Full opinion text
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before SMITH, EMILIO M. GARZA and DeMOSS, Circuit Judges. DeMOSS, Circuit Judge: The Director of the Texas Department of Criminal Justice, Institutional Division appeals from the district court’s final judgment granting Bobby James Moore’s petition for habeas corpus relief from his capital sentence and remanding to the state court for a new punishment hearing. We affirm, as modified by this opinion, and remand with instructions. I. The district court’s decision in this matter left the state trial court’s judgment of guilt intact, but granted relief as to punishment only by reversing that portion of the state trial court’s judgment imposing the death penalty and remanding to the state trial court for a new punishment hearing. This is the second time we have been asked to review that decision. Our first decision followed this Circuit’s then-existing precedent by applying newly enacted provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to Moore’s petition, which was pending on the April 24, 1996 effective date of AED-PA. See Moore v. Johnson, 101 F.3d 1069 (5th Cir.1996), vacated, 521 U.S. 1115, 117 S.Ct. 2504, 138 L.Ed.2d 1009 (1997). In that decision, we concluded that the district court failed to afford the state habeas court’s fact findings the deference required by AEDPA’s stringent standard of review. See Moore, 101 F.3d at 1076; see also 28 U.S.C. § 2254(d) (providing that the Court may not grant habeas relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless that adjudication “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”). Shortly after our decision, the Supreme Court decided Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Lindh holds that the provisions of AEDPA relevant to' this appeal do not apply to habeas corpus petitions that, like Moore’s, were pending as of the April 24, 1996 effective date of AEDPA. Lindh, 117 S.Ct. at 2068. Lindh overrules this Circuit’s pre-Lindh precedent, which held that AEDPA applied to habeas claims pending at the time AEDPA became effective. See, e.g., Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996); see also United States v. Carter, 117 F.3d 262 (5th Cir.1997) (recognizing that Lindh overruled Drinkard and its progeny). After our initial decision, Moore petitioned for and the Supreme Court granted a writ of certiorari, remanding the case to our Court for reconsideration in light of Lindh and the more lenient standards of review applicable under pre-AEDPA law. See 28 U.S.C. § 2254(d) (1994) (providing that state habeas court fact findings are entitled to a presumption of correctness, but permitting a federal court to reject state habeas court fact findings that are “not fairly supported by the record”). Having concluded a thorough re-examination of the record, we find that the district court’s judgment is correct when examined in light of the pre-AEDPA law applied therein. We therefore affirm the judgment of the district court as modified by this opinion. n. The single issue before the Court for resolution is whether Moore was deprived of his Sixth Amendment right to effective assistance of trial counsel during his 1980 capital trial. Moore claims that trial counsel were constitutionally deficient in their pretrial investigation of and presentation of a false alibi defense, and in their failure to investigate, develop, or present mitigating evidence during the guilt or punishment phase of his capital trial. Moore’s ineffective assistance of counsel claim is governed by the familiar Strickland standard: 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 can make 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. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 2065. We therefore indulge a strong presumption that strategic or tactical decisions made after an adequate investigation fall within the wide range of objectively reasonable professional assistance. Id. at 2065-66. Such decisions are “virtually unchallengeable” and cannot be made the basis of relief on a Sixth Amendment claim absent a showing that the decision was unreasonable as a matter of law. See id. at 2066; Loyd v. Whitley, 977 F.2d 149, 157 (5th Cir.1992); Wilson v. Butler, 813 F.2d 664, 672 (5th Cir.1987). Strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation. Strickland, 104 S.Ct. at 2066; Whitley, 977 F.2d at 157-58. The district court concluded that Moore’s counsel rendered constitutionally deficient performance at both the guilt and punishment phases of his trial, but found prejudice, and therefore granted relief, as to Moore’s capital sentence only. The district court’s decision is premised upon subsidiary findings that trial counsel were deficient in the two major areas identified by Moore. First, the district court found that counsel, in their presentation of an illogical and incredible alibi defense: (1) conducted an inadequate pretrial investigation, (2) ignored or excluded evidence that the offense was accidental, rather than intentional, (3) suborned perjury, and (4) elicited unduly damaging testimony against Moore on cross-examination of a state witness. Second, the district court found that counsel completely failed to investigate, develop, or offer available mitigating evidence, including previously redacted and exculpatory portions of Moore’s purported confession, during the punishment phase of Moore’s capital trial. On appeal, the Director maintains that the district court impermissibly substituted its own de novo view of the state court record for binding state habeas court fact findings, thus failing to afford those fact findings the presumption of correctness required by the pre-AEDPA version of 28 U.S.C. § 2254(d). With respect to deficient performance, the Director maintains that both the decision to pursue an alibi defense and the decision not to present mitigating evidence were strategic decisions that are entitled to deference under Strickland. With respect to prejudice, the Director maintains that Moore cannot establish prejudice during the punishment phase of his trial on the basis of deficient performance during the guilt phase of his trial. Thus, the Director maintains that deficient performance arising from presentation of the alibi defense may not be imputed to the punishment phase of Moore’s trial. The Director further argues that admission of the mitigating evidence proposed by Moore would not have affected the jury’s decision to impose the death penalty. Finally, the Director argues that the district court exceeded its authority by remanding with instructions that the state court