Patrick Lane Moody v.  MARVIN POLK, Warden, Central Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 PATRICK LANE MOODY,
Petitioner-Appellant,
v. No. 04-21 
MARVIN POLK, Warden, Central
Prison, Raleigh, North Carolina,
Respondent-Appellee. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., District Judge.
(CA-01-250-1)
Argued: March 17, 2005
Decided: May 12, 2005
Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Wilkinson joined. Judge Traxler wrote a separate opin-
ion concurring in the judgment.
COUNSEL
ARGUED: Donald Joseph Willey, Jefferson, North Carolina, for
Appellant. Edwin William Welch, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Roy Cooper, North Carolina
Attorney General, Raleigh, North Carolina, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Appellant Patrick Lane Moody was convicted of capital murder
and sentenced to death by a North Carolina state court. In a state post-
conviction proceeding, Moody alleged, inter alia, that his trial coun-
sel rendered ineffective assistance at sentencing. The state court
denied relief to Moody, and the district court dismissed Moody’s sub-
sequent section 2254 petition. We granted a certificate of appeala-
bility to review Moody’s claim. Because we conclude that the state
court’s decision was neither contrary to nor an unreasonable applica-
tion of Strickland v. Washington, 466 U.S. 668 (1984), we affirm.
I.
Moody was indicted in January 1995 for the first degree murder of
Donnie Ray Robbins. J.A. 35. He initially entered a plea of not guilty.
On July 14, 1995, during the state’s presentation of evidence at his
trial, Moody changed his plea to guilty. The state’s evidence tended
to show the following:
In July 1994, defendant started having an affair with Wanda
Robbins (Wanda), the wife of the victim, Donnie Robbins.
Over the course of their affair, defendant and Wanda dis-
cussed various plans to murder Wanda’s husband and share
the insurance proceeds. On 16 September 1994, defendant
went to Loman’s Trailer Park in Thomasville, North Caro-
lina, to the home of Donnie and Wanda Robbins. Defendant
identified himself as Darryl Thompson and pretended to be
interested in buying Donnie’s old Chevrolet automobile. He
and Donnie went to a field near the trailer park where the
automobile was located. Defendant asked Donnie to mea-
sure the automobile, purportedly to determine whether it
would fit on a "roll-back" truck. As Donnie leaned over the
hood of the automobile to measure it, defendant shot him in
the back of the head with a .32 caliber semiautomatic pistol
he had stolen the previous day from a house near the trailer
park.
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State v. Moody, 481 S.E.2d 629, 631-32 (N.C. 1997).
During the sentencing hearing, the state presented evidence that
Wanda Robbins had sought to complete the paperwork necessary to
receive insurance benefits for her husband’s death early the morning
after the murder, supporting the inference that the murder was com-
mitted for pecuniary gain. Moody, 481 S.E.2d at 632. The state also
introduced evidence that Moody had been previously convicted in
Florida of attempted first-degree murder and conspiracy to commit
first-degree murder. Id.
In mitigation, Moody’s counsel presented testimony from Steve
Ervin, an ordained minister with a religious group called "His Labor-
ing Few Biker’s Ministry." Id. at 632. Ervin testified that Moody had
been involved with the group in the time preceding the murder, but
that his involvement diminished after he met Wanda. Id.
In addition, defendant’s mother and half-brother testified as to
Moody’s "traumatic and abusive childhood." Id. Carl Jacobs,
Moody’s half-brother, testified that Moody’s father abused Moody
when he was a young child, beating him with a board, breaking plates
over his head, and locking him in his room without meals for up to
eighteen hours. S.J.A. 462-65. Jacobs also testified that when Moody
was 17, he temporarily moved in with Jacobs to avoid the abuse.
S.J.A. 466. Janice Wandel Moody ("Janice"), Moody’s mother, testi-
fied that Moody’s father punished Moody in order to hurt Janice, and
that Moody told her that he was abused by his father. S.J.A. 486.
Jacobs did not see Moody at all between the time that Moody was 4
or 5 years old and when Moody moved in with him at age 17; Janice
saw Moody infrequently over that time period. S.J.A. 468-69, 485,
493.
Defense counsel also offered the testimony of Dr. Jerry Wayne
Noble, a clinical psychologist. S.J.A. 313-14. Dr. Noble testified that
Moody had told him that he had suffered physical abuse as a child.
Dr. Noble also testified that a neighbor had contacted Social Services
when Moody was a child to report that Moody was abused. S.J.A.
331. Dr. Noble diagnosed Moody as suffering from Attention Deficit
Hyperactivity Disorder, borderline intellectual functioning (with I.Q.
scores ranging from 74 to 82), alcohol dependence, a mixed personal-
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ity disorder, child abuse syndrome, and physical problems resulting
from psychological difficulties. S.J.A. 351-58.
Moody also testified on his own behalf at sentencing. He admitted
killing the victim but denied that he did it for insurance money. He
testified that he killed Donnie Robbins because Wanda Robbins
threatened to turn him in to the police on outstanding Florida warrants
if he did not commit the murder. S.J.A. 535.
The jury unanimously found two aggravating factors: that Moody
"has been previously convicted of a felony involving the use or threat
of violence to the person" and that "the capital felony was committed
for pecuniary gain." J.A. 379. One or more jurors considered the fol-
lowing factors to be present and mitigating: the murder "was commit-
ted while the defendant was under the influence of mental or
emotional disturbance"; "the defendant acted under the domination of
another person"; "the defendant aided in the apprehension of another
capital felon"; "Moody was physically and verbally abused by his
father during his formative years"; "Moody suffered during his child-
hood and adolescent years as a result of the lack of love and nurturing
from his father and step-mother"; and "Moody was deceived by
Wanda Robbins . . . to believe that she . . . was being physically
abused by Donnie Ray Robbins." J.A. 379.
The jury recommended and the trial court imposed the death pen-
alty. Moody, 481 S.E.2d at 631. Moody’s conviction and sentence
were upheld on direct appeal. Id.
In his state post-conviction proceedings, Moody alleged, inter alia,
that his trial counsel were constitutionally ineffective for failing to
perform an adequate mitigation investigation, failing to adequately
prepare Dr. Noble for his testimony, and failing to introduce evidence
pertaining to the aggravating factor of Moody’s prior conviction for
attempted murder. The state MAR court denied relief, J.A. 35-119, as
did the district court. J.A. 335-467. We issued a certificate of appeala-
bility to review Moody’s claim that his counsel rendered ineffective
assistance at sentencing.
II.
Because the North Carolina state court rejected Moody’s claim on
the merits, our review is constrained by the Antiterrorism and Effec-
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tive Death Penalty Act (AEDPA). Moody seeks relief exclusively
under section 2254(d)(1), which permits us to grant the writ of habeas
corpus only if the state court adjudication resulted in "a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." 8 U.S.C. § 2254(d)(1).
