* Pursuant to 5 T H C IR . R . 47.5, t he court has determined that this opinion should not be published and is not precedent except under the limit ed circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit FILED October 7, 2003 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-21210 STEPHEN LINDSEY MOODY, Petitioner - Appel l ant, versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, Respondent - Appellee.

Appeal from the United States District Court for the Southern District of Texas, Houston (H-00-CV-1450) Before JONES, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge: * Petitio ner-Appellant Stephen Moody (§2254 based upon ineffective assistance of counsel. We deny MoodyÂ’s request for a certificate of appealability on each contested issue.

FACTUAL SUMMARY AND PROCEDURAL HISTORY The evidence adduced at trial established the following sequence of events. In late September of 1991, Moody and his co-defendant, Calvin Doby (“Doby”) drove from Houston to Dayton, Texas while accompanied by Melvin Ellis (“Ellis”) and Lloyd Larrieu (“Larrieu”). As the prosecution’s star witness, Ellis testified that, while en route, Doby asked Larrieu from whom Larrieu was getting his drugs, because Doby wanted to rob the individual. In response, Larrieu provided Doby with the name and whereabouts of Hall. According to Ellis, Moody did not participate in the conversation.

On October 19, 1991, the day o f t he murder, Ellis, Doby, and Larrieu drove to Hall’s residence where Larrieu pointed out Hall’s house and answered Doby’s questions regarding the whereabouts of Hall’s drugs and money. Larrieu informed Doby that Hall lived with his girlfriend, Rene McKeage (“McKeage”), kept his money in his pocket, and that Doby would know if Hall was home by the Camaro in the driveway. Doby immediately contacted Moody by telephone and the two of them met at Ellis’ residence an hour and half later. Moody and Doby then went to Hall’s residence and murdered him with a shotgun blast to the chest. The Court of Criminal Appeals summarized the facts of the murder as follows: On the evening of [the murder], McKeage and Hall [were returning home from dinner] when McKeage noticed two unknown men walking on the street away from the front of the ir ho use...[Upon entering their residence,] Rene was sitting in the bathroom when she heard Hall talking on the phone and then “somebody come rush in the house.” She heard Hall yell out her name and then heard another man’s voice screaming “Where is the money?” Rene stayed in the bathroom. She initially thought that it was the police because of the drugs that were in the house. She heard Hall say, “You’re not the cops. Let me see your badges.” Rene then heard some scuffling, and [Moody] walked into the bathroom and said, “stay there. Don’t move.” [Moody] was pointing a sawed-off shotgun at Rene. [Moody] left the bathroom and Rene heard him again ask Hall, “where is the money?” Hall said the money was in his pocket, and he asked [Moody], “Please don’t shoot me.” [Moody] returned to the bathroom, an d he again said to Rene, “Stay there, don’t move.” Rene said, “Okay , I won’t move,” and [Moody ] shut the bat hroom door.

Rene then jum ped out of the bathroom window, jumped the fence in the backyard, and ran to the next-door residence of Arthur Jesse Flores. During this time, she heard a gunshot come from inside the house. When Rene entered Mr. FloresÂ’ residence, she said that someone had shot Hall, and she called 911. Ms. Juarez and Ms. Chavez also heard the gunshot and a scream, and saw two men walk out of the residence and back down the street.

Following the murder, Doby and Moody returned to Ellis§19.03(a) (7) (A). Following a jury trial, Moody was convicted and sentenced t o death in March 1993. In 1996, the Texas Court of Criminal Appeals upheld MoodyÂ’s conviction and sentence on direct appeal. S ee Moo dy v. State , No. 71687 (Tex.

Crim.

App. 1996). Moody did not seek certiorari review in the Supreme Court. In June 1997, Moody filed an application for a writ of habeas corpus in state court. On August 19, 1999, the state habeas court entere d findings of fact and conclusions of law denying him relief. T he Texas Court of Criminal Appeals affirmed his conviction and sentence. See Ex Parte Stephen Lindsey Moody , No. 42832-01 (Tex.

Crim.