conduct a new punishment hearing. Moore responds that the district court complied with 28 U.S.C. § 2254(d) by affording any relevant state habeas court fact findings the deference justified by the record in this case. See 28 U.S.C. § 2254(d)(8) (1994) (providing that the federal court may, after a review of the relevant record, reject state habeas court fact findings that are “not fairly supported by the record”). Moore further responds that the record reflects counsel did not make fully informed strategic decisions with regard to the presentation of the alibi defense or the failure to present mitigating evidence. To the contrary, Moore responds that counsel failed to properly investigate the controlling facts and law, both as to guilt and as to punishment, with the effect that available and availing evidence was never developed. Moreover, Moore responds that counsel’s decision to exclude the potentially exculpatory evidence that was developed was both professionally unreasonable and based upon an erroneous understanding of the controlling legal principles. Thus, Moore maintains that there are no reasonable strategic decisions entitled to this Court’s deference under Strickland. With respect to prejudice, Moore maintains that there is a reasonable probability that, but for counsel’s deficient performance at both the guilt and punishment phases of his capital trial, the jury would have reached a different decision with respect to the appropriate sentence in his case. Accordingly, Moore argues in support of the district court’s determinations that trial counsel were ineffective in their pretrial investigation and presentation of the alibi defense, and in their failure to investigate, develop or present mitigating evidence during the punishment phase of Moore’s trial. Significantly, Moore has not cross-appealed. We are therefore limited to a review of the district court’s decision that there is a reasonable probability that but for counsel’s deficient performance at either the guilt phase or the punishment phase or both, Moore would not have been sentenced to death. Given the absence of a cross-appeal, the district court’s decision that Moore failed to demonstrate prejudice as to the guilt phase of his capital trial is not before this Court for review, and we are not at liberty to expand upon the relief granted by the district court. See United States v. Coscarelli, 149 F.3d 342 (5th Cir.1998) (en banc). Having reviewed the record and the arguments of the parties we affirm, with some modifications, the district court’s determination that counsel’s performance was deficient during the guilt phase of Moore’s trial. We likewise affirm the district court’s determination that counsel’s failure to investigate, develop or present mitigating evidence including exculpatory evidence that the offense was accidental, during either phase of Moore’s capital trial, constituted constitutionally deficient performance that prejudiced the outcome of the punishment phase of Moore’s trial. Accordingly, we affirm the district court’s grant of relief. We agree, however, with the Director that the district court exceeded its authority by ordering the state court of conviction to conduct a new punishment hearing. The decision whether to pursue a new punishment hearing pursuant to Texas Code of Criminal Procedure article 44.29(c) is vested with the state court of conviction. We therefore remand for entry of an order granting the writ of habeas corpus, but permitting the state court of conviction a reasonable time in which to cure the constitutional error by imposing a sentence of less than death or conducting a new punishment hearing as authorized by Texas state law. III. Moore’s case has been pending, in one court or another, for almost twenty years. An extensive review of the various proceedings, including the evidence adduced at Moore’s trial, is essential to an understanding of our disposition. A. The Offense Moore was convicted of capital murder for the death of Jim McCarble, which was committed in the course of a bungled robbery of the Birdsall Super Market in Houston, Texas on April 25,1980. On that day, McCarble and his fellow employee Edna Scott were working in the courtesy booth at the front of the store. Arthur Moreno and Debra Salazar were checking groceries at nearby registers. Three men, later identified as Willie “Rick Koonce, Everett Anthony Pradia, and petitioner Moore, entered the store. Koonce, who was identified in pretrial line-ups and at trial by several witnesses, entered the courtesy booth with a white cloth bank bag and ordered McCarble to “[f]ill it up, man. You being robbed.” McCarble then jumped to the left of Scott, which allowed Scott to see a second man, later identified as Moore, standing outside the courtesy booth and pointing a shotgun in her direction. The man holding the shotgun was wearing a wig and sunglasses, which together with the shotgun, obscured part of his face. The shotgun itself was partially wrapped in two plastic bags. Neither Scott nor Moreno nor Salazar was able to positively identify Moore as the man holding the shotgun at either the pretrial lineup or at trial. Scott testified that the man with the shotgun must have been significantly taller than herself because she was able to look directly into his eyes, notwithstanding the fact that she was standing on the floor of the elevated courtesy booth. At trial, it was demonstrated that Moore was approximately the same height, if not slightly shorter, than Scott. Salazar’s testimony on the issue of identity was the strongest. Salazar initially testified that she was certain that Moore was the man pointing the shotgun into the courtesy booth. But Salazar later qualified her testimony by stating that she was not certain and could be mistaken. Leonard Goldfield, the manager of the Birdsall Super Market, testified that he only saw two men whom he suspected of participating in the robbery. Goldfield positively identified those two men as Koonce and Pradia. When Scott observed the man with the shotgun, she shouted to the assistant manager that there was a robbery in progress and then dropped to the floor of the courtesy booth. Pradia, sensing that the robbery was going wrong, fled the store. Moreno and Salazar testified that they observed the man with the wig rise up on his toes and aim the shotgun down into the courtesy booth. Scott testified that she heard the shotgun discharge and observed McCarble, who sustained a fatal wound to the head, fall to the floor beside her. Koonce and Moore fled the store. On the way to the car, Moore dropped one of the plastic bags covering