Moore v. Johnson

(“a state court’s ultimate conclusion that

counsel rendered effective assistance is not a fact finding to

which a federal court must grant a presumption of correctness”);

see also Carter v. Johnson,

131 F.3d 452, 463

(5th Cir. 1997),

cert. denied,

118 S. Ct. 1567

(1998); Motley v. Collins,

18 F.3d 1223, 1226

(5th Cir. 1994); Black v. Collins,

962 F.2d 394, 401

(5th Cir. 1992); Mattheson v. King,

751 F.2d 1432, 1439

(5th Cir.

1985). The state court’s subsidiary findings of specific

historical facts and state court credibility determinations are,

however, entitled to a presumption of correctness under § 2254(d).

Carter,

131 F.3d at 4643

; Bryant,

n.3. Thus, a

state habeas court’s determination that counsel conducted a

pretrial investigation or that counsel’s conduct was the result of

a fully informed strategic or tactical decision is a factual

determination, while the adequacy of the pretrial investigation and

the reasonableness of a particular strategic or tactical decision

is a question of law, entitled to de novo review. See Horton v.

37 Zant,

941 F.2d 1449, 1462

(11th Cir. 1992); see also Bryant,

28 F.3d at 1414-19

; Whitley,

977 F.2d at 158-59

; Wilson,

813 F.2d at 672

The Court is, therefore, not required to condone unreasonable

decisions parading under the umbrella of strategy, or to fabricate

tactical decisions on behalf of counsel when it appears on the face

of the record that counsel made no strategic decision at all.

Compare Mann v. Scott,

41 F.3d 968, 983-84

(5th Cir. 1994) (citing

record evidence for proposition that counsel made a strategic

decision not to offer mitigating evidence during the punishment

phase of a capital trial), with Whitley,

977 F.2d at 157-58

(concluding from the record that counsel’s failure to offer

mitigating evidence during the punishment phase of habeas

petitioner’s capital trial was not the result of a considered

strategic decision, and therefore not entitled to deference), and

Wilson,

813 F.2d at 672

(concluding that the existing record was

inadequate for purposes of determining whether counsel made a

strategic decision not to offer mitigating evidence during the

punishment phase of a capital trial or whether that decision was

professionally reasonable); see also Whitley,

(“The

crucial distinction between strategic judgment calls and plain

omissions has echoed in the judgments of this court.”); Profitt v.

Waldron,

831 F.2d 1245, 1248

(5th Cir. 1987) (Strickland’s measure

of deference “must not be watered down into a disguised form of

38 acquiescence.”);

id. at 1249

(refusing to indulge presumption of

reasonableness as to “tactical” decision that afforded no advantage

to the defense). Rather, the fundamental legal question is

whether, viewed with the proper amount of deference, counsel’s

performance was professionally reasonable in light of all the

circumstances. Strickland,

104 S. Ct. at 2066

Having set forth the factual background of this case and the

appropriate standards governing both Moore’s substantive claim that

he received ineffective assistance of counsel and the district

court’s treatment of relevant findings by the state habeas court,

we now proceed to review the district court’s application of those

standards.

A. Subornation of Perjury and Selection of Alibi Defense

Moore claims that trial counsel Bonner created a false alibi

defense, and then suborned perjury by pressuring Moore and his

sisters Clara Jean Baker and Colleen McNiese to testify in support

of the alibi. Moore claims that Bonner engaged in this conduct

notwithstanding Bonner’s knowledge that Moore’s confession

accurately portrayed the shooting as accidental, rather than

intentional. Moore identifies this conduct as deficient

performance within the meaning of Strickland.

Moore supported his habeas claim in the state habeas

39 evidentiary hearing with his own testimony, and that of his

sisters, to the effect that Bonner told them on the day of trial

that alibi was the only possible means of avoiding the death

penalty. McNiese testified that she did not understand what Bonner

was asking her to do. Baker testified that she understood, and

that she testified falsely at Moore’s criminal trial shortly after

talking to Bonner because she thought she was saving her brother’s

life.

The state habeas court heard conflicting evidence from Bonner

that the alibi defense was insisted upon by Moore and corroborated

by his family. Bonner also testified that he was skeptical of the

alibi defense at first because most of his clients initially

protested innocence, but that he became increasingly more

comfortable with using the defense when he determined in the course

of his pretrial investigation that none of the state’s witnesses

had been able to identify Moore, that Moore no longer lived with

Betty Nolan, that Nolan’s son, Michael Pittman, had a record, that

the shotgun recovered from Nolan’s house could not be definitively

linked to either Moore or the offense, and that the state was not

able to connect either of the wigs found at the crime scene to

Moore using exemplar hair samples.

The state habeas court resolved this conflicting evidence with

a credibility determination. The state court found that Bonner’s

testimony on the issue of subornation was credible, and that Bonner

did not suborn perjury or attempt to suborn perjury from Moore’s

40 sisters. Implicit in that fact finding is the additional

determination that Bonner likewise did not suborn perjury from

Moore.

The district court found deficient performance based upon

counsel’s presentation of a perjured alibi defense. The district

court identified the state habeas court’s factual determination

that Bonner did not suborn perjury, but stated that the fact

finding was not entitled deference because the state habeas court’s

finding was “confounded by overwhelming evidence to the contrary

and is not supported by the record.” The district court also found

that the “conduct of trial counsel was so contrary to the great

weight of evidence that only a foolish man would insist upon

presenting such a defense.” Both rationales for rejecting the

state habeas court’s factual determination are problematic.

With regard to the first rationale, we note that the state

court’s factual finding that Bonner did not suborn or attempt to

suborn perjury is a credibility determination made on the basis of

conflicting evidence that is virtually unreviewable by the district

court or our Court. Marshall,

103 S. Ct. at 850

. Section 2254(d)

does not grant federal habeas courts a “license to redetermine

[the] credibility of witnesses whose demeanor has been observed by

the state trial court.”

Id. at 851

. Moreover, even though we may

share the district court’s skepticism, the state habeas court’s

credibility determination draws fair support from the record in the

41 form of Moore’s trial testimony and Bonner’s evidentiary hearing

testimony. For that reason, the district court’s first rationale

for rejecting the state habeas court’s credibility determination

and its contrary fact finding must be rejected as clearly

erroneous. See Bryant,

n.3.

The district court’s second rationale is more subtle, but is

apparently driven by the underlying premise that a reasonably

competent attorney would have dissuaded Moore from pursuing an

alibi defense. The district court opined that trial counsel cannot

be permitted to evade their burden to provide reasonably effective

assistance under the constitution by shifting the blame for

selection of an implausible defense to the defendant.

Although we find ourselves somewhat in sympathy with the

district court’s comments, we cannot agree. Moore is presumed to

be the master of his own defense. See Faretta v. California,

95 S. Ct. 2525, 2533-34

(1975); United States v. Masat,

896 F.2d 88, 92

(5th Cir. 1990); Mulligan v. Kemp,

771 F.2d 1436, 1441-42

(11th

Cir. 1985). Were it otherwise, we might well face ineffective

assistance of counsel challenges anytime a chosen defense failed.

Moreover, Moore bears the burden of proving his allegation that the

alibi defense was unwillingly foisted upon him. See Brewer v.

Aiken,

935 F.2d 850, 860

(7th Cir. 1991) (“[W]e refuse to hold that

the presentation of perjured testimony at the request of the

defendant is adequate to constitute ineffective assistance of

42 counsel.”). The state habeas court found that Moore maintained his

innocence and endorsed the alibi defense at trial. That

determination is fairly supported by Moore’s trial testimony and

Bonner’s evidentiary hearing testimony. In addition to the evidence

described above, the state tendered excerpts from Moore’s pro se

brief on direct appeal into the record of the state court habeas

proceeding. Moore’s pro se brief argues at length that trial

counsel were ineffective for failing to call additional witnesses,

including his grandmother and father, who would have testified in

support of his alibi defense. When asked about this argument

during the evidentiary hearing in the state habeas court, Moore

conceded that he thought the argument should be raised. There is

every indication, as the state habeas court found, that Moore

maintained his innocence and insisted upon an alibi defense, both

during his trial and on direct appeal.

