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John Glenn MOODY





Classification: Murderer
Characteristics: Rape - Robbery
Number of victims: 1
Date of murder: July 3, 1988
Date of arrest: Next day
Date of birth: October 17, 1952
Victim profile: Maureen Louise Maulden (female, 77)
Method of murder: Strangulation with a telephone cord
Location: Taylor County, Texas, USA
Status: Executed by lethal injection in Texas on January 5, 1999


Date of Execution:
January 5, 1999
John Glenn Moody #933
Last Statement:

Id like to apologize and ask forgiveness for any pain and suffering I have inflicted upon all of you, including my family. All of you, I am very sorry. There is a point where a man wants to die in judgment. Though my judgment is merciful, I hope and pray that all those involved as well as the judgment upon yall, will one day be more merciful than mine. God bless you all. God speed. I love you. Remain strong. Ask God to have mercy. I love you all, too. Im very sorry. Ive got to go now. I love you.

John Glenn Moody
was a parolee when he raped and strangled a 77-year-old woman after she gave him a job doing lawn work. 

Moody had nearly two dozen convictions over 19 years and had been out on parole for five months, having completed a seven-month term for burglary. 

In July of 1988 he was hired by Maureen Louise Maulden to do yard work at her Abilene home. The widow apparently was unaware of Moody's criminal past, which he blamed on drinking, drugs and a bad temper. Mrs. Maulden's sister found her body. She had been raped, beaten with a fireplace brush and strangled with a telephone cord. 

Maureen Maulden's son Blair Maulden took his own life in 1991, three years after his 77-year-old mother's body was found in her home.

Family members and the lawmen who investigated the case are convinced the brutal slaying plunged her only child into a depression from which he never recovered.  "It was devastating to him," said District Attorney James Eidson. "It wore on him wondering how much his mother had suffered. Victims never stop living that." 

The 46-year-old death row resident declined a recent interview request. Oddly, he said he didn't want to disappoint his mother, who objects to the media.  "Everyone's got a momma," said prison spokesman Larry Fitzgerald. 

By all accounts, Maureen Maulden was the mothering sort. An employee of Southland Beauty Supply, a member of the Abilene Women's Club and a worshipper at St. Paul's United Methodist Church, she was admired most for her unflinching service as her family's caretaker. 

She moved back into the Sayles Boulevard family home in 1971 to care for her elderly mother. She retrieved a mentally ill sister from the Big Spring State School to care for her also. And she nursed her bedridden husband, L.B. Maulden, before he died in 1978. 

In December 1997, Maureen moved from the family home to a home where she could be closer to her friends. She occasionally hired, at her sister's recommendation, John Glenn Moody to do odd jobs and yard work. Neither woman was aware the man had a long and often violent criminal history. 

On the evening of July 3, 1988, neighbors noticed a pickup truck matching Moody's in Maureen's driveway and someone resembling the handyman on her front porch. 

Mildred Adams, who had introduced Moody to Maureen, discovered her sister's battered body the following evening. 

Police subsequently found the elderly woman had been violated sexually, beaten bloody with a fireplace tool, and strangled with a telephone cord that was left cinched around her throat. 

The violence of the attack shocked even veteran law officers.  "The thing I've always thought about was her last two minutes of life had to be just horrible," said police Sgt. David Watkins, who investigated the death.

"That still sticks with me."  Eidson added, "You can't help but put yourself in her place and wonder what must have been going through her mind. To be humiliated, degraded and tortured -- it doesn't get any worse than that." 

About three hours after Maulden's body was discovered, Abilene police arrested Moody for public intoxication.

Working on a hunch, detectives linked the murder to Moody, who left an indisputable trail of evidence. 

When arrested, Moody was carrying two of Maulden's rings in his wallet. When his then wife went to the jail to retrieve his personal belongings, booking officers overheard Moody warn the woman to ditch the rings because they were "hot" -- slang for stolen. 

But the most incriminating piece of evidence was a bloody fingerprint on a phone in Maulden's home. 

The blood was Maulden's; the print was Moody's. And the impression was so distinct it offered 20 points of similarity for an expert to confirm -- twice as many as the law requires.  "That's what did it," said attorney David Thedford, who defended Moody at the trial. "There just was no way around it and no way to explain it." 

After 2-1/2 hours of deliberation, the six-man, six-woman jury found Moody guilty of capital murder.