App. 1999). On May 1, 2000, Moody filed his federal petition for a writ of habeas corpus in the district court claiming that the State violated his equal protecti on rights by exercising a peremptory challenge based on a prospective jurorÂ’s race and that his trial counsel rendered ineffective assistance of counsel by failing to call Larrie u as a witness at trial and by failing to present mitigating evidence at the punishment phase of his trial. On September 30, 2002, the district court rendered a final judgment denying sua sponte a COA regarding MoodyÂ’s ineffective assistance of counsel clai ms and provisionally granted MoodyÂ’s petition for a writ of habeas corpus with regards to his Batson claim. 2 On appeal, Moody seeks a COA from this court solely on his claim that his counsel rendered ineffective assistance of counsel by failing to call Larrieu as a witness.

STANDARD OF REVIEW Moody filed his federal habeas petition a ft er t he effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996 (§ 2253 (c) (1) (A) (2000) (“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by the State court.”).

Under an application for a COA, an applicant must make a § 2253(c)(2). In seeking a COA, the applicant will not succeed unless there is a showing of “something more than the absence of frivolity or the existence of mere good faith.” M iller-El v. Cockrell , 123 S. Ct. 1029, 1040 (2003); quoting, Barefoot v. Estelle , 463 U.S. 880, 893 (1983). To prevail, the petitioner “must demonstrate that reasonable jurists would find that the district courtÂ’s assessment of the constitutional claims debatable or wrong.” M iller-El , 123 S. Ct. at 1040; quoting, Slack v. McDaniel , 529 U.S. 473, 484 (2000). Indeed, the ultimate determination turns on “the debatability of the underlying constitutional claim, not the resolution of the debate.” Henry v. Cockrell , 327 F.3d 429, 431 (5th Cir. 2003).

Our review of whether Moody makes a substantial showing of a violation of a constitutional right is also constrained by the applicable AEDPA standards of review. M oore v. Johnson , 225 F.3d 495, 501 (5th Cir. 2000), cert. denied , 532 U.S. 949 (2001). On questions of law, the state court§ 2254 (d) (1).

Furthermore, state court findings of fact are presumed correct unless the petitioner rebuts them by clear and convincing evidence. Id . § 2254 (e) (1).

DISCUSSION In order to show a deprivation of his Sixth Amendment right to effective assistance of counsel, the Applicant must show: (1) that his counsel’s representation was deficient, and (2) actual prejudice resulting from the deficient performance. S ee Kitchens v. Johnson , 190 F.3d 698, 701 (5th Cir. 1999). In evaluating whether counsel’s performance was deficient, we look to whether the challenged representation fell below an objective sta ndard of professional norms. I d . To prove prejudice, Moody must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” I d . at 703. As articulated by the U.S. Supreme Court, the fundamental inquiry courts must follow in making their det ermination in an ineffective assistance of counsel claim is whether counsel’s conduct so undermined the proper functioning of the adversary process that the trial cannot be relied upon as having produced a just result. Strickland v. Washington , 466 U.S. 668, 687 (1984).

A. Deficient Performance Relying in part on MoodyÂ’s counselÂ’s affidavit, t he state habeas court found that the performance rendered by MoodyÂ’s counsel was not deficient. The relevant portion of the affidavit is as follows: I was aware of Lloyd Larrieu and Melvin Ellis prior to trial and I was aware of EllisÂ’ intended testimony. During my many conversations with the defendant, he never told me that Larrieu could or would give testimony to support the defendantÂ’s claim that he did not do the shooting. We tried to find Larrieu and were not able to find him .

However, I did not consider LarrieuÂ’s testimony as critical, because, even if Larrieu denied talking to Doby, it would not address the issue of the defendantÂ’s and DobyÂ’s admissions to Ellis.

The statements Calvin Doby made to Lloyd Larrieu concerning the intended offense did not inculpate the defendant. My concern was the statements which Doby and the defendant made to Marvin Ellis outside of LarrieuÂ’s presence. In other words, even if Larrieu testified that he didnÂ’t give Doby information about his drug dea ler; and, that Larrieu did not drive past the vict imÂ’s house with Ellis and Doby, it would have had little, if any, impact on the entirety of EllisÂ’ prejudicial testimony concerning the defendantÂ’s and DobyÂ’s admissions. As a matter of strategy, I wanted to impeach the reliabilit y of all identification testimony and impeach EllisÂ’ admissions. Viewed strategically, it is likely that a juror would vie w Larrieu as less credible than Ellis becau s e Ellis presented plausible altruistic reasons for reporting a crime and, based on LarrieuÂ’s affidavit, Larrieu would just deny tal king t o Doby, driving to Dayton, and driving past the vict imÂ’s house and Larrieu would have t o admit that he knew nothing about the shooting itself.

