* Pursuant to 5 T H C IR

. R

. 47.5, t he court has determined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 7, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-21210

STEPHEN LINDSEY MOODY,

Petitioner

- Appel l ant,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent - Appellee.

Appeal from the United States District Court

for the Southern District of Texas, Houston

(H-00-CV-1450)

Before JONES, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge: *

Petitio ner-Appellant Stephen Moody (“Moody”) was convicted of capital murder and

sentenced to death for the 1991 murder of Joseph Hall (“Hall”). He now applies for a certificate of

appealability (“COA”) on four issues as part of a petition for habeas corpus relief under 28 U.S.C.2

§2254 based upon ineffective assistance of counsel. We deny Moody’s request for a certificate of

appealability on each contested issue.

FACTUAL SUMMARY AND PROCEDURAL HISTORY

The evidence adduced at trial established the following sequence of events. In late September

of 1991, Moody and his co-defendant, Calvin Doby (“Doby”) drove from Houston to Dayton, Texas

while accompanied by Melvin Ellis (“Ellis”) and Lloyd Larrieu (“Larrieu”). As the prosecution’s star

witness, Ellis testified that, while en route, Doby asked Larrieu from whom Larrieu was getting his

drugs, because Doby wanted to rob the individual. In response, Larrieu provided Doby with the

name and whereabouts of Hall. According to Ellis, Moody did not participate in the conversation.

On October 19, 1991, the day o f t he murder, Ellis, Doby, and Larrieu drove to Hall’s

residence where Larrieu pointed out Hall’s house and answered Doby’s questions regarding the

whereabouts of Hall’s drugs and money. Larrieu informed Doby that Hall lived with his girlfriend,

Rene McKeage (“McKeage”), kept his money in his pocket, and that Doby would know if Hall was

home by the Camaro in the driveway. Doby immediately contacted Moody by telephone and the two

of them met at Ellis’ residence an hour and half later. Moody and Doby then went to Hall’s residence

and murdered him with a shotgun blast to the chest. The Court of Criminal Appeals summarized the

facts of the murder as follows:

On the evening of [the murder], McKeage and Hall [were returning home from

dinner] when McKeage noticed two unknown men walking on the street away from

the front of the ir ho use...[Upon entering their residence,] Rene was sitting in the

bathroom when she heard Hall talking on the phone and then “somebody come rush

in the house.” She heard Hall yell out her name and then heard another man’s voice

screaming “Where is the money?” Rene stayed in the bathroom. She initially thought

that it was the police because of the drugs that were in the house. She heard Hall say,

“You’re not the cops. Let me see your badges.” Rene then heard some scuffling, and3

[Moody] walked into the bathroom and said, “stay there. Don’t move.” [Moody] was

pointing a sawed-off shotgun at Rene.

[Moody] left the bathroom and Rene heard him again ask Hall, “where is the money?”

Hall said the money was in his pocket, and he asked [Moody], “Please don’t shoot

me.”

[Moody] returned to the bathroom, an d he again said to Rene, “Stay there, don’t

move.” Rene said, “Okay , I won’t move,” and [Moody ] shut the bat hroom door.

Rene then jum

ped out of the bathroom window, jumped the fence in the backyard,

and ran to the next-door residence of Arthur Jesse Flores. During this time, she heard

a gunshot come from inside the house. When Rene entered Mr. Flores’ residence, she

said that someone had shot Hall, and she called 911. Ms. Juarez and Ms. Chavez also

heard the gunshot and a scream, and saw two men walk out of the residence and back

down the street.

Following the murder, Doby and Moody returned to Ellis’ residence forty-five minutes later

and admitted to him that they murdered Hall. Ellis testified that Doby confessed, “Man, we had some

trouble over there,...we had to kill him.” Moody then responded, “Man, you know I didn’t - that I

had to do it,” to which Doby replied, “Man don’t worry. Shit happens.” Ellis asked the appellant

if the man was dead, and the appellant said, “Yeah, I shot him right in the heart.” Ellis also testified

that upon the departure of Moody and Doby, he noticed the stock of a shotgun in the vehicle on the

passenger’s side where the appellant was sitting.

Moody was indicted on October 6, 1992 for capital murder under Texas Penal Code

§19.03(a) (7) (A). Following a jury trial, Moody was convicted and sentenced t o death in March

1993. In 1996, the Texas Court of Criminal Appeals upheld Moody’s conviction and sentence on

direct appeal. S ee Moo dy v. State , No. 71687 (Tex. Crim. App. 1996). Moody did not seek

certiorari review in the Supreme Court. In June 1997, Moody filed an application for a writ of habeas

corpus in state court. On August 19, 1999, the state habeas court entere d findings of fact and2 Under Batson v. Kentucky

, 476 U.S. 79 (1986), the State violates the equa l protecti on

clause when it challenges potential jurors solely on the basis of race.