Neither can we accept Moore’s contention that counsel’s

decision to pursue an alibi defense was unreasonable as a matter of

law, without regard to who selected the defense, because it was at

odds with the known facts. We have already held that Moore chose

the alibi defense. Counsel will rarely be ineffective for merely

failing to successfully persuade an insistent defendant to abandon

an unlikely defense. See Mulligan,

771 F.2d at 1442

. Moreover, we

cannot say that the alibi defense was necessarily at odds with the

evidence known to counsel at the time Moore’s trial began. None of

43 the state’s witnesses had been able to identify Moore. In

addition, Moore’s physical appearance did not match eye-witness

accounts of a taller man from Edna Scott. Neither the gun nor the

wigs nor the plastic bags could be tied to Moore by way of

fingerprints or exemplar hairs. The gun itself could not be

definitively tied to the offense. Moreover, Michael Pittman had a

significant prior record and was arguably as likely a suspect as

Moore.

Moore counters that the alibi defense became untenable and

should have been abandoned once his confession was ruled

admissible. The district court agreed. We agree that succeeding

on an alibi defense, particularly in the face of a defendant’s

admissible confession is “similar to one trying to climb by himself

the tallest mountain in the world.” Moore,

700 S.W.2d at 205

. But

there is no obvious conflict in the record evidence. Moore

testified at trial before the jury that he did not sign the

confession. Moore testified at trial before the jury in support of

the alibi defense. Moore, acting pro se, pursued the alibi defense

on direct appeal. Whatever inherent inconsistency was created by

the admission of Moore’s confession was cured by his testimony that

the confession was invalid and his contemporaneous testimony that

he was somewhere else when the crime was committed.

For the foregoing reasons, we decline to find deficient

performance on the basis of Moore’s allegation that counsel

44 suborned or attempted to suborn perjury in their presentation of

the false alibi defense or that counsel should have persuaded Moore

to abandon the alibi defense.

B. Inadequate Pretrial Investigation

Moore also maintains that counsel’s decision to pursue an

alibi defense was unreasonable because counsel failed to conduct an

adequate pretrial investigation into the controlling law and facts.

Moore contends that counsel’s factual investigation of Moore’s

alibi defense was insufficient. This argument is divided into two

separate components. First, Moore maintains that counsel should

have determined that the support for Moore’s alibi, that he was

with his grandmother in Louisiana, was weak. Second, Moore argues

that counsel were ineffective for failing to contact or interview

or otherwise discern the testimony of state’s witnesses to

extraneous conduct committed by Moore.

With regard to the first argument, the state habeas court

concluded that counsel conducted a reasonable and independent

pretrial investigation. This conclusion of law rested upon factual

determinations that counsel discussed the alibi defense with Moore

and with Moore’s family members, and that Moore’s family supported

the defense. The district court accepted the premise that counsel

met with Moore and his family, but rejected the conclusion of law

that counsel’s pretrial investigation was therefore independent or

reasonable. We review that determination of law de novo.

45 Moore’s argument that counsel failed to conduct a sufficient

investigation into the facts underlying his alibi defense is

unavailing. As an initial matter, Moore’s ability to meet his

burden on this point is substantially weakened by our conclusion

that Moore himself chose and insisted upon the alibi defense.

Moore is essentially arguing that counsel should have expended

pretrial resources unearthing evidence to contradict their client’s

chosen defense. We are persuaded that the record adequately

supports the proposition that there was sufficient investigation,

at least as to the veracity of Moore’s alibi that he was in

Louisiana when the offense occurred. Moore selected the defense.

Bonner interviewed Moore and Moore’s family members. Bonner

traveled to Louisiana to interview Moore’s grandmother. In

addition, Bonner reviewed the state’s files, ascertaining that the

physical evidence, and the testimonial evidence to be offered in

the state’s case-in-chief were consistent with Moore’s alibi. To

the extent that the confession was inconsistent with the alibi

defense, Moore’s trial testimony that the confession was invalid

cured any problem. We therefore decline to find deficient

performance on the theory that counsel failed to adequately develop

facts contradicting the alibi defense.

Moore’s second argument is that counsel were ineffective for

failing to ascertain what evidence of similar extraneous conduct

the state might offer in rebuttal to his alibi defense. In

contrast to its case-in-chief, the state introduced substantial and

46 highly probative evidence that Moore, carrying a shotgun, robbed

two small grocery stores on the two Fridays preceding the Friday,

April 25, 1980, robbery of the Birdsall Super Market. All of the

state’s three rebuttal witnesses were able to positively identify

Moore. There can be no doubt that this evidence was critical to

Moore’s conviction. Prior to the state’s case on rebuttal, none of

the state’s witnesses had been able to unconditionally place Moore

at the scene of the crime. Moreover, it is undisputed that this

damaging evidence was admissible only because Moore chose the alibi

defense.

Moore argues that counsel acted unreasonably because they

simply did not understand that Texas law would permit the state to

rebut Moore’s alibi with evidence of similar extraneous conduct.

The state habeas court did not make any explicit findings of fact

with regard to this issue. The state habeas court did find,

however, that counsel made reasonable attempts to investigate

potentially admissible extraneous conduct. Thus, the state habeas

court implicitly found that counsel were aware of the controlling

principles of Texas law that made extraneous conduct admissible to

rebut a defendant’s alibi defense. That finding is consistent with

Bonner’s state habeas hearing testimony that he knew extraneous

conduct might come in and that he informed Moore of that

possibility. The district court did not expressly address this

implicit finding, but did conclude that counsel were unprepared to

meet extraneous offenses that came in as a result of alibi.

47 Moore supports this argument with citations to counsel’s trial

objections. In those objections, counsel maintained that the

extraneous conduct was inadmissible because not sufficiently

proven. Counsel reasserted those arguments, with considerable

persuasive force, on direct appeal. Moore,

700 S.W.2d at 198-201

Indeed, the Texas Court of Criminal Appeals wrote at length about

both the general rule that extraneous conduct may be admissible to

rebut an alibi defense and the exceptions to that general rule, as

applied to Moore’s case.

Id.

Viewed in the context of the entire

trial record and the controlling principles of Texas law, we cannot

say that counsel’s trial objections demonstrate that counsel was

not aware that extraneous conduct might be offered on rebuttal. We

therefore conclude that the state habeas court’s fact finding that

Bonner was aware of the applicable principles of law is fairly

supported by the record, and therefore entitled to deference from

this Court.

Moore next argues that counsel had an affirmative duty to

identify the state’s witnesses to extraneous conduct and to

interview those witnesses if possible. See Bryant,

28 F.3d at 1415

(finding ineffective assistance of counsel based upon counsel’s

failure to interview potential witnesses); see also Gray v. Lucas,

677 F.2d 1086

, 1093 n.5 (5th Cir. 1982) (noting that an ineffective

assistance of counsel claim may be based upon counsel’s failure to

interview critical witnesses). Bonner conceded in the state habeas

48 hearing that the state’s file included a list of witnesses slated

to testify that Moore had participated in similar extraneous

offenses. Notwithstanding that knowledge, Bonner admitted that he

made no attempt to contact those witnesses or to ascertain the

content of their potential testimony. See Bryant,

28 F.3d at 1417

(counsel’s failure to contact potential witnesses was uninformed by

any investigation and was therefore not a strategic choice entitled

to deference under Strickland).