the gun and the wig he was wearing. Store customer Wul-frido Cazares observed the three robbers get into a red and white car and made a mental note of the license plate number. Cazares had the letters memorized, but had two alternative configurations for the numerical portion of the license plate. When those numbers were later given to the police, one of the numbers was registered to a red and white Mercury Cougar belonging to Koonce. B. The Investigation The plastic bag and wig dropped by the shooter were later recovered from outside the store by police. Police also recovered a second plastic bag that was left at the front of the courtesy booth. The bag found in front of the courtesy booth contained a second wig. One of the bags was found to contain a sales receipt issued to Betty Nolan. The receipt was traced and police interviewed Nolan. Nolan told the police that petitioner Moore sometimes lived at her house, sharing a room with her son Michael Pittman. Nolan told one of the officers that Moore had been at Nolan’s house on the day of the offense. Moore and his sister both testified that Moore moved out of Nolan’s house several months before the offense because he had an argument with Pittman. Moore and his sister also testified that he could not have returned to the house because Nolan changed the locks after the argument between Moore and Pittman. Police searched Nolan’s home and recovered a shotgun between the mattress and box springs of Moore’s bed. A ballistics expert testified at trial that it is impossible to determine whether a particular shotgun was used in an offense by examining the projectiles, or shot, from the shotgun. Thus, the expert was unable to determine, from the size 8 shot recovered from the floor of the courtesy booth and from McCarble’s head, whether the shotgun recovered from Nolan’s house was the weapon used to kill McCarble. Several witnesses testified, however, that the shotgun recovered from Nolan’s home was similar to or looked like the weapon that was aimed into the courtesy booth during the robbery. The ballistics expert also testified that one of the shells found with the shotgun contained size 8 shot and that a single expended shell found with the shotgun had indeed been fired from the shotgun recovered from Nolan’s house. Police were unable to find suitable fingerprints for comparison to Moore’s on either the shotgun or the plastic bags. Moore testified that Pittman owned the shotgun, which had been stolen from one of Pittman’s former employers. The state did not offer any evidence relating to whether the gun was registered or whom the gun was registered to. Moore also testified that, according to Pradia, Pittman was the third man who held the shotgun during the robbery. Moore testified that Pittman had four prior robbery convictions. Evidence offered at trial established that Pittman was then incarcerated pursuant to a judgment of criminal conviction for burglary of a building. Police also discovered that Nolan had several wigs and wig stands in her home. Photographs were made of six wig stands. Of the six stands, only four had wigs. Thus, two wigs, the number found at the crime scene, were missing. The two wigs secured at the crime scene were tested for hair samples. Although some small pieces of hair were obtained, the samples were too small for any meaningful comparison to exemplar hairs from Moore’s head. Meanwhile, police arrested Koonce based upon the store customer’s description of the robbers’ car and license plate number. Koonce gave a confession implicating Pradia and Moore. Pradia’s billfold was found in Koonce’s car. When Pradia heard police were looking for him, he turned himself in. Pradia also gave a confession, and like Koonce, Pradia implicated Moore in the robbery. C. Moore’s Arrest and Interrogation Based upon information received from Koonce and Pradia and the evidence obtained from Nolan’s house, police obtained an arrest warrant for Moore. Around the same time, police received a telephone call from citizen Bobby White, who was an acquaintance of Moore’s father, Ernest “Junior” Moore. White told police that he had accompanied Junior Moore and petitioner Bobby Moore to Moore’s grandmother’s house in Coushatta, Louisiana on the morning of Tuesday, April 29, 1980, four days after the robbery and around the time of Koonce’s and Pradia’s arrest. White told police that Moore took luggage and that he remained in Coushatta when Junior Moore and Bobby White returned to Houston on Wednesday, April 30, 1980. Moore was still in Coushatta when Bobby White and Junior Moore made a second trip to the grandmother’s house on May 1 and 2. When White returned to Houston from the second trip, on Friday, May 2, 1980, he called the Houston police and told them that Bobby Moore was in Coushatta at his grandmother’s house. Houston police contacted the Louisiana State Police, who arrested Moore at his grandmother’s house. On May 5, 1980, Houston Police Officers D.W. Autrey and Larry Ott, who had been investigating the robbery, traveled to Louisiana to bring Moore back to Houston. Once the trio returned to Houston, Moore was interrogated about his role in the crime. The Director claims that this interrogation resulted in Moore’s confession, which was introduced at trial. Moore claims that, although he was beaten to induce his cooperation, he never signed a written statement. Moore introduced a booking photo of himself taken three or four days after the interrogation that reflects some swelling on the left side of his face and head. Photos taken of a pretrial line-up done on May 7, 1980, however, do not show any appreciable distortion in Moore’s features. D. The Trial Moore’s ease was called to trial in July 1980. Moore was defended by Alfred J. Bonner, who was retained and paid by Moore’s family, and C.C. Devine. Early in the trial, the state attempted to introduce Moore’s confession through Officer Ott. Moore’s counsel objected and the jury was removed from the courtroom while the trial court considered whether Moore’s confession would be admitted into evidence. Moore’s purported confession recites that Koonce, Pradia, and Moore were riding around in Koonce’s car looking for some place to rob. After casing the store, the three men decided that Koonce would enter the courtesy booth, that Pradia would remove money from the registers, and that Moore was to guard the courtesy booth and the front door with his shotgun. The confession recites that Moore wore a wig and covered the shotgun with two plastic shopping bags before entering the store. When Scott started shouting that there was a robbery in