4 conclusions of law denying him relief. T he Texas Court of Criminal Appeals affirmed his conviction

and sentence. See Ex Parte Stephen Lindsey Moody , No. 42832-01 (Tex. Crim. App. 1999).

On May 1, 2000, Moody filed his federal petition for a writ of habeas corpus in the district

court claiming that the State violated his equal protecti on rights by exercising a peremptory challenge

based on a prospective juror’s race and that his trial counsel rendered ineffective assistance of counsel

by failing to call Larrie u as a witness at trial and by failing to present mitigating evidence at the

punishment phase of his trial. On September 30, 2002, the district court rendered a final judgment

denying sua sponte a COA regarding Moody’s ineffective assistance of counsel clai ms and

provisionally granted Moody’s petition for a writ of habeas corpus with regards to his Batson claim. 2

On appeal, Moody seeks a COA from this court solely on his claim that his counsel rendered

ineffective assistance of counsel by failing to call Larrieu as a witness.

STANDARD OF REVIEW

Moody filed his federal habeas petition a ft er t he effective date of the Anti-Terrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). L indh v. Murphy

, 521 U.S. 320, 326-27 (1997);

Robertson v. Cockrell

, 325 F.3d 243, 247 (2003) ( stating that the AEDPA applies to all cases

pending as of April 24, 1996). Under AEDPA, Moody must obtain a COA before he may receive

full appellate review of the district court’s denial of his request for habeas relief. 28 U.S.C. § 2253

(c) (1) (A) (2000) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal

may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which

the detention complained of arises out of process issued by the State court.”).5

Under an application for a COA, an applicant must make a “substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). In seeking a COA, the applicant will not succeed

unless there is a showing of “something more than the absence of frivolity or the existence of mere

good faith.” M iller-El v. Cockrell

, 123 S. Ct. 1029, 1040 (2003); quoting, Barefoot v. Estelle

, 463

U.S. 880, 893 (1983). To prevail, the petitioner “must demonstrate that reasonable jurists would find

that the district court’s assessment of the constitutional claims debatable or wrong.” M iller-El

, 123

S. Ct. at 1040; quoting, Slack v. McDaniel

, 529 U.S. 473, 484 (2000). Indeed, the ultimate

determination turns on “the debatability of the underlying constitutional claim, not the resolution of

the debate.” Henry v. Cockrell , 327 F.3d 429, 431 (5th Cir. 2003).

Our review of whether Moody makes a substantial showing of a violation of a constitutional

right is also constrained by the applicable AEDPA standards of review. M oore v. Johnson

, 225 F.3d

495, 501 (5th Cir. 2000), cert. denied

, 532 U.S. 949 (2001). On questions of law, the state court’s

conclusions will be disturbed only upon a showing that they were “contrary to, or an unreasonable

application of, clearly established” Supreme Court precedent. 28 U.S.C. § 2254 (d) (1).

Furthermore, state court findings of fact are presumed correct unless the petitioner rebuts them by

clear and convincing evidence. Id . § 2254 (e) (1).

DISCUSSION

In order to show a deprivation of his Sixth Amendment right to effective assistance of

counsel, the Applicant must show: (1) that his counsel’s representation was deficient, and (2) actual

prejudice resulting from the deficient performance. S ee Kitchens v. Johnson

, 190 F.3d 698, 701 (5th

Cir. 1999). In evaluating whether counsel’s performance was deficient, we look to whether the

challenged representation fell below an objective sta ndard of professional norms. I d

. To prove6

prejudice, Moody

must show “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” I d

. at 703. As

articulated by the U.S. Supreme Court, the fundamental inquiry courts must follow in making their

det ermination in an ineffective assistance of counsel claim is whether counsel’s conduct so

undermined the proper functioning of the adversary process that the trial cannot be relied upon as

having produced a just result. Strickland v. Washington , 466 U.S. 668, 687 (1984).

A. Deficient Performance

Relying in part on Moody’s counsel’s affidavit, t he state habeas court found that the

performance rendered by Moody’s counsel was not deficient. The relevant portion of the affidavit

is as follows:

I was aware of Lloyd Larrieu and Melvin Ellis prior to trial and I was aware of Ellis’

intended testimony. During my many conversations with the defendant, he never told

me that Larrieu could or would give testimony to support the defendant’s claim that

he did not do the shooting. We tried to find Larrieu and were not able to find him

. However, I did not consider Larrieu’s testimony as critical, because, even if Larrieu

denied talking to Doby, it would not address the issue of the defendant’s and Doby’s

admissions to Ellis.