A decision is "contrary to" Supreme Court precedent if "the state
court applies a rule that contradicts the governing law set forth in our
cases." Terry Williams v. Taylor, 529 U.S. 362, 405 (2000). Here, the
state court correctly identified Strickland as the case governing claims
that counsel has rendered ineffective assistance of counsel, and cor-
rectly recognized that, in order to satisfy the performance prong of
Strickland, Moody must demonstrate "that his counsel’s performance
fell below an objective standard of reasonableness." J.A. 79 (quoting
State v. Morganherring, 517 S.E.2d 622, 633 (N.C. 1999)).
However, the state court also required that Moody demonstrate
prejudice under Strickland by proving "that his counsel’s deficient
representation was so serious as to deprive him of a fair trial." J.A.
79 (quoting Morganherring, 517 S.E.2d at 633). The state court cited
this court for the proposition that "we cannot grant relief solely
because the outcome would have been different absent counsel’s defi-
cient performance. Instead, we can only grant relief under the second
prong of Strickland if the ‘result of the proceeding was fundamentally
unfair or unreliable.’" J.A. 46 (quoting Stexton v. French, 163 F.3d
874, 882-84 (4th Cir. 1998))(internal citations omitted)(emphasis in
state court opinion). The Supreme Court, however, has rejected the
requirement that a petitioner prove that counsel’s deficient perfor-
mance rendered the proceeding "fundamentally unfair," because
Strickland requires only a showing that, but for the unreasonable per-
formance, there is a reasonable probability that the result of the pro-
ceeding would have been different. Terry Williams, 529 U.S. at 391.
See also Tucker v. Catoe, 221 F.3d 600, 608 (4th Cir. 2000) (recog-
nizing that the Supreme Court has "dismissed the idea that we must
separately inquire into fundamental fairness even if a petitioner is able
to show that his lawyer was ineffective and that the ineffectiveness
probably affected the outcome of the proceeding"). The state court’s
analysis of the prejudice prong was therefore contrary to Strickland,
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though its analysis of the performance prong was not "contrary to"
Strickland.1
Ordinarily, when a state court decision is "contrary to" governing
Supreme Court law, we engage in de novo review of the prisoner’s
claim. Rose v. Lee, 252 F.3d 676, 689-90 (4th Cir. 2001). Here, how-
ever, the state court provided two alternative, independently sufficient
grounds for its holding — only one of which relied on a rule of law
"contrary to" Supreme Court case law. An error in a state court’s anal-
ysis does not render the state court’s decision contrary to or an unrea-
sonable application of Supreme Court precedent when that analysis is
not necessary to the state court’s resolution of the claim. Rather,
because the state court’s holding on the issue of performance would
alone suffice to defeat Moody’s ineffective assistance claim, the deci-
sion of the state court would only be contrary to or an unreasonable
application of Strickland if the state court’s evaluation of both prongs
were deficient under this standard. Therefore, we review the state
court’s decision of the performance prong of the Strickland inquiry
under the deferential AEDPA standard. Because the state court
applied the wrong standard to evaluate prejudice, we do not defer to
its analysis of that prong but instead review it de novo. See Syriani
v. Polk, No. 04-12, 2004 U.S. App. LEXIS 26708, at *20-21 (4th Cir.
Dec. 21, 2004)(unpublished).2
1The state court did, at times, cite the appropriate prejudice standard,
and ultimately held both that "there is no reasonable probability that the
jury’s balancing of aggravating and mitigating circumstances would have
been different if they had been presented the additional evidence devel-
oped by postconviction counsel" and that "the evidence developed by
postconviction counsel does not undermine the Court’s confidence in the
reliability and appropriateness of the sentence adjudged." J.A. 89. Never-
theless, Terry Williams confirms that the state court’s prejudice analysis
was contrary to Strickland. See Terry Williams, 529 U.S. at 414
(O’Connor, J., concurring) (rejecting Chief Justice Rehnquist’s dissent-
ing defense of the state court’s decision, which had reached conclusions
under both the proper and improper standard, because "it is impossible
to determine . . . the extent to which the Virginia Supreme Court’s error
with respect to its reading of Lockhart affected its ultimate finding").
2Our decision in Rose v. Lee, 252 F.3d 676 (4th Cir. 2001), does not
foreclose such. In Rose, the state MAR court had concluded that coun-
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III.
Moody claims that his counsel were ineffective because they failed
to perform an adequate investigation into mitigation, because they did
not adequately prepare Dr. Noble for his mitigation testimony, and
because they unreasonably failed to present evidence to undermine
the state’s case in aggravation. As to each of these claims, we affirm
the district court’s conclusion that the state did not unreasonably
apply Strickland when it found counsel’s performance to be reason-
able. And, reviewing each claim de novo on the issue of prejudice, we
sel’s decision not to further investigate and present evidence that defen-
dant suffered from severe sexual disorders was a "tactical decision" that
was consistent with Strickland. Appellant’s Brief at *10, Rose v. Lee,
252 F.3d 676 (4th Cir. 2000) (No. 00-11(L)), 2000 WL 33990677. The
state MAR court had, however, incorrectly held that the defendant had
to show by a preponderance of the evidence that the result of the pro-
ceeding would have been different absent the errors. Rose, 252 F.3d at
689. The district court believed it did not have the authority to conduct
a de novo review of the ineffective assistance claim, but instead had to
grant the writ and remand to the state habeas court for application of the
proper Strickland standard. Id. at 680, 689.
On appeal, we addressed the question of whether "a federal court lacks
authority to conduct an independent review of [a] claim" to which the
state court applied the incorrect law. Id. at 688. We answered this ques-
tion by holding that, when the state court applies law contrary to
Supreme Court precedent, we have an "obligation to review state court
judgments independently to determine whether issuance of a writ is war-
ranted." Id. at 690. We then proceeded to address the entire claim de
novo. We did not expressly address or consider the argument that the fact
that each prong of Strickland independently defeats recovery requires us
to apply a deferential standard on the performance prong and a de novo
standard on the prejudice prong, as the state conceded that the state
court’s adjudication of the Strickland claim was "contrary to" Strickland.
Id. at 689. Moreover, our conclusion that the state court’s performance
determination survived de novo review necessarily implies that this
determination would have survived a more deferential review. Accord-
ingly, as we concluded in Syriani, Moody must establish that the state
court’s performance determination was an unreasonable application of
federal law.
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conclude that, to the extent that any of the challenged actions were
unreasonable, they nevertheless did not prejudice Moody.
A.
1.
Moody first alleges that counsel’s overall mitigation investigation
was insufficient. Under Strickland, "counsel has a duty to make rea-
sonable investigations or to make a reasonable decision that makes
particular investigations unnecessary." Strickland, 466 U.S. at 691.
Any particular decision not to investigate must thus "be directly
assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments." Id. In particular,
Moody claims that counsel’s meetings with him were unreasonably
infrequent during their investigation into mitigation and that counsel
unreasonably failed to investigate family history sufficiently because
they did not immediately contact Moody’s half-brother, Fred Mayle,
upon receiving his contact information.