Bonner testified that he did not know whether Devine had

contacted the extraneous witnesses. The state habeas court found,

on the force of Bonner’s testimony, that Devine interviewed the

extraneous witnesses. The district court did not address this

factual determination, aside from noting that counsel’s pretrial

investigation into extraneous conduct was inadequate in light of

the chosen alibi defense.

We agree. Bonner’s testimony is not probative with respect to

whether Devine contacted the extraneous witnesses. Bonner said he

did not know. He later qualified that testimony by stating that

Devine might have handled that part of the case, but that assertion

is contradicted by the fact that Bonner conducted the cross-

examination of one of the state’s star rebuttal witnesses.

Moreover, counsel’s trial objections and their pathetically weak

cross-examinations of the state’s rebuttal witnesses undermine

beyond any reasonable doubt the proposition that counsel followed

49 up on information in the state’s file by attempting to interview

the state’s witnesses to extraneous conduct or by independently

investigating the damaging allegation that Moore was involved in

two very similar robberies on the two Fridays preceding the

Birdsall Super Market robbery. In counsel’s own words: “We haven’t

had a chance to prepare a defense about things that have occurred

at other places. We don’t even know what is going on here.” For

the foregoing reasons, the state habeas court’s fact finding that

Devine contacted the state’s witnesses to extraneous conduct is not

fairly supported by the record, and is therefore not entitled to

deference under § 2254(d).

Moreover, and without regard to whether Devine actually

contacted the state’s witnesses to extraneous conduct, the record

quite plainly establishes that counsel failed to include any

consideration of the state’s evidence of extraneous conduct when

counseling Moore about the alibi defense. Thus, even if the

investigation was adequate, counsel’s response to the admissible

evidence was so unreasonable as to fall well outside the bounds of

reasonable professional performance. For the foregoing reasons, we

find deficient performance on the basis that counsel failed to

50 investigate the substance of evidence to be introduced on rebuttal

in response to Moore’s alibi defense, or proceeded unreasonably in

light of that evidence.5

C. Exclusion of Exculpatory Language in Moore’s Confession

Moore contends that his counsel provided constitutionally

deficient performance in their handling of his confession during

the guilt phase of trial. Moore’s confession contained the

following exculpatory language:

* * *

I swear I was not trying to kill the old man and the whole thing was an accident.

5 Moore also argues that counsel were deficient for failing to interview Moore’s fellow perpetrators, Koonce and Pradia, for the purpose of determining what evidence those individuals might have offered against Moore. Bonner testified that he attempted to contact Koonce and Pradia, but that the contact was forbidden by their lawyers. The state habeas court also reviewed conflicting affidavit testimony from Koonce’s lawyers that neither Bonner nor Devine ever contacted them. The state court resolved this conflict in the evidence by finding that Bonner attempted to contact Koonce and Pradia, but was precluded from interviewing them by their counsel. While Bonner’s testimony is frankly incredible on this point, the state habeas court’s fact finding finds some support in the record. We are therefore precluded from substituting our own judgment for that of the state habeas court, which received Bonner’s live testimony. For that reason, we find no deficiency in counsel’s performance on the theory that they failed to contact Koonce and Pradia.

51 No one disputes that the exculpatory language quoted above has

obvious relevance to the guilt phase issue of intent, as well as

the punishment phase special issue of deliberateness.

Moore’s confession was introduced through one of the arresting

officers, Officer Ott. Officer Ott testified on voir dire that all

of the statements in Moore’s confession were Moore’s own

statements. The state nonetheless wanted to limit its tender to

those portions of the confession that were inculpatory. Moore’s

counsel initially stated that they had not decided whether they

would use the remaining exculpatory portions. After the state

agreed to temporarily cover the exculpatory language, Moore’s

counsel inexplicably agreed not to use the exculpatory language and

requested that the portions quoted above be excised from his

confession. As a result, the jury received a confession that

describes Moore pointing a shotgun in McCarble’s direction, sets

forth a conspicuous white space where the crime should have been

described, and then describes Moore fleeing the store after

McCarble was shot. Moore’s counsel did not attack the veracity or

completeness of the confession by cross-examining Officer Ott and

did not offer the excluded exculpatory language at any later stage

of Moore’s trial.

Bonner was asked why the exculpatory language was excised from

the confession during the state habeas evidentiary hearing. He

testified as follows:

52 Well, maybe it was taken out by the state. I don’t know who took it out, really. It doesn’t have my signature down there that I actually took it out. Maybe the Court took it out prior to even having it introduced. I don’t suggest to you that I did that.

When recalled by the state, Bonner testified there “may have been”

statements in the confession that were inconsistent with the chosen

strategy of alibi. When prodded further, he stated that Moore’s

statements that the shooting was accidental might fall into that

category.

Bonner was also asked why the exculpatory language, which

supported Devine’s jury argument during the punishment phase, would

not have been introduced during the punishment phase of the trial.

Bonner testified “I don’t know.” Bonner further testified that the

exculpatory portions of Moore’s confession: (1) could have been

introduced at the punishment phase, (2) would have been relevant in

the punishment stage, and (3) given the jury’s guilty verdict,

would not in this case have been inconsistent with the chosen

theory of alibi at the punishment phase. Based upon this evidence,

the state habeas court found that counsel’s decision to excise

exculpatory portions of the confession was “consistent with” the

alibi defense. The state habeas court also concluded that

counsel’s use of the alibi defense rendered any use of the

exculpatory language “illogical.” Thus, the state court implicitly

concluded that counsel made a reasonable strategic decision that

Moore’s exculpatory statements were inconsistent with his chosen

53 theory of alibi. The Director argues that this Court is bound by

that mixed finding of fact and conclusion of law.

The district court cited record evidence supporting Moore’s

claim that the shooting was accidental, including the location of

the wound, and testimony that Moore and the people in the booth

moved suddenly just before the shot was fired. The district court

noted that such evidence was consistent with Moore’s confession,

which stated that he was trying to push McCarble back from a drawer

in the booth when he suddenly fell back. The district court

reviewed and rejected the state court’s legal conclusion that

counsel’s decision to exclude the exculpatory language was

reasonable, holding that counsel’s failure to introduce this

potentially mitigating evidence was unconscionable to the point

that it transcended even the rigorous standard for ineffective

lawyering.

To the extent that the state habeas court made an implicit

fact finding that counsel made a strategic decision to exclude

exculpatory portions of the confession, we reject that finding as

not fairly supported by the record. Bonner testified that he had

no idea why the exculpatory language was excluded, or even who had

requested that the exculpatory language be excluded. There is,

therefore, no support, let alone fair support, for such a fact

finding.

To the extent that the state habeas court entered a legal

conclusion that counsel’s decision to exclude exculpatory portions

54 of Moore’s confession was professionally reasonable, we likewise

reject that determination and affirm the district court. Both the

state habeas court’s findings and the Director’s arguments on

appeal defend counsel’s decision with the statement that it was

“consistent with” the chosen trial strategy of alibi. But it was

Moore’s confession, rather than the exculpatory language contained

therein, that was fatally inconsistent with the alibi defense.

Surely the inculpatory portions of the confession, which placed

Moore at the scene of the crime with a firearm pointed at McCarble,

were as inconsistent with Moore’s alibi defense as those

exculpatory portions excluded by counsel. Once the confession was

deemed admissible, there was no justification and no potential

benefit to the defense to be obtained from excluding the

exculpatory language. The jury could only accept or reject the

confession. The inclusion of exculpatory language concerning a

plausible alternative defensive theory that was supported by some

evidence, and that could have raised a reasonable doubt in the

jury’s mind, could in no way have further imperiled Moore’s

defense.