The statements Calvin Doby made to Lloyd Larrieu concerning the intended offense

did not inculpate the defendant. My concern was the statements which Doby and the

defendant made to Marvin Ellis outside of Larrieu’s presence. In other words, even

if Larrieu testified that he didn’t give Doby information about his drug dea ler; and,

that Larrieu did not drive past the vict im’s house with Ellis and Doby, it would have

had little, if any, impact on the entirety of Ellis’ prejudicial testimony concerning the

defendant’s and Doby’s admissions. As a matter of strategy, I wanted to impeach the

reliabilit y of all identification testimony and impeach Ellis’ admissions. Viewed

strategically, it is likely that a juror would vie w Larrieu as less credible than Ellis

becau s e Ellis presented plausible altruistic reasons for reporting a crime and, based

on Larrieu’s affidavit, Larrieu would just deny tal king t o Doby, driving to Dayton,

and driving past the vict im’s house and Larrieu would have t o admit that he knew

nothing about the shooting itself.

Moody v. State , slip op. at 1-3.7

The state habeas court found that Moody’s counsel “attempted to locate Larrieu” and “made

a reasonable, strategic decision to attempt to impeach Melvin Ellis with Ellis’ possible bias and motive

for testifying and to attack identification.” The district court accepted the state habeas court’s finding

that Moody’s counsel attempted to locate Larrieu. The district court highlighted the fact that Moody

attempted to locate Larrieu despite the fact that Moody did not t ell him t hat Larrieu would have

provided material testimony.

Moody argues that the state court’s finding that his counsel attempted to locate Larrieu

should not be given deference because it “was not reasonable for the court to infer that trial counsel’s

attem pts to locate Larrieu

- whatever they might have been

- fell within the wide range of responsible

professional performance.” The district court held that trial counsel’s unrebutted affidavit regarding

his efforts to locate Larri eu fo r t rial supported the state court’s rejection of Moody’s ineffective

assistance of counsel claim. “Counsel for a criminal defendant is not required to pursue every path

until it bears fruit or until all conceivable hope withers.” Lovett v. State of Florida

, 627 F.2d 706,

708 (5th Cir. 1980), see also

, Bryant v. Scott

, 28 F.3d 1411 (5 th Cir. 1994). Although the record fails

to show what actions trial counsel took to locate Larrieu, this void does not establish that the state

court determination was contrary to, or an unreasonable application of federal law. Even if Moody

had established deficient performance, his claim was destined for failure.

B. Prejudice

The state habeas court further held that Moody’s counsel’s failure to call Larrieu as a witness

did not p rejudice Moody’s defense. The district court also held that no prejudice resulted from

Moody’s counsel’s failure to call Larrieu as a witness.8

Moody argues that his counsel’s failure to call Larrieu prejudiced his defense because

Larrieu’s testimony would have rebutted Ellis’ testimony regarding the planning of the crime. Moody

p o int s to Larrieu’s affidavit in which Larrieu stated that: (1) he had never been acquainted with

Joseph Hall; (2) he never drove with Ellis, Doby, or Moody to Houston; (3) he never spoke wi th

Doby about Hall, either in or out of the presence of Moody or Ellis; and (4) he would have testified

as to those facts on Moody’s behalf had he been contacted by Moody’s counsel. Although Larrieu’s

testimony would have rebutted Ellis’ testimony regarding the planning of the crim e, Moody ’s

counsel’s failure to call Larrieu did not prejudice Moody’s defense. As the di stri ct court stated,

Larrieu’s affidavit “only calls into question the manner in which [] Do by and Moody chose their

vict im, it does not question their identity as the killers.” Moody’s counsel st ated that he was

concerned with the “incriminat ing statements made by Moody and Doby to Ellis outside of Larrieu’s

presence, not the statements made in Larrieu’s presence.”

Moody further argues that his counsel’s failure to call Larrieu prejudiced his defense because

Larrieu’s testimony would have undermined the jury’s confidence in the identification of him as the

killer and thus, the confidence in the outcom e of the proceedings against him. Moody contends that

Ellis’ and McKeage’s testimony was compromised. Specifically, Moody argues that Ellis was

psychotic, received immunit y, and was a former drug user. As for McKeage, Moody highlights the

fact that: (1) her identification of him as the killer was less than definite; (2) she was a drug abuser;

(3) she broke into the scene of the crime with her companions looking for drugs and money following

Hall’s murder; (4) and that she made out with one of her companions at the scene of the crime.

