternate jurors had been

excused.

Moawad did not assert argument (1) in the Mississippi

collateral relief proceedings.2 As a result, Moawad is

procedurally barred from raising this claim in a subsequent state

court proceeding for post-conviction relief. See Miss. Code Ann.

§ 99-39-23(6) (“The order . . . denying relief . . . shall be a bar

to a second or successive motion under this chapter.”); see also

Grubb v. State, 584 So. 2d 786, 788-89 (Miss. 1991) (applying § 99-

39-23(6) to bar a subsequent petition for collateral relief).

“Where a state prisoner has defaulted his federal claims in state

court pursuant to an independent and adequate state procedural

rule, this court may not review the prisoner’s habeas petition
9

unless he can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Stokes v. Anderson, 123 F.3d

858, 859 (5th Cir. 1997), cert. denied, 118 S. Ct. 1091 (1998).

Moawad gives no reasons for his failure to raise this Sixth

Amendment challenge in state court. Having shown no cause for his

default, Moawad is not entitled to relief on this ground.

Moawad seeks an evidentiary hearing on jury tampering charges

(2) and (3). According to Moawad, his counsel failed to object (a)

to outside influences tainting the jury during deliberations and

(b) to the trial court’s erroneously replacing a juror after

deliberations had begun and the alternate jurors were discharged;

recalling the second alternate juror instead of the first alternate

juror; denying him an opportunity to question the second alternate

juror for bias; and omitting to instruct the jury to begin its

deliberations anew upon seating the new juror. On direct appeal,

the Mississippi Supreme Court observed that “the record [did] not

reflect this alleged replacement of a regular juror by an

alternate.” Moawad, 531 So. 2d at 635.

We have scoured the record as well and have found no

indications of the jury’s being contaminated by outside influences

or of an alternate juror’s participating in deliberations. To

support his allegations, Moawad points to a post-judgment motion

for new trial filed by his trial attorney which asserts that the

trial court seated the alternate juror instead of the first
10

alternate juror and to his brief on direct appeal in which his

attorney claims to have spoken to the second alternate juror who

apparently confirmed that he participated in the jury deliberations

and voted for Moawad’s guilt. We note that the judgment of

conviction listed the second alternate juror as an alternate but

did not state that he participated in the deliberations.

Moawad is entitled to an evidentiary hearing to prove his

contentions only if we believe that he is entitled to relief if his

allegations prove true. See Ward v. Whitley, 21 F.3d 1355, 1367

(5th Cir. 1994), cert. denied, 513 U.S. 1192 (1995). To answer

that question, we must evaluate the merits of Moawad’s ineffective

assistance of counsel claims.

Mississippi courts have oft stated that “during a jury’s

deliberations outside influences must be eliminated if possible and

minimized if not. Otherwise the integrity of the verdict is in

question and a mistrial is appropriate.” Fuselier v. State, 468

So. 2d 45, 57 (1985). Moreover, under Mississippi law, it is

reversible error for a trial court to substitute an alternate juror

for a regular juror after the alternate jurors have been dismissed

and the jury has begun deliberations, especially where the

alternate jurors were not sequestered once discharged from service.

Folk v. State, 576 So. 2d 1243, 1251-52 (Miss. 1991); see Balfour

v. State, 598 So. 2d 731, 754 (Miss. 1992) (holding that trial

court erred in recalling discharged alternate juror after

deliberations started though trial judge instructed the jury anew);

see also Miss Code Ann. § 13-5-67 (Supp. 1997) (mandating that
11

alternate jurors “shall be discharged at the time the jury retires

to consider its verdict”). Though trial counsel’s failure to

object to these instances of jury tampering would constitute

deficient performance under Strickland, we do not grant Moawad an

evidentiary hearing on these fact issues because we do not think

that “counsel’s errors were so serious as to deprive [Moawad] a

fair trial, a trial whose result is reliable.” Strickland, 466

U.S. at 687. The evidence of Moawad’s guilt is overwhelming, see

Moawad, 531 So. 2d at 633-34; supra, and assures us that his

convictions would have obtained in a new trial with a fresh jury.

C

Moawad argues that his trial counsel was ineffective in

failing to investigate adequately his defense that the shooting of

E.O. Tubbs was either an accident or in self-defense. In

particular, Moawad contends that his trial counsel should have

determined whether Tubbs had powder burns on his hands because the

presence of powder burns would have corroborated his testimony that

Tubbs pointed a gun at him and that the gun fired several times

while he and Tubbs struggled for control of it. Moawad claims that

his counsel abdicated his “duty to make reasonable investigations

or to make a reasonable decision that makes particular

investigations unnecessary.” Strickland, 466 U.S. at 691.

In assessing counsel’s performance, we must presume that

counsel’s action fell within the “wide range of reasonable

professional assistance” and that “the challenged action ‘might be
12

considered sound trial strategy.’” Id. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)). “A defendant who alleges a

failure to investigate on the part of his counsel must allege with

specificity what the investigation would have revealed and how it

would have altered the outcome of the trial.” United States v.

Green, 882 F.2d 999, 1003 (5th Cir. 1989). Moawad merely asserts

that there might have been powder burns on Tubbs’s hands; he does

not point to any evidence in the record supporting this allegation.

In addition, Moawad’s counsel may have made the reasonable decision

of not investigating Tubbs’s hands for powder burns because the

absence of burns would have discredited Moawad’s testimony. Given

the lack of factual support in the record to support Moawad’s claim

of powder burns and the strategic rationale justifying his

counsel’s decision, we conclude that Moawad’s counsel was not

derelict in his duty to investigate and was not ineffective under

Strickland.

D

Moawad contends that his appellate counsel was ineffective

because he did not raise the issue of ineffective assistance of

counsel with respect to his trial attorney’s failure to object to

the presumed malice jury instruction. “Because the error at the

appellate stage stemmed from the error at trial, if there was no

prejudice from the trial error, there was also no prejudice from

the appellate error.” Ricalday, 736 F.2d at 208. Since Moawad did

not pass the Strickland test with respect to his trial counsel’s
13

performance in objecting to the jury instructions, his complaint

against his appellate counsel warrants no relief.

III

We AFFIRM the district court’s judgment denying Moawad’s §

2254 petition for relief.