We disagree with Moody’s contention that counsel’s investigation
was unreasonable. Counsel Charles Harp was appointed on January
30, 1995, and counsel Jon Myers was appointed on February 13,
1995. J.A. 274, 282. Prior to the commencement of Moody’s trial on
July 10, 1995, Harp met with Moody on two occasions, March 29 and
July 9. J.A. 274. Myers met with Moody on June 14, July 4, and July
9. J.A. 282. Counsel filed affidavits on post-conviction review assert-
ing that the first time either of them asked Moody about his family
history was during the June 14 meeting, where "defendant withheld
information from his trial counsel about his family members and
expressed a desire not to have his family members either advised
about his trial or involved in his trial." J.A. 97. During the July 4
meeting, apparently in response to further questioning about his fam-
ily history, Moody "falsely report[ed] that his father had been killed
in a car accident," J.A. 97-98, but also provided Myers with contact
information for his half-brother, Fred Mayle. J.A. 283. Myers did not
attempt to contact Mayle until July 15, after Moody’s trial had begun
and after Moody had changed his plea, and two days before the begin-
ning of the sentencing trial. Mayle informed trial counsel that
Moody’s parents were alive and lived in Ohio. Trial counsel con-
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tacted Moody’s family members the following day and were able to
convince Moody’s mother and half-brother to testify on his behalf.
J.A. 283.
As to Moody’s claim that his counsel did not meet with him fre-
quently enough, there is no established "minimum number of meet-
ings between counsel and client prior to trial necessary to prepare an
attorney to provide effective assistance of counsel." United States v.
Olson, 846 F.2d 1103, 1108 (7th Cir. 1988). If Moody had told the
truth at the meetings he had with counsel, counsel could have pursued
the leads he gave them and acquired all available mitigating evidence.
Because of Moody’s dishonesty to his own counsel, however, counsel
were limited in their possibilities for mitigation investigation.3 The
Supreme Court has recognized that "[t]he reasonableness of counsel’s
actions may be determined or substantially influenced by the defen-
dant’s own statements or actions." Strickland, 466 U.S. at 691. And
"when a defendant has given counsel reason to believe that pursuing
certain investigations would be fruitless or even harmful, counsel’s
failure to pursue those investigations may not later be challenged as
unreasonable."4 Id. Given that Moody was unwilling to give his coun-
3Moody attempts to justify his dishonesty on the grounds that he did
not have an opportunity to develop trust in his attorneys and that he had
subnormal intelligence and dealt with people in a suspicious manner. Br.
of Appellant at 31. But the mere fact that Moody was dishonest, regard-
less of the reasons for that dishonesty, justified counsel’s decision not to
rely on Moody as a source of mitigating evidence.
4The Supreme Court has adopted no exception to this statement to
encompass the concurrence’s apparent belief that defense counsel may
not rely on the defendant’s statements unless counsel have "fulfill[ed]
their obligation to explain to their client the capital process and the
importance of mitigating evidence in a penalty phase." Post at 24-25.
Regardless of whether Moody had sufficient information to make "in-
formed strategic choices," the information regarding his family was
undoubtedly "information supplied by the defendant" on which counsel
could "quite properly" base their decisions. See Strickland, 466 U.S. at
691; post at 24. Despite the concurrence’s statement that "[t]here is abso-
lutely no indication that Moody gave counsel reason to believe that pur-
suing an investigation into his family history and social background
would be fruitless or harmful to the case in mitigation," post at 24, it is
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sel any productive leads at the June 14 meeting, and that counsel
knew that he was lying to them and that he was "a poor and unreliable
historian," J.A. 282-83, counsel could reasonably have determined
that further meetings with Moody were not helpful in preparing his
defense. See J.A. 97-98.
Counsel’s limited meetings with Moody were also sufficient in
light of the other evidence they gathered from him. Dr. Noble testified
that he spent approximately 60-70 hours evaluating Moody, including
approximately 12 hours spent interviewing and testing Moody. J.A.
396. The state court could thus reasonably conclude that counsel
made a reasonable decision to allocate their own time to other means
of investigation, based on a belief that Dr. Noble would be more qual-
ified to obtain relevant evidence from Moody and to provide that evi-
dence to counsel. See J.A. 97-98.
Moody also argues that, as part of an investigation into family his-
tory, counsel should have called his half-brother Fred Mayle immedi-
ately upon becoming aware, on July 4, that he existed and lived in
Florida, which in turn would have given counsel more time to contact
the family members who Mayle identified. Because counsel did ulti-
mately contact Mayle on July 15, we do not have to find that it would
have been reasonable not to contact him at all, but only that the state
court could reasonably have concluded that the failure to contact him
immediately was a reasonable decision. Myers’ notes reflect that
Moody told him that Mayle "was around [Moody] until age 4-5 and
didn’t see him again until age 18." J.A. 290. Myers thus could have
assumed that Mayle would have limited evidence to provide about
Moody’s family background during most of his formative years.
Additionally, counsel could have suspected that Mayle would be
unlikely to identify other family members who could be helpful in
mitigation, as counsel had been told by Moody that Moody’s father
was deceased and that he did not want his family to know of his trial.
clear that Moody’s request that his family members not be contacted, in
connection with his representation that his father was deceased and his
stepbrothers and stepsister "would turn [their] own parents in," J.A. 290,
could indicate to reasonable counsel that attempting to utilize Moody’s
family members in mitigation would be fruitless.
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These representations by Moody would not cause reasonable counsel
to prioritize contacting Mayle. Likewise, counsel had acquired exten-
sive evidence of Moody’s family background from Dr. Noble, who
had interviewed Moody, examined his school records, reviewed
reports concerning child abuse, reviewed medical and psychiatric
treatment records, and interviewed witnesses. S.J.A. 316. The state
court’s conclusion that counsel performed a reasonable investigation
into family history was thus a reasonable application of Strickland.
See J.A. 105.
2.
Moody next argues that his counsel’s presentation of mitigating
evidence was unreasonable, because counsel permitted Dr. Noble to
testify on the basis of an outline of his examination of Moody that
included areas where he had substantial doubts about the veracity of
information provided to him by Moody and reflected Dr. Noble’s
doubts about those areas with question marks. Br. of Appellant at 32-
33. He alleges that because Harp admits that he knew that Dr. Noble
was basing his expert opinions largely on incorrect or unverified
information, Harp was ineffective for not attempting to correct this
problem, either by requesting a continuance from the trial court or by
seeking further information. Id. at 34. When the outline was made
available to the prosecution, Moody claims that the prosecution used
it to fatally attack Dr. Noble’s credibility.
We disagree. Dr. Noble’s incomplete or inaccurate information was
not a result of a limited investigation, but a direct result of Moody’s
dishonesty. Moody cannot lie to his expert psychologist and then
claim ineffective assistance because his attorneys did not seek evi-
dence to disprove his lies so that they could be removed from the
expert’s outline. See Thomas v. Taylor, 170 F.3d 466, 471 (4th Cir.
1999) ("In view of appellant’s repeated assertions that he fired both
shots, trial counsel was under no obligation to investigate further the
possibility that appellant did not fire the second shot," even though
appellant told his court-appointed expert that he did not fire the sec-
ond shot). To the extent that Dr. Noble’s credibility was undermined
because of inaccuracies in his testimony, Moody, not counsel, is
responsible for that consequence.
