Moody v. Thomas

Filing 40

MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 2/20/2015. (KAM, )

FILED
2015 Feb-20 PM 01:14
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
WALTER LEROY MOODY,
Petitioner,
vs.

KIM T. THOMAS,
Commissioner,
Alabama Department of Corrections,
Respondent.

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2:12-cv-4139-LSC

MEMORANDUM OF OPINION
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed
by Petitioner Walter Leroy Moody (“Moody”), now incarcerated at Holman Prison
in Atmore, Alabama. Moody challenges the validity of his 1996 convictions for capital
murder and first degree assault and sentences of death and life without parole in
connection with the December 1989 pipe-bomb murder of Judge Robert S. Vance of
the United States Court of Appeals for the Eleventh Circuit.1 Upon thorough
consideration of the entire record and the briefs submitted by the parties, the Court
finds that Moody’s petition for habeas relief is due to be denied.
1

References to “conviction” and “death sentence” throughout include Moody’s
conviction for assault and life sentence. There is no discernable difference between each claim’s
effect on any of the three convictions and sentences arising from the indictment in this case.

TABLE OF CONTENTS
I.

THE OFFENSE CONDUCT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II.

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

III.

STANDARDS OF FEDERAL HABEAS REVIEW . . . . . . . . . . . . . . . . . . 20
A.
B.

Overcoming Procedural Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

C.

AEDPA Review of State Court Decisions Under § 2254(d) and (e) . 25

D.

The Burden of Proof and Heightened Pleading Requirements for
Habeas Petitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

E.
IV.

Exhaustion of State Remedies and Procedural Default . . . . . . . . . . . 20

The General Standard for Ineffective Assistance of Counsel Claims.28
.

MOODY’S SUBSTANTIVE CLAIMS2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A.

Moody’s claim that the trial court deprived him of his Sixth Amendment
right to counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1.

The allegation that the trial court deprived Moody of his Sixth
Amendment right to counsel by finding that Moody freely and
voluntarily waived his right to the assistance of counsel at the
hearing on August 2, 1994 and in other proceedings prior to his
trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

2.

The allegation that the trial court deprived Moody of his Sixth
Amendment right to counsel when it failed to find and appoint
counsel after Moody “withdrew” his waiver of his right to

2

The Court has re-ordered the claims from the manner in which they were presented in
Moody’s Amended Petition.
Page 2 of 189

counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
3.

The allegation that the trial court deprived Moody of his Sixth
Amendment right to counsel when it failed to ensure he had
“meaningful access” to legal materials necessary for selfrepresentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

4.

The allegation that the trial court deprived Moody of his Sixth
Amendment right to counsel when it failed to hold a hearing on
Moody’s pre-trial ineffective assistance of counsel claim. . . . 60

5.

The allegation that the trial court deprived Moody of his Sixth
Amendment right to counsel by refusing to grant a continuance of
at least one year—which was requested by Moody after jury
selection had already begun at his trial—to allow his newlyobtained pro bono counsel time to prepare his case.. . . . . . . . 63

6.

The allegation that the foregoing alleged errors collectively
deprived Moody of his Sixth Amendment right to counsel . . 71

B.

Moody’s claim that the trial court deprived him of his Sixth Amendment
right to counsel when it declined to appoint “standby counsel” to assist
Moody when he was removed from the courtroom during his trial . .72

C.

Moody’s claim that the trial court violated his Sixth Amendment right
to confront witnesses when it removed him from the courtroom for
disruptive behavior during his trial . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

D.

Moody’s claim that the trial court violated his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights when it failed to protect his rights as a pro
se litigant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87

E.

Moody’s claim that he was convicted based on the improper admission
of his prior crimes and acts in violation of his Fifth, Sixth, Eighth, and
Fourteenth Amendment rights .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

Page 3 of 189

1.

2.

F.

The allegation that the trial court improperly permitted evidence
to be introduced against Moody regarding his efforts to overturn
his 1972 conviction on federal charges of possessing a pipe bomb
which led to his conviction in 1990 on federal charges of suborning
perjury and obstructing justice .. . . . . . . . . . . . . . . . . . . . . . . 89
The allegation that the trial court improperly permitted evidence
to be introduced regarding Moody’s other bombings—the pipe
bomb mailed in December 1989 to Robert Robinson in Savannah,
the pipe bomb mailed to the courthouse for the Eleventh Circuit
Court of Appeals in Atlanta, and the pipe bomb mailed to the
Jacksonville office of the NAACP . . . . . . . . . . . . . . . . . . . . . . 90

Moody’s claim that he was denied a fair and impartial jury in violation
of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.. . . . 91
1.

The allegation that the prosecutor improperly told one
prospective juror, K.C., during individual voir dire that everything
Moody had been telling her during voir dire was “a complete and
unadulterated lie” and that Moody had been convicted of perjury
and of paying people to lie. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

2.

The allegation that the trial court prejudiced Moody by informing
prospective jurors of his problems with pretrial counsel,
specifically that he had caused his court-appointed attorneys to
withdraw, had thereafter rejected the court’s repeated offers to
appoint him new counsel, and that he had on numerous occasions
sought to change attorneys on the eve of trials.. . . . . . . . . . . . 92

3.

The allegation that the trial court improperly polled each juror
about Moody’s request for a continuance, asking each juror
whether “considering the statement made by Moody and the trial
court regarding Moody’s representation status, he or she believed
the case should be delayed or continued”. . . . . . . . . . . . . . . . 94

4.

The allegation that the trial court failed to ensure that the State
Page 4 of 189

did not use its peremptory challenges in a racially discriminatory
manner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
5.

The allegation that the foregoing alleged errors collectively
deprived Moody of his right to a fair trial. . . . . . . . . . . . . . . . . 95

G.

H.

Moody’s claim that his death sentence violates Ring v. Arizona, 536 U.S.
584, 122 S. Ct. 2428 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

I.

V.

Moody’s claim that his Fifth, Sixth, Eighth, and Fourteenth Amendment
rights were violated when the State introduced the following: evidence
pertaining to Moody’s undergraduate and law school records, including
that he pursued a bachelors degree in chemistry and that he took courses
in chemistry, biochemistry, and physics, and that he had completed
about half the course work required to obtain a law degree; evidence of
his litigation history and prior interactions with attorneys; and evidence
of his alleged racial attitudes in the form of testimony from an exgirlfriend that he had made positive remarks about George Wallace,
Lester Maddox, and the John Birch Society, and that he had made
negative remarks about Martin Luther King, Jr. and Maynard Jackson
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

Moody’s claim that the state withheld exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). . . . . . . . . . 111

MOODY’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS . . . 128
A.

Moody’s claim that he did not receive effective assistance of trial counsel
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
1.

The allegation that the Alabama statute barring interim payments
for attorneys representing indigent defendants denied Moody his
right to effective assistance of counsel and expert assistance . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128

2.

The allegation that trial counsel was ineffective for failing to
Page 5 of 189

adequately investigate the facts surrounding the offense.. . . 143
3.

4.

The allegation that trial counsel was ineffective for failing to
investigate the status of Moody’s mental health before moving to
withdraw from representation . . . . . . . . . . . . . . . . . . . . . . . . 146

5.

The allegation that trial counsel was ineffective for operating
under a conflict of interest when the Attorney General’s office
provided $35,000 in funds as payment .. . . . . . . . . . . . . . . . . 147

6.

B.

The allegation that trial counsel was ineffective for failing to move
for a change of venue and request a life-qualified jury . . . . . 145

The allegation that the foregoing alleged errors, collectively,
established a violation of Moody’s right to effective assistance of
trial counsel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Moody’s claim that he did not receive effective assistance of appellate
counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
1.

The allegation that appellate counsel was ineffective for failing to
argue that the trial court should have sua sponte changed the venue
of the trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

2.

The allegation that appellate counsel was ineffective for failing to
argue that the trial court conducted insufficient voir dire based on
media coverage surrounding the crime, which allegedly warranted
a more in-depth voir dire process. . . . . . . . . . . . . . . . . . . . . . 152

3.

The allegation that appellate counsel was ineffective for failing to
assert claims of prosecutorial misconduct. . . . . . . . . . . . . . . 154

4.

The allegation that appellate counsel was ineffective for failing to
assert a claim that the State withheld exculpatory evidence in
violation of Brady v. Maryland . . . . . . . . . . . . . . . . . . . . . . . . 163

Page 6 of 189

5.

6.

The allegation that appellate counsel was ineffective for failing to
assert a claim of ineffective assistance of pre-trial counsel . . 169

7.

The allegation that appellate counsel was ineffective for failing to
argue that the trial court deprived Moody of his Sixth Amendment
right to counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

8.

The allegation that appellate counsel was ineffective for failing to
“adequately” argue that the trial court deprived Moody of his
Sixth Amendment right to counsel when it failed to appoint
“standby counsel” for Moody when he was removed from the
courtroom .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

9.

The allegation that appellate counsel was ineffective for failing to
argue that the trial court deprived Moody of his Sixth Amendment
right to confront witnesses when it removed him from the
courtroom for disruptive behavior during trial.. . . . . . . . . . . 175

10.

VI.

The allegation that appellate counsel was ineffective for failing to
assert a claim that the State used race-based peremptory strikes
during voir dire in violation of Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712 (1986) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

The allegation that the foregoing alleged errors, collectively,
deprived Moody of his right to effective assistance of appellate
counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177

MOODY’S CLAIM THAT HE IS “ACTUALLY INNOCENT” .. . . . 177

VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

Page 7 of 189

I.

THE OFFENSE CONDUCT
The Alabama Court of Criminal Appeals (hereinafter, the “ACCA”), in its

opinion on direct appeal from Moody’s conviction, set out the background facts of
this case, as follows:

Around the second week of December 1989, four pipe bombs were
sent through the United States mails to different locations in the
southeastern United States. On December 16, 1989, the package
containing one of those pipe bombs was delivered to the Mountain
Brook, Alabama, residence of Judge Vance. The package was addressed
to Judge Vance and showed the name and Newnan, Georgia, address of
one of his judicial colleagues as the return addressee. When Judge Vance
opened the package, the bomb inside detonated, killing him almost
instantly. Judge Vance’s wife, Helen Vance, was seriously injured by the
blast. The pipe bomb was constructed of a steel pipe approximately five
and one-half inches in length and one and one-half inches in diameter,
sealed at each end with threaded end caps; it contained smokeless
gunpowder and a homemade detonator fashioned from the hollowed-out
barrel of a ballpoint pen. The device was designed to explode when the
lid of the box in which it was contained was opened. Numerous nails had
been secured to the pipe with rubber bands; the nails served as
projectiles upon detonation.
Two days later, on December 18, 1989, Robert Robinson, a civil
rights attorney in Savannah, Georgia, was killed after opening a package
containing a similar pipe bomb, which had been delivered to Robinson’s
Savannah law office. That same day, a third pipe bomb was received at
the courthouse of the United States Court of Appeals for the Eleventh
Circuit in Atlanta, Georgia. A court security officer using an X-ray
machine discovered the device, which was disarmed by bomb-squad
technicians before it could detonate. The following day, on December 19,
1989, a fourth pipe bomb was received—this one at the Jacksonville,
Page 8 of 189

Florida, office of the National Association for the Advancement of
Colored People (“NAACP”); the bomb was discovered and disarmed
before it could injure anyone.FN1
FN1. The pipe-bomb packages sent to Robinson and to the
Jacksonville office of the NAACP bore false return
addresses from Warner Robins, Georgia. The pipe-bomb
package sent to the federal courthouse bore a false return
address from Atlanta.
Testimony presented at Moody’s trial indicated that the four pipe
bombs were very similar in construction and design. All of the bombs had
been placed in reinforced cardboard boxes that had been painted inside
with black latex paint. All were delivered in packages wrapped in brown
paper, tied with string, wrapped with the same kind of tape, posted with
the same kind of priority mail stamps, and addressed with the same kind
of mailing labels. The addresses on all the mailing labels appeared to have
been typed with the same typewriter. All of the bombs were constructed
of steel pipes filled with Hercules Red Dot brand smokeless gunpowder.
While the pipe that made up the bomb that killed Judge Vance was sealed
at both ends with end caps that had been screwed into place, the ends of
the other three bombs had been sealed with welded end plates that were
joined by a steel rod extending through the center of each pipe. The steel
rods were secured at the ends by hexagonal nuts. Nails had been
attached, by rubber bands, to the outside of each pipe, and each bomb
had the same kind of triggering mechanism and detonator. All of the
bombs used C-cell batteries as their electrical source, and all had the
same type of modified battery holder in them. Typed notes threatening
death were contained inside the boxes in which three of the four bombs
had been sent. (Only the bomb sent to the federal courthouse in Atlanta
was not accompanied by such a note.) There were numerous other
similarities in the details of the bombs’ composition, in the construction
of the boxes that held the bombs, and in the packaging of the devices.
FN2 Based on the many similarities, forensic investigators believed that
all four bombs were made and sent by the same person.

Page 9 of 189

FN2. Among the other similarities were the following: all
of the devices had been packed with paper towels with a
goose pattern on them; all had pieces of aluminum pie pans
used in them; all had the same size paper clips in them; all
had heavy-gauge aluminum wire in them; all had CCI brand
pistol primer material in them; and all had the same
electrical system in them, with the same color.
In the days that followed the killings of Judge Vance and Robert
Robinson, every judge on the Eleventh Circuit Court of Appeals received
typed letters in which the sender took credit for the bombings and
threatened the recipients with assassination, “because of the federal
courts’ calloused [sic] disregard for the administration of justice,” in the
name of an organization known as “Americans for a Competent Federal
Judicial System.” Similar death-threat letters were received at the
Atlanta and Jacksonville offices of the NAACP. A separate typed
death-threat letter, addressed to news anchorwoman Brenda Wood, was
received at the WAGA television station in Atlanta.
The death-threat letters were all signed “010187” and specified
that the writer was using this number as a secret code and that it was not
to be disclosed to the public. All of the letters were postmarked from
Atlanta and were posted with a 25–cent American–Flag–Over–Yosemite
stamp. The packages containing three of the four pipe bombs were
posted with the same kind of American–Flag–Over–Yosemite stamp. An
analyst for the Federal Bureau of Investigation (“FBI”) concluded that
the letters received by the judges on the Eleventh Circuit Court of
Appeals and at the Atlanta and Jacksonville offices of the NAACP had
all been prepared with the same manual typewriter used to type the
addresses on the mailing labels affixed to all four of the pipe-bomb
packages. The letter addressed to Brenda Wood had been prepared with
a different typewriter.
Testimony revealed that on August 21, 1989, about four months
before the murder of Judge Vance, the NAACP regional office in Atlanta
had received through the mail a tear-gas bomb, the triggering mechanism
Page 10 of 189

and packaging of which were similar in numerous respects to the four
pipe bombs mailed in December 1989. The tear-gas bomb exploded when
an NAACP employee opened the box in which it was packaged, filling
the office with tear gas. Like three of the four December 1989 pipe
bombs, the tear-gas bomb was accompanied by a typed death-threat note.
The package containing the tear-gas bomb bore a false return address
from Atlanta.
In the days following the receipt of the tear-gas bomb at the
NAACP office, various news media outlets throughout the eastern
United States received copies of a typed letter in which the anonymous
sender complained about the Eleventh Circuit Court of Appeals’
“callous disregard for justice”; in the letter, the sender issued a
“Declaration of War” and threatened nerve-gas attacks against “densely
populated cities.” All of the letters were posted with a 25–cent
American–Flag–Over–Yosemite stamp.FN3 It was determined that the
letters had been prepared with the same manual typewriter used to type
the address on the mailing label affixed to the package containing the
tear-gas bomb.
FN3. The letters were all postmarked on August 21,
1989—the day of the tear-gas bombing—and all had been
sent from an Atlanta area post office. None contained a
return address.
The State presented evidence indicating that the August 1989
tear-gas bomb and the four December 1989 pipe bombs—including the
one that killed Judge Vance—were all constructed and sent by the
appellant, Walter Leroy Moody, Jr., as part of Moody’s declared “war”
on the court system. That war stemmed from Moody’s conviction in
federal court, almost 17 years earlier, on charges of possessing a pipe
bomb. In May 1972, a pipe bomb had exploded in Moody’s residence in
Macon, Georgia. That bomb, which had been contained inside a package
addressed to an automobile dealer who had repossessed Moody’s car,
had exploded when opened by Moody’s then wife, seriously injuring her.
Moody had been arrested and charged with the manufacture and
Page 11 of 189

possession of a pipe bomb. During his 1972 trial on those charges in
federal court, Moody had taken the stand in his own defense and
maintained that a man named “Gene Wallace”FN4 had secretly planted
the bomb in Moody’s home, allegedly to harm Moody. The jury had
found Moody guilty of possessing a pipe bomb, although it had acquitted
him of the charge of manufacturing it. Moody served three years in the
federal penitentiary for the conviction.
FN4. Gene Wallace’s existence has never been
documented; from all indications, he was an invention of
Moody’s mind.
After he was released from prison, Moody became obsessed with
overturning his conviction, believing that it had tarnished his good name
and that it stood in the way of his aspirations of becoming a lawyer.
Several years before he went to prison, Moody had attended law school
without finishing, and in the mid 1980s he inquired into resuming those
studies; however, he learned that a felony conviction would disqualify
him from practicing law in Georgia. In addition to seeing his conviction
as standing between him and a legal career, Moody had convinced
himself that he had been unfairly convicted—that he was the victim of
an immense conspiracy involving, in his mind, corrupt law-enforcement
officers, the trial judge, the prosecutor, and even his own appointed
counsel. Moody’s sense of aggrieved victimization fueled what was to
become his long-running and continuing quarrel with the legal
system—particularly with the federal courts in the Eleventh Circuit.
Sometime in 1985, Moody devised a scheme to get his conviction
overturned, by bribing an acquaintance, Julie Linn–West, to give
perjured testimony substantiating Moody’s claim that the fictional
“Gene Wallace” had placed the pipe bomb in Moody’s home in Macon
in 1972. Moody provided Linn–West—a young, destitute,
wheelchair-bound woman—with a detailed scripted story shifting the
blame to Gene Wallace. Moody paid Linn–West in small monthly
installments as she learned Moody’s written script, according to which
Linn–West was to claim that she had been with Gene Wallace in Macon
Page 12 of 189

in 1972 and had seen him place the bomb in Moody’s home. According
to the script, Linn–West was also to maintain that she feared Gene
Wallace would harm her if she had implicated him, but that, after
experiencing pangs of conscience, she had finally come forward to help
Moody clear his name.FN5
FN5. Both Moody and his girlfriend, Susan McBride
Samford, coached Linn–West on the story.
In September 1986, when he was satisfied that Linn–West had
learned his scripted story, Moody filed a petition for a writ of error coram
nobis in the federal district court in Macon, asking the court to vacate his
1972 conviction based on “newly discovered evidence,” i.e., the
fabricated story placing the blame for the bombing on Gene Wallace.
Linn–West’s mother, Jo Ann Ekstrom, subsequently became involved
in Moody’s scheme, and she, too, agreed to give false testimony on his
behalf. Following a hearing, in March 1988, at which Linn–West and
Ekstrom perjured themselves by reciting Moody’s scripted story, the
district court denied Moody’s petition. Moody appealed to the Eleventh
Circuit Court of Appeals, which affirmed the denial in June 1989.FN6
This final rejection precipitated Moody’s war on the courts. It was the
State’s theory at trial that Moody became disillusioned with lawyers,
judges, and other representatives of the legal system as a result of his
contacts with that system and that his inability to convince the courts
that he had been wronged by the system led to the series of bombings
that resulted in the death of Judge Vance.
FN6. In July 1990, Moody was indicted on federal charges
of suborning perjury and obstructing justice by procuring
the false testimony of Linn–West and Ekstrom. He was
convicted of those charges in December 1990, after a trial
in Brunswick, Georgia.
The evidence revealed that in the summer of 1989, Moody
enlisted the help of his girlfriend, who later became his wife, Susan
McBride Samford, to procure items necessary for him to construct
Page 13 of 189

explosive devices to use against the court and others. Moody initially
dispatched Samford on trips around the Southeast to gather the
components for a “chemical project” he was allegedly working on. In
July 1989, however, Moody abandoned this chemical project. He then
started the project that ultimately produced the tear-gas bomb that
exploded at the NAACP regional office in Atlanta in August 1989. After
the tear-gas bombing, Moody pursued another project, again using
Samford to procure the necessary components for him, sending her on
numerous surreptitious missions to hardware and supply stores, where
Samford made purchases or shoplifted items, as instructed by Moody.
During this time, Moody sealed off the front bedroom of the Rex,
Georgia, residence he shared with Samford and gave her lists of items to
procure. With these items, Moody then constructed four pipe bombs,
including the pipe bombs that killed Robert Robinson and Judge Vance.
At Moody’s trial, Samford testified at length about her activities
in gathering the components Moody used to make the pipe bombs and
the packages in which they were sent.FN7 Among the items Samford
stated she procured for Moody were mailing labels of the same type used
in the December 1989 pipe bombs; stamps like those on the packages
containing the December 1989 pipe bombs; cardboard boxes like those
used to hold the December 1989 pipe bombs; aluminum pie pans made
of material similar to the material found in the December 1989 pipe
bombs; goose-pattern paper towels like those used in the December 1989
pipe bombs; C-cell batteries like those used in the December 1989 pipe
bombs; flashlight bulbs like those used in the December 1989 pipe
bombs; black latex paint like that used to paint the boxes that held the
December 1989 pipe bombs; nails like those used in the December 1989
pipe bombs; string like that used in the December 1989 pipe bombs;
brown wrapping paper like that used in packaging the December 1989
pipe bombs; aluminum clothesline wire like the heavy-gauge aluminum
wire used in the December 1989 pipe bombs; rubber bands like those
used in the December 1989 pipe bombs; and tape like that used in
packaging the December 1989 pipe bombs.
FN7. Pursuant to an immunity agreement with federal
Page 14 of 189

prosecutors, Samford pleaded guilty in 1990 to one count
of conspiracy to obstruct justice in connection with her
participation in Moody’s scheme to procure the false
testimony of Julie Linn–West and Jo Ann Ekstrom in the
coram nobis proceeding. In exchange for her cooperation
with state and federal law-enforcement officials and for her
willingness to testify truthfully in court, Samford was not
prosecuted on state or federal charges related to her
participation in the pipe-bomb killings of Judge Vance and
Robert Robinson. The jury was informed of the existence of
Samford’s deal with prosecutors. See Giglio v. United
States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972).
Samford’s testimony indicated that, after Moody finished his
construction of the pipe bombs in early December 1989, he opened the
bedroom in which he had been working and then thoroughly cleaned and
remodeled the bedroom in order to erase evidence of his bomb making.
He then mailed the bombs. According to Samford, after the FBI began
investigating Moody’s involvement in the December 1989 bombings,
Moody remarked to her, “[I]f they have any evidence, it would be
DNA.” (Vol.68, R. 1191.) On another occasion, in late December 1989,
after seeing a television news report that a judge in Maryland had been
injured by a pipe bomb, Moody told Samford something to the effect of
“That one is not mine” or “I didn’t do that one.” (Vol.68, R. 1188.)
In addition to the incriminating testimony against Moody
presented by Samford, there was eyewitness testimony indicating that on
December 2, 1989, at a gun shop in Griffin, Georgia, Moody purchased
four pounds of Hercules Red Dot brand smokeless gunpowder and an
unusually large number of CCI brand pistol primers—the kind of
gunpowder and primer material that, according to forensic analysis, was
used in the December 1989 pipe bombs. The State’s experts testified that
there were numerous similarities between the pipe bomb that exploded
in Moody’s home in 1972 and the four December 1989 pipe bombs and
that the bombs contained the “signature” of the same maker—indicating
that they had all been made by the same person. The evidence also
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showed that the 1972 pipe bomb—like three of the four December 1989
pipe bombs and like the August 1989 tear-gas bomb—had been
accompanied by a threatening note.FN8
FN8. Evidence showed that the death-threat note
accompanying the pipe bomb that had been sent to the
Jacksonville office of the NAACP in December 1989 was
addressed “To the officer who opened our smoke bomb.”
The State also presented evidence showing that in February 1990,
federal investigators recovered a steel pipe with threaded end caps
during a search of a storage area that Moody was renting in Chamblee,
Georgia. This device was similar in some respects to the 1972 pipe bomb
and the December 1989 pipe bombs, and a forensic explosives expert
testified that the device appeared to represent a transitional phase
between the 1972 pipe bomb and the December 1989 pipe bombs.
Karlene Shiver, a woman who had dated Moody in the early
1980s, testified that Moody owned a manual typewriter on which the
letter “A” would “jump.” The State presented evidence demonstrating
that each “A” appearing in a word on a typed death-threat letter from
“Americans for a Competent Federal Judicial System” that was sent to
Brenda Wood at the WAGA television station in Atlanta shortly after the
pipe-bomb killings jumped above the other letters in the word. Shiver
also testified that Moody had once told her that a bombing was a
“perfect crime” because when everything exploded, there was nothing
left to investigate. (Vol.72, R. 405.)
During their investigation of the bombings, federal agents
electronically monitored Moody’s residence and the jail cell in which he
was held after his arrest. The surveillance yielded several audiotapes on
which Moody was heard whispering incriminating statements to himself.
In one such “conversation,” Moody stated, “Now you’ve killed two .
. . . Now you can’t pull another bombin’ . . . .” In another statement that
he whispered to himself, Moody complained that the courts were crooks
and that he had been the victim of a “judicial raping.” Moody then
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stated, “I’ll guarantee you, it will never happen again. Now you, you
don’t believe me? You’re in for a rude awakening!”
In November 1990, Moody was charged with numerous federal
crimes related to the bombings. The venue for the trial on those charges
was changed to St. Paul, Minnesota. After a trial in June 1991, a jury
found Moody guilty on 71 separate counts. Moody was sentenced to 7
life terms plus 400 years in the federal penitentiary.
Moody v. State, 888 So. 2d 532, 540-45 (Ala. Crim. App. 2003).
II.

PROCEDURAL HISTORY
In December 1991, a Jefferson County, Alabama, grand jury indicted Moody on

two counts of capital murder arising out of the death of Judge Vance and one count
of assault in the first degree arising out of the injuries sustained by Helen Vance. The
murder was made capital because it was committed by means of explosives or
explosion, see Ala. Code § 13A-5-40(a)(9) (1975), and because Judge Vance was a
federal public official and the murder was related to his official position, see Ala. Code
§ 13A-5-40(a)(11) (1975). All of the judges of the Tenth Judicial Circuit, which is
composed of Jefferson County, recused themselves from hearing Moody’s case. On
April 8, 1992, the Chief Justice of the Alabama Supreme Court assigned Judge
William H. Rhea III of the Etowah Circuit Court to preside over Moody’s case. The
trial was delayed several times, and Moody ultimately elected to waive his right to
counsel and proceed pro se at his trial, as explained in more detail herein.
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On November 5, 1996, Moody was convicted by a jury in the Jefferson County
Circuit Court of all charges. After Moody’s trial, the jury separately returned a
verdict recommending death by a vote of eleven to one. On February 10, 1997, the
trial court accepted the jury’s recommendation and sentenced Moody to death for the
capital murder convictions. The trial court also sentenced Moody, a habitual felony
offender, to life imprisonment for the first-degree-assault conviction.
Moody, through counsel, appealed. On April 18, 2003, the ACCA affirmed
Moody’s convictions and sentences. Moody, 888 So. 2d 532. On March 26, 2004, the
Alabama Supreme Court denied Moody’s petition for a writ of certiorari. Moody
sought review from the United States Supreme Court, but the Supreme Court denied
certiorari on November 1, 2004.
On March 23, 2005, Moody, through counsel, filed a state post-conviction
petition pursuant to Rule 32 of the Alabama Rules of Criminal Procedure (“Rule 32")
in the Circuit Court of Jefferson County, Alabama. The petition was amended on
March 2, 2006, and again on July 20, 2009. The circuit court issued a summary
dismissal on December 28, 2009. On December 16, 2011, the ACCA affirmed the
circuit court’s denial of post-conviction relief. Moody v. State, 95 So. 3d 827 (Ala.
Crim. App. 2011). Moody filed an application for a rehearing, but it was denied by the

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ACCA on January 27, 2012. On May 18, 2012, the Alabama Supreme Court denied
Moody’s petition for a writ of certiorari.
Moody filed the instant petition on December 20, 2012, and it is his first and
only federal application for habeas corpus relief pursuant to 28 U.S.C. § 2254.3 After
this Court entered an initial order governing the requirements and deadlines for the
filing of an amended petition, an answer, and accompanying briefs and certifications,
Moody sought recusal of the undersigned judge and a change of venue in three
separate filings. (Docs. 10, 19, and 30.) Each motion was denied by this Court.
(Docs. 11, 20, and 31.) Moody then petitioned the United States Court of Appeals for
the Eleventh Circuit for a writ of mandamus ordering the undersigned judge to recuse
and directing the transfer of this action to a district judge outside of the bounds of the
Eleventh Circuit. In the mandamus proceeding, Moody then separately moved for all
of the judges of the Eleventh Circuit to recuse themselves from the proceeding and
transfer the action to another circuit court of appeals. On March 21, 2014, the
Eleventh Circuit denied Moody’s motion for recusal of all of the judges of the
Eleventh Circuit and denied his petition for a writ of mandamus. In re Moody, 755

3

The petition is timely as it was filed within one year of the date on which Moody’s
conviction became final, not counting the period of time in which his state post-conviction
proceedings were pending. See 28 U.S.C. § 2244(d)(1)-(2).
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F.3d 891 (11th Cir. 2014). On November 3, 2014, the Supreme Court of the United
States denied Moody’s petition for a writ of certiorari. Accordingly, the habeas
petition is now ripe for review.
III.

STANDARDS OF FEDERAL HABEAS REVIEW
This action is governed by 28 U.S.C. § 2254, as amended by the Anti-Terrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). See Guzman v. Sec’y, Dep’t of
Corr., 663 F.3d 1336, 1345 (11th Cir. 2011). Pursuant to § 2254(a), a federal district
court is prohibited from entertaining a petition for writ of habeas corpus “in behalf of
a person in custody pursuant to the judgment of a State court” unless the petition
alleges “he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). In other words, this Court’s review of habeas
claims is limited to federal constitutional questions. Claims pertaining solely to “an
alleged defect in a [state] collateral proceeding” or to a “state’s interpretation of its
own laws or rules” do not provide a basis for federal habeas corpus relief under §
2254. Alston v. Dep’t of Corr., Fla., 610 F.3d 1318, 1325-26 (11th Cir. 2010) (quotation
marks and citations omitted).
A.

Exhaustion of State Remedies and Procedural Default

Under § 2254(b) and (c), a federal court must limit its grant of habeas

Page 20 of 189

applications to cases where an applicant has exhausted all state remedies. Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). The purpose of this requirement is to ensure
that state courts are afforded the first opportunity to correct federal questions
affecting the validity of state court convictions. See Snowden v. Singletary, 135 F.3d
732, 735 (11th Cir. 1998); see also Smith v. Newsome, 876 F.2d 1461, 1463 (11th Cir.
1989) (“Federal courts are not forums in which to relitigate state trials.”) (citation
omitted)). Moreover, “to exhaust state remedies fully the petitioner must make the
state court aware that the claims asserted present federal constitutional issues. ‘It is
not enough that all the facts necessary to support the federal claim were before the
state courts or that a somewhat similar state-law claim was made.’” Snowden, 135 F.3d
at 735 (quoting Anderson v. Harless, 459 U.S. 4, 5-6, 103 S. Ct. 276, 277 (1982)).
“[A]n issue is exhausted if ‘the reasonable reader would understand the claim’s
particular legal basis and specific factual foundation’ to be the same as it was
presented in state court.” Pope v. Sec’y for Dep’t of Corr., 680 F.3d 1271, 1286 (11th
Cir. 2012) (quoting Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1344–45 (11th Cir.
2004)) (brackets in original omitted). If a petitioner fails to raise his federal claim to
the state court at the time and in the manner dictated by the state’s procedural rules,
the state court can decide the claim is not entitled to a review on the merits, i.e., “the

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petitioner will have procedurally defaulted on that claim.” Mason v. Allen, 605 F.3d
1114, 1119 (11th Cir. 2010). Moreover, a “state court’s rejection of a petitioner’s
constitutional claim on state procedural grounds will generally preclude any
subsequent federal habeas review of that claim.” Ward v. Hall, 592 F.3d 1144, 1156
(11th Cir. 2010) (quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)).
“Where there has been one reasoned state judgment rejecting a federal claim, later
unexplained orders upholding that judgment or rejecting the same claim rest upon the
same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 2594 (1991).
Yet as the Eleventh Circuit has noted, a claim will only be procedurally
defaulted in the following circumstance:
[A] state court’s rejection of a federal constitutional claim on procedural
grounds may only preclude federal review if the state procedural ruling
rests upon “adequate and independent” state grounds. Marek v.
Singletary, 62 F.3d 1295, 1301 (11th Cir. 1995) (citation omitted).
We have “established a three-part test to enable us to determine when
a state court’s procedural ruling constitutes an independent and
adequate state rule of decision.” Judd, 250 F.3d at 1313. “First, the last
state court rendering a judgment in the case must clearly and expressly
state that it is relying on state procedural rules to resolve the federal
claim without reaching the merits of that claim.” Id. Second, the state
court’s decision must rest entirely on state law grounds and not be
intertwined with an interpretation of federal law. See id. Third, the state
procedural rule must be adequate, i.e., firmly established and regularly
followed and not applied “in an arbitrary or unprecedented fashion.” Id.

