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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-60470

GARY MOAWAD
Petitioner-Appellant,
versus
JAMES V ANDERSON, SUPERINTENDENT, MISSISSIPPI STATE PENITENTIARY;
MICHAEL MOORE, Attorney General of the State of Mississippi
Respondents-Appellees.

Appeal from the United States District Court
For the Northern District of Mississippi

June 15, 1998
Before WISDOM, JOLLY, and HIGGINBOTHAM, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Moawad petitions us for habeas relief from his state
convictions for murder and aggravated assault. Moawad's primary
claim is that he was denied effective assistance of counsel at
trial and on appeal. His focus is a failure to object to a jury
instruction regarding presumed malice deemed improper under
Mississippi law. We affirm the district court's denial of relief.
I
Moawad and Kathleen married in 1965. In 1975, Kathleen filed
for divorce. On November 13, 1975, Moawad and his youngest son,
Paul, one of their three children, went to the Tubbs's family home
in Sardis, Mississippi to announce that he and Kathleen were

reunited. They found at home Kathleen's father, mother, and
brother. Moawad visited with the Tubbs family in the living room
for approximately forty minutes and all seemed well.
According to the state's evidence at trial, Moawad and Paul
went into the backyard. E.O. Tubbs, Kathleen's father, moved from
the living room to the kitchen. After Moawad entered the kitchen
from the yard, Willodean, Kathleen's mother, and Michael,
Kathleen's brother, heard a single shot in the kitchen. Moawad
then went into the living room where he shot Willodean with a .32
caliber pistol. Moawad and Michael struggled for the gun. Moawad
struck Michael in the face causing lacerations, but Michael escaped
and ran to a neighbor's house. Moawad grabbed Paul, left the
house, and drove to North Mississippi Legal Services in Oxford to
speak with an attorney. Michael returned to his house to find his
father dead in the kitchen from a single gunshot to the head and
his mother gravely wounded. See Moawad v. State, 531 So. 2d 632,
633-34 (Miss. 1988).
Moawad's half-brother testified at trial that Moawad on the
day of the shooting told him that there was no hope for his
marriage; that he saw Moawad's pistol in a baby diaper; and that
Moawad told him in a telephone call that he had gone to the Tubbs's
house, broke E.O.'s arm, took his pistol, and killed him. After
the phone call, the step-brother searched the house he shared with
Moawad for Moawad's .32 caliber gun and could not find it. See id.
at 633.
2

At trial, Moawad testified on his own behalf that he and E.O.
had an argument during which he was attacked by E.O. and Michael.
The gun fired several times during the struggle, killing E.O. and
injuring Willodean. Moawad stated that he struck Michael with an
ashtray during the incident. See id. at 634.
Moawad was charged with murder and two counts of aggravated
assault. Without objection, the jury was instructed on the murder
count as follows:
Instruction S-5
The Court instructs the Jury that malice
aforethought mentioned in the indictment may be presumed
from the unlawful and deliberate use of a deadly weapon.
Id. at 635. The trial judge excused the alternate jurors and the
jury entered deliberations at four o'clock. At approximately ten
o'clock that night, the jury returned a verdict convicting Moawad
on each count. The trial court sentenced him to life on the murder
charge and to twenty and five years, for the aggravated assaults of
Willodean and Michael, respectively, with the sentences to run
consecutively.
Eleven days after the trial judge adjourned the term of court,
Moawad's trial counsel filed a motion for new trial on the grounds
that the trial court erred by recalling an alternate juror who had
been excused, not swearing in the alternate juror, and skipping the
first alternate juror on the replacement list and selecting the
second alternate. The trial court denied this motion as untimely.
Moawad's trial counsel failed to file an appeal, an act resulting
in counsel receiving a two-year suspension from practicing law in
3