Our review of Larrieu’s affidavit and the state habeas court’s review of Larrieu’s testimony

at Doby’s trial reveals that Larrieu’s testimony would not have undermined the jury’s confidence of3 Moody asserts that the state habeas court denied him relief because Larrieu’s testimony at

Doby’s trial resulted in a guilty verdict. Although the state habeas court reviewed Larrieu’s testimony

from Doby’s trial, it did not base its prejudice finding on the fact that Doby was ultimately convicted.

4 The trial court found, during the punishment phase of the subsequent trial of the applicant’s

co-defendant Calvin Charles Doby, Lloyd Larrieu admitted during cross-examination that he used

names other than Lloyd Larrieu; that he was convicted of burglary of a building in 1958; that he

committed theft during the offense and was sentenced to eight years in prison; that he was convicted

of burglary of a building with the intent to commit theft in 1964 and sentenced to four years in prison;

that he was convicted of breaking into an auto in 1968 and sentenced to two years in prison; that he

was convicted of burglary of a habitation in 1976 and was sentenced to twenty years in prison; that

he was indicted as an habitual criminal in the 1976 offense which means an automatic possibility of

a life sentence; that he was convicted of possession of a controlled substance in 1984 and sentenced

to two years in prison; th a t he was convicted of unauthorized use of a m otor vehicle in 1988 and

sentenced to fifteen years in prison; that he was convicted of the federal offense of theft of U.S. mail

in 1991 and sentenced to eighteen months in fede ral priso n; and, that he violated his subsequent

parole and was incarcerated in federal prison at the time of his testimony. (CD. VII - 807-15).

9 Moody as the killer because Larrieu would not have testified as to the facts surrounding the murder

of Hall. 3 Moreo ver, Larrieu’s credibility would have been called into question because of his

extensive criminal history. 4 On this issue, the state habeas court rejected as speculative “[Moody’s]

assertion that Larrieu’s and Ellis’ background[s] were equally bad so it [is]likely that the jury would

have found Larr ieu just as credible as Ellis.” It should also be noted that Moody’s counsel

unsuccessfully attempted t o impeach the reliability of all of the identification testimony, including

Ellis’ and McKeage’s.

The state habeas court further found that Moody corroborated Ellis’ testimony. As Moody’s

counsel stated:

[D]uring t he testimony of Melvin Ellis, the defendant made an audible outburst in

front of the jury which it was obvious that the jury heard. When Ellis testified that

Charles Doby and the defendant left Ellis $100 of the stolen money after splitting the

money at Ellis’ house, the defendant told me that “he’s a lying son of a bitch, he got

$900.”10

To the district court this outburst “only validated the fact that Moody killed the vict im, robbed

the house, and brought the proceeds to Mr. Ellis’ house.”

Finally, the state habeas court noted that the identification of Moody as the shooter and the

elements of the primary offense were established by other evi dence, including the testimony of

Josephine G. Juarez, Eduardo Bellas, and Ray Klein. Moody contends that the state habeas court

incorrectly utilized the sufficiency of the evidence test in determining whether tria l co unsel’s

performance prejudiced him. Although Moody correctly asserts that the “sufficiency of the evidence”

standard is inapplicable in analyzing the existence of prejudice under Strickland

, his argument fails

because the state habeas court did not solely base its prejudice determination on the fact that other

witnesses identified him as Hall’s killer. S ee Johnson v. Scott

, 68 F.3d 106, 109-10 (5th Cir. 1995)

(holding that sufficiency of the evidence ana lysis in evaluating whether prejudice resulted from an

attorney’s actions does not comport with the Strickland prejudice standard).

Assuming arguendo that Moody’s assertion that the state habeas court utilized the incorrect

prejudice standard is correct, it is clear that a proper application of the prejudice standard to Moody’s

case still results in a finding that Moody was not prejudiced by his counsel’s failure to call Larrieu as

a witness. Moody’s counsel made a strategic decision to impeach Ellis’ testimony that ident ified

Moody as the shooter. In his view, Larrieu’s testimony would have only discredited Ellis’ testimony

regarding the planning of the crime, not Ellis’ testimony reg arding the actual shooting. Stated

differently, “[e]ven if Larrieu testified, it wo uld not have had any impact on the Ellis’ prejudicial

testimony concerning Moody’s and Doby’s admissions.” Thus, there is “no reasonable probability

t hat t he result of the proceedings would have been different” if Larrieu was called as a witness.

Kitchens , 190 F.3d at 703. As a result, Moody failed to show that “the district court’s assessment11

of his constitutional claim was debatable or wrong.” Accordingly, we deny Moody’s request for

COA on this issue.

CONCLUSION

As Moody’s counsel’s performance did not prejudice Moody’s defense, we deny his request

for a COA on his ineffective assistance of counsel claim.

DENIED.