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Ward, 592 F.3d at 1156–57 (footnote omitted).
There are also instances where the doctrines of procedural default and
exhaustion intertwine. For instance, if a petitioner’s federal claim is unexhausted, a
district court will traditionally dismiss it without prejudice or stay the cause of action
to allow the petitioner to first avail himself of his state remedies. See Rose v. Lundy,
455 U.S. 509, 519-20, 102 S. Ct. 1198, 1204 (1982). But “if it is clear from state law
that any future attempts at exhaustion [in state court] would be futile” under the
state’s own procedural rules, a court can simply find that the claim is “procedurally
defaulted, even absent a state court determination to that effect.” Bailey v. Nagle, 172
F.3d 1299, 1305 (11th Cir. 1999) (citation omitted).
B.

Overcoming Procedural Default

“[A]n adequate and independent finding of procedural default will bar federal
habeas review of the federal claim, unless the habeas petitioner can show cause for the
default and prejudice attributable thereto, or demonstrate that failure to consider the
federal claim will result in a fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 749–50, 111 S. Ct. 2546, 2564-65 (1991) (citations and
internal quotation marks omitted).
The “cause and prejudice” exception is framed in the conjunctive, and a

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petitioner must prove both cause and prejudice. Id. at 750, 111 S. Ct. at 2565. To
show cause, a petitioner must prove that “some objective factor external to the
defense impeded counsel’s efforts” to raise the claim previously. Murray v. Carrier,
477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986). Examples of such objective factors
include:
. . . interference by officials that makes compliance with the State’s
procedural rule impracticable, and a showing that the factual or legal
basis for a claim was not reasonably available to counsel. In addition,
constitutionally ineffective assistance of counsel . . . is cause. Attorney
error short of ineffective assistance of counsel, however, does not
constitute cause and will not excuse a procedural default.
McCleskey v. Zant, 499 U.S. 467, 494 , 111 S. Ct. 1454, 1470 (1991) (internal quotation
marks, brackets, and citations omitted). As for prejudice, a habeas petitioner must
show “not merely that the errors . . . created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting his entire trial with error
of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170, 102 S. Ct.
1584, 1596 (1982) (emphasis in original).
Finally, a petitioner may also escape a procedural default bar if he “can
demonstrate a sufficient probability that [the court’s] failure to review his federal
claim will result in a fundamental miscarriage of justice.” Edwards v. Carpenter, 529
U.S. 446, 451, 120 S. Ct. 1587, 1591 (2000). To make such a showing, a petitioner
Page 24 of 189

must establish that either: (1) “a constitutional violation has probably resulted in the
conviction of one who is actually innocent,” Smith v. Murray, 477 U.S. 527, 537, 106
S. Ct. 2661, 2668 (1986) (quoting Carrier, 477 U.S. at 496, 106 S. Ct. at 2650), or (2)
the petitioner shows “by clear and convincing evidence that but for a constitutional
error, no reasonable juror would have found the petitioner eligible for the death
penalty.” Schlup v. Delo, 513 U.S. 298, 323, 115 S. Ct. 851, 865 (1995) (emphasis in
original) (quoting Sawyer v. Whitley, 505 U.S. 333, 336, 112 S. Ct. 2514, 2517 (1992)).
C.

AEDPA Review of State Court Decisions Under § 2254(d) and (e)

When a constitutional claim upon which a petitioner seeks relief under § 2254
is not procedurally defaulted but has instead been adjudicated on the merits in state
courts, this Court is still restricted in its ability to grant relief on those claims by §
2254(d). The AEDPA “imposes a highly deferential standard for evaluating statecourt rulings” and “demands that state-court decisions be given the benefit of the
doubt.” Guzman, 663 F.3d at 1345 (internal quotation marks and citation omitted).
To grant habeas relief on a claim, this Court must not only find that the constitutional
claims are meritorious, but also that the state court’s resolution of those claims:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d)(1)-(2); see also Boyd v. Allen, 592 F.3d 1274, 1292 (11th Cir. 2010)
(quoting § 2254(d)). The burden of showing that an issue falls within § 2254(d)(1) or
(d)(2) is upon the petitioner. See Woodford v. Visciotti, 537 U.S. 19, 25, 123 S. Ct. 357,
360 (2002). Section 2254(d)(1)’s “contrary to” and “unreasonable application of”
clauses have independent meanings. See Alderman v. Terry, 468 F.3d 775, 791 (11th
Cir. 2006) (“[T]he ‘contrary to’ and ‘unreasonable application’ clauses are
interpreted as independent statutory modes of analysis.”) (citation omitted). A state
court’s decision is contrary to “clearly established precedents [of the Supreme Court
of the United States] if it applies a rule that contradicts the governing law set forth in
[the Court’s] cases, or if it confronts a set of facts that is materially indistinguishable
from a decision of th[e] Court but reaches a different result.” Brown v. Payton, 544
U.S. 133, 141, 125 S. Ct. 1432, 1438 (2005) (citation omitted). On the other hand, to
determine whether a state court’s decision is an “unreasonable application” of clearly
established federal law, the Supreme Court has stated:
The pivotal question is whether the state court’s application of the
[relevant constitutional] standard was unreasonable . . . For purposes of
§ 2254(d)(1), an unreasonable application of federal law is different from
an incorrect application of federal law. A state court must be granted a
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deference and latitude that are not in operation when the case involves
review under the [relevant constitutional] standard itself.
A state court’s determination that a claim lacks merits precludes federal
habeas relief so long as fairminded jurists could disagree on the
correctness of the state court’s decision. And as the [Supreme Court]
has explained, evaluating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general the rule,
the more leeway courts have in reaching outcomes in case-by-case
determinations.
Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 785-86 (2011) (citation and
quotation marks omitted) (emphasis in original); see also Schriro v. Landrigan, 550 U.S.
465, 473, 127 S. Ct. 1933, 1939 (2007) (“The question under AEDPA is not whether
a federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.”); Guzman, 663
F.3d at 1346 (“Ultimately, before a federal court may grant habeas relief under §
2254(d), ‘a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.’”) (quoting Harrington, 131 S. Ct. at 786-87).
Moreover, a state court’s factual determination is entitled to a presumption of
correctness under § 2254(e)(1)). And commensurate with the deference accorded to
a state court’s factual findings, “the petitioner must rebut ‘the presumption of
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correctness [of a state court’s factual findings] by clear and convincing evidence.’”
Ward, 592 F.3d at 1155-56 (alterations in original) (quoting § 2254(e)(1)).
D.

The Burden of Proof and Heightened Pleading Requirements for
Habeas Petitions

Additionally, because habeas corpus review is limited to review of errors of
constitutional dimension, a habeas corpus petition “must meet [the] heightened
pleading requirements [of] 28 U.S.C. § 2254 Rule 2(c).” McFarland v. Scott, 512 U.S.
849, 856, 114 S. Ct. 2568, 2572 (1994) (citation omitted). “[T]he petition must
‘specify all the grounds for relief available to the petitioner’ and ‘state the facts
supporting each ground.’” Mayle v. Felix, 545 U.S. 644, 655, 125 S. Ct. 2562, 2570
(2005) (quoting Rule 2(c) of the Rules Governing Section 2254 Cases in the U.S.
District Courts). The burden of proof is on the habeas petitioner “to establish his
right to habeas relief and he must prove all facts necessary to show a constitutional
violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008) (citation
omitted); see also Smith v. Wainwright, 777 F.2d 609, 616 (11th Cir. 1985) (holding that
a general allegation of ineffective assistance of counsel is insufficient; a petition must
allege specific errors in counsel’s performance and facts showing prejudice).
E.

The General Standard for Ineffective Assistance of Counsel Claims

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme
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Court established the following two-pronged standard for judging, under the Sixth
Amendment, the effectiveness of attorneys who represent criminal defendants at trial
or on direct appeal:
A convicted defendant’s claim that counsel’s assistance was so
defective as to require reversal of a conviction or death sentence has two
components. First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable. Unless a defendant makes
both showings, it cannot be said that the conviction or death sentence
resulted from a breakdown in the adversary process that renders the
result unreliable.
Id. at 687, 104 S. Ct. at 2064 .
Because Strickland’s preceding two-part test is clearly framed in the
conjunctive, a petitioner bears the burden of proving both “deficient performance”
and “prejudice” by “a preponderance of competent evidence.” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (en banc); see also Holladay v. Haley, 209
F.3d 1243, 1248 (11th Cir. 2000) (“Because both parts of the test must be satisfied in
order to show a violation of the Sixth Amendment, the court need not address the
performance prong if the defendant cannot meet the prejudice prong, [ ] or vice
versa.”). Further, when assessing ineffective assistance of counsel claims:
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[I]t is important to keep in mind that in addition to the deference to
counsel’s performance mandated by Strickland, the AEDPA adds
another layer of deference—this one to a State court’s decision—when
we are considering whether to grant federal habeas relief from a State
court’s decision. Thus, [a petitioner] not only has to satisfy the elements
of the Strickland standard, but he must also show that the State court
applied Strickland to the facts of his case in an objectively unreasonable
manner.
Williams v. Allen, 598 F.3d 778, 789 (11th Cir. 2010) (brackets in original omitted)
(citations and quotation marks omitted) (emphasis in original).
In order to establish deficient performance, a habeas petitioner “must show that
counsel’s representation fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. That reasonableness is judged against
“prevailing professional norms.” Id., 104 S. Ct. at 2065. Moreover, under Strickland,
lower federal courts must be “highly deferential” in their scrutiny of counsel’s
performance. Id. at 689, 104 S. Ct. at 2065. As the Strickland court outlined:
Judicial scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a court,
examining counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was unreasonable.
A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a
strong presumption that counsel’s conduct falls within the wide range of
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reasonable professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged action
might be considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.

Id., 104 S. Ct. at 2065 (citations and quotation marks omitted).
Simply put, a habeas petitioner “must establish that no competent counsel
would have taken the action that his counsel did take” to overcome the presumption
that counsel’s conduct fell within the wide range of reasonable professional assistance.
Chandler, 218 F.3d at 1315. The reasonableness of counsel’s performance is judged
from the perspective of the attorney, at the time of the alleged error, and in light of all
the circumstances. See, e.g., Newland v. Hall, 527 F.3d 1162, 1184 (11th Cir. 2008)
(“We review counsel’s performance ‘from counsel’s perspective at the time,’ to
avoid ‘the distorting effects of hindsight.’”) (quoting Strickland, 466 U.S. at 689, 104
S. Ct. at 2065).
To satisfy the prejudice prong, a habeas petition “must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104
S. Ct. at 2068. Stated differently, “[a] finding of prejudice requires proof of
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unprofessional errors so egregious that the trial was rendered unfair and the verdict
rendered suspect.” Johnson v. Alabama, 256 F.3d 1156, 1177 (11th Cir. 2001)
(citations and quotation marks omitted). Further, the fact that counsel’s “errors had
some conceivable effect on the outcome of the proceeding” is insufficient to show
prejudice. Strickland, 466 U.S. at 693, 104 S. Ct. at 2067. Therefore, “when a
petitioner challenges a death sentence, ‘the question is whether there is a reasonable
probability that, absent the errors, the sentencer . . . would have concluded that the
balance of aggravating and mitigating circumstances did not warrant death.’” Stewart
v. Sec’y, Dep’t of Corr., 476 F.3d 1193, 1209 (11th Cir. 2007) (quoting Strickland, 466
U.S. at 695, 104 S. Ct. at 2069).
Because Strickland and § 2254(d) both mandate standards that are “‘highly
deferential’”, “when the two apply in tandem, review is ‘doubly’ so.” Harrington,
131 S. Ct. at 788 (citations omitted). The inquiry is not then “whether counsel’s
actions were reasonable,” but is instead “whether there is any reasonable argument
that counsel satisfied Strickland’s deferential standard.” Id. The court must
determine “whether the state court’s application of the Strickland standard was
unreasonable. This is different from asking whether defense counsel’s performance
fell below Strickland’s standard.” Id. at 785. This “[d]ouble deference is doubly

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difficult for a petitioner to overcome, and it will be a rare case in which an ineffective
assistance of counsel claim that was denied on the merits in state court is found to
merit relief in a federal habeas proceeding.” Evans v. Sec’y, Fla. Dep’t of Corr., 699
F.3d 1249, 1268 (11th Cir. 2012).
Finally, “[s]tate court findings of historical facts made in the course of
evaluating an ineffectiveness claim are subject to a presumption of correctness under
28 U.S.C. § 2254(d).” Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir. 2001).
With these principles in mind, the Court now turns to Moody’s specific claims.
IV.

MOODY’S SUBSTANTIVE CLAIMS
A.

Moody’s claim that the trial court deprived him of his Sixth
Amendment right to counsel

Moody presents six interrelated sub-arguments within this ground for habeas
relief. Before turning to those, a discussion is warranted of the circumstances
surrounding Moody’s decision to waive the assistance of counsel and proceed pro se
at his trial. The ACCA, in its opinion on direct appeal, laid out the background facts
in great detail, as follows:
We begin . . . by recounting the events that culminated in Moody’s
proceeding through his trial without the aid of a lawyer. As previously
stated, a Jefferson County grand jury indicted Moody in December 1991.
In February 1992, upon finding that Moody was indigent, the trial court
appointed attorney L. Dan Turberville to represent him. The following
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month, the trial court appointed attorney Richard S. Jaffe to assist
Turberville. Both Turberville and Jaffe are seasoned criminal defense
attorneys with abundant prior experience representing defendants in
capital-murder cases.
For more than two years after they were appointed, during which
time Moody’s case was continued several times, Turberville and Jaffe
actively represented Moody, filing numerous motions, appearing at
numerous hearings, conducting discovery, and engaging in extensive
pretrial preparation on Moody’s behalf. Moody, however, was
dissatisfied with his attorneys, and he began sending letters to the trial
court complaining about their performance and seeking to have them
removed as his counsel.FN10 He also filed a motion for an “independent
counsel” who would report on the adequacy of the representation he was
receiving from Turberville and Jaffe. Moody would eventually sue the
attorneys in federal court, alleging that they were providing him
ineffective assistance.
FN10. Among Moody’s complaints was a claim that his
attorneys had not spent enough time preparing his case.
Quite aware of Moody’s dissatisfaction, Turberville and Jaffe, on
June 7, 1994, moved to be allowed to withdraw from further
representation of Moody based on “irreconcilable differences.” In
moving to withdraw as counsel, Turberville and Jaffe informed the trial
court that their relationship with Moody had broken down entirely, that
Moody “refuses to communicate with counsel unless counsel does
exactly what the client says,” that Moody “has claimed that both of his
counsel are ineffective and inadequate,” and that Moody had made
numerous threats against them. On June 22, 1994, the trial court set a
hearing on the matter for July 26, 1994. The hearing was later reset for
August 2, 1994. On July 25, 1994, Moody filed a motion with the trial
court requesting that he be allowed to proceed pro se.
On August 2, 1994, the trial court held a hearing on Turberville
and Jaffe’s motions to withdraw as counsel as well as on Moody’s
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motion to proceed pro se. At the hearing, an investigator for the Alabama
attorney general’s office testified concerning Moody’s extensive
litigation history and his often fractious relationships with the attorneys
who had represented him in the many legal proceedings in which he had
been involved. That testimony indicated that since 1972, Moody had
been a party, whether at the trial level or appellate level, in a total of 63
legal proceedings—both civil and criminal. At some point in 47 of those
proceedings, Moody either retained counsel or had counsel appointed to
represent him, and in almost all 47 instances, he had discharged his
attorneys, claiming that their representation was ineffective. As he had
done with Turberville and Jaffe, Moody had also sued his attorneys in
two of those cases. None of Moody’s attorneys in the prior proceedings,
however, had ever been found to be ineffective. In approximately 35 of
the prior legal proceedings, Moody had proceeded pro se for either all or
part of a proceeding.
After determining that Moody had no objection, the trial court
permitted Turberville and Jaffe to withdraw from further representation
of Moody. Addressing Moody’s motion to proceed pro se, the trial court
then undertook a lengthy colloquy with Moody. It warned him that he
would be at a significant disadvantage without counsel; that, as a
nonlawyer, he would be “ill-equipped” to make arguments to the jury;
and that the court considered his desire to represent himself to be “a
foolhardy endeavor.” The court urged Moody to accept counsel. The
trial court fully advised Moody of the nature of the charges against him
and the penalties that could be imposed if he were convicted. In addition,
the trial court conducted an inquiry into Moody’s background and legal
experience and ascertained whether Moody was familiar with the order
of a trial and the evidentiary rules. The trial court informed Moody that,
if he proceeded pro se, he would be entitled to the assistance of standby
counsel, but that that assistance would be limited to an advisory capacity
and that standby counsel would not provide the thoroughgoing legal
assistance full counsel could give. The trial court also informed Moody
that he had the right to withdraw his waiver of counsel at any time in the
proceedings and to have experienced counsel appointed to represent
him. However, the trial court expressly warned Moody that if he
Page 35 of 189

proceeded pro se but later changed his mind and accepted counsel,
neither Moody nor his counsel would be entitled to delay the trial of his
case. The trial court informed Moody that no continuance of the
scheduled January 30, 1995, trial date would be granted because of his
decision to proceed pro se.
During the hearing, Moody initially indicated that, while he
wished to proceed pro se, he wanted the court to appoint a “cocounsel,”
who, according to Moody, would act as his “liaison” to the court, to the
State, to any expert witnesses, and to “everybody else that is going to
support the defense.” (Vol. 56, hearing of August 2, 1994, R. 15.) When
the trial court then advised Moody that it did not intend to allow Moody
to participate as cocounsel or to proceed with a hybrid form of
representation, Moody responded that the matter was “largely
semantics” and that he did not care whether the attorney who assisted
him was called cocounsel or assistant counsel or advisory counsel. (Vol.
56, hearing of August 2, 1994, R. 16.)
Throughout the hearing, Moody indicated that he understood the
trial court’s admonitions against proceeding pro se, and he plainly stated
several times that he wanted to represent himself. Upon finding that
Moody was fully aware of the consequences of self-representation, the
trial court granted Moody’s request to proceed pro se. The trial court also
instructed Moody to provide the court with written notice whether he
wanted standby counsel and, if so, in what capacity he expected standby
counsel to serve. In a letter dated August 4, 1994, Moody informed the
trial court that he did not want standby counsel and reaffirmed his desire
to proceed pro se.
On August 13, 1994, Moody filed a motion with the trial court
requesting that Jaffe be reappointed as his counsel. However, less than
a week after making this request, Moody rescinded the motion to
reappoint Jaffe, stating that his “past differences” with Jaffe had not
been resolved. (Vol.11, C.2090.) The trial court subsequently entered an
order expressly denying Moody’s request to reappoint Jaffe, stating as
grounds Moody’s action then pending against Jaffe in federal court and
Page 36 of 189

Jaffe’s previous statements that his differences with Moody were
irreconcilable.
Moody’s case was continued past the January 30, 1995, trial date
and, for various reasons, including Moody’s own dilatory conduct,FN11
was continued several times thereafter. During the 16–month period that
followed the August 2, 1994, hearing at which the trial court granted
Moody’s motion to proceed pro se, a number of additional hearings were
held at which the issue of Moody’s representation status was again
discussed. At some of these hearings, Moody indicated to the trial court
that he had been in contact with various attorneys who were
“interested” in representing him, but that those attorneys had informed
him that they were unable to take his case because they could not bear
the financial burden of preparing for a capital-murder trial. Although the
trial court pressed Moody to clarify his expectations regarding legal
assistance, Moody refused to explain whether he had hoped one of those
“interested” attorneys would serve as his full counsel or in some sort of
advisory capacity only. The trial court reminded Moody that should he
desire to have counsel appointed—whether to serve as full counsel or in
an advisory capacity—the court, and not Moody, would choose that
attorney.FN12
FN11. For instance, the trial was delayed because Moody
failed to obey several orders of the trial court to reveal his
expert witnesses to the court and to advise the court of the
areas of expertise of those witnesses.
FN12. There is no indication in the record that Moody had
the financial resources to retain such counsel. We note that
while an indigent defendant is entitled to appointed
counsel, he has no absolute right to be represented by any
particular counsel or by counsel of his choice. See, e.g.,
Snell v. State, 723 So. 2d 105, 107 (Ala. Crim. App. 1998);
Briggs v. State, 549 So. 2d 155, 160 (Ala. Crim. App. 1989).
At these and other pretrial hearings, Moody challenged the
Page 37 of 189

constitutionality of § 15–12–21, Ala. Code 1975, the Alabama statute
authorizing the payment of attorney fees and other expenses incurred by
counsel for an indigent defendant. Among Moody’s contentions was that
no competent counsel was willing to represent him under the “payment
constraints” imposed by § 15–12–21(d) and that, in any event, he would
not receive an adequate defense from any counsel who did represent him
under such constraints. Consequently, he said, he was being “forced”
to proceed pro se. This was to become a refrain of Moody’s throughout
the proceedings. At no time during the pretrial hearings, however, did
Moody state that he wanted to withdraw his waiver of counsel. In fact,
he several times reaffirmed his desire to represent himself.
When, during these hearings, the trial court revisited the specific
question whether Moody wanted standby counsel, Moody was evasive,
telling the court that his desire for standby counsel was contingent upon
the amount of assistance such counsel would be allowed to provide him.
The trial court informed Moody that standby counsel’s function would
be to ensure that Moody was familiar with the rules of procedure and
with the trial process and to assist Moody with any points of law that
might arise at trial, but that standby counsel would not be allowed to
perform pretrial investigation or other extensive preparation of Moody’s
case. Moody expressed dissatisfaction with the limited function of
standby counsel as delineated by the trial court; ultimately, he never
asserted an unequivocal desire to have standby counsel appointed.
On May 7, 1996, the trial court held a hearing to again address
matters related to Moody’s representation.FN13 At the outset of the
hearing, the trial court announced that it had set Moody’s trial date for
October 7, 1996. The trial court then undertook a lengthy colloquy with
Moody that was in all important respects a reiteration of the full colloquy
that was undertaken at the hearing of August 2, 1994. The trial court
again warned Moody of the significant disadvantages of proceeding
without an attorney and advised him that it was in his best interests to
accept the appointment of counsel. During the hearing, the trial court
also reminded Moody that it was within the court’s discretion to appoint
standby counsel to assist him, and Moody stated that he did not want
Page 38 of 189

standby counsel. As it had done previously, the trial court informed
Moody that he had the right to withdraw his waiver of counsel at any
time in the proceedings and to have counsel appointed to represent him,
but that if he did so, he would not be entitled to delay the trial. The trial
court reemphasized this point, warning Moody that “we are not going
to delay the case by any manipulation of your rights to counsel.” (Vol.
57, hearing of May 7, 1996, R. 30.) As he had done previously, Moody
informed the trial court that he wanted to represent himself, and he
proceeded to trial without the assistance of counsel.FN14
FN13. The hearing was held immediately before an ex parte
hearing on Moody’s request for the assistance of experts in
preparing his defense. The ex parte hearing was held
pursuant to an order of the Alabama Supreme Court. See Ex
parte Moody, 684 So. 2d 114, 122 (Ala. 1996).
FN14. The record reflects that Moody filed and argued
numerous pro se motions in the months leading up to his
trial.
Voir dire examination of the prospective jurors began on October
7, 1996, and lasted for several days. Moody initially participated in the
voir dire process. Toward the end of the first day of voir dire
examination, Moody presented the trial court with a motion for a
continuance, which indicated that David L. Lewis, an attorney licensed
to practice in New York, was “interested” in accepting his case and that
he wanted to be represented by Lewis. Moody did not attempt to explain
why he had failed to bring this matter to the trial court’s attention earlier.
The trial court did not rule on Moody’s continuance motion at that time.
Voir dire examination was conducted only very briefly the following day,
October 8, 1996, and did not resume until the morning of October 10,
1996. At the outset of the proceedings on October 10, Moody told the
trial court that he was being represented in the case by Lewis and that the
court and the State should address all further communications relating
to the case to Lewis. Moody then provided the trial court with Lewis’s
address and telephone number in New York. After Moody objected “to
Page 39 of 189

this case being prosecuted without my attorney Mr. David L. Lewis
being present to protect my rights,” the following exchange occurred
between the trial court and Moody:
“THE COURT: All right. Okay. Well, the Court has no
record of Mr. Lewis filing any written appearance in this
case, you know, as your attorney.
“The Court has explained to you on other occasions,
as I think you have reflected and understood, that the Court
would appoint you an attorney. And you have refused that
in the past; is that correct?
“MR. MOODY: Yes, I have.
“THE COURT: All right. And you still feel that way?
“MR. MOODY: Yes, sir.”
(Vol.59, R. 363–64.)
Voir dire examination of the prospective jurors was conducted for
the remainder of the day. Toward the end of the day’s proceedings and
outside the presence of the prospective jurors, Douglas Culp, an attorney
licensed to practice in Alabama, appeared specially on behalf of David L.
Lewis and requested that Lewis be admitted to practice law in Alabama
pro hac vice for the purpose of representing Moody. Moody was present
in court with CulpFN15 when this request was made. However, Lewis
was not present. In conjunction with the pro hac vice request, Culp
presented the trial court with a written motion for a continuance, which
Lewis had drafted. In the motion, Lewis requested a 12– to 18–month
continuance of Moody’s case in order for him to prepare for trial. Lewis
averred in the motion that this request was based on his review of
allegedly exculpatory material contained in a memorandum authored by
an FBI lab employee, Agent Frederic Whitehurst. In the memorandum,
Whitehurst accused several of his fellow agents and lab employees of
Page 40 of 189

withholding exculpatory evidence and manipulating their testimony in
several high-profile criminal cases, including Moody’s 1991 trial in
Minnesota on federal charges related to the bombings. Lewis averred
that he needed sufficient time to review the forensic evidence discussed
in the Whitehurst memorandum and to review the proceedings from
Moody’s federal prosecution. In addition, Lewis averred that the
complex factual and legal issues involved in a capital-murder case
required considerable preparation by any attorney.
FN15. Culp informed the trial court that he could serve as
“local counsel” if Lewis were admitted to represent
Moody; however, he stated that he was not qualified to
represent Moody himself because he specialized in civil
litigation and had little experience in the practice of
criminal law.
After Culp argued in support of the continuance motion, the
following occurred:
“THE COURT: Let me state that I have reviewed this
Whitehurst memorandum here. It is a document that was
sent to Mr. Moody on August 16, 1995, by James S.
Reynolds, Chief, Terrorism and Violent Crimes Section,
Criminal Division . . . .
“Now, after Mr. Moody has talked to you [Mr.
Culp], do you have anything that you want to say—
“MR. CULP: No, I don’t.
“THE COURT:—before Mr. Morrow [the prosecutor]
responds?
“MR. CULP: No, sir.
“THE COURT: Mr. Morrow.
Page 41 of 189

“MR. MORROW: Well, Judge, as I said, what’s new? This
is probably the fourth or fifth occasion that Mr. Moody has
waited until the last second to say, ‘Oh, I’ve got somebody
to represent me.’
“And is he representing him pro bono? Is he asking to
be appointed? Has he been retained? We don’t know his
status. Besides that, is he qualified to come in and practice
in this court? That would be a question.
“And we certainly oppose any continuance for any
lawyer. This has been a typical and repeated performance.
And I ask the Court to take judicial notice of the filing of
Mr. Moody’s litigation history with us, where he went
through 40 some-odd attorneys. And his tactic has been,
repeatedly, in his federal proceedings and in this
proceeding, to wait until the last minute and say, ‘Oh, I’ve
got a lawyer that wants to represent me, continue this case.’
And it’s been over and over and over and over again. This
matter should not be continued.
“If Mr. Lewis wants to bring himself down here from
New York and qualify himself with this Court and tell what
status he’s going to represent Mr. Moody in, bring him on.
Let’s get it going. But let’s start it Tuesday morning like
we’re supposed to. Let’s get this jury struck and let’s go
on. If we do it at Mr. Moody’s schedule, it will be the day
after forever.”
(Vol.61, R. 666–68.) Culp offered no reason for Lewis’s failure to
request admission to represent Moody at an earlier time, other than to
speculate that the fact the jury-selection process had begun in the case
had “prompted people to get interested and to find an attorney that will
represent him.” (Vol.61, R. 669.) Nor did Moody endeavor to explain
why he had waited until the eve of trial to reassert his right to counsel.
Page 42 of 189

After hearing additional argument from Culp, the trial court denied the
request to admit Lewis pro hac vice and denied the motion for a
continuance. In denying the continuance, the trial court indicated that
it was taking judicial notice of the evidence concerning Moody’s history
of dilatory conduct and his dissatisfaction with the attorneys who had
represented him in this and other cases.
Voir dire examination resumed the following morning, Friday,
October 11, 1996, and concluded that day, just before the lunch recess.
Following the lunch recess, and outside the presence of the prospective
jurors, Culp made another special appearance, this time to inform the
trial court that John Matteson, an attorney in Atlanta, Georgia, had
“expressed an interest” in assisting Lewis as counsel for Moody and
“would be willing to come over here for a hearing, possibly the first of
the week, on this issue.” (Vol.62, R. 804–05.) As he had done with
regard to Lewis the previous day, Culp requested that Matteson be
admitted to practice law in Alabama pro hac vice for the purpose of
representing Moody. Culp also moved to stay Moody’s case. After
hearing argument from Culp, the trial court denied the request to admit
Matteson pro hac vice and denied the motion to stay the proceedings.
At that juncture, the trial court informed the parties that the time
had come to strike the trial jury. After sua sponte excusing two
prospective jurors, the trial court asked the parties if they wished to
exercise any challenges for cause. When the State challenged one
prospective juror for cause, the trial court asked Moody if he had an
objection to the State’s challenge. Moody responded by demanding “to
be represented by attorneys Mr. John Matteson and David Lewis” and
by requesting that the attorneys “be given time to prepare a case.”
(Vol.62, R. 808.) The trial court denied Moody’s request. Thereafter,
Moody refused to participate further in the selection of the jury,
necessitating that the trial court exercise Moody’s peremptory strikes for
him during the striking process.FN16 By the end of the proceedings on
October 11, 1996, the trial jury was selected and empaneled.FN17 The
trial court informed the parties that the trial would start the following
Tuesday, October 15, 1996, and then excused the jury for the afternoon.
Page 43 of 189

FN16. Moody suggests in his brief, at p. 9, that the trial
court “deprived [him] of his opportunity to exercise his
rights under the Batson v. Kentucky[, 476 U.S. 79 (1986),]
decision.” However, the trial court complied with Rule
18.4(f)(3), Ala. R. Crim. P., by randomly executing the
peremptory strikes on Moody’s behalf.
FN17. The trial court empaneled 18 veniremembers as the
trial jury, 6 of whom were the alternate jurors.
When the court reconvened on the morning of October 15,
attorney John Matteson appeared in person to request that he be
admitted pro hac vice for the purpose of assisting David Lewis in
representing Moody.FN 18 Matteson told the trial court that his request
was expressly contingent on the trial court’s also granting a lengthy
continuance of the case to allow him time to prepare Moody’s
defense.FN19 Matteson offered no reason for his failure to request
admission to represent Moody at an earlier time. Nor did Moody. The
trial court denied the request for a continuance, effectively also denying
Matteson’s pro hac vice request. The case was tried with Moody
proceeding pro se and without standby counsel.
FN18. Moody was present in court at this time.
FN19. Although Matteson did not specify at this time how
long of a continuance he was requesting, it is clear from the
record that he intended to represent Moody in cooperation
with Lewis. Thus, it can be inferred that Matteson was
requesting a continuance equal in length to the one
requested by Lewis. Matteson never indicated that a
continuance of shorter duration would provide him with
sufficient time to prepare Moody’s defense.
Moody refused to participate in the remainder of the trial
proceedings. He refused to make an opening or closing statement,FN20
did not cross-examine the State’s witnesses, and did not attempt to
Page 44 of 189

present a defense in either the guilt phase or the penalty phase of his
trial. Throughout the trial, Moody made no objections except to
repeatedly assert his demands that he be represented by Lewis and
Matteson and that they be given time to prepare his case.
FN20. When the trial court asked Moody if he would like
to make an opening statement to the jury, Moody
responded as follows:
No, sir. I would like to be represented by
counsel. And I would like that counsel to have
the opportunity to expose the fabricated
evidence and perjured testimony that is being
offered, by the State providing him with the
resources necessary to retain forensic experts
and the time necessary to prepare the trial.
(Vol. 63, R. 121-22.)
Moody, 888 So. 2d at 546-53. These facts are supported by the record and presumed
to be correct in this federal habeas proceeding. See 28 U.S.C. § 2254(e)(1).
The Court now turns to Moody’s deprivation of counsel claim, divided into six
separate allegations.4
1.

