UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-10645

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JOHN GLENN MOODY,

Petitioner-Appellant,

versus

GARY JOHNSON,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

_________________________________________________________________

Appeal From the United States District Court

for the Northern District of Texas

_________________________________________________________________

April 16, 1998

Before DAVIS, JONES, and DUHÉ, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Petitioner John Glenn Moody appeals from the judgment of

the district court denying his request for habeas relief. Moody’s

issues center around claims that he was incompetent to stand trial

and that the state’s expert witnesses on future dangerousness, Dr.

Grigson and Dr. Griffith, testified falsely. We affirm.2 FACTUAL BACKGROUND

Moody was convicted of killing Maureen Maulden, a 77-

year-old widow for whom Moody occasionally did yard work. Mrs.

Maulden’s body was discovered in her home in Abilene, Texas by her

sister on July 4, 1988; she was nude with a telephone cord wrapped

tightly around her neck. Her dentures were loose and later tests

detected the presence of spermatozoa in her mouth, indicating that

she had been oral ly sodomized. Her home had been ransacked, and

her purse as well as two rings which she normally wore were

missing.

The day after Mrs. Maulden’s body was discovered, Moody

was arrested by local authorities on an unrelated charge of public

intoxication. At the time of his arrest, he had in his possession

the two rings missing from Mrs. Maulden. Testimony at Moody’s

trial indicated that a bloody fingerprint found on Mrs. Maulden’s

telephone belonged to Moody and that Mrs. Maulden’s neighbors had

seen a vehicle resembling Moody’s wife’s car driving slowly through

the neighborhood and parked in Mrs. Maulden’s driveway on the day

of the murder.

On February 28, 1989, a jury convicted Moody of capital

murder and sentenced him to death. His conviction and sentence

were affirmed by the Texas Court of Criminal Appeals. S ee Moody v.

State, 827 S.W.2d 875 (Tex. Crim. App.), cert. denied, 506 U.S. 839

(1992). In April of 1993, Moody, while represented by counsel,

filed a state application for writ of habeas corpus, in which he1 After Moody filed his application for a CPC, the AntiTerrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub.

L. No. 104-132, 110 Stat. 1214 (1996), changed the jurisdictional

requirements for obtaining a CPC and now requires an applicant to

obtain a COA. S ee 28 U.S.C. 2253(c)(2) , as amended (“A

certificate of appealability may issue

. . . only if the applicant

has made a substantial showing of the denial of a constitutional

right.”). However, because Moody’s federal habeas action was

initiated on March 3, 1994, before the effective date of AEDPA, the

pre-AEDPA habeas standards apply to his appeal. S ee Lindh v.

Murphy, 521 U.S.

___, ___, 117 S. Ct. 2056, 2063 (1997). The

district court granted a CPC, so the case is before us on direct

appeal.

3 raised fourteen claims. The state court denied him relief on

September 27, 1993. In December of 1993, Moody again petitioned

for state habeas relief, raising six additional claims. He was

again denied relief.

On March 3, 1994, Moody filed a petition for writ of

habeas corpus below, raising 23 grounds for relief. The magistrate

judge conducted a five-day evidentiary hearing on Moody’s request

for federal habeas relief, after which he recommended denial on all

grounds. The district court adopted the recommendation of the

magistrate judge and denied Moody’s claims. After Moody timely

filed a notice of appeal and applied for a certificate of probable

cause (“CPC”) with the district court, the district court granted

both a certificate of appealability (“COA”) and CPC. 1

DISCUSSION

In an appeal from a request for habeas relief, we review

a district court’s findings of fact for clear error and issues of

law de novo. See Barnard v. Collins, 958 F.2d 634, 636 (5th Cir.

1992), cert. denied, 506 U.S. 1057 (1993).4 A. C OMPETENCY T O S TAND T RIAL

Moody first complains that at his state court trial his

right to due process of law was violated because he was tried while

incompetent. “It is well settled that due process prohibits

prosecution of a defendant who is not competent to stand trial.”

Washington v. Johnson, 90 F.3d 945, 949-50 (5th Cir. 1996) (citing

Cooper v. Oklahoma,

___ U.S.

___, ___, 116 S. Ct. 1373, 1377

(1996)), cert. denied, ___ U.S. ___, 117 S. Ct. 1259 (1997).

The constitutional standard for competency to stand trial

is whether the defendant “has sufficient present ability

to consult with his lawyer with a reaso nable degree of

rational understanding -- and whether he has a rational

as well as a f actual understanding of the proceedings

against him.”