Moreover, the criminal law does not preclude alternative, or

even inconsistent, defensive theories. Indeed, the most successful

criminal attorneys are often those who can create a reasonable

doubt in the jurors’ minds by throwing up one or two or more

plausible alternatives to the defendant’s guilt. Individual jurors

need not be persuaded by the same plausible alternative to guilt to

55 vote an acquittal. Thus, the premise underlying the state habeas

court’s conclusion and the Director’s arguments on appeal that

Moore’s own choice of the alibi defense required the exclusion of

the exculpatory language is simply wrong as a matter of law.

Counsel’s decision to exclude that language, which produced no

conceivable benefit to the defense and prejudiced Moore by

precluding reliance upon a plausible alternative defensive theory

that was supported by other evidence in the record, was

professionally unreasonable. See Whitley,

-59 & nn.

21-22; Profitt,

; Lyons v. McCotter,

770 F.2d 529, 534-35

(5th Cir. 1985) (Strickland does not require deference when

there is no conceivable strategic purpose that would explain

counsel’s conduct).

For the forgoing reasons, we find that Moore’s trial counsel

provided constitutionally deficient performance with respect to

their handling of Moore’s confession during the guilt phase of

Moore’s trial.6

D. Damaging Cross-Examination of Officer Autrey

Moore maintains that trial counsel Devine provided deficient

performance by eliciting damaging evidence against Moore during his

cross-examination of the state’s first witness, arresting officer

6 We also find counsel’s failure to tender Moore’s complete and unredacted confession during the punishment phase of Moore’s trial to be a component of counsel’s deficient performance. That holding is discussed in section V.E. below.

56 Autrey.

The state called arresting officer Autrey to identify pictures

taken at the crime scene and to place the crime in context. The

state’s direct examination is brief and takes up only eleven pages

of the transcript. Trial counsel Devine’s extensive cross-

examination of Autrey went far beyond the scope of direct,

providing either the first mention or the only evidence of the

following important facts: (1) that size 8 shotgun pellets were

found on the floor of the courtesy booth; (2) that police recovered

plastic bags from the scene of the crime, including one containing

a wig and one containing a receipt traced to Moore’s “play mama”

Betty Nolan; (3) hearsay testimony that the bag containing Nolan’s

receipt was dropped during the offense, and not at some other time;

(4) hearsay testimony that Moore came to Nolan’s house on April 25,

1980, the day of the offense, and stayed there that night; (5) that

police recovered a shotgun from under Moore’s bed at Nolan’s house;

(6) that the shotgun recovered from under Moore’s bed was found

with one expended shell and one shell containing size 8 shot, the

same size shot used in the offense; (7) hearsay testimony that

witnesses to the offense heard only one shot; and (8) that police

received a telephone call from a citizen named White, who informed

police that Moore was at his grandmother’s house in Louisiana, and

that police subsequently arrested Moore there. Devine also

elicited testimony that was not otherwise offered by the state

through Autrey concerning the accuracy of the police investigation,

57 including: (1) testimony that a store customer took down the

robbers’ license plate number; (2) testimony that Koonce was

arrested in a car identified by the customer’s information; (3)

testimony that Koonce gave a confession; and (4) other testimony

about the apprehension and arrest of Koonce and Pradia. This

damaging testimony tied Moore to the crime and supported the

accuracy and credibility of the police investigation. All of this

very damaging evidence was elicited by Moore’s own trial counsel

from the state’s first witness.

Devine died shortly after trial and long before the 1993 state

evidentiary hearing. Although the issue was presented to the state

habeas court, Bonner did not advance any explanation for the

damaging cross-examination during the state habeas hearing.

Indeed, the issue did not receive any significant development

during the hearing and, aside from denying relief as to the entire

petition, the state habeas court did not enter any potentially

binding findings of fact with respect to this issue. The district

court found deficient performance, concluding that counsel’s cross-

examination of the state’s first witness obliterated Moore’s alibi

defense, long before Moore’s confession was deemed admissible. We

review the factual component of that holding for clear error and

the legal component of that holding de novo. Bryant,

& n.3.

We find no error in the district court’s holding. Devine’s

58 cross-examination of Autrey elicited some of the most damaging

testimony against Moore. None of that testimony was elicited by

the state on direct examination. Some of that testimony was never

repeated by any other state witness, and no witness provided such

a detailed and chronological account of Moore’s guilt. The

district court’s factual determination that Devine’s cross-

examination of the state’s first witness effectively destroyed

Moore’s alibi defense, long before the state offered such probative

evidence and long before Moore’s confession was deemed admissible,

is not clearly erroneous. Moreover, neither the record nor common

sense supports the proposition that Devine’s approach to Autrey’s

testimony was motivated by any strategic purpose that could

conceivably have yielded any benefit to the defense. See Whitley,

-59 & nn. 21-22; Profitt,

; Lyons,

770 F.2d at 534-35

. To the contrary, Devine’s cross-examination of

Autrey does nothing but set forth, from the mouth of Moore’s own

trial counsel, the state’s best case against Moore. While perhaps

not sufficient standing alone to support conviction, the evidence

thus elicited would have contributed significantly to a guilty

verdict, even if Moore’s confession had been later deemed

inadmissible. For the foregoing reasons, we affirm the district

court’s conclusion that Devine’s ineffective cross-examination of

Autrey constitutes deficient performance as defined in Strickland.

59 E. Failure to Investigate, Develop, or Present Mitigating Evidence

Moore claims that trial counsel were ineffective for failing

to investigate, develop, or present available and availing

mitigating evidence during the punishment phase of his trial.

Moore’s claim encompasses counsel’s: (1) failure to investigate and

failure to present any mitigating background evidence, despite

knowledge that should have given rise to such a duty; (2) failure

to present previously redacted and exculpatory evidence that the

shooting was accidental, despite counsel’s abandonment of the alibi

defense during closing argument at the guilt phase, and despite

counsel’s decision to argue accidental shooting as a plausible

alternative defensive theory at the punishment phase of Moore’s

trial; and (3) counsel’s insufficient, internally inconsistent, and

incompetent argument at the punishment phase of Moore’s trial.

Mitigating evidence concerning a particular defendant’s

character or background plays a constitutionally important role in

producing an individualized sentencing determination that the death

penalty is appropriate in a given case. See Woodson v. North

Carolina,

96 S. Ct. 2978, 2991

(1976); see also Eddings v.

Oklahoma,

102 S. Ct. 869, 875

(1982). At the state court

evidentiary hearing, Moore presented substantial evidence that

could have been offered as mitigating evidence during the

punishment phase of his trial. Moore produced substantial evidence

from several sources that his childhood was marked by physical and

60 emotional deprivation and abuse. See Penry v. Lynaugh,

109 S. Ct. 2934, 2947

(1989) (quoting California v. Brown,

107 S. Ct. 837, 841

(1987) (O’Connor, J. concurring) for proposition that “evidence

about the defendant’s background is relevant because of the belief,

long held by this society, that defendants who commit criminal acts

that are attributable to a disadvantaged background, or to

emotional and mental problems, may be less culpable than defendants

who have no such excuse”); id. at 2948-52 (discussing the

significance that mitigating evidence of childhood abuse and mental

retardation have with respect to the individualized sentencing

determination required by the Eighth Amendment for imposition of

the death penalty);7 Eddings,

102 S. Ct. at 877

(“evidence of a

turbulent family history, of beatings by a harsh father, and of

severe emotional disturbance is particularly relevant” to an

individualized sentencing determination). Specifically, Moore

offered evidence from several sources that his father, Ernest

Moore, Jr., was an abusive alcoholic who was often absent and

rarely provided his family with financial support, even when

present. The evidence further established that Ernest Moore, Jr.

routinely beat his children with his hands, and with whatever other

7 Moore and the defendant in Penry were tried three months apart. Both were tried under Texas laws that the Supreme Court declared in Penry failed to allow a “reasoned moral response” to mitigating evidence offered during the penalty phase of a capital trial as required by the Eighth and Fourteenth Amendments. Penry,

109 S. Ct. at 2952

61 household effects or furniture happened to be close at hand. The

evidence established that Ernest Moore, Jr. targeted petitioner

Moore more often than Moore’s other siblings because Moore

attempted to intervene in physical altercations between his parents

to protect his mother. Moore’s mother was likewise an absent

parent, being forced to hold down two jobs to support Moore and his

brothers and sisters. After one particularly violent altercation,

Moore was forced to leave the house for good when he was fourteen

years of age. After that, family members sometimes defied the

father by permitting Moore to slip into the house late at night or

by sneaking him food, but Moore largely survived by sleeping on the

street and stealing food to survive.