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Moody appears to allege two possible courses of action counsel
could have taken to render reasonable performance with respect to Dr.
Noble’s testimony: counsel could have ensured that the outline had all
information of questionable veracity removed from it or counsel
could have requested a continuance to allow Dr. Noble more time to
confirm the information he had gathered.
That the content of the outline itself was not consistent with
Moody’s present wishes is no fault of trial counsel. Dr. Noble, not
trial counsel, had ultimate responsibility for his own expert report.
And Dr. Noble informed trial counsel when he faxed them the outline
that "I will be doing my own last revisions and additions later this
morning." J.A. 294. Counsel bears no responsibility for Dr. Noble’s
failure to finalize his outline in a form that did not include informa-
tion about which he had doubts.5 To the extent that Moody raises a
claim that Dr. Noble was ineffective, we reject that claim because we
have consistently "‘rejected the notion that there is either a procedural
or constitutional rule of ineffective assistance of an expert witness,
rather than ineffective assistance of counsel.’" Wilson v. Greene, 155
F.3d 396, 401 (4th Cir. 1998); see also Thomas, 170 F.3d at 472.
Nor was it unreasonable performance for trial counsel to fail to
seek a continuance upon discovering that Dr. Noble was uncertain
about the veracity of some of the information he had gathered. Coun-
sel were entitled to rely on Dr. Noble’s representation that he would
complete a final version of the outline; absent any indication from Dr.
Noble that he needed more time, counsel had no reason to request
such time. Nor is Moody able to demonstrate that the state court
would have been likely to grant a continuance in the circumstance
where the defendant’s own dishonesty and the psychologist’s inexpli-
cable failure to finalize his outline gave rise to the need for delay;
indeed, the state MAR court concluded that the trial court would
likely not have continued the case. J.A. 99-100. Without evidence that
reasonable counsel would have believed a continuance stood a realis-
tic chance of being granted, Moody cannot demonstrate that reason-
5That Dr. Noble noted that "Annotations from [Myers] and [Harp]
would be helpful in completing my final version" does not shift from Dr.
Noble to counsel the responsibility for testifying from an appropriate out-
line. J.A. 294.
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able counsel would necessarily have requested a continuance. See
Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984) ("Counsel is not
required to engage in the filing of futile motions.").
Moody also appears to allege that, if counsel appropriately pro-
ceeded with the outline in its incomplete form, they nonetheless erred
by eliciting from Dr. Noble information about his uncertainties and
Moody’s dishonesty. But counsel could reasonably have concluded
that such information would be far less harmful if introduced by them
than it would be if the prosecution first highlighted Moody’s dishon-
esty.
The state court’s rejection of Moody’s attacks on counsel’s actions
surrounding Dr. Noble’s testimony was thus reasonable.
3.
Finally, Moody alleges that counsel were ineffective in their failure
to introduce evidence to undermine the state’s case in aggravation.
The state presented evidence that Moody had been convicted in Flor-
ida of attempted first degree murder and conspiracy to commit first
degree murder. Moody, 481 S.E.2d at 632; S.J.A. 277-79. In the Flor-
ida case, Moody had apparently been hired by Maria Rickard to kill
Sheilagh Rickard. J.A. 280-81. Sheilagh sent a letter to the Florida
court arguably requesting leniency for Moody, whom she viewed as
less culpable than Maria. Id. Moody now alleges that his trial counsel
should have introduced Sheilagh’s letter or testimony by Sheilagh
herself to mitigate the impact of Moody’s conviction.6
Because Sheilagh’s letter is "a double-edged sword that might as
easily have condemned [Moody] to death as excused his actions,"
6Harp asserts in his post-conviction affidavit that the decision not to
present Sheilagh’s statements "was not a tactical decision on my part."
J.A. 277. Because the purpose of the guarantee of effective assistance in
the Sixth Amendment is "‘simply to ensure that criminal defendants
receive a fair trial,’" the Supreme Court has recognized that "[t]he rele-
vant question is not whether counsel’s choices were strategic, but
whether they were reasonable." Roe v. Flores-Ortega, 528 U.S. 470, 481
(2000) (quoting Strickland, 466 U.S. at 689).
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Byram v. Ozmint, 339 F.3d 203, 210 (4th Cir. 2003), we disagree with
this contention as well. Moody focuses on particular language from
the letter, such as where Sheilagh states that she "do[es] not feel that
[Moody] is as guilty as Maria Rickard . . . . [Rickard] did not change
her mind and let me live, that was Patrick Moody’s decision." J.A.
280. However, the letter also reveals the extensive emotional impact
that Moody’s crime had on Sheilagh, who told the court that "[t]hese
past eight months have been harrowing enough for me and I am so
afraid that when I am in Court that I will once again be overcome
with emotion as I was at the sentencing of Patrick Moody." Id.
Sheilagh also made statements that could lead a jury to conclude that
Moody was fully to blame for the earlier crime; she notes, for exam-
ple, that "I cannot in my mind make him more guilty than Maria, even
though he was with Maria and Gerald when they bought the gun . . .
for what was to be the second attempt on my life." Id. at 281 (empha-
sis added). Given the potential that this letter would only have high-
lighted the amount of damage that Moody had done to Sheilagh and
the fact that Moody had not "changed his mind" with respect to kill-
ing Robbins, it is impossible to say that counsel were unreasonable
not to submit the letter to the jury.
Moody also implies that Harp should have taken steps to secure
Sheilagh’s testimony at Moody’s trial after she abandoned her initial
agreement to testify. See J.A. 101-02. But it is clear that offering
Sheilagh’s testimony would have presented the same risks as offering
the letter. Because Sheilagh might well have changed her view of
Moody upon discovering that he did follow through with a murder,
her testimony would have been even more risky than the presentation
of the letter. The state court was certainly not unreasonable to con-
clude that forcing Sheilagh, who had become very emotional at
Moody’s first trial, to testify in the present case could have harmed
rather than helped Moody, and thus that it was not unreasonable to
fail to do so.
Because Moody has failed to demonstrate that the state court’s con-
clusion that his counsel rendered reasonable performance was an
unreasonable application of Strickland, he is not entitled to relief.
B.
Even if Moody could establish that his counsel performed unrea-
sonably, he is not entitled to relief because he has failed to demon-
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strate the prejudice required by Strickland. Strickland, 466 U.S. at
694. As noted above, we review the state court’s resolution of this
claim de novo.
Moody alleges that, had each of the errors he claims been reme-
died, the jury would have viewed the aggravating circumstance of his
prior conviction as less damaging, would have valued Dr. Noble’s tes-
timony in mitigation to a greater extent, and would have been able to
receive more evidence to confirm that Moody was abused as a child.
Moody thus claims that when "we reweigh the evidence in aggrava-
tion against the totality of available mitigating evidence," we must
conclude that "there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different." Wiggins v. Smith, 539 U.S. 510, 534 (2003).