progress, Moore shouted to Koonce that it was time to leave. When Koonce did not respond, Moore approached the front of the courtesy booth. About the actual shooting, the confession states: The old man in the booth leaned over to open a drawer in the booth. I started trying to push him back with the barrel of the shotgun. I was leaning over the counter of the booth and I suddenly fell backwards and the butt of the gun hit my arm and the gun went off. I didn’t learn until later that the man had been shot. I seen it on T.V. The man must have been standing back up as I fell backwards and the gun went off. After the robbery, the confession states that the three men ran out of the store and drove to Betty Nolan’s house. Moore stayed at Nolan’s and Pradia and Koonce left. The confession also states: I swear I was not trying to kill the old man and the whole thing was an accident. Officer Ott stated on voir dire by the state that both the inculpatory portions of the confession, demonstrating Moore’s involvement, and the exculpatory portions of the confession, tending to establish that the shooting was an accident, were verbatim recitals of Moore’s voluntary statements concerning his participation in the crime. Officer Ott testified that he typed Moore’s confession, which was executed on blue paper. Moore testified on voir dire that he had refused to sign any statement or confession. Moore further testified that his refusal so angered the interrogating officers that he was struck repeatedly on the left side of his face. Moore conceded that he eventually signed two pieces of blank white paper, but only because the officers told him he would be released if he did so. Moore testified that he had not signed anything printed on blue paper and that the signature on the blue confession being offered by the state was not his own. Moore’s counsel argued that the confession was inadmissible, either because it was not signed by Moore or because it was involuntarily given. The trial court denied Moore’s motion to suppress and the confession was deemed admissible. Before the jury was brought back in, however, the state informed the trial court that it wished to exclude the exculpatory portions of the confession quoted above, which tended to establish that the shooting was accidental. Moore’s defense counsel stated that they had not reached a decision with respect to whether they would be offering the remainder of the confession. Moore’s counsel secured a ruling from the trial court prohibiting the state from making any reference to the portions of the confession that were being omitted until that decision could be made. In response, the state agreed to merely cover the exculpatory language when entering the incul-patory portions of the confession, thus preserving the language for later use by the defense. Once that agreement was reached, however, Moore’s counsel inexplicably changed course,' stating that they would not use the exculpatory portions of the confession and that those portions should be completely “cut out” of the exhibit given to the jury. As a result, the exculpatory passages in the confession were “whited out,” and the confession presented to the jury contained no mention of the actual shooting. Rather, the confession placed Moore at the crime scene, holding a shotgun pointed in McCarble’s direction, and then, following a conspicuously large blank space where the exculpatory text was deleted, the confession described how the three men fled the store. Defense counsel’s failure to offer the exculpatory portions of Moore’s confession, at either the guilt phase or the punishment phase of Moore’s trial, forms a significant part of Moore’s claim that he received ineffective assistance of counsel. In addition to the evidence described above, the state also offered Pradia’s testimony against Moore in its case-in-chief. Pradia testified pursuant to a plea bargain. Pradia testified that the three men met at Betty Nolan’s house on the morning of April 25, 1980, and then rode around in Koonee’s car deciding upon a store to rob. Pradia testified that he cased the store before the robbery by going in to see who was working and whether the robbery was feasible. Pradia’s testimony was corroborated by the testimony of store employees who testified that they observed Pradia in the store earlier in the day. Pradia’s testimony was also consistent with many details contained in the inculpatory portions of Moore’s confession which were submitted to the jury. Pradia told the jury that when Koonce and Moore joined him in the car after the robbery, Moore told Pradia that Moore shot someone inside the store. Pradia testified that he did not believe Moore until he saw the news coverage about McCarble’s death. Moore’s counsel pursued an alibi defense. Moore claims in this habeas action that his trial counsel knew that Moore’s confession was true; that is, that Moore participated in the robbery and that he unintentionally shot Jim McCarble. Moore maintains that counsel nonetheless created a false alibi defense, and then pressured Moore and his sisters Clara Jean Baker and Colleen McNiese to testify falsely that Moore was in Coushatta, Louisiana at his grandmother’s house on April 25, 1980, the date of the offense. Clara Jean Baker and petitioner Moore eventually testified before the jury in support of the fabricated defense. Without regard to whether counsel knowingly suborned perjured testimony, as Moore alleges, the presentation of the alibi defense can only be described as pathetically weak. Moore’s sister, Baker, initially testified that she drove Moore to Coushatta, Louisiana on April 14, 1980 and picked him up the next Monday, April 21, 1980. The problem with that testimony, of course, is that it did not place Moore in Louisiana on the offense date, April 25, 1980. Baker then changed her testimony to state that she drove Moore to Louisiana on Monday, April 21, and did not pick him up until Monday, April 28, 1980. Baker testified that Moore went to Louisiana to care for his grandmother because Moore’s grandmother was ill. Baker testified that she went to get him the next week because he was bored. Notwithstanding Moore’s boredom in Louisiana, Baker testified that she was aware Moore returned to Louisiana the following morning, Tuesday, April 29, 1980, with his father, Junior Moore, and Bobby White. Moore also testified in support of the false alibi, telling the jury that he was in Louisiana on the date of the alleged offense. But on cross-examination, Moore testified that he was certain he went to Louisiana on Monday, April 21, 1980, and that he stayed there only