The allegation that the trial court violated Moody’s Sixth
Amendment right to counsel by finding that Moody freely and

4

Moody states that he has divided his claim into six allegations in an effort to highlight
specific events occurring prior to trial and at trial that he argues support his overall deprivation of
counsel claim. However, insofar as the allegations are based on events that occurred, they do not
proceed in chronological order. The allegations are also repetitive in some respects. Thus, this
Court has reorganized Moody’s six allegations from the manner in which he presented them in
his amended petition in an effort to address them in the chronological order in which the
incidents underlying the allegations occurred.
Page 45 of 189

voluntarily waived his right to counsel at the hearing
conducted on August 2, 1994 and in other proceedings prior to
his trial
In this first portion of the deprivation of counsel claim, Moody asserts that the
trial court should not have determined that Moody waived his right to counsel at the
August 2, 1994 Faretta hearing5 without first ordering a competency evaluation or
otherwise inquiring into Moody’s mental health to ensure that he could knowingly
waive his right to an attorney. Moody also argues that the trial court could not have
determined that his waiver was knowing and intelligent based on his answers to
questions posed by the trial court, which he asserts indicate that he did not understand
the nature of his right to counsel.
For purposes of determining whether Moody has exhausted his state remedies
on this claim, the Court first notes that Moody never presented an argument to the
state courts, either on direct appeal or during state post-conviction proceedings, that
the trial court erroneously found that he waived his Sixth Amendment right to counsel
prior to his trial. However, Moody did argue to the ACCA on direct appeal that it was
an abuse of discretion under Alabama state law for the trial court to deny his motion
for a continuance—made once jury selection in his trial had already begun—to allow

5

See Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 2540-41 (1975) (recognizing
a Sixth Amendment right to waive counsel and conduct one’s own defense).
Page 46 of 189

his newly-obtained pro bono lawyers over a year to prepare for his trial, a claim that
he raises again in this proceeding in subpart IV. A. 5. of this opinion, infra. In
discussing the state-law-denial-of-a-continuance claim, the ACCA first had to decide
whether Moody waived his Sixth Amendment right to counsel prior to his trial,
because if he had not waived that right, it would have been error for the trial court to
have allowed him to proceed to trial without the aid of an attorney. As the ACCA
explained:
The argument in Moody’s brief focuses on the abuse-of-discretion
standard generally applicable to continuance issues; however, because
the trial court’s denial of a continuance culminated in Moody’s
proceeding through the trial without an attorney, Moody’s claim in this
regard also presents the larger question whether the trial court’s ruling
effectively deprived him of his right to counsel. The Sixth Amendment
to the United States Constitution guarantees a right to counsel in
criminal proceedings. See also Art. I, § 6, Ala. Const.1901; Rule 6.1(a),
Ala. R. Crim. P. At the same time, a defendant in a criminal proceeding
has a right under the Sixth Amendment to waive his right to counsel and
to conduct his own defense. See Faretta v. California, 422 U.S. 806, 834,
95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (recognizing the right to
self-representation); Tomlin v. State, 601 So. 2d 124, 128 (Ala. 1991). “A
defendant in a capital case also has that right.” Sibley v. State, 775 So. 2d
235, 242 (Ala. Crim. App. 1996), aff’d, 775 So.2d 246 (Ala. 2000). See,
e.g., Ford v. State, 515 So. 2d 34, 40 (Ala. Crim. App. 1986), aff’d, 515 So.
2d 48 (Ala. 1987).
In order to conduct his own defense, the defendant must
“knowingly” and “intelligently” waive his right to counsel,
because in representing himself he is relinquishing many of
the benefits associated with the right to counsel. Faretta [v.
Page 47 of 189

California ], 422 U.S. [806,] at 835, 95 S. Ct. [2525,] at 2541
[ (1975) ]. The defendant “should be made aware of the
dangers and disadvantages of self-representation, so that
the record will establish that ‘he knows what he is doing
and his choice is made with eyes open.’” Faretta, 422 U.S.
at 836, 95 S. Ct. at 2541 (other citations omitted).
Tomlin, 601 So. 2d at 128.
While it is desirable that the trial court engage, as it did in this
case, in a colloquy in which it expressly advises the defendant of “the
dangers and disadvantages of self-representation,” such a colloquy is not
mandated. Tomlin, 601 So. 2d at 128. The ultimate test is whether it
“appear[s] from the record as a whole that a defendant’s waiver of
counsel and decision to represent himself were knowing and intelligent.”
Teske v. State, 507 So. 2d 569, 571 (Ala. Crim. App. 1987); see Tomlin 601
So. 2d at 128–29. See also Rule 6.1(b), Ala. R. Crim. P. Under this
approach, the focus of the inquiry is on “the particular facts and
circumstances involved, ‘including the background, experience, and
conduct of the accused.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019, 1023, 82 L. Ed. 1461 (1938).” Tomlin, 601 So. 2d at 128–29.
In order to address the propriety of the trial court’s refusal to
grant Moody a continuance to secure the services of Lewis and
Matteson, it is necessary first to determine whether Moody effected a
valid waiver of counsel before requesting the continuance. For if Moody
never validly waived his right to counsel—and if Moody had arrived at
trial without having been afforded the full protections of the Sixth
Amendment—it would have been error for the trial court to have
commenced the proceedings and to have required Moody to proceed
through the trial without the aid of a lawyer.
Moody, 888 So. 2d at 553-54.
The ACCA then made an affirmative finding that Moody made a voluntary,

Page 48 of 189

knowing and intelligent waiver of his right to the assistance of counsel, as required by
Faretta, as follows:

The record reflects that in the proceedings that led up to his trial,
Moody clearly, unequivocally, and repeatedly asserted his right to
represent himself. Moody first expressed his desire to proceed pro se in
a motion filed on July 25, 1994, after he had asserted an unambiguous
lack of confidence in the performance of his court-appointed attorneys,
Turberville and Jaffe, and had acted in various ways to have them
removed as his counsel. After a hearing on the matter, Turberville and
Jaffe were allowed to withdraw with no objection from Moody. At
hearings held on August 2, 1994, and May 7, 1996, the trial court
conducted lengthy colloquies during which it explicitly warned Moody
of the perils of going forward without counsel. At those hearings,
Moody repeatedly asserted that he wanted to represent himself. At
several other hearings conducted between the hearings of August 2,
1994, and May 7, 1996, the trial court made multiple inquiries of Moody
to determine whether he was standing by his request to proceed pro
se—throughout those proceedings, Moody repeatedly reaffirmed his
desire to represent himself.FN22 Although Moody alluded at those
hearings to having been in contact with attorneys who were interested in
representing him, he stated that none of those attorneys was willing to
take his case. Several times, the trial court advised Moody that, if he so
desired, the court would appoint new counsel to represent him and that
it was the court’s recommendation that he accept counsel. However,
throughout the proceedings that led up to his trial, Moody never
requested the appointment of new counsel or indicated that he had
somehow obtained counsel on his own.
FN22. Any equivocation expressed by Moody during these
pretrial proceedings centered around whether he desired
standby counsel and the capacity in which any standby
counsel would serve. Ultimately, Moody expressly stated
that he did not want standby counsel.
Page 49 of 189

Even assuming that Moody’s original motivation for seeking to
proceed pro se was his discontent with the performance of Turberville
and Jaffe and that he could conceivably have been satisfied with
substituted counsel (a highly doubtful supposition, given his history of
dissatisfaction with, and dismissal of, his attorneys in prior legal
proceedings), Moody’s requests to proceed pro se remained clear and
unequivocal throughout the proceedings that led up to his trial.FN23
Moody failed to present any evidence, moreover, that the performance
of Turberville and Jaffe was inadequate during the more than two-year
period they represented him. In fact, the record supports the conclusion
that Turberville and Jaffe vigorously and quite competently performed
their duties with regard to Moody’s defense, including filing all relevant
motions and pursuing the investigation of the case.
FN23. In considering this issue, we find little significance
in Moody’s filing of a motion requesting Jaffe’s
reappointment as counsel shortly after Jaffe had been
allowed to withdraw. As we have noted, Moody abruptly
rescinded the motion for reappointment, stating that he had
not resolved his “differences” with Jaffe. Moreover, the
record supports the trial court’s refusal to reappoint Jaffe
on grounds that Moody still had a pending action against
Jaffe in federal court and that Jaffe’s differences with
Moody were irreconcilable.
Nor do we find equivocation amounting to a withdrawal of waiver
of counsel in Moody’s assertions at some of the pretrial hearings that he
was being forced to proceed pro se because (according to Moody) no
attorney could provide him with an adequate defense under the payment
limitations imposed by Alabama’s statutory scheme for compensating
appointed counsel. Each time after making such an assertion, Moody,
when questioned by the trial court, reaffirmed his desire to represent
himself.
From a review of the record, and in light of Moody’s background
and previous experiences in the criminal justice system, it is also clear
Page 50 of 189

that Moody accepted and understood the reasons behind the trial court’s
explicit warnings regarding self-representation and that Moody
knowingly and intelligently waived his right to counsel. Moody was not
a novice: he had previously sat through criminal trials of his own, had
been convicted of serious felony offenses, and had served time for those
offenses. He was surely aware that the capital offenses for which he was
standing trial were serious matters that could involve serious penalties,
including a sentence of death. The trial court specifically advised him of
that possible consequence. Because of his previous experience in legal
proceedings, Moody was also aware that trying a case would involve
examining witnesses, making objections, and observing rules of
procedure and evidence.FN24 The trial court here also expressly
advised Moody of these matters. We are confident, then, that when
Moody asserted his right to self-representation, he knew what lay ahead
of him. Accordingly, we find that Moody effected a valid waiver of
counsel before he requested the continuance to obtain the services of
Lewis and Matteson. His Faretta rights were fully vindicated in the
proceedings that led up to his trial.
FN 24. The record also reflects that Moody had
accumulated some credits toward an undergraduate degree
and that he had attended law school, where he had
completed approximately half of the course work required
for a law degree.
Moody, 888 So. 2d at 554-56.
Because as part of its analysis on whether the trial court appropriately declined
to grant a continuance to Moody on the first days of his trial, the ACCA sua sponte
determined that Moody knowingly and voluntarily waived his right to counsel under
the Sixth Amendment, the ACCA effectively considered the merits of Moody’s
constitutional claim that he did not knowingly and voluntarily waive his right to
Page 51 of 189

counsel. As such, the claim has been exhausted in the state courts and is subject to the
deferential AEDPA review by this Court. See 28 U.S.C. § 2254(d).6 However, the
deference afforded to state courts by federal courts sitting in review still prohibits this
Court from granting relief on a claim unless the state court’s adjudication on the
merits of the claim (1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. See id.
The ACCA’s decision was not contrary to, nor did it involve an unreasonable
application of, United States Supreme Court precedent. “The Sixth Amendment
safeguards to an accused who faces incarceration the right to counsel at all critical
stages of the criminal process.” Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S. Ct. 1379,
1383 (2004). However, a criminal defendant also has the constitutional right to

6

The Court notes, however, that not only did Moody not raise this particular claim on
appeal himself, he represented to the Alabama Supreme Court in his petition seeking certiorari
review that he did, in fact, waive his right to counsel before his trial. See C.R. Vol. 77, p. 16 of
Moody’s Brief in Support of Petition for Writ of Certiorari (“Moody waived his right to
appointed counsel and represented himself at trial.”). References to the court record are
designated “C.R.” The Court will strive to list any page number associated with the court
records by reference to the numbers located on the document, if those numbers are the most
readily discoverable for purposes of expedient examination of that part of the record.
Additionally, if there is an easily identifiable tab number close to any cited material, the Court
has made reference to that for the reader’s benefit.
Page 52 of 189

“proceed without counsel when he voluntarily and intelligently elects to do so.”
Faretta, 422 U.S. at 807, 95 S. Ct. at 2527. “The determination of whether there has
been an intelligent waiver of right to counsel must depend, in each case, upon the
particular facts and circumstances surrounding that case, including the background,
experience, and conduct of the accused.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.
Ct. 1019, 1023 (1938).

The ACCA’s decision details Moody’s repeated and

unequivocal assertions of his desire to proceed pro se after the trial court ensured that
he understood the consequences of doing so in multiple Faretta hearings. With regard
to Moody’s argument that the trial court should have ordered a psychological
evaluation before conducting the Faretta hearing, nowhere does Moody allege facts
to support a finding that he suffered harm or prejudice as a result of the alleged failure
of the trial court (i.e., Moody does not claim he was actually incompetent to waive
counsel). With regard to the argument that his waiver could not reasonably have been
considered “knowing” because he was confused about what a waiver entailed, the
facts do not support such a claim. As the ACCA noted, Moody had proceeded pro se
in approximately thirty-five legal proceedings before this case, including trials; the trial
court clearly expressed to him that he would not be able to go to trial with a hybrid
form of representation, though he would be allowed to have standby counsel to advise

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him on procedure and the law; and Moody then clearly expressed to the court in
writing that he did not want standby counsel.
Nor was the ACCA’s decision based on an unreasonable determination of the
facts in light of the record. Moody asserts that the ACCA’s decision ignored the
hearings on September 9, 1994 and March 2, 1995 where he indicated to the trial court
that he had been having conversations with lawyers about representing him, but that
they were unable to do so because of the financial difficulties involved. However, the
ACCA also referred to “several other hearings conducted between the hearings of
August 2, 1994 and May 7, 1996.” Moody, 888 So.2d at 554-55. It is clear from the
ACCA’s opinion that these “other hearings” were considered as part of the review
of the trial court’s determination that there had been a valid waiver of counsel.
Indeed, the ACCA more than complied with Johnson, as its thorough discussion of
Moody’s background as a serial litigant and the context surrounding his decision to
waive counsel shows. See 304 U.S. at 464, 58 S. Ct. 1023 (requiring the court to
consider the background, experience, and conduct of the accused in determining
whether a waiver was valid). Habeas relief is not warranted on this allegation.
2.

The allegation that the trial court violated Moody’s Sixth
Amendment right to counsel when it failed to take necessary
steps to find and appoint counsel after Moody “withdrew” his
waiver of counsel
Page 54 of 189

This allegation is premised on Moody’s assertion that after his attorneys were
permitted to withdraw and the Court determined that Moody waived his right to
counsel on August 2, 1994, Moody “withdrew” that waiver when he repeatedly stated
to the trial court that there were attorneys interested in representing him but that they
could not do so adequately under the financial constraints of Alabama’s indigent
defense statute. As such, Moody claimed that he was being “forced” to proceed pro
se. Moody contends that the trial court should have appointed an attorney to
represent Moody at one of these points instead of continually finding that Moody
wished to represent himself and, in so doing, the trial court unreasonably placed the
burden of locating counsel on Moody in violation of Moody’s Sixth Amendment right
to counsel.
Habeas relief is not warranted on this allegation for various reasons.7 First,
Moody never presented any federal constitutional argument on direct appeal or to the
state post-conviction courts that it was error for the trial court to fail to appoint
counsel for Moody after he “withdrew” his waiver of the right to counsel. The only
discussion the ACCA made with regard to a withdrawal of a waiver of counsel was

7

It is difficult to square this argument, which contains an implied admission that Moody
waived his right to counsel, with his argument made the basis of his first allegation, that it was
error for the state courts to find that he waived his right to counsel.
Page 55 of 189

when it found that the trial court repeatedly advised Moody that he could withdraw
his waiver of counsel at any time and have counsel appointed, and that in so doing the
trial court complied with Rule 6.1(b) of the Alabama Rules of Criminal Procedure,
which requires the court to inform the defendant when he waives counsel that he may
withdraw the waiver. Moody, 888 So. 2d at 556 & n.25. This brief discussion was
pursuant to an Alabama procedural rule, not the Sixth Amendment. Because Moody
did not exhaust his state court remedies, this claim is now procedurally barred. See
O’Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999) (“Before a
federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his
remedies in state court. In other words, the state prisoner must give the state courts
an opportunity to act on his claims before he presents those claims to a federal court
in a habeas petition.”). Dismissal to allow Moody to exhaust these facts would be
futile as he is now barred from raising this issue as a federal constitutional question in
state court. A Rule 32 petition at this point would be barred by the statute of
limitations, see Ala. R. Crim. P. 32.2(c), and by Alabama’s ban on successive petitions,
see Ala. R. Crim. P. 32.2(b); see also Collier v. Jones, 910 F.2d 770, 772 (11th Cir. 1990)
(“[W]hen a petitioner has filed to present a claim to the state courts and under state
procedural rules the claim had become procedurally defaulted, the claim will be

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considered procedurally defaulted in federal court.”).8
Second, even if this Court were to review the ACCA’s finding that Moody
never withdrew his waiver of the right to counsel, Moody cannot establish that the
decision is contrary to clearly established federal law, an unreasonable application of
such law, or based on an unreasonable determination of the facts under § 2254(d).
Moody’s conduct at the various proceedings leading up to trial in no way established
that he was withdrawing his waiver and invoking his right to counsel. As discussed by
the ACCA, though Moody indicated that he had spoken to attorneys who wanted to
take his case but could not for financial reasons, his desired solution to the problem
was not that the court appoint an attorney.

Instead, he challenged the

constitutionality of the scheme Alabama used for paying attorneys who represented
indigent defendants. The trial court warned him that if he wished to have counsel
appointed, it was the court and not Moody who would choose that counsel. See Morris

8

At this point the Court notes that Moody argues that the Court should nonetheless
reach the merits of every claim that the Court finds to be procedurally defaulted under the
“miscarriage of justice” exception, because he is actually innocent of the capital murder of Judge
Vance. The Court will consider in detail Moody’s “miscarriage of justice/actual innocence”
argument in part V. I. of this opinion, infra. For present purposes, suffice it to say that Moody
has failed to earn a merits review of any procedurally defaulted claims because he has not
submitted “new” evidence which, when considered together with all of the evidence submitted
at trial, both adverse and exculpatory, would leave a reasonable doubt in any reasonable juror’s
mind as to his guilt of the capital murder of Judge Vance. See Schlup, 513 U.S. at 324, 327-28, 115
S. Ct. at 865-868.
Page 57 of 189

v. Slappy, 461 U.S. 1, 103 S. Ct. 1610 (1983) (holding that although the Sixth
Amendment guarantees counsel, it does not grant defendants the unqualified right to
counsel of their choice). However, rather than ask for appointed counsel, Moody
simply continued to fight for a change in the payment scheme, and continued to assert
his desire to proceed pro se. For example, although Moody later filed a “Motion to
Appoint Counsel to Assist Defendant,” in it, he requested that the court “appoint
counsel to assist Defendant to represent himself pro se.” (C.R. Vol. 10, p. 1877-78.)
The court had clearly informed Moody that he would not be allowed to “proceed with
a hybrid form of representation” when he made a similar request in a hearing on
August 2, 1994. Moody, 888 So.2d at 548. Therefore, this request is no different from
Moody’s prior equivocal statements on the matter of representation. He never
requested that the court appoint counsel in order to represent him in an unequivocal
manner. Simply put, Moody’s attempt to paint a picture indicating that he repeatedly
requested appointed counsel throughout his proceedings and was continuously denied
that request by the trial court is simply not accurate. The findings of the ACCA are
reasonable in light of the record.
Finally, the Supreme Court’s decision in Marshall v. Rodgers, 133 S. Ct. 1446
(2013), forecloses Moody from being able to establish that the ACCA’s decision was

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an unreasonable application of clearly established Supreme Court precedent. Rodgers
concerned California’s approach when a trial judge is faced with a defendant’s postwaiver request for counsel, which was to “vest the trial judge with discretion to
approve or deny such requests based on the totality of the circumstances.” 133 S. Ct.
at 1449. The Supreme Court stated that it had not provided “clearly established
Federal law” on the issue of whether a defendant has a Sixth Amendment right to reassert his right to counsel once the right had been validly waived, but noted that the
case before it did not require it to do so. Id. at 1449-50. The Court stated that in
Rodgers, all it had to determine was whether California’s approach was contrary to or
an unreasonable application of clearly established federal law as determined by the
Supreme Court of the United States, for purposes of AEDPA review. Id. at 1451. The
Court held that the approach, which culminated in the California courts deciding that
there was no Sixth Amendment violation in the denial of a defendant’s post-waiver
request for counsel, was not an unreasonable application of clearly established federal
law. Id. Pursuant to Rodgers, then, even if Moody’s equivocal statements made in
various hearings after the August 2, 1994 Faretta hearing indicate Moody’s intent to
withdraw his waiver of counsel, Moody still cannot establish that the trial court’s
denial of these purported requests constituted an unreasonable application of clearly

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established federal law as required by § 2254(d). Habeas relief is not warranted on this
allegation.
3.

Moody’s allegation that the trial court violated his Sixth
Amendment right to counsel when it failed to ensure he had
“meaningful access” to legal materials necessary for selfrepresentation, such as paper, pens, postage, a telephone, law
books, and a quiet and private space away from other inmates

Moody never presented this claim to the state courts on direct appeal or during
post-conviction proceedings, and the state courts never considered this allegation sua
sponte. See O’Sullivan, 526 U.S. at 845, 119 S. Ct. at 1732 (“[W]e conclude that state
prisoners must give the state courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review
process.”). As such, Moody did not exhaust his state court remedies and this claim
is now procedurally barred from this Court’s review.
4.

The allegation that the trial court violated Moody’s Sixth
Amendment right to counsel by failing to hold a hearing on his
claim that his trial counsel were constitutionally ineffective

Moody claims that in failing to entertain his allegations of pre-trial counsel’s
ineffectiveness, the trial court violated his Sixth Amendment right to counsel.
According to Moody, had the trial court listened to his claims, Moody would have
been able to present to the court facts that would have demonstrated that Moody’s
complaints about his counsel were legitimate and he was not at fault for the breakdown
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of the attorney-client relationship that resulted in counsel’s withdrawal from his case,
and these facts would have caused the trial court to more thoroughly consider whether
Moody’s allegations that he was forced to proceed pro se in August 1994 had a factual
basis.
Moody never raised this particular claim before the state courts on direct appeal
or during post-conviction proceedings. As such, Moody did not exhaust his state
court remedies and this claim is now procedurally barred from this Court’s review.
Even if the Court was not procedurally barred from granting relief on this claim,
it would find that the claim lacks merit. The record shows that while they were still
representing him, Moody requested a hearing on Turberville and Jaffe’s alleged
ineffectiveness, which the trial court set for June 7, 1994. (C.R. Vol. 8, p. 1516).
Moody complains that the trial court did not take up the issue at that hearing, but the
court actually set another hearing on Turberville and Jaffe’s motions to withdraw as
counsel, and at that hearing Moody’s motion to proceed pro se was granted. (C.R. Vol.
55, Tab #R-13, transcript of June 7, 1994 hearing, pages 1-19; Vol. 56, Tab #R-14,
transcript of August 2, 1994 hearing.) Later, Moody subpoenaed Jaffe, who was no
longer representing him, as well as other witnesses (including Alabama’s
then-Attorney General Jeff Sessions) to appear and testify at a pre-trial hearing already

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scheduled by the trial court for June 29, 1995. (C.R. Vol. 11, p. 2001-02; Vol. 12, p.
2354.) Moody also filed a motion in which he sought an order that Turberville and
Jaffe bring files to court for the purpose of establishing their alleged ineffective
assistance. (C.R. Vol. 11, p. 2007-09.) The trial court quashed the subpoenas of these
individuals. (C.R. Vol. 11, p. 2003-20; Vol. 12, p. 2355.)
Moody argues that his being able to present an ineffective assistance of pretrial
counsel argument to the trial court would have somehow changed the course of events
and the trial court would have appointed counsel for Moody over his objection. As
discussed in the previous sections, the trial court did not appoint counsel for Moody
at any point between Moody’s first waiver of the right to counsel in August 1994 and
Moody’s trial because Moody repeatedly waived his right to the assistance of counsel
during this time. As previously noted, the trial court repeatedly informed Moody that
he could change his mind at any time during the proceedings and request that the
court appoint counsel to represent him, but Moody never requested to withdraw his
waiver of counsel or have new counsel appointed by the court. Therefore, Moody
cannot claim that his waiver of counsel and decision to proceed pro se was forced upon
him by the court’s refusal to appoint effective counsel to replace his supposedly
ineffective counsel. In other words, whether or not Moody’s pre-trial counsel were

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ineffective has no bearing on the validity of the waiver he continued to stand by long
after Turberville and Jaffe had been permitted to withdraw. Habeas relief is not
warranted on this claim.
5.

The allegation that the trial court violated Moody’s Sixth
Amendment right to counsel by refusing to grant a
continuance of at least one year—which was requested by
Moody after jury selection had already begun at his trial—to
allow his newly-obtained pro bono counsel time to prepare his
case

As discussed in the first sub-allegation of this section, Moody presented this
claim to the ACCA on direct appeal, but couched as an argument that the trial court
abused its discretion in denying the continuance. However, as noted, the ACCA sua
sponte injected a federal constitutional question into the analysis because of the
potential Sixth Amendment implications of the denial of the continuance and
ultimately denied the claim on the constitutional merits. After having found that
Moody made a voluntary, knowing and intelligent waiver of his right to the assistance
of counsel, the ACCA found no Sixth Amendment violation in the denial of Moody’s
motion for a continuance to allow new counsel to prepare his case after the jury
selection process had already begun. The relevant portion of the ACCA’s decision
is reproduced herein:
Having determined that Moody validly waived his right to counsel
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in the proceedings before his trial, we address the propriety of the trial
court’s refusal to grant Moody a continuance to obtain the services of
Lewis and Matteson, first requested by Moody after the voir dire
examination of the prospective jurors had begun. Neither Moody nor
any of the attorneys who sought the continuance on his behalf offered the
trial court an explanation for Moody’s failure to indicate earlier that he
no longer wished to proceed pro se and that he wanted to be represented
by Lewis and Matteson. Nor is any explanation offered in Moody’s brief
on appeal to this court.
As is apparent from our discussion above, after Moody first
requested to proceed pro se, on July 25, 1994, he repeatedly reasserted his
right to self-representation. Moody’s request to proceed pro se was
granted on August 2, 1994. Thereafter, he steadfastly reaffirmed his
desire to proceed pro se, until toward the end of the first day of voir dire
examination, on October 7, 1996. Thus, for more than two years leading
up to his trial, during which time the issue of Moody’s representation
was repeatedly revisited, Moody maintained the status of a pro se
defendant and indicated again and again that he intended to represent
himself. During this time, Moody was aware—having been repeatedly
advised by the trial court—that he could withdraw his waiver of counsel
at any time and have new counsel appointed to represent him.FN25
Moody was also aware—having been expressly admonished by the trial
court—that if he withdrew his waiver of counsel and had new counsel
appointed, he would not be allowed to delay the trial.FN26 Despite this,
when making his eleventh-hour reassertion of his right to counsel,
Moody indicated to the trial court that his request to have Lewis and
Matteson represent him was contingent on the trial court’s granting of
a 12– to 18–month continuance.
FN25. In this regard, the trial court fully complied with
Rule 6.1(b), Ala. R. Crim. P., which provides, in pertinent
part, that “[a]t the time of accepting a defendant’s waiver
of the right to counsel, the court shall inform the defendant
that the waiver may be withdrawn and counsel appointed or
retained at any stage of the proceedings.”
Page 64 of 189

FN26. Rule 6.1(c), Ala. R.Crim. P., provides that a
defendant who has withdrawn a waiver of the right to
counsel “will not be entitled to repeat any proceeding
previously held or waived solely on the grounds of the
subsequent appointment or retention of counsel.”
Moody argues that Lewis and Matteson needed the lengthy
continuance, in part, to review allegedly exculpatory evidence contained
in the so-called “Whitehurst memorandum.” However, the record
reflects, and the trial court noted when denying the request for a
continuance, that the United States Department of Justice had provided
Moody with a copy of the memorandum in August 1995 and that the
State of Alabama had provided Moody with a copy of the same
memorandum, during the discovery process, in September 1995. Thus,
for more than 13 months before his trial began—and before he requested
that Lewis and Matteson be allowed to represent him and that he be
granted a continuance so that they could prepare his defense—Moody
had a copy of the memorandum in his possession.FN27 Therefore,
Moody cannot be heard to argue that the circumstances that allegedly
made a lengthy continuance necessary were unforeseeable or that they
were based on some last-minute discovery of theretofore unknown
evidence. While Lewis and Matteson may not have been aware of the
matters contained in the Whitehurst memorandum until shortly before
Moody requested that they be allowed to represent him, Moody, by his
own dilatory conduct, brought about the conditions that prevented
trained counsel from preparing his defense during the many months
before his trial. Even where, as in this case, Sixth Amendment issues are
implicated, a trial court may properly consider the defendant’s role in
shortening the effective preparation time of counsel. See Baker, supra,
683 So. 2d at 5–6, citing Ringstaff v. State, 480 So. 2d 50, 53 n. 1 (Ala.
Crim. App. 1985). “[N]o matter how fundamental the right to counsel
may be, it may not be used as a means of delaying or trifling with the
court.” United States v. Mitchell, 777 F.2d 248, 258 (5th Cir. 1985).
FN27. Accordingly, we disagree with Moody’s statement
in his brief that he gained access to the memorandum “just
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before trial.” (Moody’s brief at p. 8.)
We recognize that Rule 6.1(c), Ala. R. Crim. P., provides that “[a]
defendant may withdraw a waiver of the right to counsel at any time.”
See Ex parte King, 797 So. 2d 1191, 1193–94 (Ala. 2001). However,
Moody’s representations to the trial court that he wished to withdraw his
waiver of counsel must be considered in the context in which they
occurred. Moody expressly conditioned his reassertion of his right to
counsel on the trial court’s granting a 12– to 18–month continuance to
allow his new attorneys time to prepare. It is clear from Moody’s
statements to the trial court, and from the statements of the attorneys
who argued in support of a continuance, that Moody was unwilling to
proceed with counsel unless the trial court granted a lengthy
continuance. While Moody had a right to withdraw his waiver of
counsel, see Rule 6.1(c), he did not have the right to condition that
withdrawal on an unreasonable disruption of the proceedings. Although
the waiver of the right to counsel must be knowing and voluntary in
order to be valid, see Faretta, 422 U.S. at 835, 95 S. Ct. 2525, the Sixth
Amendment
“ ‘does not grant the defendant license to play a cat and
mouse game with the court, or by ruse or stratagem
fraudulently seek to have the trial judge placed in a position
where, in moving along the business of the court, the judge
appears to be arbitrarily depriving the defendant of
counsel.’ ”
Hughes, supra, 191 F.3d at 1323, quoting United States v. Allen, 895 F.2d
1577, 1578 (10th Cir. 1990). As this court has recognized, the Sixth
Amendment right to counsel “ ‘ “is a shield” and “should not be used
as a sword with the purpose of obstructing the orderly procedure of the
courts or to interfere with the fair administration of justice.” ’ ” Baker,
683 So. 2d at 6, quoting Reynolds, supra, 539 So. 2d at 429, quoting in
turn Richardson v. State, 476 So. 2d 1247, 1248 (Ala. Crim. App. 1985).
When the trial court refused to grant Moody’s requested
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continuance, Moody’s trial had already been continued several times.
Some of that delay was attributable to Moody’s own dilatory conduct.
Before trial, Moody had clearly waived his right to counsel and had
proceeded pro se for more than two years. Moody had been repeatedly
advised that, while he had a right to withdraw his waiver of counsel at
any time, the proceedings would not be delayed further as a result of his
reasserting his right counsel. Moody himself was at fault for shortening
the effective preparation time of new counsel. He did not attempt to
show why he had failed to reassert his right to counsel at an earlier time.
In denying a continuance, the trial court indicated that it was taking
notice of Moody’s stalling tactics and his history of dissatisfaction with
the attorneys who had represented him. Indeed, there was every reason
to believe that Moody would ultimately become dissatisfied with the
performance of any attorney serving as his counsel, including Lewis and
Matteson. In the setting posed, we conclude that the trial court was fully
justified in considering Moody’s request for further delay to be
contrived. The record demonstrates that Moody was primarily
attempting to obstruct and manipulate the legal process.
Other courts have found that obstructionist and dilatory conduct
like the kind engaged in by Moody may constitute a waiver of Sixth
Amendment protections:
“It logically follows that such conduct may operate
as a constructive discharge of counsel whether retained or
appointed, or a de facto waiver of the right to be
represented by such counsel. In either case, a trial court is
not bound by constitutional mandate to appoint another
attorney, or provide the defendant with an additional
opportunity to secure counsel. Instead, courts are accorded
wide discretion in deciding whether to grant continuances
to enable a defendant to secure new counsel. See Sampley
[v. Attorney General of North Carolina], 786 F.2d [610,] at
613 [ (4th Cir. 1986) ] (‘[t]he constitutional right is
probably best stated as a limit on trial court discretion: that
discretion only exceeds its constitutional bounds when it is
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exercised to deny a continuance on the basis of an
“unreasoning and arbitrary ‘insistence upon
expeditiousness in the face of a justifiable request for delay’
” ’) (quoting Ungar[ v. Sarafite], 376 U.S. [575,] at 589, 84
S. Ct. 841 [ (1964) ].”)
McNair v. Commonwealth, 37 Va. App. 687, 697, 561 S.E.2d 26, 31
(2002). See Sampley v. Attorney General of North Carolina, 786 F.2d 610,
613 (4th Cir. 1986) (“[A] defendant has no constitutional right to dictate
the time, if ever, at which he is willing to be tried by simply showing up
without counsel, or with allegedly unsatisfactory counsel, whenever his
case is called for trial, . . . or by objecting that counsel then retained or
assigned is not presently ‘counsel of his choice.’”); United States v.
Proctor, 166 F.3d 396, 402 (1st Cir. 1999) (“It also is within the district
court’s discretion to refuse a defendant’s request to withdraw from
self-representation after a valid waiver if a defendant seeks counsel in an
apparent effort to delay or disrupt proceedings on the eve of trial, or once
trial is well underway.”); United States v. Taylor, 933 F.2d 307, 311 (5th
Cir. 1991) (“A defendant is not entitled . . . repeatedly to alternate his
position on counsel in order to delay his trial or otherwise obstruct the
orderly administration of justice.”); State v. Carruthers, 35 S.W.3d 516,
547 (Tenn. 2000) (“the right to counsel can be implicitly waived or
forfeited if a defendant manipulates, abuses, or utilizes the right to delay
or disrupt a trial”), cert. denied, 533 U.S. 953, 121 S. Ct. 2600, 150 L.
Ed. 2d 757 (2001); People v. Howell, 615 N.Y.S.2d 728, 729, 207 A.D.2d
412, 413 (1994) (“It is well established that a defendant may not
manipulate the right to counsel for purposes of delaying and disrupting
the trial.”); Morris v. Slappy, 461 U.S. 1, 12–13, 103 S. Ct. 1610, 75 L. Ed.
2d 610 (1983) (similar); Ungar v. Sarafite, supra, 376 U.S. at 589–91, 84
S. Ct. 841 (similar); United States v. Merchant, 992 F.2d 1091, 1095 (10th
Cir. 1993) (similar); Studley, supra, 783 F.2d at 938–39 (similar); Leavitt,
supra, 608 F.2d at 1293–94 (similar); United States v. Solina, 733 F.2d
1208, 1211–12 (7th Cir. 1984) (similar); State v. Montgomery, 138 N. C.
App. 521, 524–25, 530 S.E.2d 66, 69 (2000); Brickert v. State, 673 N.E.2d
493, 496 (Ind. Ct. App. 1997) (similar); State v. Green, 238 Neb. 475,
481, 471 N.W.2d 402, 407 (1991) (similar); Burns v. State, 300 Ark. 469,
Page 68 of 189

472, 780 S.W.2d 23, 24 (1989) (similar); Neal v. State, 689 S.W.2d 420,
427 (Tex. Crim. App.1984) (similar). See also Meyer v. Sargent, 854 F.2d
1110, 1113–15 (8th Cir. 1988) (defendant’s actions in seeking new counsel
halfway through trial and then electing to proceed pro se were largely
obstructionist and constituted a “major factor” in court’s conclusion
that defendant’s waiver of counsel was valid); Bumgarner v. Lockhart,
supra, 920 F.2d at 512–13 (defendant’s request on the day of trial for a
continuance so that he could retain an attorney after he had previously
insisted that he be allowed to proceed pro se constituted a “ruse”).
The trial court has a duty to safeguard the legitimate rights of a
defendant while avoiding turning the trial into a sport in which the
defendant manipulates the proceedings in hopes of injecting reversible
error into the case no matter how the trial court rules. Moody’s actions
presented the trial court with a judgment call to which we give due
deference. We find that, under the circumstances, the trial court did not
err in refusing to grant Moody a continuance to secure the services of
Lewis and Matteson.
Moody, 888 So. 2d at 556-59.
Because the merits of the Sixth Amendment issue were raised and considered
by the ACCA, the claim is subject to the deferential AEDPA review by this Court. See
28 U.S.C. § 2254(d). As previously discussed, in light of Marshall v. Rodgers, 133 S.
Ct. 1446 (2013), Moody cannot establish that the ACCA’s thorough and detailed
analysis was an unreasonable application of clearly established Supreme Court
precedent. Rodgers held that it does not violate clearly established federal law for a
court to deny a defendant’s post-waiver request for counsel.