Mississippi. See Myers v. Mississippi State Bar, 480 So. 2d 1080
(Miss. 1985), cert. denied, 479 U.S. 813 (1986).
On February 26, 1986, the Mississippi Supreme Court granted
Moawad an out-of-time appeal. The Mississippi Supreme Court
affirmed Moawad's conviction finding the challenge to jury
instruction S-5 to be procedurally barred because Moawad did not
object to it at trial. The court rejected for lack of evidence
Moawad's contention that an alternate juror had replaced a regular
juror in the deliberations. Moawad, 531 So. 2d at 634-35. Two
justices specially concurred observing that under Mississippi law
jury instruction S-5 is not favored and should not be used where
the facts have been set forth, even on conflicting testimony,
because the question of malice should be left for the consideration
of the jury. See id. at 636 (Lee, J., specially concurring). The
concurring opinion noted that this instruction should only rarely
be given due to the difficulty the bench and bar have in discerning
when the circumstances surrounding a killing have been disclosed.
See id.
Moawad filed for postconviction relief with the Mississippi
Supreme Court and was allowed to proceed on his ineffective
assistance of counsel claims. The state circuit court denied his
petition. Moawad then filed a � 2254 petition which the district
court denied. Moawad timely filed a notice of appeal. The
district court granted his request for a COA; that it did not
specify the issues to be appealed is of no moment because Moawad
filed his � 2254 petition prior to the effective date of the AEDPA.
4

We treat Moawad's COA as a CPC, which raises on appeal all of the
issues presented below.1 See Green v. Johnson, 116 F.3d 1115,
1119-20 (5th Cir. 1997) (applying pre-AEDPA law to � 2254 petition
filed before April 24, 1996); Sherman v. Scott, 62 F.3d 136, 139
(5th Cir. 1995) (CPC gives circuit court jurisdiction over the
entire judgment entered by the district court), cert. denied, 516
U.S. 1180 (1996). We have jurisdiction under 28 U.S.C. � 1291.
II
To succeed on an ineffective assistance claim against either
his trial or appellate counsel, Moawad must satisfy both prongs of
the Strickland test. See Ellis v. Lynaugh, 873 F.2d 830, 839 (5th
Cir.), cert. denied, 493 U.S. 970 (1989). First, the defendant
must demonstrate that counsel's performance was deficient. This
task requires a "showing that counsel made errors so serious that
counsel was not functioning as the `counsel' guaranteed the
defendant by the Sixth Amendment." Strickland v. Washington, 466
U.S. 668, 687 (1984). Moawad must establish that counsel's acts
"fell beneath an objective standard of reasonable professional
assistance." Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993)
(citations omitted). This court gives "`great deference to
counsel's assistance, strongly presuming that counsel has exercised
reasonable professional judgment.'" Id. (quoting Ricalday v.
1Though we treat Moawad's COA as a CPC, we will only review
those issues presented in his appellate brief. See United States
v. Pierce, 959 F.2d 1297, 1300 n.5 (5th Cir.), cert. denied, 506
U.S. 1007 (1992). Before us, Moawad only asserts claims of
ineffective assistance of counsel and thus waives all other
arguments he tendered below. See id.
5

Procunier, 736 F.2d 203, 206 (5th Cir. 1984)). "Second, the
defendant must show that the deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687. "[Moawad] must demonstrate
`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.'" Gray, 6 F.3d at 269 (quoting
Strickland, 466 U.S. at 694). "[B]oth components of this inquiry
are mixed questions of law and fact; accordingly, [this court]
generally `must make an independent determination of whether
counsel's representation passed constitutional muster.'" Id. at
268 (quoting Ricalday, 736 F.2d at 206).
A
Moawad asserts that his trial counsel was ineffective in
failing to object to jury instruction S-5, long condemned by the
Mississippi Supreme Court as relieving the prosecution of the
burden of proving malice aforethought on the part of the defendant.
See Tran v. State, 681 So. 2d 514, 517 (Miss. 1996); Stewart v.
State, 226 So. 2d 911, 912 (Miss. 1969). Moawad urges that the
instruction violated his Due Process rights under the Fourteenth
Amendment. See In re Winship, 397 U.S. 358, 364 (1969). Given the
disfavored status of the presumed malice instruction in Mississippi
jurisprudence, we agree with Moawad that counsel's failure to
object to instruction S-5 was deficient performance under
Strickland. See Gray, 6 F.3d at 269 (holding that counsel's
6