Carter v. Johnson, 131 F.3d 452, 459 (5th Cir. 1997)(quoting Dusky

v. United States, 362 U.S. 402, 402 (1960)); see Washington, 90

F.3d at 950. Before the federal district court has a duty to

investigate a habeas petitioner’s claim of incompetency , the

petitioner must show that there are sufficient facts to

“‘positively, unequivocally and clearly generate a real,

substantial and legitimate doubt as to the mental capacity of the

petitioner to meaningfully participate and cooperate with counsel

during trial.’” W ashington

, 90 F.3d at 950 (quoting Bruce v.

Estelle, 536 F.2d 1051, 1058-59 (5th Cir. 1976)). Once the

petitioner has presented enough probative evidence to raise a

substantial doubt as to his competency at the time of trial, he5

must then prove that incompetency by a preponderance of the

evidence. See id. (citing Bruce, 536 F.2d at 1059).

In Moody’s case, whether the magistrate judge determined

that Moody had presented enough probative evidenc e to raise a

substantial doubt as to his competency at the time of his trial is

unclear. In any event, the court held an evidentiary hearing which

lasted for five days. At the conclusion of that hearing, the court

ruled, first, that Moody had shown no basis to overcome the

p resumption of correctness afforded state court findings and,

second, that even if he considered the evidence from the

evidentiary hearing, Moody did not prove that he was incompetent at

the time of his trial.

Moody complains t hat the court erred in according the

presumption of correctness to the state c ourt determination of

competence because (a) competency is a mixed question of law and

fact that must be reviewed de novo by federal habeas courts and (b)

the presumption cannot apply where the state courts plainly failed

to adjudicate Moody’s claim. Additionally, he asserts, the court’s

alternative denial of relief on the merits wa s wrong. Each of

these arguments is seriously flawed.

No caselaw in the Supreme Court or in this circuit

requires a federal habeas court to review de novo the state court’s

determination of competency to stand trial. See Carter, 131 F.3d

at 460 (habeas petitioner is entitled to federal evidentiary

hearing only by offering clear and convincing evidence of a6

threshold doubt of competency). In this case, the magistrate

judge, barraged with evidence that was not fully and timely

presented to the state courts , elected to conduct an evidentiary

hearing. He was not inevitably required to do so, however, and he

was not bound, after having conducted the hearing, to deny the

presumption of correctness. See id.

Second, it is bold indeed for Moody to assert that there

should be no presumption of correctness because the state court

never adjudicated competency. Any lack of adjudication was largely

his fault. He raised competency in his second habeas petition,

describing in general terms his experience of parental neglect and

abuse, his chronic addiction to mind-altering substances, a family

his tory of brain aneurysms, and the conclusions of unspecified

mental health experts, then-recently retained, that he suffers from

mental illness, paranoid delusions, and brain damage. These

experts concluded, according to the generalized allegations of the

petition, that Moody was unable rationally to consult with trial

counsel.

The state’s response to this state petition cited Bruce

v. Estelle, supra

, for the proposition that a petitioner who after

the fact claims incompetency to stand trial has a heavy burden of

proof and then noted:

Moody merely states conclusions that he may have had

genetically transmitted brain aneurysms and mental

illness, that a CAT SCAN in 1984 detected a likely brain

aneurysm. He does not present any evidence that he was

suffering from brain damage that rendered him incompetent

at the time of trial. Mr. Moody points to post-2 In view of the state court determination that Moody presented

insufficient evidence of incompetency to stand trial, the federal

hab eas court probably was not required to conduct an evidentiary

hearing. S ee Keeney v. Tamayo-Reyes

, 504 U.S. 1, 112 S. Ct. 1715,

1721 (1992) (petitioner is entitled to a fe deral evidentiary

hearing only if he can sh ow cause for his failure to develop the

f acts in state court proceedings and actual prejudice resul ting

from that failure, or to avert a fundamental miscarriage of

justice).

7 conviction evaluations in asserting that he suffers brain

damage and mental illness. Furthermore, Moody does not

offer any evidence in the form of affidavits or test

results, he merely promises to present some unspecified

expert testimon y at a hearing to support a showing of

actual incompetence at the time of trial. Because Moody

has not met his burden, relief should be denied.

(citations to Moody’s pleadings omitted.)

The state habeas court and Texas Court of Criminal Appeals adopted

the state’s response and denied relief on the record before them.

Although Moody does not admit it, this is a finding that he did not

carry his burden of proof of incomp etency at trial. A state

court’s finding against a habeas petitioner is not deprived of the

presumption of correctness simply because the petitioner disagrees

with the state court’s finding. 2

But even if we accepted Moody’s contention that the

presumption of correctness does not apply, we would sti ll affirm

the district court’s denial of relief on the merits. We review a

district court’s decision regarding the competency of a petitioner

to stand trial, when a hearing has been conducted in federal court,

as a mixed question of law and fact:

Whether a [p]etitioner suffers from a mental disorder or incapacitating mental i l lness is a question of fact

reviewed under the clearly erroneous standard. However,8

we take a ‘hard look’ at the ultimate competency finding.

