Moore v. Cockrell

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
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Eric Moore was sentenced to die for mur-
dering Helen Ayers. He appeals the denial of
habeas corpus relief. We affirm.
I.
In 1990, Moore and three other men
stopped at the rural home of Richard and
Helen Ayers. On a pretext of needing jumper
cables, the four men gained access to the
Ayers’ residence and robbed the couple at
gunpoint, then ushered them into the master
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 1 of 6 --

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

-- 2 of 6 --

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

-- 3 of 6 --

4
result of the punishment phase of his trial
would have been different. The district court
reviewed this claim de novo because of the
state court’s supposed failure to make specific
findings of fact or conclusions of law. Our
review of the state court opinion and state
habeas petition reveals, however, that Moore
never raised this claim during state proceed-
ings. Because the claim is therefore unex-
hausted, and Moore offers no reason why he
could not have raised it in state court, we need
not consider it. Nevertheless, because the
state does not argue that the claim is unex-
hausted, we address its merits.
Moore claims that during voir dire, the
state improperly referenced the possibility that
he might receive parole “somewhere far down
the road.”6 To prevail on an ineffective assis-
tance of counsel claim, Moore bears the bur-
den of establishing a reasonable probability
that had counsel objected to the comment, the
result in the punishment phase would have
been different. Strickland v. Washington, 466
U.S. 668, 694 (1984).
Importantly, the failure to object to a prose-
cutor’s improper comments during voir dire is
not generally prejudicial where the jury later is
instructed to disregard the subject matter of
the improper comments. Sawyer v. Butler,
848 F.2d 582, 590-91 (5th Cir. 1988). Here,
the jury was correctly and timely instructed not
to consider parole eligibility.7 Therefore,
assuming that the prosecutor’s comments were
improper, we cannot say that there was a
reasonable probability that the outcome of the
punishment phase would have been different
had defense counsel objected.8
V.
The district court denied Moore leave to
amend his petition to add a Penry II claim,
finding that the claim was procedurally barred.
Moore argues that the procedural default
should be excused because his trial and state
post-conviction counsels’ failure to raise a
Penry II claim constituted ineffective assis-
tance of counsel, or in the alternative, that the
issue was novel. We reject both arguments.
A.
In Penry v. Lynaugh (“Penry I”), 492 U.S.
302 (1989), the Court held that jury instruc-
tions used by Texas courts in capital sentenc-
ing proceedings were unconstitutional in cases
in which the defendant introduced evidence of
mental retardation and childhood abuse. To
comply with Penry I, Texas courts amended
their instructions in capital cases by providing
an additional instruction regarding the effect of
mitigating evidence, although the new instruc-
6 The prosecutor stated the following to Frances
Myrene Locust Corley, who was seated as the sixth
juror:
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-
cate to you that rehabilitation in that scheme
may not be that big of an issue, because life
in prison is there and although, SS
possibility of parole may exist somewhere
far down the road, that is really not
probably something that is going to be of
primary concern.
7 Generally it is presumed that juries will follow
instructions. Zafiro v. United States, 506 U.S.
534, 540 (1993).
8 Because Moore’s other ineffective assistance
of counsel claims are procedurally barred, we need
not address his claim that the cumulative effects of
defense counsel’s errors violated due process.

-- 4 of 6 --

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

-- 5 of 6 --

6
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).

-- 6 of 6 --