four or five days. When confronted with the fact that he could have therefore been back on April 25, the day of the offense, Moore backtracked and said he returned with his sister Baker on either April 26 or April 27. Thus, Moore’s own testimony conflicted with that of Baker’s with respect to when he returned to Houston. That inconsistency was compounded by Moore’s further testimony that he returned to Louisiana with his father and Bobby White on the same day he returned to Houston, rather than the following day, as Baker had testified. Moore also repeated in substance his voir dire testimony concerning the circumstances of his arrest and interrogation, and his denial of the written confession. Defense counsel attempted to bolster the floundering alibi defense with the testimony of Houston Police Officer J.H. Binford, who verified that neither Edna Scott nor Debra Salazar nor Arthur Moreno was able to identify Moore in a pretrial line-up as a person who participated in the robbery. Not surprisingly, the state responded to Moore’s alibi defense on rebuttal with evidence relating to extraneous conduct and offenses involving similar conduct. See, e.g., Hughes v. State, 962 S.W.2d 89, 92 (Tex.App.-Houston [1st Dist.] 1997, pet. refd) (subject to certain exceptions, evidence of similar extraneous conduct may be admissible on the issue of identity once a defendant raises an alibi defense). The state first used its cross-examination of Moore to catalogue Moore’s prior convictions, three for burglary and one for aggravated robbery. The state also called three witnesses to two separate robberies of small grocery stores in the Houston area. Those robberies occurred on April 11 and April 18, 1980, the two Fridays preceding the Friday, April 25, 1980 robbery of the Birdsall Super Market. Store employees positively identified Moore as being one of the perpetrators at both robberies. As to the first robbery, a store employee testified that Moore and two other black men entered the store, and that Moore stood at the front of the courtesy booth holding a shotgun. As to the second robbery, a store employee and a store customer testified that Moore and another black man entered the store, and that Moore held a shotgun during the robbery. This very damaging testimony became admissible only because Moore pursued an alibi defense. There is no dispute that the evidence would not have been admissible had Moore pursued an accidental shooting defense instead. The state also called a Louisiana State Police Officer who knew Moore’s grandmother very well and who arrested Moore at his grandmother’s house. That officer testified that, contrary to Moore’s testimony and that of his sister, Moore’s grandmother was and had been in good health. The officer also testified that he had not seen Moore at the grandmother’s house or in the vicinity of the small town of Coushatta before the date of arrest. Closing arguments followed. The state argued that Moore’s confession was voluntary. The state also argued that Moore’s confession was accurate, at least as to those portions submitted to the jury. Contrary to its pre-submission agreement, the state referred to the obviously omitted portions of the confession, stating that the confession was edited because the state did not want to vouch for exculpatory language Moore included in his confession. Notwithstanding that position, the state argued that Officer Ott would not have included exculpatory language in a fraudulently prepared confession. Thus, the state relied upon the existence of the undisclosed and excised exculpatory language to support its argument that the confession was voluntary. The state did not, however, clarify that the excluded language supported an accidental shooting theory. To the contrary, the state tried to negate any such impression by emphasizing that there had been no contention in the case that the shooting was accidental. Defense counsel Devine and Bonner made separate arguments, which were in part contradictory. For example, Devine criticized the police and their investigation while Bonner said he had no complaint against the police. Devine’s argument was consistent with Moore’s alibi defense. But Bonner essentially abandoned the alibi defense, stating that it made no difference whether Moore’s sister testified truthfully or whether Moore’s grandmother was in fact in ill health. Bonner characterized the evidence relating to Moore’s alibi as nothing more than a series of “rabbit trails.” Bonner placed his focus instead upon the alleged forgery of Moore’s confession, and upon whether the state’s other evidence was strong enough to place Moore at the Birdsall Super Market on April 25,1980. The state’s rebuttal argument relied heavily upon the pitiful failure of the alibi defense. The state also emphasized and made use of defense counsel’s apparent inability to agree, and their divergent positions in closing argument to the jury. During deliberations, the jury sent out a note requesting that they be provided with “[bjoth confessions of the Defendant.” Notwithstanding that request and the available argument that the state opened the door to submission of Moore’s unre-dacted confession by relying upon redacted portions in its closing argument, the state and defense counsel submitted, by agreement, only the redacted confession. Three hours later, the jury returned a verdict of guilty. The punishment phase of Moore’s trial began immediately. Under Texas law, Moore’s jury was required to return affirmative answers to each of two special issues before the death penalty could be imposed. Those issues were: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with reasonable expectation that the death of the deceased or another would result; and (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. The state began by tendering all of the state’s guilt phase evidence into the punishment phase record. The state then offered Moore’s penitentiary package, which contained the details of Moore’s prior criminal record. The state was permitted to explain the penitentiary package to the jury, and the jury was again instructed that Moore had three prior burglary convictions and one prior aggravated robbery offense. Moore’s counsel did not likewise offer any explanatory argument to the jury on the penitentiary package, notwithstanding that: (1) Moore was sentenced for each of the four offenses on the same day; (2) Moore began serving his sentence for each of the four convictions on the same day; and (3) Moore was released from serving the balance of the four concurrently imposed sentences after only two years, a factor