Thomas James Moore v. Secretary, Florida Department of Corrections, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14207
____________________
THOMAS JAMES MOORE,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:06-cv-00127-MMH
____________________
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2 Opinion of the Court 22-14207
Before WILLIAM PRYOR, Chief Judge, and NEWSOM and ABUDU, Cir-
cuit Judges.
PER CURIAM:
Petitioner Thomas James Moore, who was sentenced to
death in a Florida state court for killing Johnny Parrish, appeals the
district court’s denial of his 28 U.S.C. § 2254 petition for a writ of
habeas corpus. We granted Moore a certificate of appealability
(“COA”) on one issue: whether the State of Florida presented false
testimony, in violation of Giglio v. United States, 405 U.S. 150 (1972),
from witness Vincent Gaines at trial. After a thorough review of
the record and with the benefit of oral argument, we affirm the
district court’s denial of Moore’s habeas petition.
I. BACKGROUND
A. The Facts of Conviction and Moore’s Trial
The Supreme Court of Florida set forth the facts of the case
as follows:
Moore was convicted of robbing and killing Johnny
Parrish—an adult resident of his neighborhood—and
burning down Parrish’s house. The two were friends,
and Moore occasionally visited Parrish’s home. On
January 21, 1993, at about 3 p.m., Moore sat outside
Parrish’s house drinking with the victim. Moore
claim[ed] that two other youths, Clemons and
Gaines, approached the house. Moore claimed he
saw the pair chase a neighborhood youth named “Lit-
tle Terry” with a gun earlier that day, but Clemons de-
nied it at trial. Clemons and Gaines testified that they
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22-14207 Opinion of the Court 3
had a conversation with Moore about robbing Par-
rish. Clemons said he agreed to go in the house with
Moore, and Gaines was to be the lookout. Gaines said
he stood outside but did not see either man go in. He
said he heard two shots and then saw Clemons come
out of the house and go back in. When Gaines
started to walk away, Clemons caught up with him
and told him Moore had shot Parrish.
Clemons said that when he and Moore went into the
house, Moore pulled out a gun. Moore asked Parrish
where his money was and then shot him when he got
no response. Later, neighbors saw smoke in Parrish’s
house and ran in and pulled out Parrish. Parrish was
already dead when exposed to the fire, and a fire in-
vestigator, Captain Mattox, said that there were two
separate fires in the house, both of which were inten-
tionally set.
A witness named Shorter testified that Moore
brought him a bag of clothes and asked him to burn
them. Shorter also testified that Moore told him he
had shot Parrish and set fire to the house. Shorter
stated that Moore said he shot Parrish twice, that
Clemons ran out of the house, and that Moore took
the top off a lawn mower he found and set it on fire
to clean the house of fingerprints. Shorter did not call
the police but did call his mother, who called the po-
lice.
A jail inmate, Jackson, testified that Moore told him
that he did not mean to kill Parrish but had to because
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4 Opinion of the Court 22-14207
Parrish would recognize him. Another neighbor,
Dean, testified that Moore asked him to rob Parrish.
Moore v. State, 701 So. 2d 545, 547 (Fla. 1997) (“Moore I”).
In addition to the testimony described above, Gaines also
testified as a witness for the State. On cross examination, Gaines
testified that he and Clemons were best friends. Defense counsel
then questioned him about the day of the murder. Gaines admitted
to lying to his mother about attending school that day. Instead, he
went to his aunt’s house to go back to sleep; woke up around noon;
went outside and hung out with some neighborhood boys; and
went back home around 3:00 pm to check in with his mother.
Gaines remembered specific details about the day as well, including
speaking to Clemons’s brother for a while and where other neigh-
borhood teenagers were when Moore asked him to participate in
the robbery. As to chasing Little Terry, Gaines specifically denied
seeing Clemons with a chrome-plated .38 caliber gun, and when
asked whether he had seen Little Terry at all on the day of the mur-
der, Gaines stated, “[n]ot that I can remember.”
Moore disputed the State’s evidence regarding his guilt, and
he testified in his own defense that he did not kill Parrish. Moore
further explained that he saw Clemons chase Little Terry with a
gun the day of the murder. Moore called Little Terry as a witness
as well, who confirmed that Clemons and Gaines had confronted
him the day of the murder. Little Terry stated that one of them
reached for a gun before he was able to run away, but he did not
identify whether it was Clemons or Gaines who had the gun.
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22-14207 Opinion of the Court 5
After the State and Moore both rested their cases, the parties
moved to closing arguments. Moore’s closing argument advanced
his theory of defense: Gaines and Clemons were liars, they were
chasing Little Terry with a gun the day of the murder, and
Clemons—the only person who had a gun on him that day—was
the one who robbed and shot Parrish. After jury deliberations, the
jury returned a guilty verdict on all counts. Specifically, as to the
murder charge, the jury returned a general verdict, finding Moore
guilty of first-degree murder with a firearm.