Moore’s school records corroborate the neglect, deprivation,

and physical abuse that characterized Moore’s early childhood.

School records describe a morose and withdrawn child who rarely

participated in classroom activities. School records likewise

describe Moore as suffering from severe developmental delays,

perhaps resulting from poor nutrition and inadequate parenting.

Moore never passed any year and was granted only social promotions

until he dropped out altogether shortly after he was kicked out of

the house at age fourteen.

Moore also produced substantial evidence of impaired mental

development and functioning, and some evidence of organic brain

damage resulting from severe trauma. See Zant v. Stephens, 103

62 S. Ct. 2733

, 2747 (1983) (mental illness militates in favor of a

lesser penalty); Whitley,

977 F.2d at 157

(granting relief where

counsel failed to develop independent evidence of mental disease or

defect). Moore offered the testimony of Dr. Robert Borda, who

holds a Ph.D. in psychology and a Ph.D. in physiology. Borda

reviewed Moore’s school records, as well as psychological testing

performed when Moore was in school, and psychological testing

conducted while Moore was incarcerated for this offense in 1989.

Both sets of tests indicate that Moore’s intelligence is in the

borderline retarded range. Borda testified that Moore’s

performance on other tests, such as the Bender-Gestalt, indicate

that Moore’s ability to perform in an uncontrolled environment is

actually lower than indicated by his borderline IQ, and would very

likely fall squarely within the retarded range. Borda also

testified that the psychological testing performed when Moore was

in school suggested that Moore suffered a severe trauma to the head

or brain. Borda testified that such an injury would have impaired

Moore’s ability to function beyond the limitations reflected in the

intelligence testing alone. Based upon the materials reviewed, Dr.

Borda testified that Moore’s mental age at the time of the offense

was estimated to be fourteen, as compared to his still relatively

youthful biological age of nineteen. In addition to the school

records and psychological testing described, Moore also offered

evidence that the Texas Rehabilitation Commission conducted a

63 psychological evaluation on Moore when he was released from prison

in 1979. Although the records of that psychological evaluation

were destroyed in 1984, they would have been available for

counsel’s review at the time of Moore’s 1980 capital trial.

Moore also maintained in the state evidentiary hearing that

counsel could have relied upon his prison record and early release,

as evidence tending to negate the state’s burden on the future

dangerousness issue. Skipper v. South Carolina,

106 S. Ct. 1669

(1986) (evidence that a prisoner would not pose a future danger in

the prison community if spared the death penalty and imprisoned for

life must be considered potentially mitigating in a capital case).

The penitentiary package introduced by the state demonstrated that

Moore was first arrested three years after he left home, at age

seventeen. Moore was convicted and sentenced to eight years.

Moore was nonetheless released after only two years. The state was

permitted to interpret Moore’s record for the jury, and relied upon

that interpretation in closing argument. Specifically, the state

noted that Moore had four separate convictions, and argued that

Moore’s prior record demonstrated a pattern that required an

affirmative finding on the special issue of future dangerousness.

As noted above, Moore’s counsel did not respond with their own

interpretation of the penitentiary package. Neither did counsel

clarify that Moore was sentenced for each of the four offenses on

the same day, that Moore began serving his sentence for each of the

64 four convictions on the same day, or that Moore was released from

serving the balance of the four concurrently imposed sentences

after only two years. In fact, Moore’s counsel simply stipulated

that the documents comprising the penitentiary package, and by

inference the state’s interpretation of those documents, was

correct.

In the state hearing, Bonner admitted that he was aware of

some aspects of Moore’s troubled childhood. Bonner conceded that,

despite this knowledge, he did not conduct any investigation for

the purpose of developing mitigating evidence. Bonner justified

this failure to investigate with his view that mitigating evidence

of a troubled family background or impaired mental functioning is

per se inconsistent with an alibi defense. Bonner also suggested

that this was a “guilt/innocence” case rather than a “punishment”

case. Somewhat inconsistently, Bonner also testified that there

was no reason not to offer the previously redacted and exculpatory

portions of Moore’s confession once the jury had rejected Moore’s

alibi defense with the guilty verdict. Indeed, Bonner testified

that the jury’s rejection of Moore’s alibi defense made the

exculpatory portions of Moore’s unredacted confession admissible

and relevant on the issue of punishment. Based upon this evidence,

the state habeas court found that counsel made a strategic decision

not to present mitigating background evidence at the punishment

phase of Moore’s trial. The state habeas court did not make any

fact finding with respect to counsel’s failure to offer Moore’s

65 unredacted confession during the punishment phase of the trial.

The district court considered and rejected the state court’s

fact finding that trial counsel made an informed strategic decision

not to present mitigating evidence. The district court noted that

counsel’s purported decision was neither informed by an adequate

investigation nor undergirded by any logical strategic purpose.

For the reasons that follow, we affirm the district court.

Notwithstanding the constitutional stature of appropriate

mitigating evidence in a capital case, counsel’s failure to develop

or present mitigating background evidence is not per se deficient

performance. See Ransom v. Johnson,

126 F.3d 716, 723

(5th Cir.),

cert. denied,

118 S. Ct. 361

(1997); West,

92 F.3d at 1408

; King v.

Puckett,

1 F.3d 280, 284

(5th Cir. 1993). To the contrary, a

considered strategic or tactical decision not to present mitigating

evidence that is made after a thorough investigation of the law and

facts relevant to all plausible lines of defense is presumed to be

within the wide range of professionally reasonable assistance

defined by Strickland. Strickland,

104 S. Ct. at 2066

; Whitley,

; Drew v. Collins,

964 F.2d 411, 422

(5th Cir.

1992); Wilkerson v. Collins,

950 F.2d 1054, 1065

(5th Cir. 1992);

McCoy v. Lynaugh,

874 F.2d 954, 964

(5th Cir. 1989) (counsel’s

decision not to present mitigating evidence is entitled to

deference when based upon an informed and reasoned practical

judgment). Stated differently, Strickland requires that we defer

66 to counsel’s decision not to present mitigating evidence or not to

present a certain line of mitigating evidence when that decision is

both fully informed and strategic, in the sense that it is

expected, on the basis of sound legal reasoning, to yield some

benefit or avoid some harm to the defense. Strickland does not,

however, require deference to decisions that are not informed by an

adequate investigation into the controlling facts and law.