We disagree. We do not believe that there is a reasonable likeli-
hood that the jury’s verdict would have been different absent coun-
sel’s purportedly unreasonable performance. As to aggravation, the
Rickard letter, as we noted above, was double-edged, and it is unclear
that it would have benefitted Moody in the eyes of the jury. Indeed,
by emphasizing the tremendous damage Moody had inflicted on
another victim and the degree of his participation in an earlier, very
similar contract killing conspiracy, the letter would most likely have
increased Moody’s chances of receiving the death penalty.
As to evidence in mitigation, Moody alleges that Dr. Noble’s use
of an outline with inaccurate or incomplete information, marked by
question marks, resulted in a cross-examination that discredited Dr.
Noble in the eyes of the jury. In support of this allegation, Moody
notes that the jury rejected several mitigating factors to which Dr.
Noble testified.7 Each of the mitigating factors highlighted by Moody,
however, is a non-statutory mitigating factor; the jury thus was free
to conclude that the factor was present but reject the contention that
7Specifically, Moody alleges that Dr. Noble’s testimony supported the
following mitigating factors rejected by the jury: Moody was classified
as educable mentally retarded; he allowed other people to influence his
behavior; he has an I.Q. of 81, which is of below average intelligence;
and he functions at a less than second grade level in his ability to read
and write. Brief of Appellant at 45-46; J.A. 73.
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it had mitigating value. See S.J.A. 747. The jury may well have cred-
ited Dr. Noble’s testimony but simply refused to find the facts he
alleged mitigating in light of the horrendous nature of the crime. The
fact that some jurors did find several mitigating factors supported by
Dr. Noble’s testimony tends to indicate that those jurors did credit Dr.
Noble’s testimony, at least in part.8
Even if the jurors did not credit Dr. Noble’s testimony, there is no
reasonable probability that they would have credited his testimony if
he had been more extensively prepared by counsel. During both direct
and cross examination, Dr. Noble gave substantial reason for the jury
to doubt his testimony. First, he admitted that much of the evidence
on which he relied was of questionable veracity; he conceded that, as
a result of the physical abuse he suffered, Moody "certainly learned
to lie and manipulate in certain situations" and that he "was not able
to verify" Moody’s representations regarding his father’s death in a
car accident. S.J.A. 338, 394.
Moreover, the prosecution, through cross-examination, posed
numerous questions that potentially discredited Dr. Noble, very few
of which had any connection to Dr. Noble’s challenged outline or the
completeness of his investigation. The prosecution discredited Dr.
Noble on the grounds that he had limited qualifications, S.J.A. 374,
that he had limited knowledge of the available facts because he was
not present for the preceding portion of the sentencing hearing, S.J.A.
375, 388, that he had only ever testified in favor of the defense in cap-
ital cases, S.J.A. 378-79, and that he had "often testified that there are
mitigating factors that might be considered." S.J.A. 379. Even if
Moody’s counsel had directed Dr. Noble to remove all information
from his outline that was of questionable veracity, or sought a contin-
uance to verify the truth of all representations made by Dr. Noble, all
of these grounds for discrediting Dr. Noble would still have been
present.
8At least one juror concluded that the murder "was committed while
the defendant was under the influence of mental or emotional distur-
bance"; that the defendant "acted under the domination of another per-
son"; that "Moody was physically and verbally abused by his father
during his formative years"; and that "Moody suffered during his child-
hood and adolescent years as a result of the lack of love and nurturing
from his father and step-mother." J.A. 817-18.
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There is thus no reasonable probability that the jury would have
attributed any additional value to the mitigating circumstances sup-
ported by Dr. Noble’s testimony, had no gaps or uncertainties existed
in that testimony.
Finally, Moody argues that, had his trial counsel presented more
evidence concerning his family history — primarily his abuse as a
child — the jury would have assigned more mitigating weight to that
history. The evidence of childhood abuse that Moody alleges should
have been added is largely cumulative of what appeared in the record.
Dr. Noble testified extensively of Moody’s childhood abuse. S.J.A.
331-33, 336, 373. As part of his testimony, Dr. Noble noted confirma-
tion of Moody’s accusations from other sources. S.J.A. 332 (noting
that Moody complained to his school at the time the abuse allegedly
took place); S.J.A. 336 (noting that Steve, Moody’s "half brother or
step brother," alleged that Steve was brutally abused and described
Moody as "his father’s scapegoat"); S.J.A. 331 (noting that a neighbor
in Ohio complained to Social Services reporting that Moody "was
bruised and that he had been locked in his room"). Carl Jacobs and
Janice Moody also testified that Moody was abused by his father.
S.J.A. 461-64; S.J.A. 476, 486-87. Although neither saw Moody regu-
larly after he was five years old, Janice did see him from time to time,
and testified that his father treated him very badly. S.J.A. 487.
The affidavits presented by Moody in support of his habeas petition
provide confirmation for this testimony of abuse. See J.A. 120-70.
However, prejudice does not exist simply because more corroborating
evidence could have been presented. The jury was presented with
substantial and uncontradicted evidence that Moody was abused by
his father. Given that the prosecutor did not present any evidence to
contradict the evidence of abuse, there is simply no reasonable proba-
bility that the jurors doubted the existence of abuse and would have
come to a different verdict had they been presented further evidence
that abuse in fact occurred.
To the extent that the affidavits presented to the habeas court pro-
vide new evidence, they are, like Sheilagh’s letter, double-edged. The
affidavits would have informed the jury that Moody often had prob-
lems making friends as a child, which could possibly be mitigating.
However, the affidavit of Moody’s father also provided evidence that
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abuse did not occur, denying that he was ever "neglectful or abusive"
to Moody. J.A. 121. Vince Shillig, who was the assistant principal of
Moody’s high school, stated that Moody "had a violent temper" and
that Shillig "remember[ed] Patrick very well and fondly even though
he was frequently in my office for violations of school rules, includ-
ing two incidents when he brought a dangerous weapon to school."
J.A. 166. Because the affidavits confirm that Moody has a history of
violence and could have undermined the mitigating evidence of child
abuse, they would have been as likely to harm Moody as to help him.
Because the additional evidence Moody alleges his counsel should
have presented would have been unlikely to weaken the case in aggra-
vation or strengthen the case in mitigation, there is no reasonable
probability that the jury would have weighed aggravating and mitigat-
ing factors differently when presented with that additional evidence.
Faced with Moody’s guilty plea, his earlier conviction for attempted
murder, and the cold-blooded manner in which he murdered Robbins,
we are confident that the jury would not have returned a different ver-
dict even if counsel had performed exactly how Moody now argues
they should have. Moody is thus not entitled to relief.
CONCLUSION
The judgment of the district court is affirmed.
AFFIRMED
TRAXLER, Circuit Judge, concurring in the judgment:
I do not agree that the performance of Moody’s trial counsel met
the requisite objective standard of reasonableness, and I am satisfied
that the state court’s contrary conclusion was based upon an unrea-
sonable application of Supreme Court precedents. Accordingly, I can-
not concur in the majority opinion. However, because I cannot say
that, but for the deficient performance of counsel, there is a reason-
able probability that the result of the sentencing proceeding would
have been different, I concur in the judgment of the majority.