Ultimately, the jury recommended that Moore be sentenced
to death for the murder charge. Following a sentencing hearing,
the trial court adopted the jury’s recommendation and Moore re-
ceived the death penalty.
B. Procedural History
Moore filed a direct appeal and raised various claims for re-
lief. The Supreme Court of Florida affirmed Moore’s conviction
and sentence. Moore I, 701 So. 2d at 547. Moore petitioned the
United States Supreme Court for a writ of certiorari, which the U.S.
Supreme Court denied on April 20, 1998. Moore v. Florida, 523 U.S.
1083 (1998). Moore subsequently filed three post-conviction mo-
tions, but only the third one is relevant to his instant appeal. On
January 27, 2006, Moore filed his third post-conviction motion. In
his motion, Moore argued that he had discovered new evidence
regarding statements Gaines and Clemons had made to others
while in juvenile detention that established Moore’s innocence.
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6 Opinion of the Court 22-14207
On March 22, 2011, the state post-conviction court con-
ducted an evidentiary hearing on Moore’s newly-discovered evi-
dence claim. Moore called several witnesses who testified that they
were incarcerated with Clemons and Gaines, and that Clemons and
Gaines made statements to them indicating that Moore had not
been involved in Parrish’s murder.
The State called Gaines, who maintained that he testified
truthfully at trial, and he denied ever telling anyone that Moore
was innocent. On cross-examination, Gaines admitted that years
after the trial, he had told a defense investigator that he and
Clemons chased Little Terry, but he still insisted that they did not
have a gun. When asked if the chase was the same day as the mur-
der, Gaines testified, “I can’t recall.”
Following the evidentiary hearing, on April 6, 2011, Moore
moved to amend his third post-conviction motion to add the Giglio
claim that gives rise to the instant § 2254 petition based on Gaines’s
state post-conviction evidentiary hearing testimony with respect to
the Little Terry chase. Moore argued that Gaines’s post-conviction
testimony revealed that he had been lying at trial about the Little
Terry incident. The state post-conviction court ultimately denied
his third post-conviction motion, including this claim. After ap-
peal, the Supreme Court of Florida affirmed. Moore v. State, 132 So.
3d 718, 721 (Fla. 2013) (“Moore III”).
As relevant to this appeal, the Supreme Court of Florida
ruled that Moore had failed to establish a Giglio violation because
Moore had not shown that Gaines’s trial testimony was false. Id.
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22-14207 Opinion of the Court 7
at 727. Moore could not make such a showing because the testi-
mony at trial demonstrated that the evidence was in dispute as to
whether Clemons or Gaines saw Little Terry on the day of the mur-
der. Id. at 726-27. In addition, at the state post-conviction eviden-
tiary hearing, Gaines testified that he and Clemons chased Little
Terry, but still could not recall whether this occurred on the day of
the murder. Id. at 727. Thus, Moore had not established falsity.
Id. The Supreme Court of Florida also concluded that Moore failed
to establish that the State knew that the testimony was false. Id. at
726-27. It did not address whether Gaines’s testimony would have
been material. See generally id.
On September 17, 2014, Moore filed the instant amended §
2254 petition raising a number of claims, including his Giglio claim,
and on September 9, 2022, the district court denied the petition. It
found Moore’s habeas petition, as a whole, was time-barred,1 but
it addressed the merits of his claims. As to his Giglio claim, the dis-
trict court found the Supreme Court of Florida’s determination
was not based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings. It
reasoned that Gaines’s trial testimony was not false because his ev-
identiary hearing testimony did not materially contradict his trial
testimony. It also denied the issuance of a COA. Moore appealed
1 We assume without deciding that Moore’s Giglio claim was timely raised un-
der 28 U.S.C. § 2244(d)(1)(D). See Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6
(2005) (noting that § 2244(d)(1)(A) “provides one means of calculating the [stat-
ute of] limitation[s] with regard to the ‘application’ as a whole . . . , but [§
2244(d)(1)(B), (C), and (D)] require claim-by-claim consideration”).
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8 Opinion of the Court 22-14207
to this Court, and we granted Moore a COA on his Giglio claim as
to Gaines.