Whitley,

977 F.2d at 157-58

; see also Andrews v. Collins,

21 F.3d 612, 623

(5th Cir. 1994) (counsel’s strategic decision entitled to

deference because supported by an adequate investigation which

included contact with at least 27 people); Whitley,

977 F.2d at 157

(counsel’s failure to pursue crucial line of defense held to be

professionally unreasonable); Drew,

964 F.2d at 423

(counsel’s

strategic decision entitled to deference because counsel made

“reasonable inquiries” into Drew’s mental state); Wilkerson,

950 F.2d at 1064-65

(affording strategic decision deference where

record established the counsel retained an investigator to explore

whether mitigating evidence relating to defendant’s background or

mental ability was available); Bouchillon v. Collins,

907 F.2d 589, 597

(5th Cir. 1990) (“Tactical decisions must be made in the

context of a reasonable amount of investigation, not in a

vacuum.”); McCoy,

874 F.2d at 964

(finding scope of investigation

reasonable where counsel investigated possibility of mitigating

evidence by interviewing everyone on a list provided by the capital

67 defendant and determined none of them had anything good to say

about the defendant); Jones v. Thigpen,

788 F.2d 1101, 1103

(5th

Cir. 1986) (“counsel either neglected or ignored critical matters

of mitigation"). Similarly, Strickland does not require deference

to those decisions of counsel that, viewed in light of the facts

known at the time of the purported decision, do not serve any

conceivable strategic purpose. See Strickland,

104 S. Ct. at 2061

(“Counsel may not exclude certain lines of defense for other than

strategic reasons.”); Boyle v. Johnson,

93 F.3d 180

(5th Cir. 1996)

(explaining basis for counsel’s strategic decision not to offer

mitigating evidence identified by the defendant), cert. denied,

117 S. Ct. 968

(1997); Whitley,

(“Whether counsel’s

omission served a strategic purpose is a pivotal point in

Strickland and its progeny. The crucial distinction between

strategic judgment calls and just plain omissions has echoed in the

judgments of this court.”) (footnote omitted); Profitt,

(Strickland does not require deference to decisions which do

not yield any conceivable benefit to the defense); Bell v. Lynaugh,

828 F.2d 1085, 1090

(5th Cir. 1987) (when counsel makes an informed

and considered decision not to present mitigating evidence, the

issue becomes whether the decision was reasonable ); Wilson,

813 F.2d at 672

(remanding for evidentiary hearing because record did

not reflect whether counsel made a sound strategic decision not to

present mitigating evidence of troubled background and mental

68 impairment); Lyons,

770 F.2d at 534-35

(finding deficient

performance because there was no sound strategic basis for

counsel’s failure to object to evidence of prior offenses);

Mattheson,

(explaining strategic purpose

motivating counsel’s decision to exclude evidence of mental

impairment from sentencing phase); Moore v. Maggio,

740 F.2d 308, 315-19

(5th Cir. 1984) (explaining basis of counsel’s considered

decision to limit investigation by excluding implausible lines of

mitigating evidence).8

Moore maintains that counsel’s failure to present mitigating

evidence is not entitled to a presumption of reasonableness because

it was neither informed by a reasonable investigation nor supported

by any logical position that such failure would benefit Moore’s

defense. We agree. “[C]ounsel has a duty to make reasonable

investigations or to make a reasonable decision that makes

particular investigations unnecessary.” Strickland,

104 S. Ct. at 2066

; Mattheson,

; Bell,

828 F.2d at 1088

Counsel is "not required to pursue every path until it bears fruit

or until all conceivable hope withers." Lovett v. Florida,

627 F.2d 706, 708

(5th Cir. 1980). But strategic decisions made

8 We are dealing, in this case, with the deference required to counsel’s decisions. Obviously, a competent defendant may, as master of his or her own defense, elect to forgo the presentation of mitigating evidence. See, e.g., Lowenfield v. Phelps,

817 F.2d 285, 290

(5th Cir. 1987), aff’d,

108 S. Ct. 546

(1988); Mattheson,

; see also Strickland,

104 S. Ct. at 2066

69 without an adequate investigation into the facts and law

controlling plausible defensive theories are reasonable only to the

extent that reasonable professional judgment supports counsel’s

limitation on the investigation. Strickland,

104 S. Ct. at 2066

;

Ransom,

; Whitley,

; Bouchillon,

; Bell,

. With those principles in

mind, we note at the outset that this is not a case in which

counsel had no notice and no reason to suspect that a background

investigation would produce potentially valuable mitigating

evidence. Compare Bouchillon,

907 F.2d at 597-98

(counsel’s

failure to investigate despite knowledge that further investigation

might be fruitful constituted deficient performance), with Ransom,

126 F.3d at 723

; West,

92 F.3d at 1408

; Andrews,

21 F.3d at 623-24

(failure to investigate not deficient performance where counsel had

no reason to believe that further investigation might be fruitful).

Bonner testified that he was aware of Moore’s troubled background

at trial. That awareness, which included knowledge that Moore’s

family was physically abusive, should have triggered some sort of

inquiry into Moore’s background. See Motley,

18 F.3d at 1228

(counsel’s awareness of and decision to present evidence of child

abuse while failing to investigate “neurological damage and other

evidence that would have been in the same vein” as the child abuse

evidence actually presented may have been unreasonable). Moreover,

this is not a case in which counsel made some limited inquiry, and

70 the defendant is alleging that counsel should have focused upon

additional areas of inquiry or unearthed some obscure or

tangentially relevant evidence. Compare Whitley,

977 F.2d at 159

(granting relief based upon counsel’s complete and total failure to

investigate a critical issue), and Jones,

(granting relief where counsel completely abdicated the

responsibility to investigate the availability of mitigating

evidence), with Bell,

828 F.2d at 1088

(denying relief where

counsel conducted a thorough independent investigation into

defendant’s mental state because, notwithstanding the additional

evidence offered by the defendant on collateral review, there was

no evidence counsel neglected or ignored the defendant’s mental

state), and Thompson v. Cain,

161 F.3d 802, 813

(5th Cir. 1998)

(rejecting petitioner’s contention that counsel should have delved

further into his mental state in case where sociologist testified

regarding the petitioner’s background and relationships). To the

contrary, Bonner conceded in the state evidentiary hearing that he

made no inquiry into Moore’s background for the purpose of

developing mitigating background evidence of any sort. Likewise,

although Moore’s confession made accidental shooting a plausible

alternative defensive theory at both the guilt and punishment

phases of Moore’s trial, counsel never made any investigation

intended to test that theory. To be clear, we are dealing here

with counsel’s complete, rather than partial, failure to

71 investigate whether there was potentially mitigating evidence that

could be presented during the punishment phase of Moore’s trial.

That fact distinguishes this case from those cases in which we have

rejected similar claims because the record established counsel

conducted an adequate investigation, but made an informed trial

decision not to use the potentially mitigating evidence because it

could have a prejudicial backlash effect on the defense. See,

e.g., Darden v. Wainwright,

106 S. Ct. 2464, 2474

(1986) (counsel’s

failure to present mitigating evidence relating to defendant’s

character, psychiatric evaluation and history as a family man did

not constitute deficient performance where such evidence would have

opened the door to otherwise excluded evidence that defendant had

prior criminal convictions, was diagnosed as a sociopathic

personality, and had in fact abandoned his family); Mattheson,

(counsel made reasonable strategic decision to omit

presentation of mitigating evidence of mental impairment where such

evidence would have opened door to known evidence that defendant

was a violent sociopath). Given that counsel’s conduct in failing

to develop or present mitigating evidence was not informed by any

investigation and not supported by reasonably professional limits

upon investigation, we find that there is no decision entitled to

a presumption of reasonableness under Strickland. Moreover, the

record does not otherwise contain any justification for limiting,

or in this case, completely omitting, any investigation into

72 Moore’s background or the facts that might support counsel’s

accidental shooting argument during the punishment phase of the

trial.9 We therefore find counsel’s complete failure to

investigate Moore’s background and the facts underlying the

accidental shooting theory argued during the punishment phase to be

professionally unreasonable and deficient performance in the

context of this case.

Of equal importance, we agree with the district court that

counsel’s decision not to present any mitigating evidence was not

motivated or justified by any strategic or tactical rationale. See

Whitley,

-59 & nn. 21-22; Profitt,

;

Lyons,

770 F.2d at 534-35

(Strickland does not require deference

when there is no conceivable strategic purpose that would explain

counsel’s conduct). The state habeas court’s fact finding, to the

extent it is contrary, finds no support in the record and was

properly rejected by the district court. See

28 U.S.C. § 2254

(d)

(1994).