Id. at 1451. Moody

argues that Rodgers is distinguishable because the defendant in that case had
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unequivocally waived his right to counsel but then reasserted the right at the Motion
for New Trial stage of the trial court proceeding; while here, Moody’s waiver of
counsel was equivocal and he did not reassert the right for the purpose of a Motion for
a New Trial, but rather on the first days of trial. For the reasons discussed in the
previous sections, Moody’s waiver of the right to counsel was firm, repeated, and not
equivocal. Additionally, Moody’s attempt to distinguish Rodgers splits hairs because
the Supreme Court stated that it was answering the question “whether, after a
defendant’s valid waiver of counsel, a trial judge has discretion to deny the
defendant’s later request for reappointment of counsel.” Rodgers, 133 S. Ct. at 1449.
Therefore, Rodgers is applicable in this case despite the timing of Moody’s request for
counsel in the first days of his trial rather than after his trial.
Not only is there no clearly established federal law that the ACCA’s decision
violated, the ACCA’s decision comports with principles announced by federal courts
prohibiting a defendant’s use of the right to counsel as a sword, rather than as a shield.
See, e.g., United States v. Mitchell, 777 F.2d 248, 258 (5th Cir. 1985) (“[N]o matter
how fundamental the right to counsel may be, it may not be used as a means of
delaying or trifling with the court.”). The ACCA’s reasonable factual determinations,
which this Court must defer to under 28 U.S.C. § 2254(d), clearly support the

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conclusion that Moody’s last-minute request for the assistance of Lewis and Matteson
was made for the purpose of disrupting the orderly procedure of the court and
interfering with the fair administration of justice. Because the ACCA’s decision was
not contrary to law, habeas relief is not warranted on this ground.
6.

The allegation that the above alleged errors collectively
violated Moody’s Sixth Amendment right to counsel

This Court has considered the foregoing five allegations individually because
that is how Moody structured them. However, Moody also asserts that the collective
effect of the previously-stated unmeritorious allegations violated his Sixth
Amendment rights. His protestations that he is actually asserting one overarching
claim with multiple sub-parts does not change the fact that he has presented several
allegations in this proceeding that he did not exhaust in the state courts. See Kelley,
377 F.3d at 1344 (“the prohibition against raising nonexhausted claims in federal court
extends not only to broad legal theories of relief, but also to the specific assertions of
fact that might support relief”). As such, as portions of the foregoing claims are
procedurally barred because they were not exhausted in state court, this claim, too, is
procedurally barred. Further, this particular claim, that these five sub-claims
constitute error when considered collectively, was never presented to the state courts
on direct appeal or during post-conviction proceedings. As such, Moody did not
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exhaust his state court remedies and this claim is now procedurally barred.
B.

Moody’s claim that the trial court violated his Sixth Amendment
right to counsel when it failed to appoint “standby counsel” to assist
Moody once he was removed from the courtroom for disruptive
behavior during his trial

Moody raises a separate claim that the trial court should have sua sponte and
over Moody’s objection appointed standby counsel for Moody during his trial,
considering the fact that Moody refused to participate in his trial and at one point was
removed from the courtroom for disruptive behavior.
As an initial matter, the parties dispute whether Moody fairly presented this
claim in the state courts such that he alerted the state courts to the federal
constitutional nature of the claim. See Snowden, 135 F.3d at 735. If Moody did not,
the claim is unexhausted and barred from review by this Court under 28 U.S.C. §
2254(b)(1). In Baldwin v. Reese, the Supreme Court indicated that “[a] [habeas
petitioner] wishing to raise a federal issue can easily indicate the federal law basis for
his claim in a state-court petition or brief, for example, by citing in conjunction with
the claim the federal source of law on which he relies or a case deciding such a claim
on federal grounds, or by simply labeling the claim ‘federal.’” 541 U.S. 27, 32, 124 S.
Ct. 1347, 1351 (2004). In that case, the habeas petitioner’s citation to nothing more
than a lower court opinion in an effort to raise a constitutional claim before a state
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court did not “‘fairly present’ [the constitutional] claim to [the] state court [because]
that court must read beyond a petition or brief (or a similar document) that does not
alert it to the presence of a federal claim in order to find material, such as a lower court
opinion in the case, that does so.” Id. Here, Moody raised this claim on direct appeal
to the ACCA, but he cited only Alabama precedent and made no reference to federal
law. However, the Alabama state cases that he cited—Ford v. State, 515 So. 2d 34
(Ala. Crim. App. 1986); Washington v. State, 539 So. 2d 1089 (Ala. Crim. App. 1988);
and Russaw v. State, 572 So. 2d 1288 (Ala. Crim. App. 1990)— address the issue of
deprivation of standby counsel in federal constitutional terms, citing Faretta and other
federal cases at length, and they make no distinction between federal and state
standards applicable to the right to standby counsel. In turn, the ACCA, in discussing
the claim, first cited Alabama precedent for the rule that the appointment of standby
counsel is not constitutionally mandated and rests with the discretion of the trial
court. Moody, 888 So. 2d at 559 (citing Ford, 515 So. 2d at 43-44) (which in turns
states that neither Faretta nor McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S. Ct. 944,
954 (1984), requires the appointment of standby counsel). The ACCA then discussed
the claim in federal constitutional terms, directly citing Faretta and Wiggins in holding
that the trial court did not err in failing to appoint standby counsel in part because

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appointing standby counsel over Moody’s objection would have resulted in an
infringement on Moody’s federal right of self-representation. Id. at 562.
Under these circumstances, the Court is of the opinion that Moody fairly
presented the federal claim to the ACCA, because he cited to cases that “decid[ed]
[the] claim on federal grounds.” Baldwin, 541 U.S. at 32, 124 S. Ct. 1351.
Additionally, the ACCA did in fact discuss the claim in federal constitutional terms.
As such, the claim is subject to deferential AEDPA review by this Court under 28
U.S.C. § 2254(d). The ACCA’s full discussion of this claim is reproduced herein:
Moody contends that the trial court erred in failing to appoint
standby counsel to assist him in his defense. (Issue III in Moody’s brief.)
When a criminal defendant has elected to waive counsel and
conduct his own defense, “a trial court may appoint standby counsel ‘to
relieve the judge of the need to explain and enforce basic rules of
courtroom protocol or to assist the defendant in overcoming routine
obstacles that stand in the way of the achievement of his own clearly
indicated goals.’” Lucas v. State, 645 So. 2d 333, 333 (Ala. Crim. App.
1994), quoting McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S. Ct. 944, 79
L. Ed. 2d 122 (1984). However, the appointment of standby counsel is
not constitutionally mandated. See Lucas, 645 So. 2d at 333; Ford v. State,
515 So. 2d 34, 43 (Ala. Crim. App. 1986), aff’d, 515 So. 2d 48 (Ala.
1987). The decision whether to appoint standby counsel rests within the
discretion of the trial court. See Ford, 515 So. 2d at 43–44; Lucas, 645 So.
2d at 333–34. See also Rule 6.1(b), Ala. R. Crim. P.
As we indicated in Part II of this opinion, although the trial court
repeatedly advised Moody that he was entitled to standby counsel,
Moody never asserted an unequivocal desire to have standby counsel
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appointed. In a letter dated August 4, 1994, shortly after the trial court
granted his motion to proceed pro se, Moody informed the trial court that
he did not want standby counsel. Although Moody later vacillated
somewhat on the question of standby counsel during the various hearings
where the issue of his representation status was revisited, whenever the
trial court advised him at those hearings of the limited role any standby
counsel would have, Moody’s response was to express dissatisfaction,
not to request that standby counsel be appointed. The transcripts of
those hearings reflect that Moody intended to assent to the appointment
of standby counsel only if such counsel would function as what
amounted to his legal-research assistant, and only if such counsel would
perform extensive pretrial investigation at his direction. It is clear that
Moody wanted to exercise complete control over any counsel’s actions,
including all tactical and strategic decisions as to how to prepare and
present the case. However, Moody was not entitled to the assistance of
an attorney who would allow him to run the whole show. While a
defendant has a right to be represented by counsel or to represent
himself, he is not entitled to a hybridized representation of his own
design. See Ford, supra, 515 So. 2d at 43–44. See also, e.g., Holland v.
State, 615 So. 2d 1313, 1320 (Ala. Crim. App. 1993); Burks v. State, 600
So. 2d 374, 380 (Ala. Crim. App. 1991). Finally, at a hearing held on May
7, 1996, Moody expressly informed the trial court that he did not want
standby counsel. The record reflects the following exchange at that
hearing:
“[THE COURT]: Do you understand that it is the Court’s
duty to find counsel for you and to appoint that counsel to
represent you, if you desire the appointment of counsel?
“[MOODY]: Yes, sir.
“[THE COURT]: Do you understand that you are not
entitled under the constitution or under Alabama law to
represent yourself in this case and to have counsel assist
you, do you understand that?

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“[MOODY]: Again, that’s something that I will accept
your word. I haven’t read that but—
“[THE COURT]: Well, I guess what I am saying, Mr.
Moody, if I explain to you that that is the law in Alabama,
do you understand what I am saying?
“[MOODY]: Yes, sir, I do.
“[THE COURT]: Do you understand that this court may,
in its sound discretion, appoint counsel to stand by and
advise you, but is not required by law to do so?
“[MOODY]: I would object to that being done.
“[THE COURT]: But you do not wish to have standby
counsel?
“[MOODY]: No, sir. Now if that’s the same—on one
occasion we discussed what constituted standby counsel.
“[THE COURT]: Yes, sir.
“[MOODY]: And the best understanding that I got is that
would be precisely what he would do, he would stand by
and not do anything. Under those circumstances I think it
would simply give the jury the impression that I have been
provided with adequate counsel, when in fact I had not
been. So, under those circumstances, I would not want a
standby counsel appointed.”
(Vol. 57, hearing of May 7, 1996, R. 27–29.)
Moody’s claim on appeal—that, despite his express refusal of
standby counsel, the trial court should nonetheless have appointed
standby counsel—illustrates a trial court’s dilemma when confronted
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with a defendant who has expressed the desire to proceed pro se. It would
not be too cynical for us to speculate that, had the trial court appointed
standby counsel over Moody’s objection, Moody would now be raising
as a ground for reversal a claim that the trial court failed to honor his
right of self-representation. “ ‘Whichever way the trial judge decides, his
decision is subject to challenge.’” Washington v. State, 539 So. 2d 1089,
1094 (Ala. Crim. App. 1988), quoting Pickens v. State, 96 Wis. 2d 549,
568, 292 N.W.2d 601, 611 (1980).
Because Moody expressly refused standby counsel, his claim on
appeal implicates the invited-error doctrine.
“ ‘ “ ‘A party cannot assume inconsistent positions in the
trial and appellate courts and, as a general rule, will not be
permitted to allege an error in the trial court proceedings
which was invited by him or was a natural consequence of
his own actions.’ ” ’ Slaton v. State, 680 So. 2d 879, 900
(Ala. Cr. App. 1995), aff’d, 680 So. 2d 909 (Ala. 1996),
cert. denied, 519 U.S. 1079, 117 S. Ct. 742, 136 L. Ed. 2d
680 (1997), quoting Campbell v. State, 570 So. 2d 1276,
1282 (Ala. Cr. App. 1990). As we have said in applying the
invited error doctrine, ‘ “It would be a sad commentary
upon the vitality of the judicial process if an accused could
render it impotent by his own choice.” ’ Murrell v. State,
377 So. 2d 1102, 1105 (Ala. Cr. App.), cert. denied, 377 So.
2d 1108 (Ala. 1979), quoting Aldridge v. State, 278 Ala. 470,
474, 179 So. 2d 51, 54 (1965). ‘The invited error rule has
been applied equally in capital cases and noncapital cases.’
Rogers v. State, 630 So. 2d 78, 84 (Ala. Cr. App. 1991),
rev’d on other grounds, 630 So. 2d 88 (Ala. 1992), aff’d on
remand, sub nom. Musgrove v. State, 638 So. 2d 1347 (Ala.
Cr. App. 1992), aff’d, 638 So. 2d 1360 (Ala. 1993), cert.
denied, 513 U.S. 845, 115 S. Ct. 136, 130 L. Ed. 2d 78
(1994).
“ ‘An invited error is waived, unless it rises to the level of
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plain error.’ Ex parte Bankhead, 585 So.2d 112, 126
(Ala.1991).”
Burgess v. State, 811 So.2d 557, 596 (Ala. Crim. App. 1998), aff’d in part,
rev’d in part on other grounds, 811 So. 2d 617 (Ala. 2000).
In support of his argument that the trial court erred in failing to
sua sponte appoint standby counsel, Moody cites this court’s decision in
Russaw v. State, 572 So. 2d 1288 (Ala. Crim. App. 1990). In Russaw, the
defendant, who was charged with the capital offense of murder
committed during a robbery, waived his right to counsel and proceeded
to trial pro se. Standby counsel was not appointed to assist the defendant.
The defendant refused to participate at his trial, and he was convicted of
capital murder and was sentenced to death. This court reversed on
appeal, holding that, under the circumstances, there had been a “ ‘total
breakdown of the judicial system’ ” and that “the defendant did not
receive a fair trial.” FN28 572 So. 2d at 1294. Moody argues that, in light
of his own refusal to participate in his trial and the trial court’s failure to
appoint “at least standby counsel,” the same “breakdown of the judicial
system” that occurred in Russaw took place in his case. (Moody’s brief
at p. 16.) In so arguing, Moody points to this court’s statement in Russaw
that “[e]specially in the prosecution of a capital offense, a trial court
should also give consideration to the appointment of standby counsel to
represent a defendant who elects to waive counsel and then elects to not
participate in the trial.” 572 So. 2d at 1295. However, it is clear from the
record here that the trial court fully considered the appointment of
standby counsel and that Moody expressly objected to the appointment
of any standby counsel. Russaw did not, as Moody appears to suggest,
establish a per se rule requiring the appointment of standby counsel for
a pro se defendant, even over the defendant’s objection, where the
defendant refuses to participate in his trial. In fact, imposing such a
requirement could, in certain circumstances, seriously risk violation of
a defendant’s Sixth Amendment rights.
FN28. This court in Russaw also held that reversal of the
defendant’s conviction was required because the trial court
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had failed to instruct the jury that in order to convict the
defendant of the capital offense of robbery-murder, the jury
had to find that the defendant had a particularized intent to
kill the victim. 572 So. 2d at 1289.
In McKaskle v. Wiggins, supra, 465 U.S. 168, 104 S. Ct. 944, 79 L.
Ed. 2d 122, the United States Supreme Court recognized that where
standby counsel has been appointed over a defendant’s objection,
excessive participation by standby counsel or the appearance that the
defendant is not representing himself may violate the defendant’s Sixth
Amendment right to self-representation. 465 U.S. at 178, 104 S. Ct. 944.
The Supreme Court reasoned that “[t]he defendant’s appearance in the
status of one conducting his own defense is important in a criminal trial,
since the right to appear pro se exists to affirm the accused’s individual
dignity and autonomy.” Id. Thus, the very explanation Moody ultimately
proffered to the trial court for his refusal of standby counsel—that he did
not want the jury to be given the impression that he was represented by
counsel—closely parallels the Sixth Amendment right recognized by the
Supreme Court in McKaskle.
The record reflects Moody’s hostility toward the attorneys who
had previously been appointed to represent him in this case, as well as his
history of questioning the competence of his attorneys in the many prior
legal proceedings in which he had been involved. Also evident from the
record are Moody’s attempts to manipulate his Sixth Amendment rights
to subvert the process in this case. The trial court could reasonably have
concluded that, under the circumstances, appointment of standby
counsel over Moody’s objection would have resulted in an infringement
on his right of self-representation. See Ford, supra, 515 So. 2d at 43
(“Both Faretta [v. California, 422 U.S. 806 (1975) ] and [ McKaskle v.]
Wiggins [, 465 U.S. 168 (1984) ] recognized that the appointment of
counsel for an accused who has elected to represent himself may violate
the accused’s Sixth Amendment rights.”); see also Lucas, supra, 645 So.
2d at 333.
Moreover, although Moody moved, after the trial was underway,
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to have attorneys Lewis and Matteson represent him as his counsel, the
trial court was not in a position to appoint those attorneys to assist
Moody at trial in a more limited standby capacity. As we noted in Part II
of this opinion, Moody’s request for representation by Lewis and
Matteson was contingent on the trial court’s also granting a 12– to
18–month continuance. It appears from the record that, at the time of
Moody’s trial, Lewis was not even in Alabama. The record also reflects
that Matteson, who was present in the courtroom when Moody’s trial
began, informed the trial court that he could not provide Moody with
adequate representation unless he was granted a continuance and stated
flatly that he did not wish to appear as Moody’s counsel unless a
continuance was granted. Under the circumstances, and given Moody’s
all-or-nothing position concerning the granting of a lengthy continuance
for Lewis and Matteson to prepare his defense, there is no reason to
believe that Moody would have accepted assistance from Lewis or
Matteson had the trial court appointed one or both them as his standby
counsel and then ordered that the case proceed without further delay.
Again, we have little doubt that had the trial court appointed any standby
counsel over Moody’s objection, Moody would now be arguing that he
was prevented from fully exercising his right of self-representation.
In Russaw, this court also stated:
“ ‘ “[T]he trial court has a continuing responsibility to
watch over the defendant and insure that his incompetence
is not allowed to substitute for the obligation of the state to
prove its case. If, during the course of the trial, it becomes
apparent that the defendant is simply incapable, because of
an inability to communicate or because of a complete lack
of understanding, to present a defense that is at least prima
facie valid, the trial court should step in and assign counsel.
But because the defendant is not to be granted a second
chance simply because the first is going badly, counsel
should be appointed after trial has begun, or a mistrial
ordered, only where it appears the defendant should not
have been allowed to proceed pro se in the first place.” ’ ”
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572 So. 2d at 1295–96, quoting Washington, supra, 539 So. 2d at 1094,
quoting in turn Pickens, supra, 96 Wis. 2d at 568, 292 N.W.2d at 611
(emphasis added in Washington). Here, it is clear that Moody’s
nonparticipation in his trial was not the result of his “inability to
communicate” or of his “lack of understanding” of the judicial process.
Rather, Moody refused to participate in his trial in protest of the trial
court’s refusal to further delay the proceedings by granting the
last-minute continuance that Moody had requested. Obstructionism and
petulance, not ignorance or bafflement, lay behind Moody’s actions. The
record reflects that Moody possessed a rational as well as factual
understanding of the proceedings against him and that he chose not to
participate.
We are convinced that on the facts and circumstances of this case,
the appointment of standby counsel over Moody’s objection would not
have remedied the situation; more likely, it would have given Moody one
more thing to complain about and would have exacerbated his
uncooperativeness. Moody’s refusal to participate should be considered
against the backdrop of his past actions. As we have already noted, the
trial court, in denying Moody’s requested continuance, indicated that it
was taking notice of Moody’s stalling tactics and his history of
dissatisfaction with attorneys who had represented him in this and other
cases. See Russaw, 572 So. 2d at 1295 (where a defendant who is
proceeding pro se refuses to participate in the trial, the trial court, before
continuing with the trial, should determine that “the defendant is either
deliberately, knowingly, and intentionally attempting to obstruct or
hinder the judicial process and the prosecution in that particular case, or
that the defendant is deliberately, knowingly, and intentionally refusing
to participate in the trial”).
Finally, this is not a case where Moody “should not have been
allowed to proceed pro se in the first place”: as discussed in Part II of this
opinion, the trial court conducted extensive pretrial proceedings to
ensure that Moody’s waiver of his right to counsel was knowing and
intelligent and that Moody’s Faretta rights were fully protected in those
proceedings. We reject Moody’s contention, then, that the appointment
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of standby counsel would somehow have salvaged his defense. The trial
court did not commit error, plain or otherwise, when it failed to appoint
standby counsel to assist Moody. See People v. Howell, 615 N.Y.S.2d 728,
729, 207 A.D.2d 412, 413 (1994) (under the circumstances of the case,
“including the defendant’s vigorous insistence that he not be aided by
standby counsel,” the trial court did not err by failing to appoint standby
counsel to assist a pro se defendant who refused to participate in his trial).
Moody, 888 So. 2d at 559-63.
Moody asserts that the ACCA’s opinion was contrary to, or an unreasonable
application of, clearly established Supreme Court precedent, which he contends
requires a trial court to appoint standby counsel when a defendant stops representing
himself because, for instance, he is removed from the courtroom. However, Supreme
Court precedent establishes that the appointment of standby counsel for precautionary
purposes is purely discretionary and based on the defendant’s cooperation. The
Supreme Court in Faretta recognized that in some instances, “a State may—even over
objection by the accused—appoint a ‘standby counsel’ to aid the accused if and when
the accused requests help, and to be available to represent the accused in the event
that termination of the defendant’s self-representation is necessary.” 422 U.S. at 834
n.46, 2541 n.46 (emphasis added). The Court cited United States v. Dougherty, 473
F.2d 1113 (D.C.C. 1972), as illustrating such a situation. In Dougherty, the defendants
argued that the trial court denied them their right to self representation by appointing

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standby counsel, and the court had to determine whether the defendants forfeited that
right by their disruptive behavior. Id. at 1124. There, the court of appeals noted that
standby counsel may be appointed in pro se cases to assist the defendant, including
advising on procedure and strategy, but that the decision whether to appoint standby
counsel should be:
dependent on explanation to and cooperation by defendant, and on
understanding, too, that he may claim with some merit that his pro se
rights include his right to appear before the jury in the status of one
defending himself, and that this is defeated if a too conspicuous role is
played by an attorney, unless it clearly appears to the jury that he does
not have the status of defense counsel.
Id. at 1125.
Thus, not only has the Supreme Court held that the decision whether to
appoint standby counsel rests with the trial court, the ACCA also reasonably
concluded that as they did in McKaskle v. Wiggins, the dangers of appointing standby
counsel over Moody’s objection would have played out in Moody’s case. In Wiggins,
the trial court appointed standby counsel over the defendant’s objections. 465 U.S.
at 170-71, 104 S. Ct. at 947. During the trial, standby counsel made an opening
statement, questioned a witness on voir dire, and made objections. Id. at 171-73, 104
S. Ct. at 947-48. On appeal, Wiggins asserted that his right to self-representation was
eviscerated by counsel’s too-frequent injections into the conduct of the trial. Id. at
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173, 104 S. Ct. at 948. The Supreme Court recognized that “participation by standby
counsel without the defendant’s consent should not be allowed to destroy the jury’s
perception that the defendant is representing himself.” Id. at 178, 104 S. Ct. at 951.
However, the Court found that most of counsel’s actions were not objected to the by
the defendant and that in those instances where they were, they did not overbear the
defendant’s own theory of defense or become so excessive as to lead the jury to
believe that Wiggins was not representing himself. Id. at 180-83, 104 S. Ct. at 952-53.
As such, the Court held that a defendant’s Sixth Amendment right to represent
himself is not automatically violated when a trial judge appoints standby counsel to
assist the defendant. Id. at 184, 104 S. Ct. at 954. The ACCA reasonably opined that
the trial court was subject to Moody’s complaints either way: Moody now argues that
the trial court should have appointed standby counsel over his vigorous objection, but
had the trial court appointed standby counsel, Moody would have thereafter
complained that the false appearance of assistance by the presence of standby counsel
restricted to doing nothing was a prime example of unconstitutionally compromising
a defendant’s right to conduct his own defense and to have the jury fully aware that
he is doing so. As the ACCA’s decision is not contrary to law, habeas relief is not
warranted on this ground.

Page 84 of 189

C.

Moody’s claim that the trial court violated his Sixth Amendment
right to confront witnesses when it removed him from the courtroom
for disruptive behavior during his trial

As a result of his disruptive behavior and his refusal to commit to abiding by the
rules of conduct required in the courtroom, Moody was removed from the courtroom
and placed into a room from which he could observe and listen to the proceedings.9

9

More specifically, after exhibiting contemptuous conduct during voir dire, including
calling the judge “a liar” in the presence of the jury venire, the following exchange occurred:
COURT:
And what I need to ask you, sir, are there going to be any more
outbursts when the jury is in here?
MOODY:
There’s going to be a lot of outbursts, Your Honor. I want to show
them this. I want them to know that you prejudiced their minds this morning and
that you are a professional liar and a con artist.
COURT:
Now, sir, if you will stay quiet, I will allow you to sit in this
courtroom. Otherwise—
MOODY:

I’m sure you would. But it ain’t going to happen.

(C.R. Vol. 62, p. 821.) Later that day, the trial judge again addressed Moody:
COURT:
And, sir, you have every right under the law to sit in this courtroom
if you’ll act right. And I need to know from you, are you going to sit quietly in this
courtroom?
MOODY:

No, sir, I am not.

COURT:

And how are you going to act?

MOODY:

I think you already know that.

COURT:

Are you going to act like you did this morning and this afternoon?

MOODY:

I certainly am.
Page 85 of 189

(C.R. Vol. 62, pp. 822, 842.) Moody acknowledges that it is permissible for a court
to remove an unruly defendant when the defendant engages in disruptive and
disorderly behavior, but he argues that his conduct did not warrant removal and thus
his Sixth Amendment right to confront witnesses was violated.
Moody never presented this claim to the state courts either on direct review or
in post-conviction proceedings. As such, Moody did not exhaust his state court
remedies and this claim is now procedurally barred from review.
Moody concedes that the claim is unexhausted but asserts that the
constitutional ineffectiveness of his direct appeal counsel in failing to raise this issue
excuses the default. For the reasons stated in subpart V. B. 9. of this opinion, infra,
Moody’s direct appeal counsel was not constitutionally ineffective for failing to raise
this claim before the ACCA, so the procedural default is not excused. Habeas relief
is not warranted on this claim.

COURT:
Now, you understand, sir, that this Court does not wish to have
you sit in that room over there, that I much prefer you sitting right out here where
you can—
MOODY:

In that case you should tell the truth.

(C.R. Vol. 62, p. 841-42.) The following day of trial Moody informed the Court, “So if you
considered my actions Friday to be a disruption, you need to put me somewhere else.” (C.R.
Vol. 62, pp. 61, 63, 65.)
Page 86 of 189

D.

Moody’s claim that the trial court violated his Fifth, Sixth, Eighth,
and Fourteenth Amendment rights when it failed to protect his rights
as a pro se litigant

Moody presented this claim on direct appeal to the ACCA, arguing that the trial
judge “breached his duty to control the proceeding and protect Moody,” and that
Moody’s “rights to a fair trial, due process of law and equal protection of the law were
all denied in the process.” (C.R. Vol. 76, p. 28 of “Brief of Appellant”.)10 The ACCA
denied the claim on the merits, finding that the trial judge “demonstrated admirable
forbearance throughout the proceedings. . . . treated Moody with respect, patiently
listened to Moody’s arguments and requests, was extremely solicitous of Moody
despite his obstructionist tactics, and acted responsibly to vindicate Moody’s rights
as well as could be expected under the circumstances.” Moody, 888 So. 2d at 596.
Moody presented the claim again in his Rule 32 proceedings, and the ACCA
affirmed the trial court’s dismissal of the claim on the sole ground that it violated

10

Respondent argues that Moody did not fairly present this claim to the state courts
because he raised this claim to the ACCA on purely state law grounds, without citing any
constitutional allegations in his brief. (Doc. 33 at 68-69.) This argument is contradicted by the
record, as Moody’s invocation of the constitutional due process, fair trial, and equal protection
violations was enough to fairly present the federal constitutional claim to the ACCA. See
Baldwin, 541 U.S. at 32, 124 S. Ct. at 1351.
Page 87 of 189

Alabama Rule of Criminal Procedure 32.2(a)(4),11 as the claim had already been raised
and addressed on direct appeal. Moody, 95 So. 3d at 837-43. The ACCA’s rejection
of this claim on adequate and independent state procedural grounds precludes this
Court from reviewing the claim. See Ward, 592 F.3d at 1156 (federal review is
precluded when the last state court rendering a judgment in the case states that it was
relying on state procedural rules to resolve the federal claim without reaching the
merits of the claim).
Were the claim not barred, the Court would find that it lacks merit. Nowhere
in his amended habeas petition does Moody allege facts to support this claim. He
merely offers the bald assertion that his rights were violated. Thus, Moody’s
Amended Petition does not aver facts which, if true, would establish a constitutional
violation. See McFarland, 512 U.S. at 856, 114 S. Ct. at 2572 (indicating that federal
courts are authorized to summarily dismiss a claim that is legally insufficient on its
face due to failure to meet the heightened pleading requirements for habeas petitions).
For all of these reasons, habeas relief is not warranted on this claim.12
11

That rule provides that “[a] petitioner will not be given relief under this rule based
upon any ground: . . . Which was raised or addressed on appeal. . . .” Ala. R. Crim. P. 32.2(a)(4).
12

In Moody’s reply brief, with regard to this claim and to all of the remaining claims
addressed by the Court in part IV. of this opinion, infra, counsel requests additional time in
which to investigate the claims and amend the amended petition and reply brief accordingly.
That request is denied. Moody’s counsel was appointed on March 20, 2013. The amended
Page 88 of 189

E.

Moody’s claim that he was convicted based on the improper
admission of his prior crimes and acts in violation of his Fifth, Sixth,
Eighth, and Fourteenth Amendment rights

Moody divides this claim into two allegations, and as discussed below, each is
procedurally defaulted.
1.

The allegation that the trial court improperly permitted
evidence to be introduced against Moody regarding his efforts
to overturn his 1972 conviction on federal charges of
possessing a pipe bomb which led to his conviction in 1990 on
federal charges of suborning perjury and obstructing justice

Moody presented this claim on direct appeal to the ACCA, but purely as a state
law question, citing state law precedent. No federal authority, much less clearly
established federal law as determined by the Supreme Court of the United States, was
presented in support of this argument by Moody on direct appeal. Nowhere did
Moody even reference violations of his constitutional rights. Indeed, Moody’s
arguments focused solely on “relevance,” “materiality,” and Rule 401 of the Alabama
Rules of Evidence. Ultimately, it is clear from the resolution of this claim that the
ACCA did not view it as a federal question. See Moody, 888 So. 2d at 589-90
petition was not due until May 10, 2013. The Court also granted Moody’s counsel’s request for
one extension of 21 days in which to submit the reply brief. Counsel has had sufficient time to
prepare and articulate Moody’s constitutional claims. With particular regard to this claim, this
Court is precluded from reviewing its merits due to Moody’s failure to exhaust state remedies, so
it is unclear what additional investigation counsel would need to undertake in order to amend the
claim.
Page 89 of 189

(ultimately concluding that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice as the evidence was relevant to prove
that Moody had a motive for precipitating war on the judicial system and the jury was
instructed to consider the evidence only for that purpose). As such, Moody’s claim
is unexhausted. As reasoned by the Supreme Court in Picard v. Connor:
The rule would serve no purpose if it could be satisfied by raising one
claim in the state courts and another in the federal courts. Only if the
state courts have had the first opportunity to hear the claim sought to be
vindicated in a federal habeas proceeding does it make sense to speak of
the exhaustion of state remedies. Accordingly, we have required a state
prisoner to present the state courts with the same claim he urges upon
the federal courts.
404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971). Moody’s failure to exhaust state
remedies bars this sub-claim from this Court’s review as it is procedurally defaulted,
and Moody has not demonstrated cause and prejudice to excuse the default.
2.

The allegation that the trial court improperly permitted
evidence to be introduced regarding Moody’s other
bombings—the pipe bomb mailed in December 1989 to Robert
Robinson in Savannah, the pipe bomb mailed to the
courthouse for the Eleventh Circuit Court of Appeals in
Atlanta, and the pipe bomb mailed to the Jacksonville office of
the NAACP

As with the previous sub-claim, Moody presented this claim on direct appeal
to the ACCA, but purely as a state law question, citing state law precedent. No federal
Page 90 of 189

authority or constitutional provisions were presented in support of this argument by
Moody on direct appeal. Indeed, Moody’s arguments focused solely on “relevance,”
“materiality,” and Rule 404(b) of the Alabama Rules of Evidence. The ACCA did
not view this claim as a federal question. See Moody, 888 So. 2d at 579-87 (ultimately
concluding that the evidence of other bombings was relevant to providing the identity
of the person who delivered the pipe bomb to the home of Judge Vance, and to prove
that the pipe bomb that killed Judge Vance was part of a common scheme or plan
because the bombs were so similar and distinctive in design and construction that they
shared the “signature” of the same maker, and because Moody’s wife testified that
she had been sent out to purchase the components that the experts found in the
bombs). As such, Moody’s claim is unexhausted, and he has not demonstrated cause
and prejudice to excuse the procedural default of his claim.
F.