clearly relevant on the issue of future dangerousness. To the contrary, Moore’s counsel simply stipulated that the documents comprising the penitentiary package were accurate. Besides failing to respond to the state’s evidence, defense counsel offered no evidence on the issue of punishment. The evidentiary portion of the punishment phase of Moore’s capital punishment trial concluded less than ten minutes after it had begun. Counsel then made closing arguments to the jury. Once again, defense counsel De-vine and Bonner made separate and somewhat contradictory arguments. Devine argued that the shooting was accidental and unintentional. Devine supported that position with argument relating to the nature and the location of McCarble’s wound, the small amount of pressure required to discharge a firearm, and other circumstances of the offense. Devine did not, however, support that punishment phase argument with the best available evidence that the shooting was indeed accidental — Moore’s unredacted confession — even though the record is clear that an unredacted version of the confession was available and could have been offered during the punishment phase of Moore’s trial. Devine also argued that Moore would not present a continuing threat of violence in the prison community. Devine failed, however, to support that argument by focusing the jury upon evidence in the penitentiary package that Moore was released early from his only prior prison sentence. Bonner encouraged the jury not to make too much from defense counsel’s apparent disagreement. Bonner seemed to deride Devine’s accidental shooting theory, stating that Devine only argued the theory for the purpose of ensuring that defense counsel were not lax in their duty. Contrary to both Moore’s confession and the jury’s verdict, Bonner then attempted to focus the jury on the defensive theory that the state’s evidence failed to show Moore was at the scene of the crime. Neither Devine nor Bonner argued the alibi defense that featured so prominently at the guilt phase of trial. Together, Devine’s and Bonner’s arguments take up less than fifteen pages of the punishment phase transcript. The state closed by highlighting defense counsel’s failure to try and explain away Moore’s prior offenses, defense counsel’s failure to call character witnesses, and the brevity of defense counsel’s argument on the issue of punishment. The state relied upon defense counsel’s failure to offer these types of evidence as support for the proposition that no such evidence existed. After deliberation, the jury returned affirmative answers to the special issues as required under Texas law for imposition of the death penalty. One week later, Moore was sentenced to death. At sentencing, counsel Devine expressed the desire to withdraw from his representation of Moore. Devine died shortly thereafter. Bonner expressed the desire to continue representing Moore on appeal, provided the trial court would provide a record for that purpose. E. Direct Appeal Moore’s case was automatically appealed to the state’s highest criminal court, the Texas Court of Criminal Appeals. In the two and one-half year period between December 1980 and June 1983, Bonner filed at least twelve motions seeking an extension of the filing deadline for either Moore’s appellate brief or the statement of facts. During that period, Bonner routinely missed filing deadlines, failing to request an extension of time until he received notice that the filing deadline had passed. Between January and April 1983, Moore sent letters and pro se motions to the Texas Court of Criminal Appeals complaining that Bonner refused to communicate with him and requesting permission to file a pro se brief on appeal. Moore’s pro se motions were denied. In May 1983, Bonner requested a “final” extension of the brief filing deadline until July 15, 1983. Bonner missed this deadline as well, and did not file a brief on Moore’s behalf until July 27, 1983, three years after Moore’s capital trial. The state filed a timely response brief in August 1983. Meanwhile, Moore continued to send correspondence to the Texas Court of Criminal Appeals objecting to Bonner’s representation. In October 1983, the Texas Court of Criminal Appeals ordered the trial court to conduct a hearing to determine whether Moore was making an informed decision to proceed pro se on appeal. In December 1983, the trial court conducted a hearing to determine whether Bonner should continue as Moore’s counsel. Moore rejected Bonner’s representation and requested that another lawyer be appointed. Accordingly, attorney John Ward was appointed to replace Bonner as Moore’s counsel on appeal. Between January 1984 and September 1984, counsel Ward filed four additional motions for an extension of the brief filing deadline. The Texas Court of Criminal Appeals granted those motions. The final extension made the brief due on October 3, 1984. Ward missed the October 3 filing deadline. In December 1984, the Texas Court of Criminal Appeals issued a show cause order instructing Ward to file the brief before January 7, 1985, or to show cause why he should not be held in contempt of court. Ward eventually filed the brief on the January 7, 1985 deadline. Ward’s brief argued, inter aha, that Moore’s trial counsel rendered ineffective assistance because they failed to investigate the availability of mitigating background evidence and failed to present available mitigating evidence at the punishment phase of Moore’s capital trial. During the time period for the state’s response, Moore filed a pro se brief on his own behalf. Moore’s pro se brief argued, inter alia, that trial counsel were ineffective for failing to call additional alibi witnesses, such as his grandmother and his father. In October 1985, more than five years after Moore’s capital trial, the Texas Court of Criminal Appeals issued an opinion affirming Moore’s conviction and death sentence. See Moore v. State, 700 S.W.2d 193 (Tex.Crim.App.1985). Noting the abundance of briefs on appeal, the Texas Court of Criminal Appeals purported to reach all of the arguments presented in the various briefs filed by Bonner and Ward, and by Moore acting pro se. While the Court made certain rulings with respect to Ward’s ineffective assistance of counsel argument, the Texas Court of Criminal Appeals expressly limited those holdings by noting that the record on direct appeal is generally inadequately developed to reflect trial counsel’s failings. See Moore, 700 S.W.2d at 204-05. Without precluding the possibility that Moore’s ineffective assistance of counsel claims might be beneficially developed