John Glenn Moody, Petitioner-Appellant,
Gary L. Johnson, Texas Department of Criminal
Institutional Division, Respondent-Appellee.
Circuits, 5th Cir.
April 16, 1998
Appeal from the
United States District Court for the Northern
District of Texas.
Before DAVIS, JONES and DUHE,
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
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.
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
A. COMPETENCY TO STAND TRIAL
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
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
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
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
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
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.
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
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
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.
B. EFFECTIVE ASSISTANCE OF
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
C. ALLEGED IMPROPER CONTACT
BETWEEN BAILIFF AND JUROR
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.
D. DR. GRIGSON'S TESTIMONY
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
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.
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.
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.
E. DR. CLAY GRIFFITH
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