failure to challenge erroneous instruction under Louisiana law met
first prong of Strickland). We turn to Strickland's second prong.
Moawad argues that but for the erroneous instruction the jury
would have convicted him of manslaughter instead of murder; that
the record does not support a finding of malice. According to
Moawad, if the jurors had not been instructed that they could
presume malice from his use of a deadly weapon, then there is a
reasonable probability that they would not have convicted him of
murder.
We disagree with Moawad's contention. We have refused habeas
relief from a state conviction where "overwhelming" evidence of the
petitioner's guilt was presented even though trial counsel failed
to object to a jury instruction warranting automatic reversal under
state law even without an objection. See Ricalday, 736 F.2d at
207-09; see also Lewis v. Procunier, 746 F.2d 1073 (5th Cir. 1984)
(following Ricalday), cert. denied, 471 U.S. 1022 (1985). In this
case, the jury was instructed on the elements of murder and on
manslaughter and explicitly told that "[i]f . . . the . . .
prosecution has failed to prove malice aforethought in presenting
its case against Moawad for murder, you must return a verdict of
not guilty . . . on the charge of murder." There was substantial
evidence showing that Moawad acted maliciously. See Ricalday, 736
F.2d at 208-09. The jury did not accept Moawad's version of the
facts. We cannot conclude that Moawad's trial was rendered
fundamentally unfair by trial counsel's failure to object to
instruction S-5. See Lockhart v. Fretwell, 506 U.S. 364, 842-43
7

(1993) (emphasizing that fundamental right to a fair trial is the
touchstone of Sixth Amendment right to counsel). There was then no
denial of Moawad's constitutional right to counsel.
B
Moawad claims that his trial counsel was ineffective for
failing to object to three alleged incidents of jury tampering,
viz., (1) six members of the jury were not on the Special Venire
Facias; (2) people were going in and out of the jury room after the
jury retired to consider its verdict; and (3) the second alternate
juror on the substitute list replaced a juror several hours after
deliberations had started and the alternate jurors had been
excused.
Moawad did not assert argument (1) in the Mississippi
collateral relief proceedings.2 As a result, Moawad is
procedurally barred from raising this claim in a subsequent state
court proceeding for post-conviction relief. See Miss. Code Ann.
� 99-39-23(6) ("The order . . . denying relief . . . shall be a bar
to a second or successive motion under this chapter."); see also
Grubb v. State, 584 So. 2d 786, 788-89 (Miss. 1991) (applying � 99-
39-23(6) to bar a subsequent petition for collateral relief).
"Where a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural
rule, this court may not review the prisoner's habeas petition
2Moawad included, however, all three arguments in his
objections to the magistrate judge's recommendation and report
forwarded to the district court.
8

unless he can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice." Stokes v. Anderson, 123 F.3d
858, 859 (5th Cir. 1997), cert. denied, 118 S. Ct. 1091 (1998).
Moawad gives no reasons for his failure to raise this Sixth
Amendment challenge in state court. Having shown no cause for his
default, Moawad is not entitled to relief on this ground.
Moawad seeks an evidentiary hearing on jury tampering charges
(2) and (3). According to Moawad, his counsel failed to object (a)
to outside influences tainting the jury during deliberations and
(b) to the trial court's erroneously replacing a juror after
deliberations had begun and the alternate jurors were discharged;
recalling the second alternate juror instead of the first alternate
juror; denying him an opportunity to question the second alternate
juror for bias; and omitting to instruct the jury to begin its
deliberations anew upon seating the new juror. On direct appeal,
the Mississippi Supreme Court observed that "the record [did] not
reflect this alleged replacement of a regular juror by an
alternate." Moawad, 531 So. 2d at 635.
We have scoured the record as well and have found no
indications of the jury's being contaminated by outside influences
or of an alternate juror's participating in deliberations. To
support his allegations, Moawad points to a post-judgment motion
for new trial filed by his trial attorney which asserts that the
trial court seated the alternate juror instead of the first
9