Moody’s claim that he was denied a fair and impartial jury in
violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment
Rights

Moody divides this claim into five allegations, and as discussed below, each is
procedurally defaulted.
1.

The allegation that the prosecutor improperly told one
prospective juror, K.C., during individual voir dire that
everything Moody had been telling her during voir dire was “a
complete and unadulterated lie” and that Moody had been
Page 91 of 189

convicted of perjury and of paying people to lie
Again, Moody did not present this claim on direct appeal as a federal
constitutional question, but rather as a state law ground, citing state law precedent.
No federal authority, much less clearly established federal law as determined by the
Supreme Court of the United States, was presented in support of this argument by
Moody on direct appeal.

Nowhere did Moody reference violations of his

constitutional rights. Ultimately, it is clear from the resolution of this claim that the
ACCA did not view it as a federal question. See Moody, 888 So. 2d at 574-76
(ultimately concluding that Moody was not harmed by the prosecutor’s statements
to K.C. because no other jurors were present when the statements were made, the
court sua sponte excused juror K.C. before the striking process began, and there was
no indication that K.C. did not follow the court’s instruction to the jurors not to
discuss with anyone else the matters that were brought out during individual voir
dire). Having failed to present the issue as a federal question in state court, the claim
is unexhausted. The claim is procedurally defaulted from this Court’s review, and
Moody has not demonstrated cause and prejudice to excuse the default.
2.

The allegation that the trial court prejudiced Moody by
informing prospective jurors of his problems with pretrial
counsel, specifically that he had caused his court-appointed
attorneys to withdraw, had thereafter rejected the court’s
Page 92 of 189

repeated offers to appoint him new counsel, and that he had on
numerous occasions sought to change attorneys on the eve of
trials
Again, Moody did not present this claim on direct appeal as a federal
constitutional question, but rather as a state law ground, citing state law precedent.
The ACCA did not view it as a federal question either. See Moody, 888 So. 2d at 57678 (ultimately concluding that any error in the trial court’s comments to the venire
members was harmless given that during the State’s case-in-chief, it introduced
evidence of Moody’s lengthy litigation history, which indicated that Moody had been
involved in numerous prior proceedings in which he fired or dismissed his attorneys).
The ACCA also denied relief on this portion of this ground based on the doctrine of
invited error, writing:
[T]hroughout the voir dire process, Moody made statements to
prospective jurors indicating that he was being forced to proceed pro se
and that the trial court was preventing him from obtaining the services
of an attorney. Thus, Moody himself injected the issue of his
representation status into the voir dire process, in an obvious attempt to
influence—and mislead—those who might sit on his jury so that they
would believe he was being deprived of his constitutional rights and was
being persecuted by the trial court and the State.
Moody, 888 So. 2d at 577 (footnote omitted). Having failed to present the issue as a
federal question in state court, the claim is unexhausted. The claim is procedurally
defaulted from this Court’s review, and Moody has not demonstrated cause and
Page 93 of 189

prejudice to excuse the default.
3.

The allegation that the trial court improperly polled each juror
about Moody’s request for a continuance, asking each juror
whether “considering the statement made by Moody and the
trial court regarding Moody’s representation status, he or she
believed the case should be delayed or continued”

Again, Moody did not present this claim on direct appeal as a federal
constitutional question, but rather as a state law ground, citing state law precedent,
and the ACCA resolved it on purely state law grounds. See Moody, 888 So. 2d at 578
(concluding that the trial court safeguarded against any potential prejudice by later
individually instructing each juror that issues relating to Moody’s representation
status should be disregarded and the case should be decided on the law and evidence).
Having failed to present the issue as a federal question in state court, the claim is
unexhausted. The claim is procedurally defaulted from this Court’s review, and
Moody has not demonstrated cause and prejudice to excuse the default.
4.

The allegation that the trial court failed to ensure that the
state did not use its peremptory challenges in a racially
discriminatory manner

Moody claims that the trial court failed to correct the State’s use of 76% of its
peremptory strikes to exclude potential black jurors, even though blacks only
composed 50% of the total venire. Moody also asserts generally that the “Jefferson

Page 94 of 189

County District Attorney’s Office had a well-documented history of racial
discrimination in jury selection.” (Doc. 29 at 63.) Moody never presented this claim
in any fashion to any state court. As such, this claim is now procedurally barred from
this Court’s review, and Moody has not demonstrate cause or prejudice.
5.

The allegation that the foregoing five allegations, collectively,
violated Moody’s right to a fair trial by an impartial jury

Moody never presented this “collective” claim in any fashion to any state
court.

As such, this claim is now procedurally barred, and Moody has not

demonstrated cause or prejudice.
G.

Moody’s claim that his Fifth, Sixth, Eighth, and Fourteenth
Amendment rights were violated when the State introduced the
following: evidence pertaining to Moody’s undergraduate and law
school records, including that he pursued a bachelors degree in
chemistry and that he took courses in chemistry, biochemistry, and
physics, and that he had completed about half the course work
required to obtain a law degree; evidence of his litigation history and
prior interactions with attorneys; and evidence of his alleged racial
attitudes in the form of testimony from an ex-girlfriend that he had
made positive remarks about George Wallace, Lester Maddox, and
the John Birch Society, and that he had made negative remarks about
Martin Luther King, Jr. and Maynard Jackson

As with others, Moody did not present this claim on direct appeal as a federal
constitutional question, but rather as a state law ground, citing state law precedent.
No federal authority, much less clearly established federal law as determined by the

Page 95 of 189

Supreme Court of the United States, was presented in support of this argument by
Moody on direct appeal.

Nowhere did Moody reference violations of his

constitutional rights. Ultimately, it is clear from the resolution of this claim that the
ACCA did not view it as a federal question. Under state law, the ACCA held that the
evidence regarding Moody’s pursuit of a bachelor of science degree in chemistry, and
that he took courses in chemistry, biochemistry, and physics, was relevant to show
that Moody had scientific knowledge of subject matter useful in making explosive
devices like the pipe bomb that killed Judge Vance. Moody, 888 So. 2d at 590-95. The
ACCA further held that the evidence that Moody took several classes in law school,
and that he had completed about half the course work required to obtain a law degree,
was relevant to prove that his unsuccessful attempt to overturn a prior conviction for
possessing a pipe-bomb, which disqualified him from practicing law, provided a
motive and precipitated his seeking revenge on the judicial system, which ultimately
resulted in the judge’s murder. Id. Additionally, the ACCA held that evidence that
over an approximately 18-year period, Moody had been a party in at least 22 trial-level
cases, that he appealed 14 of those cases to higher courts, 10 of which were to the
Court of Appeals for Eleventh Circuit, and that his appeals to the Eleventh Circuit
were largely unsuccessful, was relevant to showing that Moody had extensive contact

Page 96 of 189

with the judicial system and that he felt excessive grievances with persons
representing the judicial system, which provided a motive for seeking revenge against
those persons, and which ultimately resulted in the judge’s murder. Id. Finally, the
ACCA held that the testimony of Moody’s former girlfriend that Moody expressed
racial animus towards African-Americans and that he believed the judicial system
favored blacks was relevant to identifying Moody as the person who delivered the pipe
bomb which killed the judge because her testimony connected Moody with the
death-threat letters delivered to every judge on the Eleventh Circuit Court of Appeals
and to the African-American news anchor immediately after the judge and the civil
rights attorney were killed. The letters stated that one federal judge, one attorney, and
one officer for the NAACP would be assassinated for every rape of a white woman by
a black man and thus indicated that the person responsible for killing the judge and the
attorney, and for sending the pipe bombs to two NAACP offices, viewed victims as
disposable objects in a war against the judicial system. Id.
Having failed to present the issue as a federal question in state court, the claim
is unexhausted. The claim is procedurally defaulted from this Court’s review, and
Moody has not demonstrated cause and prejudice to excuse the default.
H.

Moody’s claim that his death sentence violates Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428 (2002)
Page 97 of 189

Moody asserted the same claim before the ACCA on direct appeal that he
reiterates in this action, which is that Alabama’s capital murder statute is
unconstitutional and he is ineligible for the death penalty under Ring v. Arizona, 536
U.S. 584, 122 S. Ct. 2428 (2002), which held that capital defendants, like non-capital
defendants, are entitled to a jury determination of every fact that increases their
punishment beyond the statutory maximum. According to Moody, because the jury
in his case recommended death by a verdict of 11-1, there was no unanimity from the
jury regarding the presence of aggravating factors under Alabama’s capital murder
statute or the conclusion that he was deserving of death.
The ACCA, after thorough analysis, denied this claim on the merits. The
ACCA first wrote:
Moody contends that his sentence of death violates the holding of
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
FN53
FN53. On June 24, 2002, while this case was pending on
appeal, the United States Supreme Court issued its
decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428,
153 L. Ed. 2d 556 (2002). We requested that Moody and
the State brief the applicability of Ring to Moody’s death
sentence. Because Rule 45A, Ala. R. App. P., requires that
we search the record for any plain error and because
Moody’s case was not final at the time Ring was released,
we are obligated to consider the impact that Ring has on
Moody’s case. See Griffith v. Kentucky, 479 U.S. 314, 107 S.
Page 98 of 189

Ct. 708, 93 L. Ed. 2d 649 (1987).
In Ring, the United States Supreme Court overruled Walton v.
Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990), to the
extent that it allowed the judge, not the jury, to find an aggravating
circumstance that supported a death sentence and decided that its earlier
holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000), applied to Arizona’s death-penalty scheme. See Ring,
536 U.S. at 589, 122 S. Ct. at 2432 (“Capital defendants, no less than
non-capital defendants . . . are entitled to a jury determination of any fact
on which the legislature conditions an increase in their maximum
punishment.”). Apprendi had announced the rule that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120
S. Ct. 2348 (emphasis added); see also Ring, 536 U.S. at 600, 122 S. Ct.
at 2439.
Under Alabama law, at least one aggravating circumstance under
§ 13A–5–49, Ala. Code 1975, must exist in order for a defendant
convicted of a capital offense to be eligible for a sentence of death. Ex
parte Waldrop, 859 So. 2d 1181, 1187 (Ala. 2002), citing § 13A–5–45(f),
Ala. Code 1975 (providing that when a defendant has been convicted of
a capital offense, “[u]nless at least one aggravating circumstance as
defined in Section 13A–5–49 exists, the sentence shall be life
imprisonment without parole”). Moody argues that because it cannot be
determined which, if any, aggravating circumstance in his case was found
beyond a reasonable doubt by a unanimous verdict of the jury, he is,
based on the Supreme Court’s holding in Ring, ineligible for the death
penalty. (Moody’s supplemental brief at pp. 9–10.) We disagree.
This court has recognized that “[t]he holding in Ring was
narrow.” Stallworth v. State, 868 So. 2d 1128, 1183 (Ala. Crim. App.
2001) (opinion on second return to remand). As the Ring Court noted:
“Ring’s claim is tightly delineated: He contends only that
Page 99 of 189

the Sixth Amendment required jury findings on the
aggravating circumstances asserted against him. No
aggravating circumstance related to past convictions in his
case; Ring therefore does not challenge Almendarez–Torres
v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed.
2d 350 (1998), which held that the fact of prior conviction
may be found by the judge even if it increases the statutory
maximum sentence.”
536 U.S. at 597 n. 4, 122 S. Ct. at 2437 n. 4.
In Stallworth, this court found that while the Supreme Court in
Ring extended Apprendi to death-penalty cases, it did not purport to alter
the express exemption in Apprendi for the fact of a prior conviction,
which the Supreme Court had earlier recognized in Almendarez–Torres
v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
We stated:
“[O]ne of the aggravating circumstances in this case related
to a prior conviction—that the capital offense was
committed by a person under sentence of imprisonment.
See § 13A–5–49(1), Ala. Code 1975. The Apprendi Court
specifically excluded from its holding prior convictions.
The Apprendi Court stated, ‘Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.’
530 U.S. at 490, 120 S. Ct. 2348. The Court left untouched
its holding in Almendarez–Torres v. United States, 523 U.S.
224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), that an
increase in a sentence related to recidivism is left to the trial
court. As the Maryland Court of Appeals recognized after
Apprendi:
“ ‘ The rule that prior convictions do not
have to be proven to a jury beyond a
Page 100 of 189

reasonable doubt was first recognized in
Almendarez–Torres v. United States, 523 U.S.
224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998).
There, the Supreme Court emphasized that
questions related to recidivism have
traditionally been decided by the sentencing
court rather than the jury. Justice Breyer,
delivering the opinion of the Court, wrote:
“ ‘ “First, the sentencing factor
at issue here—recidivism—is a
traditional, if not the most
traditional, basis for a sentencing
court’s increasing an offender’s
sentence. Consistent with this
tradition, the Court said long ago
that a State need not allege a
defendant’s prior conviction in
the indictment or information
which alleges the elements of an
underlying crime, even though
the conviction was necessary to
bring the case within the statute.
That conclusion follow[s] . . .
from the distinct nature of the
issue, and the fact that recidivism
does not relate to the
commission of the offense, but
goes to the punishment only, and
therefore . . . may be
subsequently decided.”
“ ‘Id. at 243, 118 S. Ct. at 1230–31, 140 L. Ed.
2d 350 (emphasis in original) (internal
quotation marks and citations omitted [in
Stewart]).
Page 101 of 189

“ ‘In Apprendi, the Court emphasized that it
was not overruling Almendarez–Torres.
Apprendi, 530 U.S. at 489, 120 S. Ct. at 2362,
147 L. Ed. 2d 435. In fact, the Court reiterated
that recidivism is a traditional grounds for a
sentencing court’s increasing an offender’s
sentence, and that recidivism does not relate
to the commission of the offense. Id. at 488,
120 S. Ct. at 2361–62, 147 L. Ed. 2d 435
(quoting Jones v. United States, 526 U.S. 227,
248–49, 119 S. Ct. 1215, 1227, 143 L. Ed. 2d
311 (1999)).
“ ‘. . . .
“ ‘In United States v. Santiago, 268 F.3d 151
(2nd Cir. 2001), the trial judge sentenced the
defendant pursuant to a statute that required
that the defendant have three prior
convictions arising from offenses committed
on different occasions. The defendant argued
that the “prior conviction” exception does
not encompass the question whether prior
convictions arose from offenses committed on
different occasions. The United States Court
of Appeals for the Second Circuit rejected the
defendant’s argument, reasoning as follows:
“ ‘ “In short, we read Apprendi
as leaving to the judge,
consistent with due process, the
task of finding not only the mere
fact of previous convictions but
other related issues as well.
Judges frequently must make
Page 102 of 189

factual determinations for
sentencing, so it is hardly
anomalous to require that they
also determine the ‘who, what,
when, and where’ of a prior
conviction.”
“ ‘Id. at 156.
“ ‘Santiago reflects the general rule that the
Almendarez–Torres exception covers questions
related to recidivism, not merely the fact of
prior conviction. Appellee’s previous term of
incarceration, like prior convictions arising
from crimes committed on separate occasions,
Santiago, 268 F.3d at 156, or the aggravated
nature of a prior conviction, [United States v.]
Becerra–Garcia, 28 Fed. Appx. 381, at 385 . . .
[(6th Cir.2002)], is a fact related to
recidivism, and, as stated above, recidivism is
a question that traditionally has been reserved
for the sentencing court.’
“State v. Stewart, 368 Md. 26, 39–41, 791 A.2d 143, 151–52
(2002). We agree with the rationale and holding of the
Stewart court. Whether at the time of the murders
Stallworth was under a sentence of imprisonment because
he was on probation for his prior conviction for assault in
the third degree was a question related to Stallworth’s prior
conviction—a question for the trial court to resolve.
Therefore, this aggravating circumstance was not subject to
the holdings in Apprendi and Ring.”
Stallworth, 868 So.2d at 1184–85.FN54
FN54. The Supreme Court noted in Apprendi that
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Almendarez–Torres’s recognition of an exemption for the
fact of a prior conviction also “turned heavily upon” the
“certainty that procedural safeguards attach [ ] to any ‘fact’
of prior conviction.” Apprendi, 530 U.S. at 488, 120 S. Ct.
2348. As the Supreme Court stated in Jones v. United
States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311
(1999), a precursor of Apprendi, “one basis” for
distinguishing prior convictions is that “a prior conviction
must itself have been established through procedures
satisfying the fair notice, reasonable doubt, and jury trial
guarantees.” 526 U.S. at 249, 119 S. Ct. 1215.
Recently, in Ex parte Smith, [Ms. 1010267, March 14, 2003] –––
So.2d –––– (Ala. 2003), the Alabama Supreme Court recognized that
Ring did not alter the exemption for the fact of a prior conviction; our
supreme court stated:
“In his special writing in Bottoson v. Moore, 833 So. 2d 693,
719 (Fla. 2002), Justice Pariente eloquently explained:
“ ‘[T]he presence of a prior violent felony
conviction meets the threshold requirement of
Apprendi [v. New Jersey, 530 U.S. 466 (2000),]
as extended to capital sentencing by Ring [v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428
(2002)]. In Almendarez–Torres v. United
States, 523 U.S. 224, 118 S. Ct. 1219, 140 L.
Ed. 2d 350 (1998), the United States Supreme
Court approved an enhanced sentence for the
crime of returning to the United States after
being deported, based on the judge’s finding
that the deportation was pursuant to three
prior convictions of aggravated felonies. The
Court rejected a claim that the enhancement
was improper because the indictment had not
alleged that the deportation was pursuant to
Page 104 of 189

the prior convictions. As explained in
Apprendi, “our conclusion in
Almendarez–Torres turned heavily upon the
fact that the additional sentence to which
defendant was subject was ‘the prior
commission of a serious crime.’ ” 530 U.S. at
488, 120 S. Ct. 2348. In Apprendi, the Court
held:
‘ “ ‘[T]here is a vast difference
between accepting the validity of
a prior judgment of conviction
entered in a proceeding in which
the defendant had the right to a
jury trial and the right to require
the prosecutor to prove guilt
beyond a reasonable doubt, and
allowing the judge to find the
required fact under a lesser
standard of proof.”
“ ‘Id. at 496, 120 S. Ct. 2348. Accordingly,
the Court held: “Other than the fact of a prior
conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Id. at
490, 120 S. Ct. 2348 (emphasis supplied [in
Bottoson] ).
“ ‘In extending Apprendi to capital
sentencing, the Court in Ring did not
eliminate the “prior conviction” exception
arising in Almendarez–Torres. The Court
noted in Ring that “[n]o aggravating
circumstance related to past convictions in his
Page 105 of 189

case; Ring therefore does not challenge
Almendarez–Torres.” 536 U.S. at 597 n. 4, 122
S.Ct. at 2437 n. 4.’
“833 So.2d at 722–23 (footnote omitted). As was the
circumstance in Bottoson, one of the aggravating
circumstances presented by the State in the penalty phase
of this trial involved a prior felony conviction; therefore,
Smith is not entitled to relief pursuant to Ring. See
Almendarez–Torres v. United States, 523 U.S. 224 (1998).”
Ex parte Smith, ––– So.2d at ––––.
In this case, one of the aggravating circumstances found by the
trial court was that Moody had been previously convicted of another
capital offense or a felony involving the use or threat of violence to the
person, see § 13A–5–49(2), Ala. Code 1975. The trial court’s finding was
based on Moody’s prior convictions in federal court for possessing a pipe
bomb; transporting explosive material with the intent to kill, causing
death; mailing injurious articles with the intent to kill, causing death;
attempted murder of federal court personnel; threatening to murder
United States judges; multiple counts of mailing threatening
communications; and multiple counts of mailing injurious articles with
the intent to injure.FN55 Because it was a finding of a fact related to
recidivism, the trial court’s finding, as an aggravating circumstance, that
Moody had previously been convicted of another capital offense or a
felony involving the use or threat of violence to the person, this
aggravating circumstance was not subject to the holdings in Apprendi and
Ring. Upon the trial court’s making this finding, Moody became eligible
for a sentence of death.
FN55. At the sentencing hearing, the State presented
exemplified copies of 59 prior convictions for violent
felonies.
Moody, 888 So. 2d at 597-600.
Page 106 of 189

Moody broadly asserts that the state court decision was contrary to, or an
unreasonable application of, clearly established federal law. However, it is plain in the
foregoing text that the ACCA specifically abided by the explicit holding in
Almendarez-Torres permitting the trial judge to find the existence of a prior conviction,
a holding specifically left undisturbed in Ring. See Moody, 888 So. 2d at 600 (“In
extending Apprendi to capital sentencing, the Court in Ring did not eliminate the ‘prior
conviction’ except arising in Almendarez-Torres. The Court noted in Ring that ‘[n]o
aggravating circumstance related to past convictions in his case; Ring therefore does
not challenge Almendarez-Torres.’ 536 U.S. at 597 n.4, 122 S. Ct. at 2437 n.4.”).
Pursuant to Almendarez-Torres, then, the ACCA reasonably found that insofar as the
trial court found the aggravating circumstance that Moody had previously been
convicted of another capital offense or felony involving the use or threat of violence
to the person, that aggravating circumstance made Moody eligible for the death
penalty and did not implicate the holding in Ring.
Importantly, though, the ACCA also rejected Moody’s Ring claim on the
following additional grounds:
Moreover, in Moody’s case, the jury did find all facts necessary to
impose the death penalty. At the penalty phase of the trial, after the State
presented the jury with evidence of the two aggravating circumstances,
the trial court instructed the jury as follows:
Page 107 of 189

“The aggravating circumstances which you may consider
in this case if you find from the evidence that they may have
been proven beyond a reasonable doubt are as follows:
“The defendant was previously convicted of another
capital offense or a felony involving the use or threat of
violence to the person.
“The defendant knowingly created a great risk of
death to many persons.
“Now, as I stated to you before, the burden of proof is on
the State to convince each of you beyond a reasonable
doubt as to the existence of an aggravating circumstances
considered by you in determining what punishment is to be
recommended in this case. This means that before you can
even consider recommending that the defendant’s punishment
be death, each and every one of you must be convinced beyond a
reasonable doubt based on the evidence that at least one or more
of the aggravating circumstances exist.
“. . .
“You may not consider any aggravating circumstance other
than the two aggravating circumstances on which I have
instructed you. And you may not consider an aggravating
circumstance unless you are convinced by the evidence beyond a
reasonable doubt of the existence of that aggravating
circumstances in this case.
“. . .
“In order to consider an aggravating circumstance, it is
necessary that the jury unanimously agree upon its existence. All
twelve jurors must be convinced beyond a reasonable doubt and
to a moral certainty that an aggravating circumstance exists in
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order for any of you to consider that aggravating circumstance
in determining what the sentence should be.”
(Vol.73, R. 523–30.) (Emphasis added.)FN56
FN56. The trial court’s instructions in this regard were
materially identical to those set out in the Proposed Pattern
Jury Instructions for Use in the Sentence Stage of Capital
Cases Tried Under Act No. 81–178.
The jury recommended that Moody be sentenced to death, by a
vote of 11–1. The fact that the jury’s deliberations yielded a vote whether
to impose the death penalty—where the jury had been instructed that it
could not proceed to a vote unless it first unanimously found the
existence of at least one aggravating circumstance—establishes that the
jury unanimously found that at least one aggravating circumstance
existed. For purposes of Ring, the jury’s unanimous finding of at least
one aggravating circumstance—regardless of which aggravating
circumstance that was—rendered Moody eligible for a sentence of death.
In this context, the fact of the jury’s vote, rather than the actual vote tally
following the jury’s weighing process, is the telling circumstance. As the
State asserts in its supplemental brief:
“Whether all twelve jurors find that the aggravating
circumstances outweigh the mitigating circumstances or
only one juror does, it is the vote itself by the jury on the
relative weight of these circumstances that makes the trial
court aware whether the jury has unanimously found
beyond a reasonable doubt that an aggravating circumstance
exists.”
(State’s supplemental brief at pp. 18–19.) Because the jury necessarily
found beyond a reasonable doubt and by a unanimous verdict the
existence of at least one aggravating circumstance, the requirements of
Ring were satisfied in Moody’s case.FN57

Page 109 of 189

FN57. We note that nothing in Ring supports Moody’s
claim, at p. 11 of his supplemental brief, that the jury’s
advisory verdict must be unanimous. See Duke v. State, 889
So.2d 1, 43 n. 4 (Ala. Crim. App. 2002) (opinion on return
to remand).
Moody, 888 So. 2d at 601-02. In short, the ACCA determined that, because before the
jury could vote on whether to recommend the imposition of the death penalty, they
had to unanimously agree that at least one of the aggravating circumstances making
Moody eligible for the death penalty had been proven by the State to exist beyond a
reasonable doubt, the holding of Ring was not violated.
In Harrington v. Richter, the Supreme Court explained:
As amended by AEDPA, § 2254(d) stops short of imposing a complete
bar on federal court relitigation of claims already rejected in state
proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S. Ct. 2333, 135
L. Ed. 2d 827 (1996) (discussing AEDPA’s “modified res judicata rule”
under § 2244). It preserves authority to issue the writ in cases where
there is no possibility fairminded jurists could disagree that the state
court’s decision conflicts with this Court’s precedents. It goes no
farther. Section 2254(d) reflects the view that habeas corpus is a “guard
against extreme malfunctions in the state criminal justice systems,” not
a substitute for ordinary error correction through appeal. Jackson v.
Virginia, 443 U.S. 307, 332, n. 5, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)
(Stevens, J., concurring in judgment).
131 S. Ct. at 787. Thus, “[a]s a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
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understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. at 786-87. “Or, phrased . . . more simply and maybe a little more
clearly: if some fairminded jurists could agree with the state court’s decision, although
others might disagree, federal habeas relief must be denied.” Loggins v. Thomas, 654
F.3d 1204, 1220 (11th Cir. 2011). “However it is phrased, the deference due is heavy
and purposely presents a daunting hurdle for a habeas petitioner to clear.” See id.
(citing Richter, __ U.S. __, 131 S.Ct. at 786).
Under this highly deferential standard of review required in this proceeding,
where the state court is entitled to the benefit of the doubt, there is no validity to
Moody’s bald assertion that the state court decision was contrary to, or involved an
unreasonable application of clearly established federal law as determined by the
United States Supreme Court. Habeas relief is not warranted on this claim.
I.

Moody’s claim that the State withheld exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963)

Moody argues that the State improperly withheld from him certain exculpatory
evidence of DNA analysis, evidence that he was not the person who purchased the keg
of Red Dot gunpowder at a gun shop in Griffin, Georgia that was linked with the mail
bomb that killed Judge Vance, and evidence of other possible suspects for the
bombings and other investigations into other bombings. Moody raised a Brady claim
Page 111 of 189

for the first time in his Rule 32 proceedings, claiming as follows:
“A defendant is entitled to exculpatory evidence in a
criminal proceeding. Brady v. Maryland, 373 U.S. 83 (1963),
including statements, impeachment evidence, and physical
evidence. United States v. Bagley, 473 U.S. 667 (1985);
Giglio v. United States, 405 U.S. 150 (1972); Ex parte
Womack, 541 So. 2d 47 (Ala. 1988). In the context of a
capital proceeding, the State is under a heightened
obligation to provide discovery to the defendant, as the
possibility of a death sentence is a special circumstance that
places an increased obligation on the State. Ex parte Monk,
557 So. 2d 832 (Ala. 1989). In this case, the State failed to
disclose numerous pieces of exculpatory and impeachment
evidence.
“When investigating my case, the FBI conducted DNA
tests of the saliva on the stamps affixed to the threatening
letters admitted into evidence at my trial. The result of
these DNA tests did not provide a match between myself
and the DNA on those letters; in fact, the results excluded
me entirely. This information was never provided to the
defense.
“The FBI also failed to disclose several other leads that it
had regarding suspects responsible for the bombings.
Threatening letters that arrived in Texas contained the
same numerical code used in the letters accompanying the
bombings discussed at my trial; however, this fact was
never made known to me. The FBI also received
information that three unexploded pipe bombs attached to
electricity poles in Los Angeles bore the same
characteristics as those used in the bombings for which I
was found responsible. Again, this information was never
disclosed.

Page 112 of 189

“FBI agents purportedly checked all five bombs that I
allegedly made against thousands of others in the FBI’s
computerized bomb database; however, the FBI Explosives
Unit had no such computerized database at that time.
Information regarding the status of the FBI database at the
time of my trial should have been provided to the defense.
“John Hamill provided FBI officials with information that
I could not have purchased the gun powder the State
contended I acquired to create the bombs. Mr. Hamill
informed federal agents that he had a conversation with
Mark McSwigen, a resident of Griffin, Georgia, who told
Mr. Hamill that I could not have purchased the ‘Red Dot’
powder the State alleged I acquired because Mr. McSwigen
purchased the entire inventory of such powder available at
the local store at that time. Federal agents, Alabama
officials, and Georgia officials investigated the matter, but
provided me with no reports regarding their investigation.
In addition, Mr. McSwigen provided a female agent from
the Georgia Bureau of Investigation with one of the
canisters of powder he had purchased at that time. This
information similarly was not disclosed to me at trial.
“Roger Martz testified at my trial as an expert witness on
explosives. However, the State failed to provide evidence
that Martz did not have the training necessary to identify
inorganic explosives or fillers or to engage in any type of
explosives-residue analysis. In addition, the State failed to
disclose that Martz was under investigation for professional
misconduct at the time of my trial.
“In addition, at the time of my trial, the FBI had a 1990
report explaining that there were many differences between
the 1972 and 1989 bombs introduced at trial. This report
explained that the bombs were not unique enough to show
anything relating to a ‘signature.’ Moreover, the report
Page 113 of 189

explained that many other bombs constructed by various
individuals up through 1989, which were sent through the
mails and examined by the FBI, shared characteristics with
the 1972 and 1989 bombs. Because the State’s case rested
almost entirely on showing the uniqueness of the five
bombs and establishing a connection between all of them,
this evidence would have greatly assisted in my defense.
“None of this information was provided to me at my trial.
The State’s failure to provide me with crucial exculpatory
and impeachment evidence violated my rights to due
process and a fair trial protected by the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States
Constitution, the corresponding provisions of the Alabama
Constitution, and applicable state law.”
Moody, 95 So. 3d at 850-51 (quoting Moody’s Rule 32 petition) (footnote omitted).
The ACCA affirmed the trial court’s dismissal of the claim pursuant to
Alabama Rule of Criminal Procedure 32.2(a)(5)13 due to Moody’s failure to raise the
claim on direct appeal. Moody, 95 So. 3d at 858. If that had been the only reason for
the dismissal, this Court would have been barred from granting relief on the claim
under the adequate and independent state law procedural ground doctrine, unless
Moody demonstrated cause and prejudice for the default. See Ward, 592 F.3d at

13

That rule provides that “[a] petitioner will not be given relief under this rule based
upon any ground: . . . Which could have been but was not raised on appeal . . . .” Ala. R. Crim. P.
32.2(a)(5).
Page 114 of 189

1156.14
However, the ACCA also affirmed the trial court’s dismissal of the Brady claim
on the alternative ground that Moody did not plead the claim with specificity pursuant
to Alabama Rules of Criminal Procedure 32.3 and 32.6(b).15 In so concluding, the
ACCA effectively incorporated its discussion on Moody’s similar claim that his
appellate counsel was ineffective for not raising a Brady claim into its conclusion that
Moody failed to plead the substantive Brady claim with particularity. See Moody, 95
So. 3d at 858 n.21 (stating that the trial court was correct in its finding that Moody
failed to adequately plead a Brady claim and referring to an earlier part of the opinion
in which the court discussed Moody’s failure to plead the ineffective assistance of
counsel claim based on Brady). With regard to Moody’s claim that his appellate
counsel was ineffective in failing to raise his Brady claim on appeal, the ACCA wrote:

14

Indeed, Moody claims that the ineffectiveness of his direct appeal counsel in failing to
raise this issue on direct appeal excuses any procedural default of this claim, see part V. B. 4. of
this opinion, infra.
15

Under Alabama Rule of Criminal Procedure 32.3, “[t]he petitioner shall have the
burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle
the petitioner to relief.” Under Rule 32.6(b), “[t]he petition must contain a clear and specific
statement of the grounds upon which relief is sought, including full disclosure of the factual basis
of those grounds. A bare allegation that a constitutional right has been violated and mere
conclusions of law shall not be sufficient to warrant any further proceedings.” To underscore
that final point, Alabama Rule of Criminal Procedure 32.7(d) allows the state collateral court to
dismiss the petition “[i]f the court determines that the petition is not sufficiently specific.”