After more testimony that labeled Moody a homicidal sexual deviant certain to commit more crimes, jurors sentenced him to death.  "We didn't want to do it, but you can't just let him get away, you just can't," said 74-year-old Rachel Hamm, one of the jurors. "It was a hard decision, but he had done it; he obviously had no remorse, and he needed to be punished." 

Five months before Maulden's murder, Moody was freed on parole as a nonviolent offender having served seven months of a five-year sentence for burglary. 

Had parole officials checked his past, they would have found 21 convictions over the previous 19 years -- most of them in West Virginia and Ohio. His crimes ranged from theft and armed robbery to escape and sexual assault.

At trial, then prosecutor Sandy Self dubbed him a "monster" with a "Ph.D. in crime." Eidson cited him as a lost cause for criminal rehabilitation. 

The district attorney recently conceded the system failed Maulden.  "But that answer becomes obvious only in hindsight," he said. "The situation where the system works, you never hear about."  Eidson said, "I have no misgivings about executing John Glenn Moody. This was an easy decision to seek the death penalty. But I'm not in a frame of mind to celebrate. It's regretful the system has to go to this end, but it does." 

As he did at trial, defense attorney Thedford argued that killing a killer is a mistake.  "The death penalty is wrong under any circumstance," he said. "Society doesn't benefit by murdering a murderer." 

Since his conviction, Moody has flip-flopped between arguing he is innocent -- while refusing to discuss the evidence -- and insisting a recipe of brain maladies, narcotics and an abusive childhood are to blame for his victim's death. 

Jon McAden, Maulden's nephew, expects Moody to "deny till he dies."  "I wish he would admit it," said McAden, an Abilene High teacher. "It might bring some closure, but you never have full closure on a tragedy like this. "Maureen was one of the most loving people I ever met. How could this happen to someone like her who was always willing to help somebody? It just floored you."

Though McAden supports capital punishment, he has no desire to watch Moody die. "I think it's kind of morbid," he said. "If it needs to be done, just let it be done."

Likewise, neither Mildred Adams nor her daughter, Clark, will drive to Huntsville for Wednesday's  execution. Clark said her mother especially is wrestling with feelings of guilt and pain over her sister's murder.  "It's going to bring some closure to the pain," Clark said of the execution. "Of course, you never forget about it. I just wish it hadn't taken so long. It just seems like the wound hasn't healed." 

In a 1994 interview with the Associated Press, Moody seemed to have accepted his fate, saying, "It doesn't bother me anymore. I'm at peace. I know where I'm going." 

Watkins, the cop who helped win the death sentence, hopes so. He tempered his call for justice with one wish for Moody.  "The thought of someone dying -- just or not -- is not pleasant," the officer said. "He's forgiven for his sin, but he's still got to do the punishment. It would be my prayer he makes things right with the Lord. He's gonna need it."  


John Glenn Moody

The unexpected testimony of John Glenn Moody's wife, Lynn, proved to be the most detrimental in his conviction for the capital John Glenn Moody was convicted in the murder, robbery and sexual assault of 77 year-old Maureen Louise Maulden in February 1989.

Maulden's body was found at her home by her sister, strangled and beaten, on July 4, 1988. A purse, wallet and two rings were missing. Moody, who had been doing yard work and other odd jobs for Maulden, was arrested for public intoxication on July 5 and the two rings belonging to Maulden were found in his possession.

Moody was said to have changed his story many times leading up to the trial. According to Taylor County District Attorney, James Eidson, Moody told one story in a television interview then changed it after meeting with his attorneys.

Thedford agreed saying, "John changed his story many times." Thedford said that at one point Moody claimed to have entered the house with a man named Red. Moody told Thedford he was knocked unconscious and awoke to find Maulden's body next to his. After Thedford had located Red, Moody told him "Red didn't have anything to do with it." Thedford went on to say, "that's how it was with Mr. Moody."

Moody had informed Thedford that he wanted his wife, Lynn, kept informed of everything that was happening regarding the defense of his case. Thedford did so. Lynn, however, ended up testifying that Moody had molested her daughter in what Thedford says was "very shocking" testimony. Moody, who was considered to be fairly passive during most of the trial, must have held his wife a bit responsible for his conviction, because when his sentence was handed down he turned around, looked at his wife and said "Thanks a lot, Lynn."