I.
On September 16, 1994, Moody shot Donnie Robbins in the back
of the head as Robbins leaned over the hood of an automobile. The
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next morning, Moody confessed to the murder and directed police to
the murder weapon. Four days later, Moody provided officers with a
second, more detailed confession, in which he admitted to officers
that he had been having an affair with Donnie’s wife Wanda and that
Wanda asked him to murder Donnie so that she could collect pro-
ceeds from Donnie’s life insurance.
Lead counsel Charles Harp was appointed to represent Moody on
January 30, 1995, and Jon Myers was appointed as co-counsel on
February 13, 1995. Harp met with Moody for the first time on March
29, 1995. On state post-conviction review, Harp stated that he was
aware from the outset that his client "had provided detailed statements
confessing to the crime" and "that unless th[e] statements were sup-
pressed, there was a substantial likelihood Mr. Moody would be con-
victed of first degree murder." J.A. 275. However, Harp admitted that
he "did not make any effort to pursue an independent investigation
into Mr. Moody’s family members or background" and "did not at
any time prior to trial meet with [Moody] to explain to him the impor-
tance of his family as potential witnesses during the sentencing phase
of his case." Id.
Attorney Myers met with Moody for the first time on June 14,
1995. Moody told Myers "that he preferred that [his family] not know
or be involved in his trial," J.A. 282, a preference that Myers appears
to have honored without further inquiry or protest. Like Harp, Myers
also "did not explain to [Moody] in any detail the importance of his
family as potential witnesses at that time." J.A. 283.
On July 4, 1995, nine days before the trial, Myers met with Moody
for the second time. Moody told Myers that his father and stepmother
had been killed in a violent car accident, but did provide information
sufficient for Myers to contact a half-brother, Fred Mayle, who
resided in Florida. Myers also noted the existence of two step-
brothers and a step-sister who Moody apparently told him "would
turn [their] own parents in." J.A. 290. Myers acknowledged that
"Moody provided [him] with information to contact his half-brother,
Fred Mayle," during this second interview, but that he "did not make
any effort to pursue an independent investigation into Mr. Moody’s
family members and his childhood until July 15, 1995." J.A. 283.
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Harp and Myers met with Moody a final time on Sunday, July 9,
1995, the day before the trial was set to begin. Over the course of the
next five days, the state presented the testimony of seven witnesses.
Moody’s confessions were accepted into evidence. On Friday, July
14, Moody withdrew his plea of not guilty and entered a plea of guilty
to murder in the first degree. The sentencing phase was set to begin
on Monday, July 17. Only then did trial counsel begin their "indepen-
dent investigation into Mr. Moody’s family members and his child-
hood." J.A. 283. On Saturday, July 15, Myers contacted Mayle and
learned that Moody’s father was alive and that numerous other family
members lived in the Ohio area. However, Myers still waited until the
following day to make any attempt to contact these other family
members. Unsurprisingly, Myers stated that:
[b]ecause of the short time frame, I was only able to secure
his mother and one half-brother to testify a[t] the sentencing
hearing beginning the next day. I was not able to contact
many family members to testify or obtain other information
because the sentencing phase was beginning the next day.
J.A. 283. The mother and half-brother, however, were ultimately of
limited benefit to Moody. Moody’s mother lost custody of Moody
when he was approximately five years old and only saw him on a
handful of occasions over the next twelve years. The half-brother did
not see him at all during this time period.
In 1998, Moody sought post-conviction relief before the state MAR
court, asserting inter alia, that trial counsel unreasonably failed to
investigate mitigating evidence of his family background and social
history and that, had Moody’s jury been provided with the additional
testimony that his post-conviction counsel uncovered, there was a rea-
sonable probability that at least one juror would have refused to
impose the death sentence. Within a matter of days, Moody’s post-
conviction counsel had secured twenty affidavits from family mem-
bers and school personnel who had frequent contact with Moody dur-
ing the years after he was removed from his mother’s custody and
before he left his father’s home, i.e. from approximately age five to
age seventeen. These witnesses attested, in graphic detail, to the cons-
tant physical and psychological abuse that was inflicted by Moody’s
father and stepmother at home and by his schoolmates during his
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junior-high and high school years, as well as to their willingness to
testify had they been contacted by trial counsel.
The state MAR court acknowledged that "there was in existence
considerable information about [Moody] that might have been uncov-
ered by a more thorough investigative effort," J.A. 104, and that "trial
counsel could have done a better job of gathering and presenting evi-
dence in mitigation (e.g., by making earlier contact with a number of
[Moody’s] family members in Ohio)," J.A. 89-90. However, the court
found that counsel’s investigation into Moody’s family history and
social background was not deficient, in large part because Moody had
"withheld information from his trial counsel about his family mem-
bers and expressed a desire not to have his family members either
advised about his trial or involved in his trial," when Myers inter-
viewed him on June 14, and had "not provide[d] truthful information
regarding his family" in that he "falsely report[ed] that his father had
been killed in a car accident" when Myers interviewed him on July
4. J.A. 97-98.
II.
In order to establish ineffective assistance of counsel, Moody was
required to demonstrate (1) that his "counsel’s representation fell
below an objective standard of reasonableness," measured by the
"prevailing professional norms," Strickland v. Washington, 466 U.S.
668, 688 (1984), and (2) "that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different," id. at 694. "Unless a defendant makes
both showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the
result unreliable." Id. at 687.
Because Moody’s Sixth Amendment claim was adjudicated on the
merits by the North Carolina state court, we are precluded from grant-
ing habeas relief unless the state court’s adjudication of the claim "re-
sulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States" or "resulted in a decision that
was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding." 28 U.S.C.A.
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§ 2254(d) (West Supp. 2004); see also Williams v. Taylor, 529 U.S.
362, 412-13 (2000).
A.
I begin with Moody’s claim that his counsel’s representation fell
below an objective standard of reasonableness, measured by the pre-
vailing professional norms, because they failed to investigate ade-
quately his family history and social background.
It is well-established that, in death penalty cases, "counsel has a
duty to make reasonable investigations or to make a reasonable deci-
sion that makes particular investigations unnecessary. In any ineffec-
tiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy
measure of deference to counsel’s judgments." Strickland, 466 U.S.
at 691. "[I]n deciding whether [counsel] exercised reasonable profes-
sional judgment," we "focus on whether the investigation supporting
counsel’s decision not to introduce mitigating evidence of [defen-
dant’s] background was itself reasonable." Wiggins v. Smith, 539 U.S.
510, 522-23 (2003) (internal alteration and quotation marks omitted).
A decision not to investigate is "reasonable precisely to the extent that
reasonable professional judgments support the limitations on investi-
gation." Strickland, 466 U.S. at 691.