Washington, 90 F.3d at 951 (citations omitted).

A revie w of the testimony presented at the evidentiary

hearing

-- including evidence from Moody’s own expert witnesses

--

indicates that at the time of Moody’s trial, he had sufficient

prese nt ability to consult with his counsel with a reasonable

degree of rational understanding and that Moody had a rational as

well as a factual understanding of the proceedings against him. It

is unnecessary to analyze all the evidence presented at the federal

hearing. Moody relied on various experts who based their opinions

of his incompetence on intelligence and personality tests,

neuropsychological and neuropharmacological evaluations, reports of

lay witness interviews, and neuroradiological tests. Based on

these various methods, the experts concluded that because of one or

m ore experiences, such as multiple head injuries and severe

substance addiction, Moody suffered brain damage that caused him to

be unable to consult properly with his attorney before trial. The

state’s evidence contradicted these witnesses in various

particulars and added powerful direct evidence of Moody’s condition

between the time of his apprehension for Mrs. Maulden’s murder and

the prosecution. Moody assisted defense counsel, gave appropriate

responses in several transcribed interviews, was inte rviewed on

television, and wrote letters to the jury, to counsel, and to his

wife. A psychologist called by the state found no evidence of

paranoia or similar problems from a review of Moody’s writings and9

words contemporaneous with the prosecution. Moody’s family gave

counsel no clue that mental illness might be present. Moody’s

attorney d enied that he ever doubted Moody’s competency. The

evidence was disputed; the magistrate judge’s finding for the state

was not erroneous. Moody has failed to prove otherwise by a

preponderance of the evidence.

B. E FFECTIVE A SSISTANCE OF T RIAL C OUNSEL

Moody next complains that he received ineffective

assistance of counsel at both the guilt/innocence phase and the

punishment phase of his trial because his counsel failed to

investigate Moody’s mental health. To assert a successful

ineffectiveness claim, Mood y is required to establish both (1)

constitutionally deficient perform a nce by his counsel and (2)

actual prejudice as a result of his counsel’s ineffectiveness. S ee

Carter, 131 F.3d at 463 (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). “Failure to prove either deficient performance

or actual prejudice is fatal to an ineffective assistance claim.”

Id

. In order to satisfy the first prong of the S trickland

analysis, Moody must prove that his counsel’s performance fell

below an objective standard of reasonableness. S ee id. Reviewing

courts must give counsel’s performance high deference. S ee id.

The determination whether counsel was constitutionally ineffective

is a mixed question of law and fact that this court reviews d e

novo. See id.10 This claim of ineffective ness is undermined by the

preceding discussion. Moody’s trial counsel could not have been

deficient in failing to discover his allege d incompetence where

there has been no satisfactory showing that Moody was incompetent.

Counsel made a reasonable investigati on and, finding no evidence

that su ggested the mental problems Moody now complains of,

reasonably decided not to request a mental evaluation. C f. id. at

464 (“‘There can be no deficiency in failing to request a

competency hearing where there is no evidence of inco mpetency.’”

(quoting McCoy v. Lynaugh, 894 F.2d 954, 964 (5th Cir. 1989)).

C. A LLEGED I MPROPER C ONTACT B ETWEEN B AILIFF AND J UROR

Moody next complains that his trial was “ta inted by an

improper and inherently prejudicial contact between a bailiff and

a juror during guilt-innocence deliberations” in violation of his

c onstitutional rights. This court reviews alleged improper

influence of the jury to determine whether the intrusion affected

the jury’s deliberations and thereby its verdict, while remaining

mindful that the Constitution does not mandate a new trial every

time that a juror is placed in a potentially compromising

situation. S ee United States v. Olano, 507 U.S. 725, 738-39 (1993)

(relying on Smith v. Phillips, 455 U.S. 209, 217 (1982)).

The facts underl ying this claim were described by the

Texas Court of Criminal Appeals as follows:

[A]fter th e jury was retired to deliberate at

guilt/innocence there was some conversation between one

of the jurors and the court bailiff. The record reflects

that after beginning deliberations, the jury submitted11

two written questions to the trial court wondering about

the meaning of “venue” in the context of the jury charge.

. . . After the trial court announced its intention to

submit [an] additional instruction, [Moody’s] attorneys

informed the court that it had come to their atte ntion

that it had been related to the jury that there had been

a mistake in the jury charge which was going to be

corrected and that an individual juror had been asked if

they had arrived at a verdict yet, and if not, they would

be taken to supper by 7:00 o’clock (sic).