Eidson said that both a clear bloody fingerprint belonging to Moody as well as a witness who saw Moody's car at Maulden's were key pieces of evidence against Moody. The fingerprint was found on the telephone and the witness was only one number off in identifying the license plate of the car. Eidson also said that Moody's long criminal history was another key to winning the conviction. Moody had been convicted of various crimes in his native West Virginia, Ohio, and had just been paroled from a Texas prison in February 1988.

Moody was originally scheduled to be executed in March 1994, but was granted a stay of execution in order to give a federal judge more time to go over a 160-page appeal. Moody filed appeals on many accounts. At one point he claimed he was not mentally stable as the result of a childhood of abuse. Eidson said that if this were true it would have come up during the actual trial. Moody went on to file three writs of certiorari, an appeal for a rehearing, and habeas relief, all of which were denied by the courts.

Moody was executed by lethal injection January 5, 1999, saying in his last statement that he was sorry for any pain and suffering he had caused anyone, especially his family.



John Glenn Moody, 46, - 99-1-5 - Texas

Moody executed for 1988 murder of Abilene woman

By Michael Graczyk Associated Press Writer

HUNTSVILLE, JAN. 6 -- Convicted killer John Glenn Moody blamed drugs in part for his violent past and it was a lethal dose of drugs that served as punishment to end his life.

Moody, with halting speech and fighting back tears, expressed remorse Tuesday night for pain and suffering he caused as he received a lethal injection in the Texas death chamber.

But the West Virginia native, whose record before the murder of a 77-year-old Abilene woman included 21 convictions over 19 years, did not specifically acknowledge murdering the woman at her home more than a decade ago.

''I am very sorry,'' Moody, 46, said as he lay strapped to the death chamber gurney, needles inserted into his hands. Several friends and family members and two relatives of murder victim Maureen Louise Maulden watched through windows a few feet away.

He said he hoped those involved in his case and those watching him die would experience a final judgment ''more merciful than mine.''

''I've got to go now,'' he added. ''I love you.''

Eight minutes later he was pronounced dead.

The execution was delayed for more than two hours while Moody's attorneys filed appeals challenging Texas clemency procedures.

The Texas Board of Pardons and Paroles had voted Monday 17-0 with one member abstaining to deny clemency. The board's secret vote procedures similarly were challenged last month by two inmates who won 11th-hour reprieves in the courts.

Moody's appeal, however, was rejected Tuesday night by the U.S. Supreme Court and a few minutes later he was taken to the death chamber.

Moody had blamed a genetic disorder aggravated by alcohol and drug use that started at age 11 for his long criminal record that culminated with the July 3, 1988, murder of Mrs. Maulden.

The widow apparently was unaware that Moody, whom she hired to do lawn work and odd jobs, had been paroled five months earlier after serving seven months of a five-year sentence for burglary. It was his 21st conviction. Most of the others came in his native West Virginia and Ohio.

Taylor County District Attorney James Eidson, who prosecuted the capital murder case, said parole boards that continued to release Moody were fooled by a quiet inmate who caused few problems when locked up and away from drugs and alcohol.

''That's the Moody they saw,'' and they continued to think he was worth taking a chance on, Eidson said.

A sister found Mrs. Maulden's body. She had been raped, beaten with a fireplace brush and strangled with a telephone cord.

Moody acknowledged knowing the victim but denied murdering her. Mrs. Maulden's only child, a son, Blair, committed suicide in 1991. Many familiar with him believe her death drove the man to depression.

''I remember her son during the trial, and it was apparent then he was hurt a great deal by this,'' Eidson said this week.

Jon McAden, Mrs. Maulden's nephew, told the Abilene Reporter-News he hoped the execution finally would end the family's agony.

''But you never have full closure on a tragedy like this,'' he said.

Moody, from Chester, W.Va., was linked to the Maulden slaying when police who arrested him for public intoxication the day after the murder found he was carrying the woman's two rings.

Investigators also found his fingerprint in the victim's blood on the telephone that was used to strangle her, and a witness provided a license plate number for a pickup truck seen leaving Mrs. Maulden's home. Five of the six numbers matched Moody's vehicle.



139 F.3d 477

John Glenn Moody, Petitioner-Appellant,
Gary L. Johnson, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.

No. 96-10645

Federal Circuits, 5th Cir.

April 16, 1998

Appeal from the United States District Court for the Northern District of Texas.

Before DAVIS, JONES and DUHE, 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.


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 orally 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. See Moody v. State, 827 S.W.2d 875 (Tex.Crim.App.), cert. denied, 506 U.S. 839 , 113 S.Ct. 119, 121 L.Ed.2d 75 (1992).