In Strickland, the Supreme Court also held that "[t]he reasonable-
ness of counsel’s actions may be determined or substantially influ-
enced by the defendant’s own statements or actions." Id. Specifically,
the Court recognized that:
[c]ounsel’s actions are usually based, quite properly, on
informed strategic choices made by the defendant and on
information supplied by the defendant. In particular, what
investigation decisions are reasonable depends critically on
such information. . . . [W]hen a defendant has given counsel
reason to believe that pursuing certain investigations would
be fruitless or even harmful, counsel’s failure to pursue
those investigations may not later be challenged as unrea-
sonable. In short, inquiry into counsel’s conversations with
the defendant may be critical to a proper assessment of
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counsel’s investigation decisions, just as it may be critical
to a proper assessment of counsel’s other litigation deci-
sions.
Id.
In Wiggins, the Court expounded on the obligations of counsel in
the context of investigating a capital defendant’s background. There,
counsel’s pretrial investigation uncovered evidence of Wiggins’
foster-care background and general misery as a youth, but counsel
failed to expand the investigation and did not ultimately present any
such evidence in mitigation. The Court held that this was deficient
performance because "counsel abandoned their investigation of peti-
tioner’s background after having acquired only rudimentary knowl-
edge of his history from a narrow set of sources." Wiggins, 539 U.S.
at 524. Also, the court noted that:
counsel uncovered no evidence in their investigation to sug-
gest that a mitigation case, in its own right, would have been
counterproductive, or that further investigation would have
been fruitless; this case is therefore distinguishable from our
precedents in which we have found limited investigations
into mitigating evidence to be reasonable." See e.g., Strick-
land, 466 U.S. at 699 (concluding that counsel could "rea-
sonably surmise . . . that character and psychological evi-
dence would be of little help"); Burger v. Kemp, 483 U.S.
776, 794 (1987) (concluding counsel’s limited investigation
was reasonable because he interviewed all witnesses
brought to his attention, discovering little that was helpful
and much that was harmful); Darden v. Wainwright, 477
U.S. 168, 186 (1986) (concluding that counsel engaged in
extensive preparation and that the decision to present a miti-
gation case would have resulted in the jury hearing evidence
that petitioner had been convicted of violent crimes and
spent much of his life in jail).
Id. at 525.
In this case, I have no difficulty concluding that trial counsel’s lim-
ited investigation into mitigating evidence of Moody’s childhood was
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unreasonable and that the conclusion of the state MAR court to the
contrary was an unreasonable application of these governing prece-
dents.
Trial counsel was admittedly aware, from the outset, that his client
"had provided detailed statements confessing to the crime" and "that
unless th[e] statements were suppressed, there was a substantial likeli-
hood Mr. Moody would be convicted of first degree murder." J.A.
275. Yet, despite this recognition, trial counsel never explained to
Moody the significance of family and social history as mitigating evi-
dence and accepted without further inquiry Moody’s request that his
family not be notified of the capital trial. Counsel also failed to con-
tact the single family member identified by Moody or to conduct any
other independent investigation until after the guilt phase had con-
cluded — a mere two days before the sentencing proceeding began.
Obviously, it cannot be said that trial counsel made a strategic
choice not to investigate or present background information after "ful-
fill[ing] their obligation to conduct a thorough investigation of the
defendant’s background." Williams, 529 U.S. at 396. On the contrary,
counsel had planned to advance Moody’s abusive and traumatic
childhood as mitigating in nature, but did not get around to contacting
any of Moody’s family members who might be able to corroborate
that abuse until the eve of the sentencing hearing. And even though
Moody told his counsel "that he preferred that [his family] not know
or be involved in his trial," J.A. 282, it cannot be said that Moody
made an "informed strategic choice[ ]" regarding such an investiga-
tion, Strickland, 466 U.S. at 691. Moody’s trial counsel admitted that
they failed to explain the significance of such an investigation to him
at the time. For the same reason, counsel cannot justify their eleventh-
hour investigation as a reasonable decision not to investigate based
upon "information supplied by the defendant," id., nor can it be said
that they "reasonably surmise[d] from [their] conversations with"
Moody that further investigation "would be of little help," id. at 699.
There is absolutely no indication that Moody gave counsel reason to
believe that pursuing an investigation into his family history and
social background would be fruitless or harmful to the case in mitiga-
tion.
In this case, counsel failed to fulfill their obligation to explain to
their client the capital process and the importance of mitigating evi-
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dence in a penalty phase and failed to fulfill their obligation to con-
duct a reasonably thorough investigation of Moody’s background.
The critical nature of the former obligation simply cannot be divorced
from the latter. For these reasons, I cannot endorse the state court’s
view that counsel’s investigation into Moody’s childhood was not
deficient under Strickland and its progeny because Moody had not
been forthcoming about his family members, expressed a desire they
not be advised about or involved in the trial, and falsely reported that
his father and step-mother were deceased.
In sum, I would hold that the state court’s determination that coun-
sel’s performance was not deficient was an unreasonable one, and
conclude de novo that counsel’s investigation into mitigating evidence
was plainly deficient. By waiting until the last minute to conduct even
the most cursory investigation, Moody lost the benefit of readily-
available witnesses who could have offered independent, eyewitness
accounts of the physical and mental abuse Moody sustained from the
age of five until the age of seventeen. From the outset of the case,
counsel knew that the only hope of avoiding a conviction was to suc-
cessfully exclude Moody’s confessions and "had every reason to
develop the most powerful mitigation case possible." Wiggins, 539
U.S. at 526. Thus, it is apparent that counsel’s "failure to investigate
thoroughly resulted from inattention, not reasoned strategic judg-
ment." Id. Trial counsel’s investigation into Moody’s childhood
abuse, and the resulting failure to present Moody’s family members,
schoolmates, and school officials who knew him during these years,
was constitutionally deficient, and I am of the view that the state
court’s decision to the contrary is an unreasonable application of
Supreme Court precedent.
B.
My conclusion that counsel’s representation fell below an objective
standard of reasonableness, however, is alone insufficient to support
a grant of habeas relief to Moody. Moody was also required to dem-
onstrate that his counsel’s performance prejudiced him; specifically,
"that there is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 694. "When a defendant challenges a death
sentence . . ., the question is whether there is a reasonable probability
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that, absent the errors, the sentencer . . . would have concluded that
the balance of aggravating and mitigating circumstances did not war-
rant death." Id. at 695.
In my view, the question of whether counsel’s errors prejudiced
Moody is a close one. However, because trial counsel presented some
evidence of Moody’s traumatic and abusive childhood (albeit from
less than ideal sources), and at least some of the jurors found mitigat-
ing circumstances based upon this evidence, I concur in the judgment
affirming the denial of habeas relief.
As noted above, due to the eleventh-hour investigation conducted
by trial counsel, the only family members to testify were Moody’s
mother, Janice Moody, and his half-brother, Carl Jacobs. According
to the summary adopted by the state MAR court,
Carl Jacobs testified that he moved into his mother’s house-
hold for a few months when he was about 15 and lived there
with six other children and Patrick’s father, Dick Moody.
According to Carl, Patrick was a pre-schooler at that time.