alternate juror and to his brief on direct appeal in which his
attorney claims to have spoken to the second alternate juror who
apparently confirmed that he participated in the jury deliberations
and voted for Moawad's guilt. We note that the judgment of
conviction listed the second alternate juror as an alternate but
did not state that he participated in the deliberations.
Moawad is entitled to an evidentiary hearing to prove his
contentions only if we believe that he is entitled to relief if his
allegations prove true. See Ward v. Whitley, 21 F.3d 1355, 1367
(5th Cir. 1994), cert. denied, 513 U.S. 1192 (1995). To answer
that question, we must evaluate the merits of Moawad's ineffective
assistance of counsel claims.
Mississippi courts have oft stated that "during a jury's
deliberations outside influences must be eliminated if possible and
minimized if not. Otherwise the integrity of the verdict is in
question and a mistrial is appropriate." Fuselier v. State, 468
So. 2d 45, 57 (1985). Moreover, under Mississippi law, it is
reversible error for a trial court to substitute an alternate juror
for a regular juror after the alternate jurors have been dismissed
and the jury has begun deliberations, especially where the
alternate jurors were not sequestered once discharged from service.
Folk v. State, 576 So. 2d 1243, 1251-52 (Miss. 1991); see Balfour
v. State, 598 So. 2d 731, 754 (Miss. 1992) (holding that trial
court erred in recalling discharged alternate juror after
deliberations started though trial judge instructed the jury anew);
see also Miss Code Ann. � 13-5-67 (Supp. 1997) (mandating that
10

alternate jurors "shall be discharged at the time the jury retires
to consider its verdict"). Though trial counsel's failure to
object to these instances of jury tampering would constitute
deficient performance under Strickland, we do not grant Moawad an
evidentiary hearing on these fact issues because we do not think
that "counsel's errors were so serious as to deprive [Moawad] a
fair trial, a trial whose result is reliable." Strickland, 466
U.S. at 687. The evidence of Moawad's guilt is overwhelming, see
Moawad, 531 So. 2d at 633-34; supra, and assures us that his
convictions would have obtained in a new trial with a fresh jury.
C
Moawad argues that his trial counsel was ineffective in
failing to investigate adequately his defense that the shooting of
E.O. Tubbs was either an accident or in self-defense. In
particular, Moawad contends that his trial counsel should have
determined whether Tubbs had powder burns on his hands because the
presence of powder burns would have corroborated his testimony that
Tubbs pointed a gun at him and that the gun fired several times
while he and Tubbs struggled for control of it. Moawad claims that
his counsel abdicated his "duty to make reasonable investigations
or to make a reasonable decision that makes particular
investigations unnecessary." Strickland, 466 U.S. at 691.
In assessing counsel's performance, we must presume that
counsel's action fell within the "wide range of reasonable
professional assistance" and that "the challenged action `might be
11

considered sound trial strategy.'" Id. at 689 (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). "A defendant who alleges a
failure to investigate on the part of his counsel must allege with
specificity what the investigation would have revealed and how it
would have altered the outcome of the trial." United States v.
Green, 882 F.2d 999, 1003 (5th Cir. 1989). Moawad merely asserts
that there might have been powder burns on Tubbs's hands; he does
not point to any evidence in the record supporting this allegation.
In addition, Moawad's counsel may have made the reasonable decision
of not investigating Tubbs's hands for powder burns because the
absence of burns would have discredited Moawad's testimony. Given
the lack of factual support in the record to support Moawad's claim
of powder burns and the strategic rationale justifying his
counsel's decision, we conclude that Moawad's counsel was not
derelict in his duty to investigate and was not ineffective under
Strickland.
D
Moawad contends that his appellate counsel was ineffective
because he did not raise the issue of ineffective assistance of
counsel with respect to his trial attorney's failure to object to
the presumed malice jury instruction. "Because the error at the
appellate stage stemmed from the error at trial, if there was no
prejudice from the trial error, there was also no prejudice from
the appellate error." Ricalday, 736 F.2d at 208. Since Moawad did
not pass the Strickland test with respect to his trial counsel's
12

performance in objecting to the jury instructions, his complaint
against his appellate counsel warrants no relief.
III
We AFFIRM the district court's judgment denying Moawad's �
2254 petition for relief.
13