Moody v. State , slip op. at 1-3.

The state habeas court found that Moody’s counsel “attempted to locate Larrieu” and “made a reasonable, strategic decision to attempt to impeach Melvin Ellis with Ellis’ possible bias and motive for testifying and to attack identification.” The district court accepted the state habeas court’s finding that Moody’s counsel attempted to locate Larrieu. The district court highlighted the fact that Moody attempted to locate Larrieu despite the fact that Moody did not t ell him t hat Larrieu would have provided material testimony.

Moody argues that the state court’s finding that his counsel attempted to locate Larrieu should not be given deference because it “was not reasonable for the court to infer that trial counsel’s attem pts to locate Larrieu - whatever they might have been - fell within the wide range of responsible professional performance.” The district court held that trial counsel’s unrebutted affidavit regarding his efforts to locate Larri eu fo r t rial supported the state court’s rejection of Moody’s ineffective assistance of counsel claim. “Counsel for a criminal defendant is not required to pursue every path until it bears fruit or until all conceivable hope withers.” Lovett v. State of Florida , 627 F.2d 706, 708 (5th Cir. 1980), see also , Bryant v. Scott , 28 F.3d 1411 (5 th Cir. 1994). Although the record fails to show what actions trial counsel took to locate Larrieu, this void does not establish that the state court determination was contrary to, or an unreasonable application of federal law. Even if Moody had established deficient performance, his claim was destined for failure.

B. Prejudice The state habeas court further held that MoodyÂ’s counselÂ’s failure to call Larrieu as a witness did not p rejudice MoodyÂ’s defense. The district court also held that no prejudice resulted from MoodyÂ’s counselÂ’s failure to call Larrieu as a witness.

Moody argues that his counsel’s failure to call Larrieu prejudiced his defense because Larrieu’s testimony would have rebutted Ellis’ testimony regarding the planning of the crime. Moody p o int s to Larrieu’s affidavit in which Larrieu stated that: (1) he had never been acquainted with Joseph Hall; (2) he never drove with Ellis, Doby, or Moody to Houston; (3) he never spoke wi th Doby about Hall, either in or out of the presence of Moody or Ellis; and (4) he would have testified as to those facts on Moody’s behalf had he been contacted by Moody’s counsel. Although Larrieu’s testimony would have rebutted Ellis’ testimony regarding the planning of the crim e, Moody ’s counsel’s failure to call Larrieu did not prejudice Moody’s defense. As the di stri ct court stated, Larrieu’s affidavit “only calls into question the manner in which [] Do by and Moody chose their vict im, it does not question their identity as the killers.” Moody’s counsel st ated that he was concerned with the “incriminat ing statements made by Moody and Doby to Ellis outside of Larrieu’s presence, not the statements made in Larrieu’s presence.” Moody further argues that his counsel’s failure to call Larrieu prejudiced his defense because Larrieu’s testimony would have undermined the jury’s confidence in the identification of him as the killer and thus, the confidence in the outcom e of the proceedings against him. Moody contends that Ellis’ and McKeage’s testimony was compromised. Specifically, Moody argues that Ellis was psychotic, received immunit y, and was a former drug user. As for McKeage, Moody highlights the fact that: (1) her identification of him as the killer was less than definite; (2) she was a drug abuser; (3) she broke into the scene of the crime with her companions looking for drugs and money following Hall’s murder; (4) and that she made out with one of her companions at the scene of the crime.