He remembered Dick Moody disciplining Patrick by hitting
him hard with a thick board. Carl also testified that he saw
Dick Moody attempt to break plates on Defendant’s head
and that Patrick would scream and cry. Patrick would be
locked in his room without food for periods lasting up to 18
hours. Asked why his stepfather punished Patrick, Carl testi-
fied: "If he didn’t do — if Pat didn’t do what Dick wanted,
it could be any reason whatsoever. He really didn’t need a
reason to do what he did. . . . If he was in a bad mood, that’s
all it took."
Janice Moody, the defendant’s mother, testified that Dick
Moody’s abuse led to her filing for divorce when Patrick
was very young: "I asked him to leave my house because he
was getting very violent at all times and at the time he told
me he didn’t have to leave and he kept getting more abusive
and acted real bad to all the kids and I was afraid he would
hurt them. So I got a court order to get him out of my
house." Mrs. Moody testified that she thought that Dick
Moody abused Patrick in order to hurt her: "He would take
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Pat’s food from him and send him to his room. He might not
be mad at Pat. He punished Pat because that hurt me . . . ."
She explained that she and Patrick were both afraid of Dick
Moody: "I was afraid for my son because he was only two
and I was afraid he might kill him because he being in such
a rage and mad at me or something and he would take it out
on Patrick."
S.J.A. 808-09 (internal citations omitted) (alteration in original).
Because Carl Jacobs and Janice Moody had little or no contact with
Moody from the time that he was four or five years old until he was
seventeen years old, their testimony was of limited benefit. However,
Moody himself did offer testimony, largely unrefuted, about his expe-
riences in his father’s home after the age of five. He confirmed that
he was placed by the courts with his father, stepmother, and half-
siblings at a very young age, and that he rarely saw his mother there-
after. Moody testified that he was not given appropriate clothes, that
he was sometimes forced to go three of four days without food, and
that he was often locked in a room. He testified that his father hit him
constantly, and threw him through a plate glass window on one occa-
sion. He also testified that his father shot him with BB guns, threat-
ened to kill him, shot him in the leg with a bow and arrow, and
constantly beat him. He testified that his step-mother also beat him
and deprived him of food, and that he was shunned by his step-
brothers and step-sisters.
The jury also heard evidence of Moody’s childhood circumstances
during this period via the testimony of Dr. Jerry Noble, who inter-
viewed and evaluated Moody for purposes of presenting mitigating
evidence. Dr. Noble "diagnosed [Moody] as suffering from an atten-
tion deficit hyperactivity disorder, alcohol dependence, a mixed per-
sonality disorder, child abuse syndrome, and psychologically caused
physical problems," and "testified that [Moody] had borderline intel-
lectual functioning with a full scale IQ of 81." State v. Moody, 481
S.E.2d 629, 632 (N.C. 1997). Dr. Noble also gleaned corroborating
information of childhood abuse from his review of school and mental
health reports. He was able to relate to the jury that Moody reported
abuse to school officials during these years, and that a neighbor con-
tacted Social Services to report that Moody was bruised and had been
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locked in his room for a long interval of time. In addition, Dr. Noble
testified that Moody’s "half-brother Steve confirmed [Moody’s] abuse
by [his] father to [a] therapist at the mental health center." S.J.A. 335.
Dr. Noble testified that, according to the report:
Steve is said to have reported his own abuse by [Moody’s]
father between ages 7 and 11, including comments that he
was often beaten with boards and also that Steven is said to
have described Patrick’s father as brutal. The therapist’s
notes included information that Mr. Moody’s father kicked
out the children from the home by the time that they were
around 16 years of age, at least several of the children. The
therapist noted that Mr. Moody’s brother . . . described Pat-
rick as his father’s scapegoat. On the other hand, that Mr.
Moody’s stepmother did not want him, had never wanted
him, had taken little responsibility for him and showed little
attention to Mr. Moody. That Mr. Moody had been raised
under many restrictions with very few privileges. That Mr.
Moody was hyperactive and that he had poor social skills,
especially with women.
S.J.A. 336.
Against this mitigating evidence, the state presented evidence,
largely uncontradicted by Moody, that Moody began an affair with
the victim’s wife in July 1994 and, over the course of several weeks
in September, conspired with her to kill Donnie and share the life
insurance proceeds as a result of that relationship. They discussed
numerous plans, including Moody’s suggestion that Donnie could be
poisoned with mercury and at least one attempt to hire a hit man who
failed to show up. The owner and two residents of the trailer park
where Donnie and Wanda lived "testified that Donnie and Wanda
argued often and that on at least two occasions these residents had
identified mercury in the beer that Donnie was drinking." Moody, 481
S.E.2d at 632. There was also evidence of a plan for Moody to kill
Donnie with a machete that Wanda and Moody had purchased at a
nearby store, but Moody fled the area where they had planned the
attack when he heard someone shouting nearby. The final plan was
carried out. Moody lured the victim to a secluded area under the pre-
tense of buying a used automobile, and shot him in the back of the
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head "execution-style" with a .32-caliber semiautomatic pistol. Don-
nie’s life insurance agent testified that Wanda "called her at 5:30 a.m.
the morning after the murder to complete the paperwork necessary for
Wanda’s claim for the insurance benefits payable upon Donnie’s
death." Id.
In addition to the compelling evidence of the extensive planning by
Moody and Wanda to murder Donnie for pecuniary gain, the jury
heard devastating evidence of Moody’s prior criminal record. Moody
had been convicted in Florida of felony burglary, grand theft, carrying
a concealed weapon, attempted first-degree murder and conspiracy to
commit first-degree murder. The attempted murder and conspiracy to
commit murder arose from Moody’s entry into the home of a woman
whom he had been hired to kill for $2,500.
At the conclusion of the sentencing phase of the trial, the jury
unanimously found the existence of the only two aggravating circum-
stances submitted to it for consideration: (1) that Moody had been
previously convicted of a felony involving the use of violence; and
(2) that the murder was committed for pecuniary gain. The trial judge
submitted twenty-one mitigating circumstances to the jury for consid-
eration. Twelve jurors found that Moody aided in the apprehension of
another capital felon; four jurors found that the murder was commit-
ted while Moody was under the influence of mental or emotional dis-
turbance; one juror found that Moody acted under the domination of
another person; two jurors found that Moody was physically and ver-
bally abused by his father during his formative years; and one juror
found that Moody suffered during his childhood and adolescent years
as a result of the lack of love and nurturing from his father and step-
mother. No juror found any of the remaining fifteen mitigating cir-
cumstances. Death was recommended.
Viewing the totality of the evidence before the jury and the mitigat-
ing circumstances which were submitted and found, I cannot conclude
that there is a reasonable probability that, had trial counsel presented
the potential mitigation evidence developed during habeas along with
the mitigation evidence presented, that the jury would have returned
a life sentence. Accordingly, while I believe the state court’s determi-
nation that counsel’s investigation was not deficient was an unreason-
able one, I concur in the judgment denying habeas relief because I
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ultimately cannot say that counsel’s deficient performance prejudiced
Moody.
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