Bonner’s only justification for completely failing to develop

or offer available mitigating evidence was that mitigating evidence

of any type or quantity is per se inconsistent with an alibi

9 The record does suggest that counsel were unprepared and did not expect to proceed to the punishment phase of Moore’s trial immediately after the guilty verdict was returned late in the afternoon. Rather than requesting a continuance, however, counsel agreed to proceed. The evidentiary portion of the punishment phase was concluded only ten minutes later.

73 defense. Bonner’s view is overbroad and insufficient alone,

without any reference to why that justification would apply in this

case, to justify counsel’s complete failure to investigate for the

purpose of making an informed decision and failure to offer any

mitigating evidence. See Stafford v. Saffle,

34 F.3d 1557

(10th

Cir. 1994) (finding deficient performance and rejecting argument

that an alibi defense during the guilt phase is per se inconsistent

with mitigating evidence relating to the defendant’s personal

background); Brewer,

935 F.2d 850

(granting relief on claim that

counsel failed to offer mitigating evidence during the sentencing

phase in case involving an alibi defense at the guilt phase).

On appeal, the Director tries to put the best face on Bonner’s

justification by arguing that counsel made a strategic decision not

to present mitigating evidence based upon the possibility that the

jury entertained a “residual doubt” about Moore’s alibi defense.

This Court has recognized that, in an appropriate capital case,

counsel’s decision to rely upon the jury’s residual doubt about the

defendant’s guilt may be not only reasonable, but highly

beneficial, to a capital defendant. See, e.g., Andrews,

21 F.3d at 623

n.21.

This is not a residual doubt case. Moore’s alibi defense

failed miserably. The testimony in support of that defense was

internally inconsistent and failed for the most part to place Moore

in Louisiana at the time the offense was committed. The state

74 responded with overwhelming evidence of Moore’s involvement in

similar extraneous offenses as well as narrowly tailored rebuttal

evidence refuting Moore’s alibi. In what was undoubtedly one of

his most reasonable decisions as trial counsel, Bonner himself

essentially abandoned the alibi defense during closing argument at

the guilt phase by telling the jury that it did not matter whether

Moore and his sister testified truthfully. The jury deliberated

briefly, asking only for copies of Moore’s “confessions,” then

rejected Moore’s alibi defense by returning a verdict of guilty.

More importantly, Moore’s counsel did not adhere to the alibi

defense during the punishment phase of Moore’s trial. Although

Bonner challenged the quantum of the state’s proof, neither Bonner

nor Devine attempted to resurrect the defeated alibi defense. To

the contrary, counsel Devine earnestly argued that the shooting was

accidental. Thus, counsel made an entirely reasonable decision to

pursue the accidental shooting theory as a plausible alternative to

alibi during the punishment phase of Moore’s trial. Given these

facts, there was no logical or factual support for and no

conceivable strategic purpose to be achieved by excluding the

potentially mitigating background evidence identified by Moore.

Furthermore, there is more in this case than simply a general

failure to conduct an investigation or to present mitigating

evidence of the type traditionally found in capital cases. In this

case, counsel also failed to make use of readily available

evidence. Specifically, counsel failed to support their punishment

75 phase jury argument that the shooting was accidental with the best

evidence of that theory, Moore’s own statements that the shooting

was accidental. Counsel also failed to capitalize on the

opportunity to argue Moore’s early release from prison as a factor

mitigating against an affirmative response on the special issue of

future dangerousness. Finally, the effect of counsel’s deficient

performance is not reduced by any guilt phase or punishment phase

evidence that can be construed as potentially mitigating. Compare

Jones,

(finding ineffective assistance where

counsel presented no mitigating evidence at all), with Motley,

18 F.3d at 1228

(refusing to find deficient performance where proposed

mitigating evidence is cumulative of other testimony offered during

guilt phase of capital trial). As with counsel’s failure to

investigate, we are dealing here with a complete, rather than

partial, failure to offer any mitigating evidence on Moore’s

behalf. Our decision that counsel failed to make a strategic

decision entitled to deference under Strickland, and that counsel’s

conduct was in this case professionally unreasonable, is heavily

influenced by these additional omissions, for which neither the

record nor common sense can provide any answer.

For the foregoing reasons, we affirm the district court’s

holding that counsel did not make an informed or strategic decision

not to investigate, develop or present mitigating evidence that is

entitled to deference under Strickland. We likewise affirm the

76 district court’s holding that counsel’s failure to investigate or

offer available mitigating evidence was professionally unreasonable

and constituted deficient performance within the meaning of

Strickland.

VI.

Finally, we come to the prejudice prong of the Strickland

analysis. The Director argues that neither counsel’s failure to

investigate extraneous offenses admissible only because Moore chose

the alibi defense, nor counsel’s redaction of exculpatory

statements in the otherwise admissible and otherwise inculpatory

confession, nor counsel’s obliteration of the alibi defense in

their cross-examination of Officer Autrey is relevant to the

district court’s grant of relief, that is, a new punishment

hearing. The Director’s argument may be reduced to the premise

that deficient performance occurring at the guilt phase of a

capital trial may not be deemed to prejudice a capital defendant

during the punishment phase of a capital trial. We reject this

notion. When, as here, the same jury considered guilt and

punishment, the question is whether the cumulative errors of

counsel rendered the jury’s findings, either as to guilt or

punishment, unreliable. See Strickland,

104 S. Ct. at 2064

(relief

is appropriate when “the conviction or death sentence resulted from

77 a breakdown in the adversary process that renders the result

unreliable”).

The district court declined to find prejudice at the guilt

phase of the trial, a legal conclusion with which we agree. Like

the district court, we too are concerned by the multiple lapses of

trial counsel, and by the fact that much of the evidence against

Moore came in as a result of counsel’s pathetically weak

presentation of the alibi defense or as a direct result of

counsel’s deficient performance. Nonetheless, we are unable to

state that any particular deficiency in trial counsel’s performance

at the guilt phase, or even the cumulative effect of all

deficiencies at the guilt phase, is sufficient to render the guilty

verdict in Moore’s case unreliable.

The district court reached a different result with respect to

the punishment phase of Moore’s trial, holding (1) that the

aggregate effect of counsel’s deficient performance resulted in a

certain death sentence, and (2) that, absent counsel’s deficient

performance, the jury would likely have sentenced Moore to life

imprisonment. On appeal, we must determine whether there is a

reasonable probability that, but for counsel’s deficient

performance, the jury might have answered the special issues

submitted in the punishment phase differently. Whitley,

977 F.2d at 159

; Duhamel v. Collins,

955 F.2d 962, 965-66

(5th Cir. 1992);

Wilkerson,

950 F.2d at 1065

; Profitt,

. For the

78 reasons that follow, we conclude that such a reasonable probability

exists.

We conclude that counsel’s deficient performance, including

counsel’s performance during the guilt phase of Moore’s trial,

prejudiced the outcome of the punishment phase of Moore’s trial.

Counsel was deficient for failing to investigate and respond to

information in the state’s file about extraneous offenses that

counsel knew would be admissible directly as a result of Moore’s

chosen alibi defense. As a result, counsel were completely

unprepared to address the state’s rebuttal evidence and completely

unprepared to cross-examine the state’s damaging rebuttal

witnesses, who testified that Moore was involved in two similar

robberies on the two Fridays preceding the April 25, 1980 robbery

of the Birdsall Super Market. This damaging evidence, which was

virtually untested by defense counsel, has obvious relevance to the

punishment phase special issues of deliberateness and future

dangerousness, and was offered by the state in argument as support

for an affirmative finding on those issues. See Bryant,

28 F.3d at 1415

(finding ineffective assistance of counsel based upon

counsel’s failure to interview potential witnesses). Nonetheless,

and notwithstanding counsels’ decision to abandon the ill-fated

alibi defense during the penalty phase of Moore’s trial, counsel

was completely unprepared to question or otherwise answer any

aspect of this damaging evidence as it related to the jury’s

79 deliberation of Moore’s punishment. While counsels’ deficiency in

this regard is insufficient, standing alone, to support a finding

of Strickland prejudice, counsels’ failure to investigate by

interviewing witnesses disclosed to counsel by the state and

counsels’ failure to proceed reasonably in light of that evidence

once disclosed, when viewed in light of counsels’ other failures,

does play a supporting role in our determination that Moore was

prejudiced during the penalty phase of his capital trial.