Our review of Larrieu’s affidavit and the state habeas court’s review of Larrieu’s testimony at Doby’s trial reveals that Larrieu’s testimony would not have undermined the jury’s confidence of Moody as the killer because Larrieu would not have testified as to the facts surrounding the murder of Hall. 3 Moreo ver, Larrieu’s credibility would have been called into question because of his extensive criminal history. 4 On this issue, the state habeas court rejected as speculative “[Moody’s] assertion that Larrieu’s and Ellis’ background[s] were equally bad so it [is]likely that the jury would have found Larr ieu just as credible as Ellis.” It should also be noted that Moody’s counsel unsuccessfully attempted t o impeach the reliability of all of the identification testimony, including Ellis’ and McKeage’s. The state habeas court further found that Moody corroborated Ellis’ testimony. As Moody’s counsel stated: [D]uring t he testimony of Melvin Ellis, the defendant made an audible outburst in front of the jury which it was obvious that the jury heard. When Ellis testified that Charles Doby and the defendant left Ellis $100 of the stolen money after splitting the money at Ellis’ house, the defendant told me that “he’s a lying son of a bitch, he got $900.” To the district court this outburst “only validated the fact that Moody killed the vict im, robbed the house, and brought the proceeds to Mr. Ellis’ house.” Finally, the state habeas court noted that the identification of Moody as the shooter and the elements of the primary offense were established by other evi dence, including the testimony of Josephine G. Juarez, Eduardo Bellas, and Ray Klein. Moody contends that the state habeas court incorrectly utilized the sufficiency of the evidence test in determining whether tria l co unsel’s performance prejudiced him. Although Moody correctly asserts that the “sufficiency of the evidence” standard is inapplicable in analyzing the existence of prejudice under Strickland , his argument fails because the state habeas court did not solely base its prejudice determination on the fact that other witnesses identified him as Hall’s killer. S ee Johnson v. Scott , 68 F.3d 106, 109-10 (5th Cir. 1995) (holding that sufficiency of the evidence ana lysis in evaluating whether prejudice resulted from an attorney’s actions does not comport with the Strickland prejudice standard).

Assuming arguendo that Moody’s assertion that the state habeas court utilized the incorrect prejudice standard is correct, it is clear that a proper application of the prejudice standard to Moody’s case still results in a finding that Moody was not prejudiced by his counsel’s failure to call Larrieu as a witness. Moody’s counsel made a strategic decision to impeach Ellis’ testimony that ident ified Moody as the shooter. In his view, Larrieu’s testimony would have only discredited Ellis’ testimony regarding the planning of the crime, not Ellis’ testimony reg arding the actual shooting. Stated differently, “[e]ven if Larrieu testified, i t wo uld not have had any impact on the Ellis’ prejudicial testimony concerning Moody’s and Doby’s admissions.” Thus, there is “no reasonable probability t hat t he result of the proceedings would have been different” if Larrieu was called as a witness.

Kitchens , 190 F.3d at 703. As a result, Moody failed to show that “the district court’s assessment of his constitutional claim was debatable or wrong.” Accordingly, we deny Moody’s request for COA on this issue.

CONCLUSION As MoodyÂ’s counselÂ’s performance did not prejudice MoodyÂ’s defense, we deny his request for a COA on his ineffective assistance of counsel claim.

DENIED.

2 Under Batson v. Kentucky , 476 U.S. 79 (1986), the State violates the equa l protecti on clause when it challenges potential jurors solely on the basis of race

3 Moody asserts that the state habeas court denied him relief because LarrieuÂ’s testimony at DobyÂ’s trial resulted in a guilty verdict. Although the state habeas court reviewed LarrieuÂ’s testimony from DobyÂ’s trial, it did not base its prejudice finding on the fact that Doby was ultimately convicted. 4 The trial court found, during the punishment phase of the subsequent trial of the applicantÂ’s co-defendant Calvin Charles Doby, Lloyd Larrieu admitted during cross-examination that he used names other than Lloyd Larrieu; that he was convicted of burglary of a building in 1958; that he committed theft during the offense and was sentenced to eight years in prison; that he was convicted of burglary of a building with the intent to commit theft in 1964 and sentenced to four years in prison; that he was convicted of breaking into an auto in 1968 and sentenced to two years in prison; that he was convicted of burglary of a habitation in 1976 and was sentenced to twenty years in prison; that he was indicted as an habitual criminal in the 1976 offense which means an automatic possibility of a life sentence; that he was convicted of possession of a controlled substance in 1984 and sentenced to two years in prison; th a t he was convicted of unauthorized use of a m otor vehicle in 1988 and sentenced to fifteen years in prison; that he was convicted of the federal offense of theft of U.S. mail in 1991 and sentenced to eighteen months in fede ral priso n; and, that he violated his subsequent parole and was incarcerated in federal prison at the time of his testimony. (CD. VII - 807-15)