The jury returned it verdict shortly after this conversation before

7:00 p.m. that evening. Moody asserts that the exchange between

the bailiff and one of the jurors violated his constitutional

rights because it had the effect of hastening the jury’s

deliberative process.

The determination of whether there was an y improper

conduct and its affect, if any, on juror impartiality are questions

of historical fact that “must be determined, in the first instance,

by state courts and deferred to, in the absence of ‘convincing

evidence’ to the contrary, by the federal courts.” Rushen v.

Spain, 464 U.S. 114, 120 (1983) (citing Marshall v. Lonberger, 459

U.S. 422, 433 (1983)). After conducting two hearings on this

issue, the state trial court determined that any conversation

between the bailiff and one of the jurors did not impact the jury’s

deliberations; the court therefore denied Moody’s motion for a new

trial. Likewise, when presented with this issue on direct appeal,

the Texas Court of Criminal Appeals was unable to discern any

injury to Moody caused by this contact between the bailiff and the

juror and held that the S tate had sufficiently discharged its12

burden of rebutting any presumption that Moody’s jury was

influenced by such contact. See Moody, 827 S.W.2d at 899-900.

There is more than adequate support in the record for the

factual conclusions reached by state courts. We defer to these

factual determinations and affirm the ruling of the district court

that no constitutional error occurred.

D. D R

. G RIGSON ’ S T ESTIMONY

Moody attacks the tes timony of Dr. James Grigson, an

expert who testified for the prosecution that Moody would be a

futur e danger. Moody asserts that at the time of trial, Dr.

Grigson was in possessio n of a report “that bore heavily on Dr.

Grigson’s claimed ability to accurately predict ‘future

dangerousness’ in capital cases” and that as a result, Dr. Grigson

presented materially false and misleading testimony at Moody’s

trial. Moody also asserts that the prosecution’s failure to

disclose the report as impeachment material violated Brady v.

Maryland , 373 U.S. 83 (1963).

It is well settled that the State is not permitted to

present false evidence or allow the presentation of false evidence

to go uncorrected. S ee Giglio v. United States, 405 U.S. 150, 153,

(1972) (citing Napue v. Illinois, 360 U.S. 264 (1959) and Mooney v.

Holohan, 294 U.S. 103 (1935)). However, if false evidence is

presented by the prosecution at trial, a new trial is warranted

only if the false testimony could have, in any reasonable

likelihood, affected the jury’s determ ination. S ee id. at 154.3 For purposes of this discussion we assume arguendo that the

posse ssion of the “report” on subsequent criminal acts by ten

convicts, at some of whose trials Dr. Grigson had testified, was subject to Brady although it was possessed not by the Taylor County

D.A.’s office, which prosecuted Moody, but by the Dallas County

D.A.’s office (which wrote the “report”) and by Dr. Grigson.

13 Similarly, under Brady

, the prosecution’s failure to d i sclose

information to the defense is a constitutional violation only if

the evidence was material to either guilt or punishment.

The district court con cluded that there was no showing that

either the prosecution or Dr. Grigson presented any false

testimony. After a thorough review of the proceedings, we agree.

Dr. Grigson’s failure to mention every report of which he was

aware, when he was never asked to do so, does not constitute false

testimony.

We also note that even if Dr. Grigson’s testimony might

have been misleading, there is not a reasonable likelihood that its

corre ction would have affected the jury’s verdict. 3 Prior to Dr.

Grigson’s testimony at the punishment phase, Moody had been

convicted of the brutal rape and strangulation of a 77-year-old

woman. Additional evidence presented at the sentencing phase of

his trial included t he rape of his ten-year-old stepdaughter, a

lengthy criminal history, and evidence of repeated escape s from

incarceration. In the face of such compelling testimony, it is

unlik ely that the jury’s ultimate determination would have been

different.

E. D R

. C LAY G RIFFITH14 Moody’s final complaint concerns the testimony of

prosec ution witness Dr. Clay Griffith, a member of the American

Psychiatric Association (“APA”), who also testified at the

sentencing phase as to Moody’s potential for being dangerous in the

future. Moody claims that the prosecution permitted Dr. Griffith

to testif y falsely as to the APA’s position on the prediction of

future dangerousness in capital cases.

The district court found that Moody did not est ablish

that Dr. Griffith testified falsely and assuming, arguendo, that he

did testify falsely, the State did not know that the testimony was

false when presented. We have thoroughly reviewed the record and

again agree with the district court that no false testimony was

presented.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court denying habeas relief.