Counsel rendered deficient performance with respect to their

handling of Moore’s confession during the guilt phase of Moore’s

trial. Specifically, counsel made an illogical and irrational

decision to exclude exculpatory language, permitting only the

state’s version of events to go to the jury. Counsel then made no

objection when the state breached its pre-submission agreement not

to rely upon the excluded portions of the confession, by arguing to

the jury that the excluded portions supported the state’s theory

that the confession was valid. Counsel continued to stand by

silently as the state misled the jury by stating, in the context of

its discussion of the excluded portions of the confession, that

there was no contention in the case that the shooting was

accidental. Notwithstanding that conduct, counsel then switched

tracks almost immediately thereafter by arguing to the jury during

the punishment phase that the shooting was indeed accidental.

Counsel’s unreasonable decision to remove the accidental shooting

80 theory from the jury, coupled with their failure to object to the

state’s misleading argument, and their failure to offer the

unredacted confession during the penalty phase, which would have

impeached the state’s argument that accidental shooting was not at

issue and supported counsel’s punishment phase argument, prejudiced

Moore because it removed Moore’s contention that the shooting was

accidental from the jury’s consideration. There is a reasonable

probability that evidence supporting counsel’s argument that the

shooting was accidental, which was the only plausible defensive

theory at the punishment phase, would have influenced the jury’s

deliberations on the issue of deliberateness. See Whitley,

977 F.2d at 158-60

; Jones,

Counsel rendered deficient performance by eliciting damaging

evidence far beyond the scope of direct examination in their cross

examination of the state’s first witness, Officer Autrey.

Counsel’s cross-examination of Autrey established many elements of

the State’s case-in-chief against Moore through the state’s first

witness. To the extent that some details were likewise elicited

from another state witness, Officer Ott, they were likewise

elicited by Moore’s own counsel on cross-examination. Although

Autrey’s detailed and damaging testimony was primarily relevant on

the issue of Moore’s guilt, no other witness provided the same

detailed account of the details of Moore’s offense. We therefore

conclude that the testimony elicited from Autrey by Moore’s counsel

81 was also relevant to and probably contributed in some measure to

the jury’s determination of the punishment phase special issues of

deliberateness and future dangerousness.

Finally, counsel rendered deficient performance by failing to

investigate, develop, or present available mitigating evidence

relating to Moore’s background, Moore’s contention that the

shooting was accidental, and Moore’s prison record during the

punishment phase of Moore’s trial. Moore submitted substantial

mitigating background evidence in the state habeas corpus

evidentiary hearing. That evidence has no demonstrated prejudicial

or double-edged characteristics in the context of this case, and

counsel failed to offer any reasonable justification for their

failure to investigate whether such evidence existed. While we are

troubled by counsel’s complete and total failure to investigate

Moore’s background, despite knowledge placing counsel on notice

that such an inquiry would be fruitful, our ultimate determination

that counsel’s failures in this regard prejudiced Moore rests

heavily upon the fact that counsel also failed to use what limited

mitigating evidence was readily available. Specifically, counsel

failed to submit Moore’s unredacted confession to the jury in

support of the punishment phase argument that the shooting was

accidental. Once again, counsel’s omission effectively removed the

only plausible defensive theory from the jury’s consideration.

Moreover, counsel failed to respond to the state’s prejudicial and

misleading arguments about the effect of Moore’s penitentiary

82 package by clarifying the duration and extent of Moore’s criminal

history and by highlighting Moore’s early release. Moore’s prison

record was clearly relevant on the issue of future dangerousness.

See Skipper,

106 S. Ct. 1669

. While merely permitting, without

objection, the admission of the penitentiary package, might not

have independently constituted deficient performance or created the

probability of prejudice, there is a reasonable probability that

counsel’s failure to respond to specific misleading argument by the

state about Moore’s prison record impacted the outcome of the

jury’s deliberations on the issue of both punishment phase special

issues of deliberateness and future dangerousness.

This is not a case in which the nature of the offense or the

strength of the state’s punishment phase evidence requires the

conclusion that the specific evidence proposed by the petitioner

would not have made any difference with respect to the outcome of

the punishment phase. Cf. Strickland,

104 S. Ct. at 2071

(finding

no prejudice where state’s overwhelming presentation of evidence

relating to aggravating factors supporting imposition of death

penalty); Jones v. Johnson,

171 F.3d 270

(5th Cir. 1999) (finding

no prejudice where the brutal and lengthy nature of the murder, the

defendant’s confessions, and the lack of other mitigating evidence

required the conclusion that counsel’s failure to present the

proposed evidence would not have made any difference with respect

to the outcome of the sentencing phase), pet. for cert. filed,

83 (U.S. June 17, 1999) (No. 98-9808); Sharp v. Johnson,

107 F.3d 282

(5th Cir. 1997) (finding no prejudice where horrendous nature of

crime and circumstances would have overwhelmed mitigating evidence

identified by defendant). Given the facts of this case, we have no

trouble concluding that, taken together, counsel’s failure to

investigate Moore’s proposed defense by interviewing and preparing

for the state witnesses to Moore’s extraneous conduct, counsel’s

inexplicable and illogical failure to require submission of

exculpatory language in Moore’s confession together with the

inculpatory language submitted to the jury, counsel’s damaging

cross-examination of Officer Autrey, which in and of itself

established most elements of the case-in-chief against Moore, and

counsel’s complete failure to either investigate, develop, or

present available and potentially availing mitigating evidence

supporting counsel’s argument that the shooting was accidental,

during the punishment phase of Moore’s trial, including counsel’s

failure to offer an unredacted and available copy of Moore’s

purported confession in support of counsel’s closing argument

during the punishment phase that the shooting was accidental, are

sufficient to demonstrate prejudice within the meaning of

Strickland. Absent those inexcusable and unreasonable failures,

there is a reasonable probability that the outcome of Moore’s

punishment phase would have been different. Whitley,

977 F.2d at 159

; Duhamel,

955 F.2d at 965-66

; Wilkerson,

950 F.2d at 1065

;

84 Profitt,

. We therefore conclude that trial

counsel’s cumulative errors rendered the result of Moore’s

punishment phase unreliable and affirm the district court’s grant

of relief as to punishment only.

VII.

The district court granted the writ of habeas corpus and

ordered that the state court of conviction grant Moore a new trial

on the issue of punishment only. On appeal, the Director argues

that the district court exceeded its authority by ordering the

state court to conduct a new punishment trial.

We agree. A federal habeas court has the power to grant a

writ of habeas corpus. Duhamel,

955 F.2d at 968

. The federal

habeas court is without power, however, to order that the state

conduct a new punishment hearing. King,

1 F.3d at 287

. When

relief in a capital case is limited to punishment only, as in this

case, the proper course is to enter an order granting the writ, but

permitting the state court of conviction a reasonable period of

time in which to decide whether: (1) to hold a new trial on the

issue of punishment only, as permitted by TEX. CODE CRIM. PROC. art.

44.29(c), or (2) to vacate the habeas petitioner’s sentence and to

impose a sentence less than death. Granviel v. Estelle,

655 F.2d 673

(5th Cir. Sept. 1981); see also Whitley,

977 F.2d at 161

;

Jones,