Page 115 of 189

“To prove a Brady violation, a defendant must show that ‘
“(1) the prosecution suppressed evidence; (2) the evidence
was favorable to the defendant; and (3) the evidence was
material to the issues at trial.” ’ Johnson v. State, 612 So. 2d
1288, 1293 (Ala. Cr. App.1992), quoting Stano v. Dugger,
901 F.2d 898, 899 (11th Cir. 1990), cert. denied, Stano v.
Singletary, 516 U.S. 1122, 116 S. Ct. 932, 133 L. Ed. 2d 859
(1996). See Smith v. State, 675 So. 2d 100 (Ala. Cr. App.
1995). ‘ “The evidence is material only if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have
been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” ’
Johnson, 612 So. 2d at 1293, quoting United States v. Bagley,
473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481
(1985).”
Freeman v. State, 722 So. 2d 806, 810 (Ala. Crim. App.1998).
After thoroughly reviewing Moody’s claim in this regard, we
conclude that it was not sufficiently pleaded in compliance with Rule
32.3 and Rule 32.6(b). First, Moody failed to plead anywhere in his
petition that appellate counsel was even aware of the alleged suppression
of this evidence by the State in time to raise it on appeal. Second,
although Moody identified the evidence he alleged was not provided to
him by the prosecution, he failed to plead any facts in his petition
indicating how this evidence was material, i.e., he pleaded no facts
indicating that if the evidence had been provided to him, there is a
reasonable probability that the result of his trial would have been
different.
With respect to the allegation regarding DNA evidence, Moody
alleged that DNA found on saliva on postage stamps affixed to
“threatening letters” that were “introduced at [his] trial” did not match
his DNA. However, nowhere in his petition did Moody even identify
what these “threatening letters” were, much less plead any facts
Page 116 of 189

indicating how these “threatening letters” were relevant to the case or
how his DNA not matching the DNA on the stamps on those letters
would have benefitted his defense.
With respect to the alleged “other leads” regarding supposed
other “suspects” in the bombing, Moody made a bare allegation that
other, unexploded, bombs with “the same characteristics” as the bomb
that killed Judge Vance were found by the FBI in Los Angeles. However,
he failed to identify what or how many of the characteristics of those
bombs were “the same” as the bomb that killed Judge Vance. Indeed, he
alleged no facts in his petition whatsoever regarding the bomb that killed
Judge Vance. Nor did Moody allege in his petition when the alleged
other bombs were supposedly found by the FBI or how the discovery of
those other bombs would have been significant to his defense. Moody
also made a bare allegation regarding other “threatening letters” that
arrived in Texas with “the same numerical code used in the letters
accompanying the bombings discussed at my trial.” However, as noted
previously, Moody failed to allege any facts in his petition regarding
these “threatening letters” or their relevance to the case.
Moody further alleged that he was entitled to information
regarding the alleged lack of a computerized database of bombs.
However, he failed to plead any facts indicating how such information
would have aided his defense. Moody also alleged that there was
evidence that he did not purchase “Red Dot” gunpowder as the State
asserted at trial, but he failed to allege the relevance of the “Red Dot”
gunpowder to the prosecution’s case or how evidence that he did not
purchase it himself would have benefited his defense. More basically,
Moody failed to even identify the “local store” he claimed sold its entire
inventory of “Red Dot” gunpowder to someone else nor did he identify
in his petition the store the State had alleged he had purchased the
gunpowder from.
Moody further made a bare and conclusory allegation that the
State did not disclose to him that its explosives expert was not, in fact,
qualified; however, Moody failed to allege what that expert’s
Page 117 of 189

qualifications were or why he believed the expert was not qualified.
Finally, Moody alleged that “the 1972 and 1989 bombs” were not similar
and that other bombs that “shared characteristics with the 1972 and 1989
bombs” had been sent through the United States mails by other
individuals. However, Moody did not plead any facts regarding what the
“1972” bomb was or its relevance to the case, nor did he plead any facts
regarding the alleged dissimilarities between the 1972 and 1989 bombs.
Moody also failed to plead any facts indicating the nature or extent of the
“characteristics” shared by the bomb that killed Judge Vance and other
bombs mailed by other individuals.
Simply put, Moody did nothing more than identify the evidence
he alleged was suppressed by the State and make bare allegations that it
should have been disclosed. He alleged no facts in his petition or
amended petitions regarding the facts of the crime, the evidence
presented by the State, or the State’s theory of the case.FN17 He
likewise alleged no facts in his petition or amended petitions regarding
his theory of defense or what, if any, evidence he presented in his
defense. This Court noted in its opinion on direct appeal that the State’s
case against Moody was based on circumstantial evidence. Yet, absent
any factual pleadings regarding that circumstantial evidence and how it
was used by the State to establish Moody’s guilt, Moody’s claims
regarding “threatening letters,” “Red Dot” powder, and other bombs
with similar “characteristics” to “the 1972 and 1989 bombs” make little
sense and are not sufficient to satisfy his burden of pleading. In other
words, even assuming Moody’s allegations in his petition are true, we
cannot say he would be entitled to relief. See, e.g., Bracknell v. State, 883
So. 2d 724 (Ala. Crim. App. 2003).FN18
FN17. Indeed, Moody did not even allege in his petition
what capital crime he was convicted of or who the victim of
that crime was. Moody stated only: “On November 6,
1996, I was convicted in Jefferson County and on February
10, 1997, I was sentenced to death.” (C. 211.)
FN18. Although this Court may take judicial notice of its
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own records, see note 5, supra, we are not required, in the
Rule 32 context, to search the record from a petitioner’s
direct appeal to ascertain the factual basis for a
postconviction claim. As noted above, the full factual basis
for the claim must be included in the petition itself.
Moreover:
“The term suppression ‘means non-disclosure of evidence
that the prosecutor, and not the defense attorney, knew to
be in existence.’ Ogden v. Wolff, 522 F.2d 816, 820 (8th Cir.
1975), cert. denied, 427 U.S. 911, 96 S. Ct. 3198, 49 L. Ed.
2d 1203 (1976). ‘The concept of “suppression” implies
that the Government has information in its possession of
which the defendant lacks knowledge and which the
defendant would benefit from knowing.’ United States v.
Natale, 526 F.2d 1160, 1170 (2d Cir. 1975), cert. denied, 425
U.S. 950, 96 S. Ct. 1724, 48 L. Ed. 2d 193 (1976).”
Donahoo v. State, 552 So. 2d 887, 895–96 (Ala. Crim. App. 1989).
“ ‘Because the government’s duty to disclose covers only
evidence within the government’s possession, the
government is not obliged to furnish information already
known by the defendant, or information, evidence, or
material that is available or accessible to the accused, which
the defendant could obtain by exercising reasonable
diligence. Discovery is also not required where the
defendant knows of the essential facts permitting one to
take advantage of the evidence.’ ”
Vanpelt v. State, 74 So. 3d 32, 69 (Ala. Crim. App. 2009) (quoting 22A
C.J.S. Criminal Law § 667 (2011)). Although Moody repeatedly alleged
that the specified evidence was not “provided” or “disclosed” to him,
he failed to allege anywhere within this claim that he did not already
know about this evidence at the time of his trial, or that this evidence was
Page 119 of 189

not available or accessible to him through the exercise of reasonable
diligence.FN19
FN19. Moody did raise a separate claim of newly
discovered evidence based in large part on the evidence that
formed the basis of this claim and alleged within that claim
that he did not know about this evidence. See Part II of this
opinion. However, he did not amend this claim to
incorporate by reference the allegation that he did not know
about the evidence and could not have reasonably
discovered it. In addition, as explained in Part II of this
opinion, Moody failed to allege, even within his
newly-discovered-evidence claim, when he discovered the
alleged evidence, how he discovered the alleged evidence,
what efforts he took to obtain the alleged evidence, or why
he could not have discovered the evidence earlier through
reasonable diligence.
Because Moody failed to plead sufficient facts indicating that the State
suppressed evidence in violation of Brady, he necessarily failed to plead
sufficient facts indicating that his appellate counsel was ineffective for
not raising this claim on appeal. Therefore, summary dismissal of this
claim of ineffective assistance of appellate counsel was proper.
Moody, 95 So. 3d at 851-54.
As the foregoing demonstrates, the ACCA concluded that because Moody did
not plead a Brady violation with the required specificity, then he necessarily did not
adequately plead an ineffective assistance of counsel claim based on counsel’s failure
to allege Brady violations on direct appeal. A state court ruling of deficient pleading
is considered to have been on the merits for purposes of federal court review pursuant

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to 28 U.S.C. § 2254(d). Boyd v. Comm’r, Alabama Dep’t of Corr., 697 F.3d 1320, 1331
(11th Cir. 2012) (“[B]ecause a dismissal . . . for failure to sufficiently plead a claim
under Rule 32.6(b) requires an evaluation of the merits of the underlying federal claim,
the Court of Criminal Appeals’s determination was insufficiently ‘independent’ to
foreclose federal habeas review. Accordingly, the district court was not barred from
considering the merits of the relevant claim.”) (quoting Frazier v. Bouchard, 661 F.3d
519, 525 (11th Cir. 2011)). Even though it was couched within the Court’s discussion
of an ineffective assistance of counsel claim, the ACCA’s detailed discussion of why
Moody’s substantive Brady claim failed to satisfy Alabama’s requirement that a habeas
petitioner plead facts with specificity constitutes a merits determination on Moody’s
substantive Brady claim such that this Court is required to conduct the deferential
review of 28 U.S.C. § 2254(d).
The ACCA’s decision was not contrary to or an unreasonable application of
clearly established federal law or based on an unreasonable determination of the facts.
As explained by the Eleventh Circuit:

A Brady violation has three components: “[1] The evidence at issue must
be favorable to the accused, either because it is exculpatory, or because
it is impeaching; [2] that evidence must have been suppressed by the
State, either willfully or inadvertently; and [3] prejudice must have
ensued.” Strickler v. Greene, 527 U.S. 263, 281–82, 119 S. Ct. 1936, 144
Page 121 of 189

L. Ed. 2d 286 (1999). Evidence is not considered to have been
suppressed if “the evidence itself . . . proves that [the petitioner] was
aware of the existence of that evidence before trial.” Felker v. Thomas, 52
F.3d 907, 910 (11th Cir. 1995). The prejudice or materiality requirement
is satisfied if “there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have
been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct.
3375, 87 L. Ed. 2d 481 (1985); see also Kyles v. Whitley, 514 U.S. 419, 433,
115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995). Materiality is determined by
asking whether the government’s evidentiary suppression undermines
confidence in the guilty verdict. See Kyles, 514 U.S. at 434, 436–37 & n.
10, 115 S. Ct. 1555.

Boyd, 697 F.3d at 1334-35. It is clear from Moody’s Rule 32 petition, which the ACCA
quoted, that he failed to provide facts regarding the evidentiary nature of the alleged
Brady material, the names of witnesses who would provide testimony in support of the
material he cited, how it was discovered, when it was discovered, and the reasons it
could not have been discovered through the exercise of reasonable diligence prior to
trial. To prevail, Moody was required to plead a factual basis which, if true, would
have clearly established suppression by the State of material, exculpatory evidence.
The ACCA’s determination that Moody failed to meet Alabama’s heightened factpleading requirement was neither contrary to or an unreasonable application of Brady.
It was also reasonable for the ACCA to conclude that Moody’s claim was not
pled sufficiently because he never alleged that he did not know about the evidence he

Page 122 of 189

listed and could not have reasonably discovered the evidence himself in time to raise
it at trial, in a motion for new trial, or on appeal. See Moody, 95 So. 3d at 854 n.19 &
858 n.21. The ACCA correctly noted that for purposes of a Brady claim, the
government is under no duty to disclose information already known by the defendant
or material that is available or accessible through the exercise of reasonable diligence.
Id. at 853-54. The ACCA’s finding that Moody did not plead that he was unaware of
the evidence or that it was not available or accessible to him through the exercise of
reasonable diligence is supported by the record, which actually indicates that Moody
was aware of much of the evidence either prior to trial or in time to at least raise a
Brady claim on direct appeal following trial.16 For example, with regard to his claim
regarding DNA results of saliva on the stamps of the envelopes containing the
threatening letters that were admitted at his trial, any DNA results obtained by
investigators were provided to Moody during his federal trial, which occurred prior
to the state prosecution, as well as during the state prosecution. (C.R. Vol. 2, p. 22349; Vol. 50, Tab #R-7, pp. 51-53, 65, 69.) With regard to the claim that the State
withheld evidence concerning another person buying all of the Red Dot gunpowder

16

Indeed, Moody’s separate claim that his direct appeal counsel was ineffective for failing
to raise a Brady claim, as discussed in part V. B. 4., infra, seems to imply that Moody believes the
information was known by him in time to be raised on appeal.
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from the gun shop in Griffin, Georgia, the record shows that during voir dire, Moody
insisted on raising this allegation, in the form of a question, with potential jurors.
(C.R. Vol. 60, Tab #R-22, p. 479, lines 8-12; p. 487, lines 10-14; p. 493, lines 7-11.)
Moody also wrote his pre-trial counsel about this evidence well before his trial began.
(C.R. Vol. 10, Tab #R-1, pp. 1911-12.). Finally, with regard to the evidence of other
possible suspects and other bombings, the record shows that Moody was made aware
of much of this information before his trial began.17 For example, Moody alleges in the
amended petition that the State withheld evidence regarding Robert Wayne and Mary
Ann O’Ferrell, who possessed the typewriter on which the letters included in the
package bombs were typed. The record, however, clearly shows that Moody was
17

Moody offers a laundry list of evidence regarding other suspects and other bombings
that he alleges was not disclosed to him: 1) evidence related to investigations into a mail bomb
that maimed a Maryland judge in December 1989, a series of unexploded pipe bombs in Los
Angeles, California, that were of similar construction as the bombs in this case, and threatening
letters in Texas utilizing the same numerical code as claimed was used in this case; 2) evidence
related to the investigation of Robert Wayne and Mary Ann O’Ferrell, who were the initial
suspects pursued by the FBI in relation to the murder of Judge Vance because they possessed the
typewriter on which letters included in the bomb package were typed; 3) evidence that the
computerized bomb database relied on by the FBI to detect similarities between the 1972 bomb
and the 1989 bombs did not exist at the time and so could not have been used; 4) evidence that at
the time of Moody’s trial, one of the State’s expert witnesses on explosives, Roger Martz, was
under investigation by the United States Department of Justice for professional misconduct for
his testimony in Moody’s federal trial about the same facts to which he testified in this case; 5)
evidence that at the time of Moody’s trial, another of the State’s expert witnesses on explosives,
Robert Webb, was under investigation by the United States Department of Justice for
professional misconduct for his testimony in Moody’s federal trial about the same facts to which
he testified in this case; and 6) evidence that the FBI was in possession of a report that
questioned the identification and correlation between the devices used in this case and the one in
Moody’s 1972 case.
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aware of this information before trial. (C.R. Vol. 2, Tab # R-1, p. 340; Vol. 3, Tab #
R-1, p. 531; Vol. 4, Tab # R-1, p. 723; Vol. 49, Tab # R-5, p. 33; Tab # R-6, pp. 12,
21-22; Tab # R-7, pp. 12-13, 18-19, 23-24, 30; Vol. 50, Tab # R-7, pp. 33-34.) In
addition, the record shows that Moody was aware of the 1989 bombing of a Maryland
judge well before his trial began. (C.R. Vol. 1, Tab # R-1, p. 55; Vol. 50, Tab # R-7, pp.
123-24.) Further, the allegations Moody makes against witnesses Roger Martz and
Robert Webb were based on what was commonly referred to as the “Whitehurst
Memorandum,” which Moody was well aware of prior to his trial.18 (C.R. Vol. 61,
Tab # R-22, pp. 661-663; Vol. 75, Tab # R-45, p. 19.) Moody was further aware prior
to his trial that the State would be relying on a search of computer records contained
in multiple agency databases. (C.R. Vol. 4, Tab # R-1, p. 707.) The foregoing
establishes that the ACCA’s determination that Moody failed to meet Rule 32’s
heightened pleading requirements by not alleging that he was unaware of this evidence
was reasonable in light of the record, which actually shows that Moody was aware of
it prior to trial. See Maharaj v. Sec., Dep’t of Corr., 432 F.3d 1292, 1315 (11th Cir.
18

As noted by the ACCA on direct appeal, FBI agent Frederic Whitehurst’s
memorandum was circulated within the FBI in October and November 1995. In it, Whitehurst
accused several of his fellow agents and lab employees of withholding exculpatory evidence and
manipulating their testimony in several high-profile criminal cases, including Moody’s 1991 trial
in Minnesota on federal charges related to the bombings. The Department of Justice provided
Moody with a copy of the memorandum in August 1995, and the State provided him with another
copy during the discovery process in September 1995, over a year before Moody’s trial began.
Page 125 of 189

2006) (“Our case law is clear that where defendants, prior to trial, had within their
knowledge the information by which they could have ascertained the alleged
Brady material, there is no suppression by the government.”) (internal quotation
marks and alternation omitted).
Finally, the Court also notes that portions of this claim are unexhausted, as
Moody presented different facts to the state courts in his Rule 32 proceedings in
support of his claim than he presents here. For example, in his Rule 32 petition,
Moody’s Brady claim pertaining to DNA evidence alleged:
When investigating my case, the FBI conducted DNA tests of the saliva
on the stamps affixed to the threatening letters admitted into evidence
at my trial. The result of these DNA tests did not provide a match
between myself and the DNA on those letters. In fact, the results
excluded me entirely. This information was never provided to the
defense.
(C.R. Vol. 79, Tab # R-57, p. 230, ¶ 51.) In this Court, however, Moody alleges that
“the saliva belonged to a person whose identity was not disclosed by the State.”
(Doc. 29, p. 44, ¶ 116). Moody never alleged to the state courts that a DNA match
was linked to “a person whose identity was not disclosed by the State.” The addition
of a conclusory allegation that a DNA “match” to an identified third-party was
suppressed by the State is a material addition to Moody’s Brady claim from what was
presented in state court. Additionally, in state court, Moody’s basis for his “Red Dot
Page 126 of 189

powder” Brady accusation was that a man named John Hamill told federal agents that
a man named Mark McSwigen claimed to have purchased “the entire inventory” of
such powder “available at the local store at that time.” (C.R. Vol. 79, Tab # R-57, p.
21, ¶ 54). Thus, as presented to the state courts the Brady component of suppression
by the State is lacking because Moody never alleged that any state official knew of this
fact. Here, however, Moody materially changes his claim to read, “The State
possessed evidence that a local skeet shooter named Mark McSwiggin was the man
who actually purchased the Red Dot gunpowder from the Shootin Iron, in Griffin,
Georgia.” (Doc. # 29, ¶ 192.) Here, Moody alleges this information was provided to
the state. (Doc. 29, ¶ 121.)19 Additionally, in his Rule 32 petition, Moody never
alleged, as he does in his amended petition, that the State withheld any evidence
relating to a December 1989 mail bombing of a judge in Maryland. (C.R. Vol. 79, Tab
# R-57, pp. 19-22.) Likewise, Moody’s Rule 32 petition’s allegations regarding Roger
Martz make no mention of the Department of Justice report cited in the amended

19

These factual differences between Moody’s state court presentation of this claim and
the amended petition are important because for purposes of a Brady claim, courts have refused to
impute knowledge from one sovereign to another depending on the relationship between the two
entities. See Moon v. Head, 285 F.3d 1301, 1309 (11th Cir. 2002) (stating that the determination
of whether knowledge is imputed to the State in a dual federal-state prosecution situation must
be conducted on a case-by-case basis, citing United States v. Antone, 603 F.2d 566 (5th Cir. 1979),
and citing cases in which courts have held that knowledge was not imputed from one government
entity to another).
Page 127 of 189

petition. (Compare C.R. Vol. 79, Tab # R-57, p. 21, ¶ 55 with Doc. # 29, ¶¶ 198-199.)
Finally, the allegations against Robert Webb were never presented to the state courts.
As the Eleventh Circuit has observed, “the prohibition against raising non-exhausted
claims in federal court extends not only to broad legal theories of relief, but also to the
specific assertions of fact that might support relief.” Kelley, 377 F.3d at 1344. Thus,
this claim is further procedurally barred due to Moody’s failure to exhaust portions
of the factual predicate supporting the claim. See Pope, 680 F.3d at 1286; Kelley, 377
F.3d at 1344.
V.

MOODY’S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
A.

Moody’s claim that he did not receive effective assistance of trial
counsel

Moody’s ineffective assistance of trial counsel claim is divided into six suballegations. Each is addressed in turn.

1.

The allegation that the Alabama statute barring interim
payments for attorneys representing indigent defendants
denied Moody his right to effective assistance of trial counsel
and expert assistance

Moody argues that he was denied the effective assistance of counsel at trial in
part because of the insufficient funding provided by the State of Alabama for the
compensation of capital defense attorneys. At the time of Moody’s representation by
Page 128 of 189

trial counsel, Dan Turberville and Richard Jaffe, Alabama Code section 15-12-21(e)
(1975) provided for payment to attorneys and experts at the conclusion of an indigent
defendant’s trial, not before. Under this statute, no payments were made to
Turberville and Jaffe; instead, the attorneys received compensation for attorneys fees
and for payment of experts only through a separate agreement with the Attorney
General’s Office.20 Moody now argues that this Alabama statute deprived him of his
Sixth Amendment right to effective counsel, violated the Equal Protection Clause,
violated the doctrine of separation of powers, and resulted in a “taking without just
compensation.” He also argues that it deprived him of the assistance of necessary
experts in violation of his Fifth, Sixth, Eighth, and Fourteenth Amendment rights.
Portions of this claim are procedurally barred as unexhausted. Before the
ACCA on direct appeal, Moody argued only that the statute was unconstitutional as
applied to his case as it deprived him of the ability to obtain expert assistance and
denied him “due process and equal protection.” Moody never presented to the state
courts, either on direct appeal or during post-conviction proceedings, the portion of
this claim alleging violation of the separation of powers doctrine and alleging an
unconstitutional taking. As such, Moody did not exhaust his state court remedies and

20

Moody elsewhere claims that Turberville and Jaffe’s participation in this agreement
rendered their performance constitutionally deficient. See part V. A. 5., infra.
Page 129 of 189

those portions of the claim are now procedurally barred from this Court’s review. See
Collier, 910 F.2d at 772 (“When a petitioner has failed to present a claim to the state
court and under state procedural rules the claim had become procedurally defaulted,
the claim will be considered procedurally defaulted in federal court.”).21
With regard to the portion of the claim alleging deprivation of his Sixth
Amendment right to effective counsel pertaining to interim payments for attorneys
Turberville and Jaffe, Moody similarly did not raise this claim on direct appeal. As
recounted by the ACCA on direct appeal, while Turberville and Jaffe were still
representing Moody, they sought and received an order from the trial court directing
the state comptroller to pay immediately certain funds sought for their compensation
and payment for experts and paralegals. Moody, 888 So. 2d at 565-66. The
comptroller refused, citing Ala. Code § 15-12-21. Id. at 566. The State petitioned the
ACCA for a writ of prohibition, requesting that the court quash all orders of the trial
court that directed the comptroller to immediately pay the funds requested by
Moody’s counsel. Id. The ACCA granted the writ; Moody, through Jaffe and

21

The Court here notes that Moody argues that for each of his claims of ineffective
assistance of trial counsel that is found to be procedurally defaulted because Moody never raised
the claim on direct appeal, the ineffectiveness of direct appeal counsel in failing to raise this issue
constitutes cause to excuse the default. For the reasons set forth in part V. B. 6. of this opinion,
infra, Moody’s claim that his direct appeal counsel was constitutionally ineffective for failing to
raise ineffective of trial counsel claims fails, so the default is not excused.
Page 130 of 189

Turberville, sought a rehearing, which was denied; and Moody, again through
counsel, then sought certiorari review in the Alabama Supreme Court, arguing that the
refusal to immediately provide funds violated Moody’s Sixth and Fourteenth
Amendment rights. Id. The Alabama Supreme Court initially granted the petition,
but later quashed it, writing that because in the meantime the trial court had granted
Moody’s request to proceed pro se and allowed Turberville and Jaffe to withdraw and
thus they were no longer seeking interim payments, the issue of whether the statute
was unconstitutional for failing to provide for interim payments to attorneys was
moot. Id. (citing Ex parte Moody, 658 So. 2d 446, 448 (Ala. 1995)).22 Accordingly, the
ACCA determined on direct appeal that in light of the Alabama Supreme Court’s
ruling and the fact that Moody did not pursue his claim on direct appeal that the
payment limitations of § 15-12-21(d) for compensation of attorneys are
unconstitutional, it would not consider the claim. Id. at n.31. However, the ACCA
22

The Alabama Supreme Court also eventually upheld the facial validity of Ala. Code §
15-12-21 with regard to Moody’s claim that he was denied his right to the assistance of experts, as
is discussed infra. See Ex parte Moody, 684 So. 2d 114, 122 (Ala. 1996) (“Section 15–12–21(e),
Ala. Code 1975, provides that within a reasonable time after the conclusion of the trial or ruling
on a motion for a new trial or after an acquittal or other judgment disposing of the case, a bill for
services rendered may be submitted by the clerk of the court to the comptroller for payment. We
see no reason to contravene the mandate of the legislature and allow for experts aiding indigent
defendants to be paid before trial. As stated earlier, an indigent defendant is not entitled to the
expert of his choosing, when the expert is to be paid at public expense. Accordingly, any expert
who requires payment before trial could be replaced by another person with expertise in the
particular field.”).
Page 131 of 189

did note that while Moody had argued in the trial court that the failure to provide
advance payments to his attorneys and for experts violated his constitutional rights by
resulting in there being no competent counsel willing to represent him, Alabama’s
statutory scheme for compensating court-appointed attorneys in capital cases had
withstood numerous constitutional challenges. Id. (citing cases). In light of Moody’s
failure to reassert this portion of the claim on direct appeal, this Court is procedurally
barred from considering it. Even if it were not, Moody’s petition contains no facts to
support his conclusory assertion that the statute is unconstitutional as it applied to the
assistance of Jaffe and Turberville in his case and thus fails to satisfy the heightened
pleading standard required in federal habeas cases. See McFarland, 512 U.S. at 856,
114 S. Ct. at 2572.
As noted, Moody did pursue on direct appeal that portion of the claim alleging
that the statute unconstitutionally interfered with Moody’s right to the assistance of
experts. The ACCA denied the claim on the merits, writing:
[I]n the months leading up to Moody’s trial date, the trial court
conducted three ex parte hearings on Moody’s request for experts. At
the outset of the first of those hearings, held May 7, 1996, Moody
informed the trial court that, before advising the trial court of the experts
he was requesting, he wanted to contact each of 21 experts who had been
approved earlier under the ex parte orders of the trial court that had been
quashed when the Court of Criminal Appeals issued its writ of
prohibition, and to ask those experts whether they required prepayment
Page 132 of 189

for their services or would be willing to wait for payment until the
conclusion of the trial. The trial court agreed to give Moody time to
contact those experts. A second ex parte hearing on Moody’s request for
experts was held nearly 10 weeks later, on July 18, 1996; the record
reflects the following exchange between the trial court and Moody at that
hearing:
“THE COURT: Mr. Moody, you and I had a discussion on
May 7 at the conclusion of an earlier hearing where it was
just you and I present at that time. Do you recall that?
“[MOODY]: Yes, I do.
“THE COURT: The last time you and I talked. And you
had indicated to me on that time, and I’m reading from the
transcript here, that you would want to write each of the
experts that had been approved by the Court as far as the
Supreme Court ruling and asking again their position in
regard to payment and then at that point in time, ‘I would
be able to discuss with the Court in a more informed way
where I stood so far as all these people are concerned.’
“So I guess really what I need to hear from you at
this point, sir, is what your feelings are and what your
situation is in regard to experts.
“[MOODY]: Well, the situation is that I am provided with
one sheet of paper, one envelope and one stamp a week, no
pen. I’m provided with a telephone that allows me to call
five preselected numbers. So I haven’t had any means to
contact anybody.
“In addition to that, the 65 boxes of legal material
and all the legal material that [the paralegal who was
assisting Moody in his defense] has has been unavailable to
me.
Page 133 of 189

“THE COURT: Do you know where that is? Have you
been told where that material is?
“[MOODY]: I think she has it at different locations—
“THE COURT: [The paralegal] does?
“[MOODY]:—is my understanding. Yes, sir.
“THE COURT: In going through the record of your
previous trial in federal court, or trials, I have made a list
here and have determined, of course this would have to be
double checked, but these following experts, and I want to
go over them with you one by one, were paid at the federal
trial.
“[MOODY]: May I interrupt you, Your Honor, before you
get into that?
“THE COURT: Yes.
“[MOODY]: I have repeatedly tried to indicate to the
Court that I’m not being provided with material necessary
to represent myself pro se, and as a result of that, I will
advise the Court at this point in time that I am unable to
proceed.
“THE COURT: What do you mean by that, sir? Are you
requesting the Court appoint you an attorney?
“[MOODY]: No, sir, I’m not. I’m saying that the Court
has failed in its responsibility to provide me with what I
must have in order to defend myself pro se and as a result of
that failure, I cannot proceed.

Page 134 of 189

“THE COURT: Well, sir, you realize the trial date has
been set?
“[MOODY]: Sure, I realize that.
“THE COURT: You know that?
“[MOODY]: I realize that.
“THE COURT: Well, let me just, and I appreciate you,
you know, stating that, but let me just go ahead and
continue with what I was saying. I have a list here of the
experts.
“[MOODY]: Well, Your Honor, I don’t want to make any
comment regarding this proceeding until I’m provided with
whatever I need in order to make a legitimate defense.
“THE COURT: Okay. Well, I’m going to read for the
record a list of experts that were paid at the federal trial and
who, it’s my understanding, this would have to be
confirmed, are willing to be reimbursed under Alabama law.
“What that means for the record is that they would
come and testify and at the conclusion of the case their
reasonable expenses, if approved by the Court, would be
paid by the comptroller.
“Number one is George J. Bonebrake,
B-o-n-e-b-r-a-k-e, fingerprint consultant. Would you
answer whether that gentleman was used as an expert in
your federal case or not?
“[MOODY]: No, sir, I won’t. I’ve made all the statements
I intend to make regarding this case until I’m provided with
what I need to defend the case.
Page 135 of 189

“THE COURT: So let me make sure I understand. You’re
saying to me here that I have a list of eight experts, whose
names I’m going to read in a moment anyway, but it’s your
position—I guess I need to get straight on exactly what
your position is.
“You are not requesting that this Court appoint you
an attorney at this time?
“[MOODY]: Well, Your Honor, this Court had the
opportunity to appoint an attorney and did so, not you but
the Court on two different occasions. They were
inadequate. I brought that to the Court’s attention. The
Court failed to correct the problems.
“I then sought to subpoena about 12 witnesses to
show the Court the extent of the inadequacy and I was not
allowed to examine those witnesses. So I have no reason
whatsoever to believe that the Court has a sincere interest
in providing me with adequate representation.
“THE COURT: Okay. So therefore, you are not
requesting, based on the reason that you’ve given here, you
are not asking this Court to appoint you an attorney?
“[MOODY]: No, sir, I am not. I’m asking the Court to
provide me with what is necessary for me to defend
myself.”
(Ex parte hearing of July 18, 1996, supp. C. 4–8.)
Later at that same ex parte hearing, Moody informed the trial
court that he was aware of four of his proposed experts who had
reviewed the “Whitehurst memorandum” (see Part II of this opinion),
and who had indicated that they were willing to provide their services to
Page 136 of 189

Moody while waiting until the trial’s conclusion to be reimbursed. At the
time of the hearing, however, Moody could provide the trial court with
the name of only one of those experts.
A third and final ex parte hearing on Moody’s request for experts
was held on August 13, 1996. At that hearing, Moody indicated that four
of his proposed experts had agreed to provide their services to him
without prepayment. Moody, through the paralegal who was voluntarily
assisting Moody in his defense, provided the trial court with the names
of those experts. Moody then advised the trial court that the paralegal
had furnished copies of the Whitehurst memorandum to 17 other
potential expert witnesses who had previously indicated that they would
require prepayment for their services; Moody informed the court that
the paralegal had asked those experts whether, after reading the
memorandum, they would consider providing their services to Moody
and waiting for reimbursement, presumably on Moody’s conjecture that
the experts would “make concessions” regarding prepayment because
the memorandum would convince them that Moody was being
“framed.”FN35 The trial court and Moody then engaged in the
following exchange:
FN35. From the record, it appears that Moody never
informed the trial court whether any of the experts in
question changed their position regarding prepayment after
reading the Whitehurst memorandum.
“THE COURT: Sir, do you understand that under the
current criminal rules of procedure in the state of Alabama
that the State, the attorney general’s office, has a right to
the names of these experts prior to trial?
“[MOODY]: Prior to trial, yes, I do.
“THE COURT: You understand that?
“[MOODY]: Right.
Page 137 of 189

“THE COURT: Do you have any objections to the Court
giving these four names to the attorney general’s office
today?
“[MOODY]: Yes, I would.
“THE COURT: All right. What grounds is that?
“[MOODY]: Because I think it would be premature. These
people haven’t even—in other words, so far we haven’t
even set up a system whereby the evidence can be
presented to these people. This is one of the things I
wanted to talk to you, Your Honor. As soon as you will
name somebody that can get the evidence to those people
I can present information to the Court that will be that
specific where I can say that particular evidence needs to go
to a certain expert for testing.
“THE COURT: What evidence you’re talking about, is
this evidence what was used against you in the earlier trial?
“[MOODY]: Yes, sir.
“THE COURT: But you have seen it, or you are at least
familiar with what it’s called?
“[MOODY]: Yes, sir. Well, I’m not sure what it’s called. The way I would like to do
it is—in other words, the State has all these pictures attached as exhibits. I would have
no objection with presenting a motion to the Court and saying these pictures need to
go to a certain expert with his name being held ex parte until after the results are
presented to me. And then at that point in time, after all this is done, after the experts
have done their thing, then I think that would be the appropriate time to present their
names to the State.”
(Ex parte hearing of August 13, 1996, supp. C. 6–7.)
Page 138 of 189