In April of 1993, Moody, while represented by counsel, filed a state application for writ of habeas corpus, in which he 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


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 , 113 S.Ct. 990, 122 L.Ed.2d 142 (1993).


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, 517 U.S. 348 , 355, 116 S.Ct. 1373, 1377, 134 L.Ed.2d 498 (1996)), cert. denied, --- U.S. ----, 117 S.Ct. 1259, 137 L.Ed.2d 338 (1997).

The constitutional standard for competency to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as a factual 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, 80 S.Ct. 788, 4 L.Ed.2d 824 (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.' " Washington, 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, he 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 evidence 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 presumption 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 that the court erred in according the presumption of correctness to the state court 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 was 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 a 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 history 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-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 testimony 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 incompetency 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 still 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 illness is a question of fact reviewed under the clearly erroneous standard. However, we take a "hard look" at the ultimate competency finding.

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

A review 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 present 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 more 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 interviewed 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 and words contemporaneous with the prosecution. Moody's family gave counsel no clue that mental illness might be present. Moody's attorney denied 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.


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, Moody is required to establish both (1) constitutionally deficient performance by his counsel and (2) actual prejudice as a result of his counsel's ineffectiveness. See Carter, 131 F.3d at 463 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (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 Strickland analysis, Moody must prove that his counsel's performance fell below an objective standard of reasonableness. See id. Reviewing courts must give counsel's performance high deference. See id. The determination whether counsel was constitutionally ineffective is a mixed question of law and fact that this court reviews de novo. See Id.

This claim of ineffectiveness is undermined by the preceding discussion. Moody's trial counsel could not have been deficient in failing to discover his alleged incompetence where there has been no satisfactory showing that Moody was incompetent. Counsel made a reasonable investigation and, finding no evidence that suggested the mental problems Moody now complains of, reasonably decided not to request a mental evaluation. Cf. id. at 464 (" 'There can be no deficiency in failing to request a competency hearing where there is no evidence of incompetency.' ") (quoting McCoy v. Lynaugh, 874 F.2d 954, 964 (5th Cir.1989)).


Moody next complains that his trial was "tainted by an improper and inherently prejudicial contact between a bailiff and a juror during guilt-innocence deliberations" in violation of his constitutional 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. See United States v. Olano, 507 U.S. 725, 738-39, 113 S.Ct. 1770, 1779-80, 123 L.Ed.2d 508 (1993) (relying on Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982)).

The facts underlying this claim were described by the Texas Court of Criminal Appeals as follows:

[A]fter the 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 submitted 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 attention 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 any 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, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (citing Marshall v. Lonberger, 459 U.S. 422, 433, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (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 State had sufficiently discharged its 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.


Moody attacks the testimony of Dr. James Grigson, an expert who testified for the prosecution that Moody would be a future danger. Moody asserts that at the time of trial, Dr. Grigson was in possession 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (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. See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 765, 31 L.Ed.2d 104, (1972) (citing Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) and Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (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 determination. See id. at 154, 92 S.Ct. at 765.

Similarly, under Brady, the prosecution's failure to disclose information to the defense is a constitutional violation only if the evidence was material to either guilt or punishment. The district court concluded 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 correction 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 the rape of his ten-year-old stepdaughter, a lengthy criminal history, and evidence of repeated escapes from incarceration. In the face of such compelling testimony, it is unlikely that the jury's ultimate determination would have been different.


Moody's final complaint concerns the testimony of prosecution 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 testify falsely as to the APA's position on the prediction of future dangerousness in capital cases.

The district court found that Moody did not establish 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.


For the foregoing reasons, we AFFIRM the judgment of the district court denying habeas relief.


1 After Moody filed his application for a CPC, the Anti-Terrorism 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. See 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. See Lindh v. Murphy, 521 U.S. ----, ----, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997). The district court granted a CPC, so the case is before us on direct appeal

2 In view of the state court determination that Moody presented insufficient evidence of incompetency to stand trial, the federal habeas court probably was not required to conduct an evidentiary hearing. See Keeney v. Tamayo-Reyes, 504 U.S. 1, 10, 112 S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992) (petitioner is entitled to a federal evidentiary hearing only if he can show cause for his failure to develop the facts in state court proceedings and actual prejudice resulting from that failure, or to avert a fundamental miscarriage of justice)

3 For purposes of this discussion we assume arguendo that the possession 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



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