II. STANDARDS OF REVIEW
“We review de novo a district court’s denial of a habeas cor-
pus petition.” Broadnax v. Comm’r, Ala. Dep’t of Corr., 996 F.3d 1215,
1222 (11th Cir. 2021) (citing Ward v. Hall, 592 F.3d 1144, 1155 (11th
Cir. 2010)). However, our review of the state court’s resolution of
habeas claims is significantly curtailed. Under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), we can only
provide a habeas petitioner habeas relief if “his claim is meritorious
and the state court’s resolution of that claim was contrary to, or an
unreasonable application of, clearly established Supreme Court
precedent, or was based on an unreasonable determination of the
facts presented in the state court proceeding.” Id. (citing 28 U.S.C.
§ 2254(d)). This highly deferential standard was “meant” to be “dif-
ficult to meet,” and “stops short of imposing a complete bar on fed-
eral-court relitigation of claims already rejected in state proceed-
ings.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (emphasis
added) (citation omitted).
We presume the state’s factual determination is correct, and
the petitioner must rebut this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). A state court’s factual determina-
tion is only unreasonable if no fair-minded jurist could agree with
that determination. Holsey v. Warden, Ga. Diagnostic Prison, 694
F.3d 1230, 1257 (11th Cir. 2012) (citing Harrington, 562 U.S. at 101).
Thus, a state court’s factual determination is not unreasonable
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22-14207 Opinion of the Court 9
simply because we “would have reached a different conclusion in
the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010) (citation
omitted). In short, AEDPA demands that we give state court deci-
sions “the benefit of the doubt.” Ventura v. Att’y Gen., Fla., 419 F.3d
1269, 1285 (11th Cir. 2005) (citing Holland v. Jackson, 542 U.S. 649,
655 (2004)).
III. DISCUSSION
The standard of review set forth in AEDPA bars Moore from
relief on his Giglio claim because the district court properly deter-
mined that the state court’s adjudication of the claim was not based
on an unreasonable determination of the facts. See 28 U.S.C. §
2254(d)(2). Moore argues the district court erred in concluding that
Moore did not prove Gaines’s trial testimony to be false. He fur-
ther argues that the district court erred in finding the testimony
was not material. We disagree.
“A Giglio violation occurs when the prosecution solicits or
fails to correct false or perjured testimony” that could, “‘in any rea-
sonable likelihood have affected the judgment of the jury.’” Rodri-
guez v. Sec’y, Fla. Dep’t of Corr., 756 F.3d 1277, 1302 (11th Cir. 2014)
(quoting Giglio, 405 U.S. at 153-54)). To succeed on a Giglio claim,
a petitioner must show: “(1) the prosecutor knowingly used per-
jured testimony or failed to correct what he subsequently learned
was false testimony; and (2) such use was material, i.e., that there
is any reasonable likelihood that the false testimony could . . . have
affected the judgment.” Guzman v. Sec’y, Dept. of Corr., 663 F.3d
1336, 1348 (quoting Ford v. Hall, 546 F.3d 1326, 1332 (11th Cir.
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10 Opinion of the Court 22-14207
2008)). When presenting a Giglio-based claim on federal habeas re-
view, a petitioner must also establish that the error was not harm-
less. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). An error is
harmless on collateral review unless it had a “substantial and inju-
rious effect or influence in determining the jury’s verdict.” Guz-
man, 663 F.3d at 1348 (quoting Brecht, 507 U.S. at 637-38).
Applying these standards to Moore’s claim, Moore failed to
show that Gaines’s testimony regarding the Little Terry chase was
false during Moore’s trial. At trial, when defense counsel asked
Gaines if he had seen Little Terry the day of the murder, Gaines
replied, “Not that I can remember.” At the evidentiary hearing,
Gaines testified that he had told a defense investigator that he had
chased Little Terry, but when asked if that chase was the same day
as the murder, Gaines stated, “I can’t recall.”
Our case law requires Moore to conclusively show that
Gaines’s testimony “was actually false.” See Maharaj v. Sec’y for
Dep’t of Corr., 432 F.3d 1292, 1313 (11th Cir. 2005) (citations omit-
ted) (explaining that in the Giglio context, a suggestion of falsity is
not enough; rather, the defendant must prove the testimony was
false). While some might question the full veracity of Gaines’s tes-
timony, we cannot say that “no ‘fairminded jurist’ could agree”
with the Supreme Court of Florida’s factual determination that
Moore failed to show that Gaines’s trial testimony was false. See
Holsey, 694 F.3d at 1257 (quoting Harrington, 562 U.S. at 101).
Thus, the Supreme Court of Florida’s determination was not un-
reasonable and is entitled to deference. See 28 U.S.C. § 2254(d)(2).
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22-14207 Opinion of the Court 11
Because Moore failed to show that Gaines’s trial testimony
was false, we decline to reach the second element of his Giglio
claim, i.e., whether the testimony was material.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s de-
nial of Moore’s habeas petition.
AFFIRMED.
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