On August 27, 1996, the trial court entered an order with regard
to Moody’s request for experts; in that order, the trial court found, in
pertinent part:
“The undersigned [William H. Rhea III, Circuit Judge]
has, repeatedly, advised [Moody] that he should allow the
Court to appoint counsel to represent him. [Moody] has
refused court-appointed counsel and is continuing to
represent himself pro se. [Moody] has advised the Court he
has been in contact with certain experts and is contacting
other experts. If [Moody] can meet his burden of proving
to the Court that he needs these experts, the Court will
allow the same. [Moody] is advised that this case will not be
continued for his failure to obtain said experts.
“The undersigned has had three (3) ex parte hearings with
[Moody] since the 4/19/96 decision of the Alabama
Supreme Court was rendered in this case [in Ex parte
Moody, 684 So.2d at 122]. At the hearing on 8/13/96,
[Moody] gave the Court the names of several experts he
may wish to use and stated that he was in the process of
contacting others. [Moody] stated to the court he could not
state, with any certainty, he was going to call any of these
experts. The undersigned ORDERS [Moody] to
immediately notify the Court if and when he decides he
wants to call these experts as witnesses so the Court can
rule if said witness can be used by [Moody] and, also, so the
State of Alabama can be notified of the names, etc., of these
experts.”
(Vol. 1, C. 41–42.)
It appears from the record that Moody never notified the trial
court whether he wanted to use the experts at trial. Nor did he ever
designate any specific item of evidence that he wanted made available to
a specific expert. On October 3, 1996, the week before Moody’s trial
Page 139 of 189

began, the trial court entered an order that contained the following
findings:
“In conformance with the April 1996 order of the Alabama
Supreme Court the undersigned [William H. Rhea III,
Circuit Judge] had several ex parte hearings with [Moody]
concerning the question of [Moody’s] experts to be used at
trial, if any.
“The undersigned has received no specific information
from [Moody] concerning the experts [Moody] expects to
use at trial. The undersigned went over the names of the
experts which [Moody] had proposed to use in his previous
Federal trial in Minnesota. In addition, the undersigned
discussed with [Moody] the experts who were previously
approved by this Court and also other alleged experts of
whom [Moody] apprised the Court.
“[Moody] has failed to give the Court any specific names
of experts he definitely plans to call at trial. [Moody]
requested [that] this Court provide certain parts of the
evidence for inspection and testing by [Moody’s] experts
but when the Court questioned [Moody] as to the specific
type of evidence needed and to whom said evidence should
be sent, [Moody] failed and refused to supply this
information to the Court.
“[Moody] had indicated to the Court, since he was
representing himself, that he was having difficulty giving
the Court the necessary information about his proposed
experts. The Court went into great detail with [Moody],
pointing out, again, to [Moody] the dangers of representing
himself, the fact that the State of Alabama was attempting
to have the death penalty imposed in this case, and that
[Moody] needs an attorney to represent him. [Moody],
once again, refused to allow the Court to appoint counsel
Page 140 of 189

for him.”
(Vol.1, C. 46.)
As we have noted, the Alabama Supreme Court, in reviewing
pretrial proceedings involving Moody, upheld the facial validity of §
15–12–21, Ala. Code 1975, as the statute then read. The Supreme Court
specifically found that the statute’s provision disallowing pretrial
payment of experts passed constitutional muster because an indigent
defendant does not have a constitutional right to an expert of his or her
own choosing, and, therefore, any expert requested by the defendant
who requires advance payment can properly be replaced by an expert
who does not.FN36 See Ex parte Moody, 684 So. 2d at 121–22. We find
that Moody has failed to demonstrate that § 15–12–21, as it read at the
time of his trial, was unconstitutional as applied to his case.FN37 After
examining the record, including the transcripts of the ex parte hearings
conducted by the trial court, we are convinced that Moody, although he
was afforded every opportunity to establish his need for expert
assistance, failed to demonstrate specifically the purpose and nature of
the expert assistance he sought. We agree with the trial court that Moody
was insufficiently forthcoming with information concerning the manner
in which he expected his experts to aid in his defense or what he
expected his experts’ testimony to prove at trial. As the trial court found,
Moody failed to inform the trial court of the specific evidence he wanted
made available for inspection and testing by his experts, and failed to
provide the trial court with the names of the experts to whom he wanted
specific items of evidence made available. The record reflects that
Moody never furnished the trial court (or the State) with the name of any
expert he planned to call at trial. In ensuring that Moody received a fair
trial, the trial court discussed with Moody the possibility of appointing
those experts who had assisted Moody in his 1991 federal trial—which
involved virtually the same evidence.FN38 However, rather than
cooperating with the trial court in its efforts to see that he was afforded
the necessary expert assistance, Moody refused to discuss the possibility
of the appointment of the experts who had assisted him in his federal trial
and instead persisted in raising complaints about the disabilities caused
Page 141 of 189

by his pro se status.FN39 This was, unfortunately, consistent with
Moody’s other obstructionist and dilatory actions in this case. Moody
has not shown that he is entitled to any relief on his claim that the
disallowance of advance payments for experts deprived him of his
constitutional rights.
FN36. Again, we recognize that following the 1999
amendment to § 15–12–21, experts may now be paid before
the conclusion of a defendant’s trial. See note 29, above.
FN37. That a criminal statute is constitutionally
permissible in the abstract does not necessarily mean that
application of the statute in all cases will pass constitutional
muster. See State v. Thompson, 349 N.C. 483, 496–97, 508
S.E.2d 277, 285 (1998), quoting United States v. Salerno,
481 U.S. 739, 751, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)
(where the United States Supreme Court held that the
pretrial detention procedures under the Bail Reform Act
were sufficient to survive a facial constitutional challenge,
but recognized that the procedures “ ‘might be insufficient
in some particular circumstances’”).
FN38. The federal district court had appointed 12 experts
to assist Moody in his federal trial. None of those experts,
however, was called to testify at Moody’s federal trial.
FN39. Nonetheless, Moody staunchly refused to allow the
trial court to appoint counsel for him.
Moody, 888 So. 2d at 570-74 (some footnotes omitted).
Moody does not allege that the ACCA’s ruling on this issue is contrary to, or
an unreasonable application of, clearly established federal law or an unreasonable
determination of the facts. Indeed, in light of Supreme Court precedent establishing
Page 142 of 189

that an indigent defendant is not entitled to the expert of his particular choice, see Ake
v. Oklahoma, 470 U.S. 68, 84, 105 S. Ct. 1087, 1097 (1985), and the fact that Moody
never demonstrated the purpose and nature of the expert assistance that he sought,
despite being afford several opportunities to do so, the ACCA’s decision is in accord
with established precedent and supported by the facts of the record. Habeas relief is
not warranted on this portion of the claim.
2.

The allegation that trial counsel was ineffective for failing to
adequately investigate the facts surrounding the offense

In this sub-claim, Moody faults Jaffe and Turberville for not discovering the
“Whitehurst Memorandum” before they withdrew from the case, which Moody
alleges would have given them reason to believe that investigators had withheld
exculpatory evidence in Moody’s 1991 federal trial. Moody also charges that effective
trial counsel would have been able to properly object to the introduction of certain
witnesses, questioned the accuracy of certain witnesses’ testimony, and challenged the
admission of Moody’s prior bad acts at trial.
Moody raised this claim for the first time in his Rule 32 proceedings. The
ACCA, in its opinion affirming the trial court’s denial of Rule 32 relief, found that this
claim was procedurally barred by Alabama Rule of Criminal Procedure 32.2(a)(3) and

Page 143 of 189

(5),23 as Moody never raised it in a motion for new trial and then on direct appeal in
compliance with Alabama procedural law. Moody, 95 So. 3d at 837-43.24 The state
court’s rejection of this constitutional claim on adequate and independent state
procedural grounds precludes this Court from reviewing the merits of the claim. See
Ward, 592 F.3d at 1156.
Even if this claim were not procedurally defaulted, this Court would dismiss it
based on Moody’s failure to plead facts stating a claim. See McFarland, 512 U.S. at
856, 114 S. Ct. at 2572 (heightened fact pleading required in federal habeas actions).
Moody states in his petition that effective counsel would have done various things at
trial, yet he fails to demonstrate how they could have done so in light of their

23

Preclusion of Grounds. A petitioner will not be given relief under
this rule based upon any ground:
...
(3) Which could have been but was not raised at trial; or
...
(5) Which could have been but was not raised on appeal . . . .

Ala. R. Crim. P. 32.2(a)(3), (5).
24

The ACCA noted that under Alabama law, a claim of ineffective assistance of trial
counsel may be raised for the first time in a Rule 32 petition only if the claim “cannot reasonably
be presented in a new trial motion.” Id. at 842 (citing Ex parte Ingram, 675 So. 2d 863 (Ala.
1996), and its progeny). The ACCA found that Moody could have reasonably raised his
ineffective of pre-trial counsel claims in a motion for a new trial.
Page 144 of 189

withdrawal at Moody’s insistence in August 1994, some two years prior to Moody’s
trial. Additionally, Moody’s assertions about Turberville and Jaffe’s failure to
discover the “Whitehurst Memorandum” also fail to state a claim for relief
considering Moody states elsewhere in his amended petition that the document was
not circulated until one year after his attorneys withdrew and Moody’s motion to
proceed pro se was granted. (Doc. 29 at 28 n.83).
Finally, even if not procedurally defaulted and properly pleaded, Moody’s claim
fails on its merits. Having elected to represent himself, Moody cannot blame any
shortcomings in the defense on the removal of attorneys which Moody orchestrated
through his own actions. See Faretta, 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46
(“[A] defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounts to a denial of ‘ineffective assistance of counsel.’”).
Habeas relief is not warranted on this claim.
3.

The allegation that trial counsel was ineffective for failing to move
for a change of venue in light of the fact that Judge Vance was a
popular judge in Jefferson County and for failing to request a lifequalified jury

As with the previous allegation, Moody raised this claim for the first time in his
Rule 32 proceedings, and the ACCA, in its opinion affirming the state trial court’s
denial of Rule 32 relief, found that this claim was also procedurally barred by Alabama
Page 145 of 189

Rule of Criminal Procedure 32.2(a)(3) and (5), as Moody never raised it in a motion
for new trial and then on direct appeal in compliance with Alabama procedural law.
Moody, 95 So. 3d at 837-43. The state court’s rejection of this constitutional claim on
adequate and independent state procedural grounds precludes this Court from
reviewing the merits of the claim.
Also as with the previous allegation, even if this claim were not procedurally
defaulted, this Court would dismiss it based on Moody’s failure to plead facts stating
a claim and on its merits. Moody does not explain why he could not have moved for
a change of venue or for a life-qualified jury in the intervening two years between
Moody’s decision to proceed pro se and his trial. See Faretta, 422 U.S. at 834 n.46, 95
S. Ct. at 2541 n.46. Habeas relief is not warranted on this claim.
4.

The allegation that trial counsel was ineffective for failing to
investigate the status of Moody’s mental health before moving
to withdraw from representation

Moody argues that Turberville and Jaffe should have taken his long history of
mental health problems, including paranoid personality disorder, of which they were
aware, into consideration before moving to withdraw. Again, Moody raised this claim
for the first time in his Rule 32 proceedings, and the ACCA, in its opinion affirming
the trial court’s denial of Rule 32 relief, found that this claim was procedurally barred

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by Alabama Rule of Criminal Procedure 32.2(a)(3) and (a)(5), as Moody never raised
it in a motion for new trial and then on direct appeal in compliance with Alabama
procedural law. Moody, 95 So. 3d at 837-43. The state court’s rejection of this
constitutional claim on independent and adequate state procedural grounds precludes
this Court from reviewing the merits of the claim. See Ward, 592 F.3d at 1156.
5.

The allegation that trial counsel was ineffective for operating
under a conflict of interest created by a $35,000 fund
controlled by the trial judge

Moody bases this claim on the existence of the stipulation between Turberville
and Jaffe and the Alabama Attorney General’s Office that provided for the Attorney
General’s depositing $35,000 of that office’s funds with the trial court for the court
to then distribute to Moody’s counsel upon request as a means of payment for their
services. Moody argues that trial counsel’s acquiescence in this arrangement
constitutes ineffective assistance of counsel because it resulted in counsel’s loyalties
being divided as they were receiving compensation directly from the prosecutor’s
office; because his counsel should have realized that, due to Moody’s mental state,
when Moody discovered the arrangement, it would lead, and did lead, to an
irreparable breakdown in the attorney-client relationship; and because his counsel did
not use any of these funds for experts.

Page 147 of 189

Again, Moody raised this claim for the first time in his Rule 32 proceedings, and
the ACCA, in its opinion affirming the trial court’s denial of Rule 32 relief, found that
this claim was procedurally barred by Alabama Rule of Criminal Procedure 32.2(a)(3)
and (5), as Moody never raised it in a motion for new trial and then on direct appeal
in compliance with Alabama procedural law. Moody, 95 So. 3d at 837-43. The state
court’s rejection of this constitutional claim on independent and adequate state
procedural grounds precludes this Court from reviewing the merits of the claim. See
Ward, 592 F.3d at 1156. Additionally, Moody’s allegation that an actual conflict
existed because trial counsel compensated themselves from the trial court’s fund
rather than pay experts was never presented to the state courts. As such, this portion
of the claim is unexhausted. See Picard, 404 U.S. at 275, 92 S. Ct. at 512. Finally, even
if not procedurally defaulted, the Court would dismiss the claim on the merits.
Regardless of Turberville and Jaffe’s use of this fund, they were permitted to
withdraw in August 1994. Thereafter, Moody elected to proceed pro se and declined
appointment of new counsel numerous times. Moody cannot establish prejudice as
to this claim.
6.

The allegation that foregoing five sub-claims, considered
collectively, establish a violation of Moody’s constitutional
right to effective assistance of trial counsel

Page 148 of 189

Moody argues that the collective effect of the foregoing five sub-claims violated
his right to the effective assistance of trial counsel. To the same extent portions of the
foregoing claims were found to be procedurally barred under state law, this claim, too,
is procedurally barred. Additionally, this specific claim, that these particular five subclaims constitute error when considered collectively, was never presented to the state
courts. This particular claim, then, is unexhausted. See Picard, 404 U.S. at 275, 92
S. Ct. at 512.
B.

Moody’s claim that he did not receive effective assistance of
appellate counsel

Moody alleges that direct appeal counsel failed to raise certain claims and did
not raise others adequately, constituting ineffective assistance. He divides this claim
into ten sub-allegations. Each claim is addressed in turn.
1.

The allegation that appellate counsel was ineffective for failing
to argue that the trial court should have sua sponte changed the
venue of the trial due to extensive media coverage

Moody asserted this claim in his Rule 32 Petition, and the ACCA affirmed the
trial court’s dismissal of the claim based on Moody’s failure to sufficiently plead the
claim as required by Alabama Rules of Criminal Procedure 32.3 and 32.6(b).25 Moody,

25

The petitioner shall have the burden of pleading and proving by a
preponderance of the evidence the facts necessary to entitle the
petitioner to relief. The state shall have the burden of pleading any
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95 So. 3d at 843-45. Because a state court ruling of deficient pleading is considered
to have been on the merits, this Court will conduct the deferential review of the claim
pursuant to 28 U.S.C. § 2254(d). See Boyd, 697 F.3d at 1331.
Moody has not shown that the ACCA’s decision was contrary to, or an
unreasonable application of, clearly established federal law for purposes of this
Court’s deferential review under § 2254(d). The clearly established federal law is the
Strickland analysis governing ineffective assistance of counsel claims. This Court’s
inquiry on a § 2254(d) review is “whether the state court’s application of the
Strickland standard was unreasonable. This is different from asking whether defense
counsel’s performance fell below Strickland’s standard.” Harrington, 131 S. Ct. at
785. In other words, this Court need not determine “whether counsel’s actions were
reasonable,” but instead “whether there is any reasonable argument that counsel
ground of preclusion, but once a ground of preclusion has been
pleaded, the petitioner shall have the burden of disproving its
existence by a preponderance of the evidence.
Ala. R. Crim. P. 32.3.
Specificity. Each claim in the petition must contain a clear and
specific statement of the grounds upon which relief is sought,
including full disclosure of the factual basis of those grounds. A
bare allegation that a constitutional right has been violated and
mere conclusions of law shall not be sufficient to warrant any
further proceedings.
Ala. R. Crim. P. 32.6(b).
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satisfied Strickland’s deferential standard.” Id. at 788. As noted by the ACCA,
Moody’s Rule 32 petition merely concluded that “[t]he jury pool in Jefferson County
was saturated with potential jurors who had read, heard and discussed the facts of
[the] case.” Moody, 95 So. 3d at 844. Moody did not identify any such jurors in voir
dire, nor provide a basis of what they allegedly heard, read or discussed. Id. at 845.
Moody also described “extensive newspaper articles” spanning several years, without
attaching such articles to his petition and without listing the title, publication, date of
publication, and objectionable content of such articles. Id. Nor did Moody allege the
name of a single juror who sat on his case who had either read or heard about his case.
Id. Before a change of venue is warranted, the community must be saturated with
prejudicial pretrial publicity or there must be actual prejudice against the defendant.
See, e.g., Skilling v. United States, 561 U.S. 358, 378, 130 S. Ct. 2896, 2913 (2010). The
ACCA reasonably concluded that because Moody failed to allege sufficient facts
indicating that he would be entitled to a change of venue due to prejudicial or actual
prejudice, he necessarily failed to plead sufficient facts to indicate that his appellate
counsel was ineffective for not raising the claim on direct appeal.26 Habeas relief is not
26

Even assuming that Moody’s allegation of “extensive newspaper articles” spanning
“several years” might be considered fact-specific pleading, under federal law the existence of
newspaper articles, alone, does not require a change of venue for pretrial publicity. Instead, the
Supreme Court has held that the proper inquiry requires a fact-specific review of the contents of
such articles and the dates of their publication. See, e.g., Skilling, 561 U.S. at 383, 130 S. Ct. at
Page 151 of 189

warranted on this claim.
2.

The allegation that appellate counsel was ineffective for not
arguing that the trial court conducted insufficient voir dire
based on the media coverage surrounding the crime, which
allegedly warranted a more in-depth voir dire process

As with the previous claim, Moody asserted this claim in his Rule 32 petition,
and the ACCA on appeal from the trial court’s denial of relief determined that
Moody’s pleading was deficient under Alabama Rule of Criminal Procedure 32.3 and
32.6(b) and upheld the dismissal of the claim. Moody, 95 So. 3d at 843-45. As noted,
a state court ruling of deficient pleading is considered to have been on the merits for
purposes of this Court’s review under § 2254(d). Boyd, 697 F.3d at 1331.
Moody has not shown that the state court decision was contrary to, or an
unreasonable application of, clearly established federal law. The state courts noted
that Moody’s pleadings were deficient because he did not identify a single prejudicial
juror who sat on his case due to the insufficient voir dire alleged, such that appellate
counsel should have raised the argument. Moody, 95 So. 3d at 846 (“As the circuit
court noted in its order, Moody failed to identify a single juror who sat on his jury who
he believed was biased. Rather, he made only the bare and conclusory allegation that

2916.
Page 152 of 189

‘members of my jury were biased against me as a result of their exposure to media
coverage and their pre-existing views on the death penalty.’”). But see Coleman v.
Zant, 708 F.2d 541, 544 (11th Cir. 1983) (explaining that actual prejudice requires that
a defendant show both (i) “that one or more jurors who decided the case entertained
an opinion, before hearing the evidence adduced at trial, that the defendant was
guilty” and (ii) that such jurors “could not have laid aside these preformed opinions
and rendered a verdict based on the evidence presented in court”) (citing Irvin v.
Dowd, 366 U.S. 717, 727, 723, 81 S. Ct. 1639, 1645, 1643 (1961)). As Moody failed to
demonstrate that the trial court conducted insufficient voir dire, there is no reasonable
argument that Moody’s appellate counsel did not satisfy the Strickland standard in not
raising this argument. Harrington, 131 S. Ct. at 788.
In an apparent attempt to overcome this deficiency, Moody now identifies in
his amended petition juror M.W. as “biased.” (Doc. 29 at ¶ 97.) However, as he
never presented this factual allegation to the state courts, it is unexhausted and not
entitled to relief in this Court. See Kelley, 377 F.3d at 1344 (“The prohibition against
raising non-exhausted claims in federal court extends not only to broad legal theories
of relief, but also to the specific assertions of fact that might support relief.”).
3.

The allegation that appellate counsel was ineffective for failing
to assert claims of prosecutorial misconduct
Page 153 of 189

Moody’s third sub-claim of ineffective assistance of appellate counsel is further
divided into four specific allegations of prosecutorial misconduct which Moody alleges
should have been challenged by direct appeal counsel—1) comments made during
closing argument that Moody was a member of the Ku Klux Klan, 2) comments that
Moody construes as criticism of his election not to testify at trial, 3) the introduction
of victim impact evidence during the guilt phase of the trial, and 4) asking the jury to
use their verdict to “send a message.”
Moody asserted this claim, including each of the four sub-claims, in his Rule 32
petition, and the ACCA on appeal from the trial court’s denial of relief determined
that Moody’s pleading was deficient under Alabama Rule of Criminal Procedure 32.3
and 32.6(b) and upheld the dismissal of the claim. Moody, 95 So. 3d at 843-45. As
noted, a state court ruling of deficient pleading is considered to have been on the
merits such that this Court must deferentially review the state court’s decision
pursuant to § 2254(d). Boyd, 697 F.3d at 1331. However, Moody has not shown that
the state court decision was contrary to, or an unreasonable application of, clearly
established federal law.
In analyzing this claim, the ACCA first discussed the four specific instances of
alleged prosecutorial misconduct that Moody argued direct appeal counsel should

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have challenged, writing as follows:
Moody further alleged in his petition:
“Appellate counsel failed to bring to the appellate courts’
attention numerous instances of prosecutorial misconduct
that warrant a new trial. For example, during closing
argument, the prosecutor argued facts that were not
evidence and irrelevant to a guilt phase determination. See
infra Issue [XI.]A (incorporated by reference).
“Appellate counsel failed to raise the fact that the
prosecutor also unlawfully commented on my failure to
testify. See Griffin v. California, 380 U.S. 609, 614 (1965)
(stating that prosecutor’s comment on defendant’s failure
to testify violates his Fifth Amendment right); see also infra
Issue [XI].B (incorporated by reference).
“Appellate counsel failed to bring to the appellate courts’
attention that the prosecutor’s admission of victim impact
evidence in closing argument at the guilt phase violated my
right to a fair trial. See Ex parte Rieber, 663 So. 2d 999, 1006
(Ala. 1995); see also infra Issue [XI.]C (incorporated by
reference).
“Similarly, appellate counsel failed to argue that the
prosecutor inflamed the passions of the jury and improperly
pressured the jury to bring back a sentence of death at the
guilt and penalty phases of the trial. See Brooks v. Francis,
716 F.2d 780, 788 (11th Cir. 1983); see also infra Issue
[XI.]D (incorporated by reference).
“Individually and cumulatively, these instances of
prosecutorial misconduct resulted in the deprivation of my
rights to due process, a fair and impartial jury trial, a
reliable sentencing, and my right against self-incrimination
Page 155 of 189

guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution, the
corresponding provisions of the Alabama Constitution, and
applicable state law. Had appellate counsel raised these
claims, the appellate courts would have reversed my
conviction and ordered a new trial.”
(C. 216–17.)
In Issue XI.A in his petition, which he incorporated by reference
into this claim, Moody alleged the following:
“During closing arguments at the guilt phase, the
prosecutor, reminding the jury of the location of each bomb
sent by mail, stated:
“ ‘If you draw a line from Birmingham to
Columbus to Jacksonville and you draw a line
from Columbus to Savannah and you draw a
line from Columbus through Atlanta, you
have something that might resemble a K. And
what other organization is known for hating
black people and committing racial crimes
than the Klan?’
“(Vol. 72, R. 436.)
“No evidence was ever introduced at trial that I was a part
of the Ku Klux Klan. Because this assertion was
unsupported by the evidence, its sole purpose was to
inflame the passions of the jury, see Dawson v. Delaware, 503
U.S. 159 (1992), increasing the likelihood that they would
return a verdict of guilty. Such irrelevant and prejudicial
statements violated my rights under the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States
Constitution, the corresponding provisions of the Alabama
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Constitution, and applicable state law.”
(C. 226–27.) In Issue XI.B in his petition, which Moody also
incorporated by reference into this claim, Moody alleged:
“During closing arguments of my trial, the prosecutor
asked the jury to consider my silence as an indication of my
guilt when he stated:
“ ‘And the person who’s sitting in this
courtroom today in essence with his back
turned thumbing his nose reading his little
book is the person that committed this crime.’
“(Vol. 72, R. 456–57.) These comments prejudiced me by
preventing me from asserting my Fifth Amendment right to
silence without consequence. Griffin v. California, 380 U.S.
609, 614 (1965) (stating that prosecutor’s comment on
defendant’s failure to testify violates his Fifth Amendment
right). These statements deprived me of my Fifth, Sixth,
Eighth, and Fourteenth Amendment rights under the
United States Constitution, the corresponding provisions
of the Alabama Constitution, and applicable state law.”
(C. 227.) In Issue XI.C in his petition, incorporated by reference into
this claim, Moody alleged:
“Where victim impact evidence has no relevance to issues
presented at the guilt phase of a capital trial, the admission
of such evidence constitutes reversible error. Payne v.
Tennessee, 501 U.S. 808, 825 (1991); Ex parte Rieber, 663 So.
2d 999, 1006 (Ala. 1995). During closing argument at the
guilt phase, the prosecutor stated:
“ ‘Now, Bob Vance was a human being just
like you and I. He liked to work in his yard. He
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liked to see his grandchildren. He liked to be
with his children. He and his wife were
looking forward to years ahead.’
“(Vol. 72, R. 461.) Evidence of these lost relationships was
irrelevant to the issues presented at the guilt phase of the
trial. As such, these statements warranted a mistrial or, at
a minimum, the trial court should have instructed the jury
to ignore these inflammatory statements. Because these
comments were irrelevant and prejudicial, the jury’s
consideration of them resulted in the deprivation of my
Fifth, Sixth, Eighth, and Fourteenth Amendment rights as
guaranteed by the United States Constitution, the
corresponding provisions of the Alabama Constitution, and
applicable state law.”
(C. 227–28.) Finally, in Issue XI.D in his petition, also incorporated by
reference into this claim, Moody alleged:
“At the penalty phase of my trial, the prosecutor
improperly asked the jury to be the voice of the community
and express the community’s will through its guilt phase
verdict. See Darden v. Wainwright, 477 U.S. 168, 181
(1986); Bankhead v. State, 585 So. 2d 97, 106 (Ala. Crim.
App. 1989). The prosecutor pressured the jury into
returning a guilty verdict where he indicated that people
read about bad things that happen all the time, that this jury
had the opportunity to send a message, and that the jury
would commit an injustice if it failed to stand up for the
citizens of Jefferson County and the United States of
America by coming back with a verdict other than guilty.
(Vol. 72, R. 462.)
“During the penalty phase of the trial, the prosecutor
reiterated this improper theme, stating:

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“ ‘You have to give a message to bombers
from Jefferson County we’re not going to
tolerate that conduct in this county. You kill
one of our neighbors with a bomb and we’re
going to give you the ultimate sanction.
You’ve got to say it. You’ve got to say it. We
can’t say it. It’s you that’s got to give that
message to them.’
“(Vol. 73, R. 517–18.)
“Alabama has constructed a detailed and precise capital
sentencing statute. Juries are told precisely how they may
arrive at their sentencing verdict: first, they must determine
whether any aggravating circumstances exist; then, they
must determine what mitigating circumstances exist; and
lastly, they must weigh the aggravators against the
mitigators. Sending ‘a message to bombers from Jefferson
County’ is not an aggravating circumstance that may be
considered in determining whether to sentence a capital
defendant to death. Such statements have no relevance at
the sentencing phase of a capital trial and were solely
presented with the intention of having jurors ignore the law
and improperly render a verdict of death based on
communal pressure. See Darden v. Wainwright, 477 U.S.
168, 181 (1986); Bankhead v. State, 585 So. 2d 97, 106 (Ala.
Crim. App. 1989).
(C. 228–29.)
Moody, 95 So. 3d 844-48.
The ACCA then went on to conclude that Moody failed to plead sufficient facts
that would establish that these four claims could have been successfully presented by

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appellate counsel, as follows:
“This court has stated that ‘[i]n reviewing allegedly
improper prosecutorial comments, conduct, and
questioning of witnesses, the task of this Court is to
consider their impact in the context of the particular trial,
and not to view the allegedly improper acts in the abstract.’
Bankhead v. State, 585 So. 2d 97, 106 (Ala. Crim. App.
1989), remanded on other grounds, 585 So. 2d 112 (Ala.
1991), aff’d on return to remand, 625 So. 2d 1141 (Ala.
Crim. App. 1992), rev’d on other grounds, 625 So. 2d 1146
(Ala. 1993). See also Henderson v. State, 583 So. 2d 276, 304
(Ala. Crim. App. 1990), aff’d, 583 So. 2d 305 (Ala. 1991),
cert. denied, 503 U.S. 908, 112 S. Ct. 1268, 117 L. Ed. 2d
496 (1992). ‘In judging a prosecutor’s closing argument,
the standard is whether the argument “so infected the trial
with unfairness as to make the resulting conviction a denial
of due process.” ’ Bankhead, 585 So. 2d at 107, quoting
Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464,
2471, 91 L. Ed. 2d 144 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 94 S. Ct. 1868, 40 L. Ed. 2d
431 (1974)). ‘A prosecutor’s statement must be viewed in
the context of all of the evidence presented and in the
context of the complete closing arguments to the jury.’
Roberts v. State, 735 So. 2d 1244, 1253 (Ala. Crim. App.
1997), aff’d, 735 So. 2d 1270 (Ala.), cert. denied, 5 [2]8
U.S. 939, 120 S. Ct. 346, 145 L. Ed. 2d 271 (1999).
Moreover, ‘statements of counsel in argument to the jury
must be viewed as delivered in the heat of debate; such
statements are usually valued by the jury at their true worth
and are not expected to become factors in the formation of
the verdict.’ Bankhead, 585 So. 2d at 106.”
Ferguson v. State, 814 So. 2d 925, 945–46 (Ala. Crim. App. 2000)
(emphasis added), aff’d, 814 So. 2d 970 (Ala. 2001).

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Although Moody alleged the specific statements that he believed
constituted prosecutorial misconduct, he failed to plead any facts
indicating the context in which those statements were made. As
explained more fully in Part I.B.4 of this opinion, Moody did not even
allege any facts in his petition regarding the crime, the State’s evidence,
or the defense theory or evidence. In addition, Moody made only
conclusory allegations that he was prejudiced by these prosecutorial
comments, but failed to plead any facts indicating how he was
prejudiced. Likewise, other than a bare allegation, Moody failed to plead
any facts indicating how the cumulative effect of these comments
prejudiced him. Looking at these allegations as pleaded, it is impossible
for this Court to determine whether Moody would be entitled to relief,
even if the allegations were true. See, e.g., Bracknell v. State, 883 So. 2d
724 (Ala. Crim. App. 2003). Therefore, Moody failed to allege sufficient
facts in his petition indicating that the prosecutor’s comments were
improper, either individually or cumulatively, or that he was prejudiced
by the comments and in turn, failed to plead sufficient facts to indicate
that his appellate counsel was ineffective for not raising these claims of
alleged prosecutorial misconduct, as well as a claim regarding the
cumulative effect of the alleged misconduct, on appeal.
Moody, 95 So. 3d at 848-49.
It was not contrary to federal law for the ACCA to so conclude. In Darden v.
Wainwright, the Supreme Court explained that a prosecutor’s improper comments
will not be held to violate the Constitution unless they “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” 477 U.S. 168,
179-81, 106 S. Ct. 2464, 2471 (1986). In Darden, the Court instructed a reviewing
court to consider any allegedly improper prosecutorial conduct or statements in the
context of the particular trial, and not in a vacuum. See id. The Supreme Court has
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since described the Darden standard as “a very general one, leaving courts ‘more
leeway . . . in reaching outcomes in case-by-case determinations . . . .’” Parker v.
Matthews, 132 S. Ct. 2148, 2155 (2012) (quoting Yarborough v. Alvardado, 541 U.S.
652, 664, 124 S. Ct. 2140, 2149 (2004)). Here, Moody made only conclusory
allegations in his state post conviction pleadings that made it virtually impossible for
the state courts to determine how Moody was deprived of a fair trial by the allegedly
improper prosecutorial conduct. For example, Moody did not, and still does not,
explain how the prosecutor’s argument that: “. . . the person who’s sitting in this
courtroom today in essence with his back turned thumbing his nose reading his little
book is the person that committed the crime,” could be construed as a comment on
Moody’s silence. The comment does not contain a direct comment on Moody’s
silence, and Moody offered no facts or argument to explain how this might be
interpreted as an indirect comment on his silence. By merely identifying the particular
statements made by the prosecutor but without providing the context in which they
were made, the state courts could not determine if the comments rendered the trial
so fundamentally unfair so as to result in a denial of due process. Darden, 477 U.S. at
181, 106 S. Ct. at 2471. Indeed, in Darden, the Supreme Court held that a closing
argument more inflammatory than the comments Moody takes issue with here did not

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warrant habeas relief. See id. at 180 n.11&12, 106 S. Ct. 2464 n.11&12 (prosecutor
referred to the defendant as an “animal” and stated “I wish I could see [the
defendant] with no face, blown away by a shotgun”).
Importantly, Moody’s allegations of prosecutorial misconduct are viewed
through the lens of his ineffective assistance of appellate counsel claim, and this Court
must merely decide whether there is any reasonable argument that appellate counsel’s
performance in failing to raise this issue on appeal violated Strickland. See Harrington,
131 S. Ct. at 788. Moody certainly never alleged before the state courts facts sufficient
to show that appellate counsel performed deficiently or, that, had appellate counsel
raised any of the identified claims on appeal, Moody’s conviction for capital murder
would have been overturned. Therefore, the ACCA’s dismissal of this claim as
facially insufficient was neither contrary to nor an unreasonable application of
Strickland.
4.

The allegation that appellate counsel was ineffective for failing
to assert a claim that the State withheld evidence in violation
of Brady v. Maryland

As previously discussed in part IV. I. of this opinion, Moody not only raised a
substantive Brady claim for the first time in his Rule 32 proceedings, but he also
alleged that his direct appeal counsel was ineffective for failing to allege a Brady

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violation on direct appeal. The ACCA, on appeal from the trial court’s denial of Rule
32 relief, affirmed the trial court’s ruling that Moody failed to meet Alabama’s factual
pleading requirements with regard to the ineffective assistance of appellate counsel
claim. See Moody, 95 So. 3d at 850-54; see also part IV. I. of this opinion, supra. This
Court must thus conduct the deferential review of the ACCA’s opinion pursuant to
28 U.S.C. § 2254(d). See Boyd, 697 F.3d at 1331.
The Court has already found that the ACCA’s rejection of Moody’s Brady
claim was not contrary to or an unreasonable application of clearly established federal
law or unreasonable in light of the record. See part IV. I., supra. As for his ineffective
assistance of counsel claim, Moody’s Rule 32 petition baldly asserted: “Appellate
Counsel provided ineffective assistance of counsel in that he did not raise the Brady
Issues set forth in the Petitioner/Defendant’s Amended Petition for Relief from
Judgment.” See Moody, 95 F.3d at 850 (quoting Moody’s Rule 32 petition). Taking
Moody’s conclusory allegations regarding alleged Brady material together with this
assertion regarding counsel’s performance, the ACCA determined that Moody’s
petition did not, on its face, establish either Strickland’s performance or prejudice
prong. Having reviewed Moody’s petition, there is ample support in the record for
the ACCA’s conclusion that Moody failed to establish that appellate counsel

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performed deficiently or that, had appellate counsel argued that Brady violations had
occurred, Moody’s conviction and/or sentence would have been overturned on
appeal. Habeas relief is not warranted on this ground.
5.

The allegation that appellate counsel was ineffective for failing
to raise a claim under Batson v. Kentucky, 476 U.S. 79, 106 S.
Ct. 1712 (1986), that the State used race-based peremptory
strikes during voir dire

Moody now argues that his right to effective assistance of counsel was violated
when appellate counsel did not raise a Batson claim on appeal, but Moody never
presented this claim in his Rule 32 proceedings, and therefore, he has failed to exhaust
his state court remedies, procedurally defaulting this claim. See O’Sullivan, 526 U.S.
at 845, 119 S. Ct. at 1732.
Moody claims that the procedural default should be excused pursuant to the
Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), which he
interprets to mean that the ineffectiveness of his post-conviction counsel in failing to
raise this ineffective-assistance-of-appellate-counsel claim in his Rule 32 petition
constitutes cause and prejudice to excuse the default. However, Moody’s reliance on
Martinez is misplaced. As recently explained by the Eleventh Circuit:
Under the procedural default doctrine, if a state prisoner
“defaulted his federal claims in state court pursuant to an independent
and adequate state procedural rule, federal habeas review of the claims
Page 165 of 189

is barred unless the prisoner can demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law . . . .”
FN27 Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565, 115
L. Ed. 2d 640 (1991). In general, lack of an attorney and attorney error
in state post-conviction proceedings do not establish cause to excuse a
procedural default. Id. at 757, 111 S. Ct. at 2568.
FN27. The procedural default doctrine is a judge-made
creation of the Supreme Court. See McQuiggin v. Perkins,
569 U.S. ––––, ––––, 133 S. Ct. 1924, 1937, 185 L. Ed. 2d
1019 (2013) (Scalia, J. dissenting); see also Dretke v. Haley,
541 U.S. 386, 392, 124 S. Ct. 1847, 1851, 158 L. Ed. 2d 659
(2004). “The rules for when a prisoner may establish cause
to excuse a procedural default are elaborated in the exercise
of the Court’s discretion.” Martinez, 132 S. Ct. at 1318
(2012).
In Martinez, the Supreme Court announced a narrow, equitable,
and non-constitutional exception to Coleman’s holding (that ineffective
assistance of collateral counsel cannot serve as cause to excuse a
procedural default) in the limited circumstances where (1) a state
requires a prisoner to raise ineffective-trial-counsel claims at an
initial-review collateral proceeding; (2) the prisoner failed properly to
raise ineffective-trial-counsel claims in his state initial-review collateral
proceeding; (3) the prisoner did not have collateral counsel or his
counsel was ineffective; and (4) failing to excuse the prisoner’s
procedural default would cause the prisoner to lose a “substantial”
ineffective-trial-counsel claim. See Arthur [v. Thomas], 739 F.3d [611,]
629 (11th Cir. 2014) (citing Martinez, 132 S. Ct. at 1318). In such a case,
the Supreme Court explained that there may be “cause” to excuse the
procedural default of the ineffective-trial-counsel claim. Martinez, 132
S. Ct. at 1319. Subsequently, the U.S. Supreme Court extended
Martinez’s rule to cases where state law technically permits
ineffective-trial-counsel claims on direct appeal but state procedures
make it “virtually impossible” to actually raise ineffective-trial-counsel
claims on direct appeal. See Trevino [v. Thaler], 133 S. Ct. [1911,] 1915,
Page 166 of 189

1918–21 [2013].
Importantly, the Martinez rule is expressly limited to attorney
errors in initial-review collateral proceedings: “[T]he holding in
[Martinez] does not concern attorney errors in other kinds of
proceedings, including appeals from initial-review collateral proceedings,
second or successive collateral proceedings, and petitions for
discretionary review in a State’s appellate courts.” Martinez, 132 S. Ct.
at 1320 (“The rule of Coleman governs in all but the limited
circumstances recognized here.”); see also Trevino, 133 S. Ct. at 1921
(applying Martinez’s “narrow exception” to Coleman’s general rule);
Arthur, 739 F.3d at 630. FN28
FN28. The petitioners in Martinez and Trevino sought
“cause” to excuse the procedural default of the
ineffective-trial-counsel claims in their respective initial §
2254 petitions, not their second or successive § 2254
petitions. See Martinez, 132 S. Ct. at 1314; Trevino, 133 S.
Ct. at 1915.
Lambrix v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1246, 1259-60 (11th Cir. 2014).
Martinez addressed claims of ineffective assistance of trial counsel which were
not raised in the initial post-conviction proceeding, not claims of ineffective assistance
of appellate counsel. To the extent Moody suggests that his ineffective assistance of
appellate counsel claim should also be considered under Martinez, this Court declines
to do so. The Eleventh Circuit has not published an opinion on this issue, but the
majority of the other circuits to have considered the issue have rejected a habeas
petitioner’s proposal to extend Martinez in the way that Moody suggests here. See

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Reed v. Stephens, 739 F.3d 753, 778 n.16 (5th Cir. 2014); In re Sepulvado, 707 F.3d 550,
554 & n.8 (5th Cir. 2013) (noting that Martinez, by its terms, applies only to
ineffective-assistance-of-trial-counsel claims); Hodges v. Colson, 727 F.3d 517, 531 (6th
Cir. 2013) (“Under Martinez’s unambiguous holding our previous understanding of
Coleman in this regard is still the law—ineffective assistance of post-conviction
counsel cannot supply cause for procedural default of a claim of ineffective assistance
of appellate counsel.”); Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012); but
see Ha Van Nguyen v. Curry, 736 F.3d 1287, 1296 (9th Cir. 2013) (holding that
Martinez extends to Sixth Amendment ineffective-assistance-of-appellate-counsel
claims). Moody argues that his appellate counsel should be considered like his trial
counsel by this Court for purposes of determining whether Martinez applies, because
Moody was “deprived of counsel at his trial.” (Doc. 37 at 86.) To the contrary,
Moody’s decision to proceed pro se at his trial was his own. See parts IV. A. and B. of
this opinion, supra. In sum, Martinez does not affect the procedural default of
Moody’s ineffective assistance of appellate counsel claim.
The Court also notes that were it not procedurally defaulted, at least portions
of Moody’s claim do not meet the heightened pleading requirements of federal habeas
petitions. See, e.g., McFarland, 512 U.S. at 856, 114 S. Ct. at 2572. Moody baldly

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asserts that the “Jefferson County District Attorney’s Office had a well-documented
history of racial discrimination in jury selection” and that between 1992 and 1996,
eight Jefferson County cases were reversed on Batson claims. (Doc. 29 at 49.) Moody
never explains what these conclusory allegations have to do with his prosecution by
the Office of Alabama Attorney General. For all of the reasons stated, habeas relief
is not warranted on this claim.

6.

The allegation that appellate counsel was ineffective for failing
to assert a claim of ineffective assistance of trial counsel

Moody asserts that appellate counsel was ineffective for failing to raise each
allegation of ineffective assistance of trial counsel enumerated in part V. A. of this
opinion, supra.

However, Moody never presented this claim in his Rule 32

proceedings, and therefore, he has failed to exhaust his state court remedies,
procedurally defaulting this claim. See O’Sullivan, 526 U.S. at 845, 119 S. Ct. at 1732.
As noted in the previous section, the Supreme Court’s holding in Martinez v. Ryan
does not apply to potentially excuse the default. Habeas relief is not warranted on this
claim.
Even if it were not procedurally defaulted, the Court would find that the claim
lacks merit. Moody blames appellate counsel for failing to raise these claims on

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appeal, and says counsel’s failure to do so has already prejudiced him because the
ACCA held his ineffective-assistance-of-pre-trial counsel claims to be defaulted in his
post-conviction proceedings. See Doc. 29 at 50 (“When these claims of ineffective
assistance of pre-trial counsel were presented to the Rule 32 trial court, that court
determined that the claims were procedurally defaulted because appellate counsel had
failed to raise the claims at the earliest practicable time—direct appeal.”) (emphasis
added)). Contrary to Moody’s assertion, however, the ACCA in Moody’s postconviction proceedings actually found that, pursuant to Alabama law which provides
that ineffective assistance of trial counsel claims should be raised in a motion for new
trial if it is reasonable to do so,27 Moody should have first raised the claims during trial
or in a post-trial motion, and only then pursued the claims on direct appeal:
Here, however, we do not hold that Moody could have, or should have,
raised his claims of ineffective assistance of pretrial counsel for the first
time on direct appeal. Rather, we hold only that Moody could have raised
and fully litigated his claims of ineffective assistance of pretrial counsel
in the correct forum, i.e., the trial court, by raising them before trial,
during trial, or in a post-judgment motion for a new trial, and then, after
being fully litigated in the trial court, those claims could have been
pursued on direct appeal.
Moody, 95 So. 3d at 843 (emphasis in original). Because the ACCA placed the blame
on Moody rather than on appellate counsel, Moody’s claim that he has already met
27

See footnote 25 in part V. A. 2. of this opinion, supra.
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Strickland’s prejudice prong lacks merit. Indeed, the ACCA’s conclusion was
appropriate in light of Faretta, which noted that “[t]he right of self-representation is
not . . . a license not to comply with the relevant rules of procedural and substantive
law.” 422 U.S. at 834 n.46, 95 S. Ct. at 2541 n.46. Indeed, it was Moody who failed
to file any post-judgment motions as required to present and preserve this claim, not
appellate counsel. Because Moody cannot establish that he was prejudiced by
appellate counsel’s failure to raise the claim, this claim would fail, even if not
procedurally defaulted. See id. (“. . . a defendant who elects to represent himself
cannot thereafter complain that the quality of his own defense amounted to a denial
of ‘effective assistance of counsel’”.).28
7.

The allegation that appellate counsel was ineffective for failing

28

The Court acknowledges that Moody claimed, for purposes of his deprivation of
counsel claim, that he complained about his pre-trial counsel’s alleged ineffectiveness to the trial
court several years before his trial. See part IV. A. 4. of this opinion, supra. Indeed, he even sued
Turberville and Jaffe in federal court on an ineffective assistance of counsel claim. However,
there is no dispute that Moody did not file any pleadings or otherwise raise the claim during trial
or after trial that his pre-trial counsel was ineffective, as required by Alabama law if reasonable to
do so. Indeed, when Moody was arguing before the Rule 32 courts that his claims of pre-trial
ineffectiveness were properly raised for the first time in his Rule 32 proceedings as opposed to
post-trial or on direct appeal, he never mentioned that he had already raised the issue before his
trial. See Vol. 82 (Brief of Appellant on collateral appeal, p. 6-12). He merely complained that
requiring him to file a post-judgment motion alleging ineffective assistance of pre-trial counsel
was too demanding a requirement for a pro se litigant. See id. In any event, the Court need not
address the question of whether Moody preserved his claims of ineffective assistance of pre-trial
counsel because the ACCA found that he did not, and thus Moody cannot establish that he was
prejudiced by his appellate counsel’s failure to raise the claim because the ACCA would not have
found that counsel’s reiterating the claim on appeal would have made a difference.
Page 171 of 189

to argue that Moody was deprived by the trial court of his
Sixth Amendment right to counsel
Moody asserts that appellate counsel was ineffective for failing to raise each
allegation concerning the trial court’s alleged violation of his Sixth Amendment right
to counsel contained in part IV. A. of this opinion, supra. However, Moody never
presented this claim in his Rule 32 proceedings, and therefore, he has failed to exhaust
his state court remedies, procedurally defaulting this claim. See O’Sullivan, 526 U.S.
at 845, 119 S. Ct. at 1732. As noted previously, the Supreme Court’s holding in
Martinez v. Ryan does not apply to potentially excuse the default. Habeas relief is not
warranted on this claim.
Even if not procedurally defaulted, this Court would deny the claim on its
merits. Part IV. A. of this opinion details why Moody’s assertions that the trial court
deprived him of his right to counsel are wholly disproved by the record. The record
clearly shows that after his request to proceed pro se was granted in August 1994,
Moody spent the next two years delaying his trial by filing numerous pro se motions.
The trial court diligently addressed Moody’s concerns, repeatedly warning Moody of
the dangers of rejecting the appointment of counsel and offering to appoint counsel
for Moody, but Moody repeatedly and unequivocally refused. Moody’s final request,
made on the eve of trial, to delay it for over a year while newly-obtained counsel
Page 172 of 189

examined the case, was appropriately rejected by the trial court, as it had repeatedly
told Moody that if he changed his mind and accepted counsel he would not be able to
delay the trial.
The Supreme Court has recognized that “[e]xperienced advocates since time
beyond memory have emphasized the importance of winnowing out weaker arguments
on appeal and focusing on one central issue if possible, or at most on a few key
issues.” Jones v. Barnes, 463 U.S. 745, 751-52, 103 S. Ct. 3308, 3313 (1983).
Therefore, it is difficult for a defendant to show his counsel was ineffective for failing
to raise certain issues on appeal, particularly if counsel did present other stronger
issues. Smith v. Robbins, 528 U.S. 259, 287-88, 120 S. Ct. 746, 765-66 (2000). Here,
Moody’s appellate counsel chose to argue that the trial court’s denial of a continuance
on the eve of trial was an abuse of discretion under Alabama law. Considering the
record, it was not deficient performance, and indeed it was reasonable strategy, for
appellate counsel not to raise deprivation of counsel arguments based on the other
allegations Moody sets forth in part IV. A., supra.
8.

The allegation that appellate counsel was ineffective for failing
to “adequately” argue that the trial court deprived Moody of
his Sixth Amendment right to counsel when it failed to appoint
standby counsel

Page 173 of 189

Moody asserts that appellate counsel was ineffective for failing to “adequately”
raise the argument he raises in part IV. B. of this opinion, supra, that the trial court
violated his Sixth Amendment right to counsel by failing to appoint standby counsel
at trial. However, Moody never presented this claim in his Rule 32 proceedings, and
therefore, he has failed to exhaust his state court remedies, procedurally defaulting
this claim. See O’Sullivan, 526 U.S. at 845, 119 S. Ct. at 1732. As noted, the Supreme
Court’s holding in Martinez v. Ryan does not apply to potentially excuse the default.
Even if this Court could consider the claim on its merits, Moody does not
present facts that would entitle him to relief. See McFarland, 512 U.S. at 856, 114 S.
Ct. at 2572 (heightened fact pleading required in federal habeas actions). Moody does
not set forth in his petition what argument direct appeal counsel could have made that
would have “adequately” asserted this claim. As discussed in part IV. B. of this
opinion, supra, appellate counsel argued this point to the ACCA, but in purely state
law terms. Presumably, then, Moody contends that direct appeal counsel should have
couched the argument in federal constitutional terms. However, Moody cites Russaw
v. State, 572 So. 2d 1288 (Ala. Crim. App. 1990), which holds that standby counsel is
optional, as authority for his allegation that appellate counsel did not “adequately”
assert the claim. The Russaw decision was the very same decision relied on by

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appellate counsel. (Vol. 76, Tab #R-46, p. 16.) Moody also indicates that appellate
counsel’s brief before the ACCA did not provide sufficient facts to “adequately” raise
this claim. However, appellate counsel’s brief before the ACCA was more factually
descriptive than Moody’s amended petition in this action is. Compare Vol. 76, Tab
#R-46, p. 16 with Doc. 29, p. 22-23, ¶ 54. Appellate counsel was not ineffective for
not adding case law that established that the appointment of standby counsel is
optional, as that would not have strengthened Moody’s direct appeal position.
Further, considering that appellate counsel’s direct appeal brief was more factually
descriptive than the amended petition, Moody’s claim that appellate counsel should
have presented more facts to support the claim lacks merit.
9.

The allegation that appellate counsel was ineffective for failing
to argue that the trial court deprived Moody of his
confrontation clause rights when it removed him from the
courtroom for disruptive behavior during trial

Moody asserts that appellate counsel was ineffective for failing to raise the
argument he raises in part IV. C. of this opinion, supra, that the trial court violated his
Sixth Amendment right to confront witnesses when it removed him from the
courtroom for disruptive behavior during his trial. However, Moody never presented
this claim in his Rule 32 proceedings, and therefore, he has failed to exhaust his state
court remedies, procedurally defaulting this claim. See O’Sullivan, 526 U.S. at 845,
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119 S. Ct. at 1732. As noted, the Supreme Court’s holding in Martinez v. Ryan does
not apply to potentially excuse the default.
Even if this Court were to consider the claim on its merits, Moody does not
present facts that would entitle him to relief. See McFarland, 512 U.S. at 856, 114 S.
Ct. at 2572. The entirety of Moody’s allegation of error is that the trial court removed
him from the proceedings “based only on [Moody’s] assertion that he would
vigorously defend his Constitutional right[s].” (Doc. 29, p. 25, ¶ 59.) As discussed
in part VI. C. of this opinion, supra, that assertion is disproved by the record.
Additionally, Moody acknowledges that it is permissible for a court to remove an
unruly defendant when the defendant engages in disruptive and disorderly behavior.
(Doc. 29, p. 23-25, ¶¶ 55-58.) Moody has not set forth any facts in support of his
claim that he was not being disruptive and disorderly. This failing prevents Moody
from being able to establish that he was prejudiced under Strickland by appellate
counsel’s failure to raise the claim. Considering the record combined with Moody’s
admission that defendants can be removed for disruptive behavior, appellate counsel
could not be ineffective for failing to raise this argument.
10.

The allegation that the foregoing nine sub-claims, considered
collectively, establish a violation of Moody’s constitutional
right to effective assistance of appellate counsel

Page 176 of 189

Moody argues that the collective effect of the foregoing nine sub-claims violated
his right to the effective assistance of appellate counsel. To the same extent portions
of the foregoing claims were found to be procedurally barred under state law, this
claim, too, is procedurally barred. Further, this particular claim, that these nine subclaims constitute error when considered collectively, was never presented to the state
courts during post-conviction proceedings. As such, Moody did not exhaust his state
court remedies and this claim is now procedurally barred.
VI.

MOODY’S CLAIM THAT HE IS “ACTUALLY INNOCENT”
Moody’s final claim is that he “actually innocent” of capital murder. He offers

a litany of “presently known facts” that he says establish his innocence but, as he has
done with several other claims, he requests more time to investigate in order to
develop additional facts to support this claim.29 These “presently known facts” are
in large part the same as those he raised in support of his Brady claim in postconviction proceedings and again in his Brady claim here: allegations concerning 1)
DNA analysis of the saliva on the envelopes used to mail the letters with the bombs;
2) threatening letters sent from Texas with the same numerical code as used in the
threatening letters; 3) three unexploded pipe bombs found attached to electricity poles

29

The Court denied this request in footnote 13 of this opinion, supra. The Court
reaffirms that ruling here.
Page 177 of 189

in Los Angeles of similar construction to the four December 1989 pipe bombs; 4) the
fact that Mary Ann and Robert Wayne O’Ferrell possessed the typewriter on which
the letters included with the bomb that killed Judge Vance were typed; 5) a statement
made to investigators that skeet shooter Mark McSwiggin purchased all of the Red
Dot gunpowder in the store in Griffin, Georgia, that was attributed to Moody; and 6)
the assertions made in the Whitehurst Memorandum challenging the professional
conduct of the FBI examiners who testified at Moody’s federal trial.
The Court first notes that if Moody is advancing this claim as a freestanding
constitutional claim, he must overcome several substantial hurdles standing in the way
of its success. First, he nowhere alleges a constitutional violation in connection with
the claim. As such, his “actual innocence” claim cannot likely by itself provide a basis
for habeas relief. See 28 U.S.C. § 2254(a) (requiring a constitutional claim). Even if
he had connected it with a constitutional violation, “it is not clear at all under the case
law whether . . . a freestanding actual innocence claim [] is viable on federal habeas
corpus review.” In re Davis, 565 F.3d 810, 816-17 (11th Cir. 2009). In Herrera v.
Collins, 506 U.S. 390, 419, 113 S. Ct. 853, 870 (1993), the petitioner advanced a claim
of actual innocence to support a novel substantive constitutional claim, i.e., that the
execution of an innocent person would violate the Eighth Amendment. Under the

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petitioner’s theory, even if the proceedings that had resulted in his conviction and
sentence were entirely fair and error-free, his innocence would render his execution
a “constitutionally intolerable event.” Id. The Supreme Court assumed “for the sake
of argument in deciding [the] case, that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would render the execution of
a defendant unconstitutional, and warrant federal habeas relief if there were not a state
avenue open to process such a claim.” Id. at 417, 113 S. Ct. at 869. After Herrera, the
Eleventh Circuit recognized the possibility of freestanding actual innocence claims,
see Felker v. Turpin, 83 F.3d 1303, 1312 (11th Cir. 1996), cert. granted, 517 U.S. 1182,
116 S. Ct. 1588 (1996) and cert. dismissed, 518 U.S. 651, 116 S. Ct. 2333 (1996),
(“[Herrera] left open the difficult question of whether federal habeas courts may
entertain convincing claims of actual innocence.”), but also recognized that “[c]laims
of actual innocence based on newly discovered evidence have never been held to state
a ground for federal habeas relief absent an independent constitutional violation
occurring in the underlying state criminal proceeding.” Brownlee v. Haley, 306 F.3d
1043, 1065 (11th Cir. 2002) (quoting Herrera, 506 U.S. at 400, 113 S. Ct. at 860).
The second hurdle is that, assuming solely for argument that Moody may assert
his “actual innocence” as a claim devoid of any asserted constitutional violation, the

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claim is procedurally defaulted due to Moody’s failure to exhaust his state court
remedies. Moody raised a claim of “factual innocence” before the Rule 32 courts,
arguing that he is entitled to relief “even if [his] claim of factual innocence is not
connected to a constitutional violation.” Moody, 95 So. 3d at 854 (quoting Moody’s
Rule 32 petition). In that forum, he cited as support for his claim some but not all of
the same assertions he makes here. See id. The ACCA construed the claim as one of
“newly discovered evidence” pursuant to Alabama Rule of Criminal Procedure
32.1(e) and affirmed the trial court’s holding that the claim was due to be dismissed
as Moody did not plead all five elements of a newly discovered evidence claim as
enumerated in that rule. Id. at 856.30 In his Rule 32 petition, Moody never alleged
30

Rule 32.1(e) provides:

Subject to the limitations of Rule 32.2, any defendant who has been convicted of a
criminal offense may institute a proceeding in the court of original conviction to
secure appropriate relief on the ground that:
...
(e) Newly discovered material facts exist which require that the conviction or
sentence be vacated by the court, because:
(1) The facts relied upon were not known by the petitioner or the petitioner’s
counsel at the time of trial or sentencing or in time to file a posttrial motion
pursuant to Rule 24, or in time to be included in any previous collateral
proceeding and could not have been discovered by any of those times through the
exercise of reasonable diligence;
(2) The facts are not merely cumulative to other facts that were known:
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that the O’Ferrells possessed the typewriter on which the letters were typed or made
the assertions concerning alleged misconduct by federal crime and explosives
laboratories. (Compare C.R. Vol. 79, Tab #R-58, p. 270-71 with Doc. 29, p. 75-76.)
Moody has not stated that these allegations, which he omitted from his Rule 32
petition, were not known by him at the time; in fact he included the allegations
concerning the Whitehurst Memorandum in support of his Brady claim in the same
petition. If Moody intends his actual innocence claim to be a freestanding claim, then
there is no reason why it should not be subject to the exhaustion requirements
contained in 28 U.S.C. § 2254, just as with any other constitutional claim. Moody’s
failure to present the same claim before the state courts that he presents here
procedurally defaults the claim, even if it were held to be cognizable in this federal
habeas proceeding. See Kelley, 377 F.3d at 1344 (“[T]he prohibition against raising

(3) The facts do not merely amount to impeachment evidence;
(4) If the facts had been known at the time of trial or of sentencing, the result
probably would have been different; and
(5) The facts establish that the petitioner is innocent of the crime for which the
petitioner was convicted or should not have received the sentence that the
petitioner received.
The ACCA held that Moody failed to allege any facts in his petition regarding the crime, the
evidence presented by the State, the State’s theory of the case, his theory of defense, or what, if
any, evidence he presented in his defense.
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non-exhausted claims in federal court extends not only to broad legal theories of relief,
but also to the specific assertions of fact that might support relief.”).
Moody’s other option in advancing this claim is as a “gateway through which
a habeas petitioner must pass to have his otherwise barred constitutional claims
considered on the merits.” Schlup, 513 U.S. at 315, 115 S. Ct. at 861 (quoting Herrerra,
506 U.S. at 404, 113 S. Ct. at 862); see also House v. Bell, 547 U.S. 518, 126 S. Ct. 2064
(2006). In other words, because Moody has been unable to establish “cause and
prejudice” sufficient to excuse the procedural default of many of his claims in this
petition, he “may obtain review of his constitutional claims only if he falls within the
‘narrow class of cases . . . implicating a fundamental miscarriage of justice.’” Schlup,
513 U.S. at 314-15, 115 S. Ct. at 861 (quoting McCleskey, 499 U.S. at 494, 111 S. Ct. at
1470).
As here, when a petitioner who has been sentenced to death raises a claim of
actual innocence to avoid a procedural bar to the consideration of the merits of his
constitutional claims, he must show that “the constitutional error ‘probably resulted’
in the conviction of one who was actually innocent.” Id. at 326-27, 115 S. Ct. at 867
(quoting Carrier, 477 U.S. at 496, 106 S. Ct. at 2649-50). To pass through the
gateway, a petitioner must submit “new” evidence which, when considered together

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with all of the evidence admitted at trial, both adverse and exulpatory, would leave a
reasonable doubt in any reasonable juror’s mind. Id. at 324, 327-28, 115 S. Ct. at 865,
867. “To establish the requisite probability, the petitioner must show that it is more
likely than not that no reasonable juror would have convicted him in the light of the
new evidence.” Id. at 327, 115 S. Ct. at 867. This standard thus “ensures that
petitioner’s case is truly ‘extraordinary,’ McCleskey, 499 U.S. at 494, 111 S. Ct. at
1470, while still providing petitioner a meaningful avenue by which to avoid manifest
injustice.” Id. Thus, only if this Court concludes that it is more likely than not that
no reasonable juror would have convicted Moody in light of the new evidence, may
it reach the merits of the constitutional claims that it found to be procedurally barred.
Id.
The allegations Moody proffers in support of his innocence consist of mere
conclusions without any evidentiary support. Indeed, there are seven paragraphs in
the amended petition devoted to “facts” that allegedly establish Moody’s innocence.
For example, the amended petition states:
Evidence shows a local skeet shooter named Mark McSwiggin purchased
the Red Dot gunpowder in Griffin, Georgia that was attributed to Mr.
Moody and set forth as a component of the bomb that killed Judge
Vance. This evidence established Mr. Moody was not, in fact, the
purchaser of the only component of the bomb that killed Judge Vance
that was specifically tied to Mr. Moody by eyewitness testimony.
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(Doc. 29 at 75.) This and the other allegations contain no citations to any evidence
that would support the statements contained therein or would otherwise direct the
Court to a place that it could find evidentiary support for the claims. There are no
affidavits from witnesses who would provide testimony in support of the statements,
or even the names of witnesses who could provide testimony. There is no explanation
of how this “evidence” was discovered or when it was discovered. The portion of the
amended petition devoted to Moody’s Brady claim, based on many of the same
allegations, contains similar conclusory statements with no support.31 Moody’s reply
brief does not address the claim at all; merely seeking additional time to “investigate
[the] claims.” (Doc. 37 at 90.) These failings wholly prevent this Court from being
able to test the reliability of these statements in order to determine whether a
reasonable juror, presented with this purportedly “new evidence” along with the
evidence at trial, would still vote to convict Moody of capital murder. While the
Supreme Court has warned that district courts faced with actual innocence claims do
not necessarily need to determine whether the new evidence would be “admitted
under rules of admissibility that would govern at trial,” the Schlup standard

31

The one exception is Moody’s citation to the Department of Justice Report in footnotes
173-76 of the amended petition in support of his allegation that some of the explosives experts
had been investigated related to the scientific processes they used in Moody’s federal trial.
Page 184 of 189

nonetheless is that the new evidence must be “reliable”—“whether it be exculpatory
scientific evidence, trustworthy scientific accounts, or critical physical evidence.”
House, 547 U.S. at 537-38, 126 S. Ct. at 2077. In short, the Court has no way of testing
the reliability of these statements. In this way, Moody has also failed to satisfy the
heightened pleading requirements in habeas corpus cases. See McFarland, 512 U.S.
at 856, 114 S. Ct. at 2572. As explained by the Eleventh Circuit:
The reason for the heightened pleading requirement—fact pleading—is
obvious. Unlike a plaintiff pleading a case under Rule 8(a), the habeas
petitioner ordinarily possesses, or has access to, the evidence necessary
to establish the facts supporting his collateral claim; he necessarily
became aware of them during the course of the criminal prosecution or
sometime afterwards. The evidence supporting a claim brought under
the doctrine set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963), for example, may not be available until the
prosecution has run its course. The evidence supporting an ineffective
assistance of counsel claim is available following the conviction, if not
before. Whatever the claim, though, the petitioner is, or should be, aware
of the evidence to support the claim before bringing his petition.FN31
FN31. Inherent in the fact pleading requirement of the
federal habeas rules is the notion that a habeas case is not a
vehicle for a so-called fishing expedition via discovery, an
effort to find evidence to support a claim.
Borden v. Allen, 646 F.3d 785, 810 (11th Cir. 2011). Even though Moody has been
raising the same assertions in support of his actual innocence since his Rule 32
proceedings (and indeed, even before his trial) the continued conclusory nature of the

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allegations indicates to this Court that it is unlikely that Moody will ever be able to
find evidentiary support for them.32
Moreover, even if the Court were to take these seven allegations at face value,
they do not present the type of strong, compelling argument that would create a
colorable claim of factual innocence. The petitioner in House met the Schlup threshold
based on substantial evidence pointing to a different suspect, coupled with new,
reliable DNA and forensic evidence undermining the central proof of semen and
blood. See House, 547 U.S. at 554, 126 S. Ct. at 2086. Even then, the Supreme Court
noted the “issue is close” as to whether the petitioner met the Schlup standard of
proof. Id. In contrast, Moody has produced unverified statements that do not even
establish an alibi. On the other hand, the evidence at trial provided ample support for
Moody’s conviction.

The State offered compelling evidence of the striking

similarities among the four December 1989 pipe bombs including the one that killed
Judge Vance; eyewitness testimony from Moody’s former girlfriend tying the bombs
together and to Moody, including her testimony that she purchased most of the
components of the bombs for Moody and inculpatory statements made by Moody

32

Additionally, the evidence is not “new” as contemplated by Schlup. As discussed in
part IV. I. of this opinion, supra, Moody was aware of these facts before his trial. He decided to
proceed pro se against the advice of the court and did not participate in his trial. He could have
presented these allegations in his defense to capital murder charges but chose not to do so.
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himself with regard to the bombs; eyewitness testimony that Moody purchased the
gunpowder used in the bombs; explosives experts’ testimony tying the bombs together
and to Moody’s 1972 bomb; physical evidence related to the bombs recovered from
Moody’s home; eyewitness testimony tying Moody to the typewriter used to type the
letters; and Moody’s recorded jailhouse statements inculpating himself in the crimes.
In the face of this evidence, much of the “actual innocence” evidence is more akin to
impeachment evidence, and none of it casts serious doubt on Moody’s guilt. For
example, the fact that threatening letters were also mailed in Texas and similar bombs
were also found in California does not mean that Moody did not write the letters
associated with the December 1989 bombs or make the bombs. The fact that someone
told federal agents that another person purchased all of the gunpowder at the Griffin,
Georgia gun shop must be weighed against eyewitness testimony from two individuals
who saw Moody purchase the gunpowder used in the bombs at that store. The fact
that the O’Ferrells possessed the typewriter on which the letter were written does not
mean that Moody did not own it at one point, as testified to by Moody’s ex-girlfriend.
The assertions of professional misconduct contained in the Whitehurst Memorandum
might serve to case doubt on the credibility of the explosives experts, but nothing in
that document conclusively establishes that Moody did not commit the crimes. In

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short, Moody’s allegations do not establish that “more likely than not any reasonable
juror would have reasonable doubt.” House, 547 U.S. at 518, 126 S. Ct. at 2077.
Moody cannot show a fundamental miscarriage of justice would result from
application of the procedural bars as found by this Court.
VII. CONCLUSION
For the foregoing reasons, Moody’s petition for habeas relief is due to be
denied. This Court may issue a certificate of appealability “only if the applicant has
a made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
2253(c)(2). To make such a showing, a “petitioner must demonstrate that reasonable
jurist would find the district court’s assessment of the constitutional claims debatable
and wrong,” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 1604 (2000), or
that “the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El . Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029, 1039 (2003) (internal
quotations omitted). This Court finds Moody’s claims do not satisfy either standard.
A final judgment will be entered.

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Done this 20th day of February 2015.

L. Scott Coogler
United States District Judge
[160704]

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