in further proceedings, the Texas Court of Criminal Appeals set forth rulings expressly “limited to the record on appeal that is before us.” Id. at 205. Moore’s execution date was thereafter set for February 26, 1986. Moore’s petition to the Supreme Court for writ of certiorari and his application for stay of execution were denied on February 21, 1986. Moore v. Texas, 474 U.S. 1113, 106 S.Ct. 1167, 89 L.Ed.2d 289 (1986). F. Habeas Corpus Proceedings On February 24, 1986, Moore, represented by new counsel, filed an application for writ of habeas corpus and a motion for stay of execution in state court. The state trial court denied both Moore’s application for habeas corpus and Moore’s motion for a stay of the February 26 execution date without a hearing. The Texas Court of Criminal Appeals summarily affirmed that decision without opinion. On February 25, 1986, Moore filed a petition for habeas corpus relief and a motion for stay of execution in federal district court. The district court granted Moore a stay of execution. In June 1987, the district court determined that Moore’s federal habeas petition raised certain factual and legal theories that had not been presented to the state courts. Accordingly, the district court dismissed Moore’s first federal habeas petition, without prejudice to refiling upon exhaustion. In April 1992, Moore, now represented by three new lawyers, filed his second application for state habeas relief. Moore’s April 1992 petition alleged, inter alia, that Moore’s trial counsel: (1) suborned perjury in the presentation of Moore’s alibi defense; (2) failed to conduct an adequate pretrial investigation by interviewing Koonce and Pradia and state witnesses to extraneous conduct; (3) excluded exculpatory evidence that the shooting was accidental on the basis of their erroneous belief that such evidence was per se inconsistent with Moore’s alibi defense; (4) unduly prejudiced Moore by eliciting damaging testimony on essential elements of the offense that was not otherwise introduced against Moore in their cross-examination of Officer Autrey; and (5) failed to investigate, develop, or present available mitigating evidence that would have swayed the jury’s decision on the special issues in Moore’s favor. On April 23,1993, the state habeas court conducted an evidentiary hearing on Moore’s various ineffective assistance of counsel claims. The state habeas court heard evidence from Bonner, Moore, Moore’s sisters Clara Jean Baker and Colleen McNiese, and other witnesses concerning trial counsel’s conduct. The state habeas court also heard substantial evidence from an expert witness and Moore’s family members concerning Moore’s tortured family background and his impaired mental functioning. After the evidentiary hearing, the state habeas court entered findings of fact and conclusions of law in support of its determination that Moore did not receive ineffective assistance of counsel at his 1980 trial. On October 4, 1993, the Texas Court of Criminal Appeals affirmed the state habeas court’s denial of habeas corpus relief. On October 12, 1993, Moore filed his second federal petition for federal habeas relief, raising the same claims that were presented in the second state habeas application. On October 21, 1993, the district court denied Moore’s request for an evi-dentiary hearing, reserving the right to revisit the issue should a hearing become necessary. On September 29, 1995, the district court entered an order holding that Moore’s trial counsel rendered deficient performance at both the guilt and punishment phases of Moore’s trial, and that counsel’s deficient performance prejudiced Moore at the punishment phase of his trial. Accordingly, the district court reversed the state court judgment against Moore as to punishment only, and remanded to the state trial court for a new punishment hearing. The Director appeals from that decision. IV. In making its determination that Moore received ineffective assistance of counsel, the district court adopted some, but considered and rejected other, factual determinations made by the state habeas court. The Director contends that the district court failed to afford these state habeas court fact findings the deference required by the pre-AEDPA version of 28 U.S.C. § 2254(d). The Director first argues that a federal district court may not reject the factual determinations made by a state habeas court without conducting its own evidentiary hearing. We disagree. “Although the federal district courts are vested with broad power on habeas to conduct evidentiary hearings, we cannot say that it becomes the duty of the court to exercise that power where, as here, the state trial court has afforded the applicant[] a full and fair evidentiary hearing.” Heyd v. Brown, 406 F.2d 346, 347 (5th Cir.1969); see also West v. Johnson, 92 F.3d 1385, 1410 (5th Cir.1996); Lincecum v. Collins, 958 F.2d 1271, 1278-80 (5th Cir.1992); Winfrey v. Maggio, 664 F.2d 550 (5th Cir. Unit A Dec.1981) (all holding that the federal district court is not required to hold an evidentiary hearing when the record is clearly adequate to fairly dispose of the claims presented). We find no error arising solely from the fact that the district court chose to review the state habeas court’s factual determinations without conducting an evidentiary hearing on Moore’s claims. The Director also contends that the district court impermissibly substituted its own view of the facts for state habeas court findings entered after a full and fair litigation of Moore’s claims in the state habeas court. Essentially, this amounts to a contention that the district court failed to correctly apply the pre-AEDPA version of 28 U.S.C. § 2254(d). We will first define the deference required by the pre-AEDPA version of § 2254(d). Whether the district court inappropriately rejected particular findings will be addressed in the context of the specific areas of deficient performance identified by the district court. The pre-AEDPA version of 28 U.S.C. § 2254(d) obligates federal habeas courts to afford state habeas court fact findings a presumption of correctness, subject to an enumerated list of eight exceptions. See 28 U.S.C. § 2254(d)(1)-(8) (1994). The first seven exceptions in essence provide that the presumption of correctness does not apply unless the petitioner’s habeas claims have been fully and fairly litigated in a state habeas court with jurisdiction to consider the matter. We have already determined, and the parties do not dispute, that Moore’s ineffective assistance of counsel claims received a full and fair adjudication on the merits in the April 1993 evidentiary hearing conducted in the state habeas court. See Moore, 101 F.3d at 1075. We therefore conclude that none of the seven exceptions set forth as § 2254(d)(1) through § 2254(d)(7) are applicable in this case to excuse the presumption of correctness otherwise required by § 2254(d). Instead, the district court expressly tied its selective rejection of the state ha-beas court’s factual determinations to § 2254(d)(8), the final exception in § 2254. Section 2254(d)(8) provides that federal ha-beas courts need not defer to state habeas court fact findings that the federal habeas court determines are “not fairly supported by the record.” See 28 U.S.C. § 2254(d)(8) (1994); Bryant v. Scott, 28 F.3d 1411, 1417 (5th Cir.1994). Under this pre-AEDPA standard, a federal habeas court may not reject state court factual determinations merely on the basis that it disagrees with the state court’s resolution. Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 850, 74 L.Ed.2d 646 (1983); Loyd v. Smith, 899 F.2d 1416, 1425 (5th Cir.1990). Indeed, the federal court may not reject factual determinations unless it determines that they lack even “fair support” in the record. Marshall, 103 S.Ct. at 850; Smith, 899 F.2d at 1425. But the deference embodied in the pre-AEDPA version of § 2254(d) does not require that the federal court place blinders on its eyes before conducting a habeas corpus review of a state record. To the contrary, the section merely erects a starting place or presumption, that may be examined in light of the state court record. See, e.g., Bryant, 28 F.3d at 1417-19. It is worth noting that the pre-AEDPA standard is significantly less deferential to state habeas court factual determinations in this regard than its AEDPA counterpart, which prohibits the grant of relief unless the state court’s factual determination is plainly unreasonable in light of the evidence submitted to the state habeas court. See 28 U.S.C. § 2544(d)(2); Trevino v. Johnson, 168 F.3d 173, 181 (5th Cir.1999), pet. for cert. filed, (U.S. June 17, 1999) (No. 98-9936). In addition, § 2254(d) does not require a federal habeas court to defer to a state court’s legal conclusions. Once again, the pre-AEDPA standard permits, in this regard, a far more liberal review of state habeas court findings than is allowed by the stringent standard of review embodied in AEDPA’s version of § 2254(d). Under AEDPA, a state court’s legal conclusion may not be disturbed absent a showing that the state court conclusion is contrary to, or involved an unreasonable application of, clearly established law, as determined by the United States Supreme Court. 28 U.S.C. § 2254(d)(1). An application of federal law is unreasonable only when “reasonable jurists considering the question would be of one view that the state court ruling was incorrect.” Trevino, 168 F.3d at 181 (quoting Drinkard, 97 F.3d at 769). Thus, AEDPA’s standard of review both restricts the federal habeas court’s review of state factual determinations, and interjects certain limitations upon the federal habeas court’s review of legal conclusions that were not present under pre-AEDPA law. When applying the pre-AEDPA standard to ineffective assistance of counsel claims, this Court has held that whether counsel was deficient, and whether the deficiency, if any, prejudiced the petitioner within the meaning of Strickland, are legal conclusions which both the district court and this Court review de novo. See Bryant, 28 F.3d at 1414 (“a state court’s ultimate conclusion that counsel rendered effective assistance is not a fact finding to which a federal court must grant a presumption of correctness”); see also Carter v. Johnson, 131 F.3d 452, 463 (5th Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 1567, 140 L.Ed.2d 801 (1998); Motley v. Collins, 18 F.3d 1223, 1226 (5th Cir.1994); Black v. Collins, 962 F.2d 394, 401 (5th Cir.1992); Mattheson v. King, 751 F.2d 1432, 1439 (5th Cir.1985). The state court’s subsidiary findings of specific historical facts and state court credibility determinations are, however, entitled to a presumption of correctness under § 2254(d). Carter, 131 F.3d at 463; Bryant, 28 F.3d at 1414 n. 3. Thus, a state habeas court’s determination that counsel conducted a pretrial investigation or that counsel’s conduct was the result of a fully informed strategic or tactical decision is a factual determination, while the adequacy of the pretrial investigation and the reasonableness of a particular strategic or tactical decision is a question of law, entitled to de novo review. See Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.1991); see also Bryant, 28 F.3d at 1414-19; Whitley, 977 F.2d at 158-59; Wilson, 813 F.2d at 672. The Court is, therefore, not required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all. Compare Mann v. Scott, 41 F.3d 968, 983-84 (5th Cir.1994) (citing record evidence for proposition that counsel made a strategic decision not to offer mitigating evidence during the punishment phase of a capital trial), with Whitley, 977 F.2d at 157-58 (concluding from the record that counsel’s failure to offer mitigating evidence during the punishment phase of ha-beas petitioner’s capital trial was not the result of a considered strategic decision, and therefore not entitled to deference), and Wilson, 813 F.2d at 672 (concluding that the existing record was inadequate for purposes of determining whether counsel made a strategic decision not to offer mitigating evidence during the punishment phase of a capital trial or whether that decision was professionally reasonable); see also Whitley, 977 F.2d at 158 (“The crucial distinction between strategic judgment calls and plain omissions has echoed in the judgments of this court.”); Profitt v. Waldron, 831 F.2d 1245, 1248 (5th Cir.1987) (Strickland’s measure of deference “must not be watered down into a disguised form of acquiescence.”); id. at 1249 (refusing to indulge presumption of reasonableness as to “tactical” decision that afforded no advantage to the defense). Rather, the fundamental legal question is whether, viewed with the proper amount of deference, counsel’s performance was professionally reasonable in light of all the circumstances. Strickland, 104 S.Ct. at 2066. Having set forth the factual background of this case and the appropriate standards governing both Moore’s substantive claim that he received ineffective assistance of counsel and the district court’s treatment of relevant findings by the state habeas court, we now proceed to review the district court’s application of those standards. V. A. Subornation of Perjury and Selection of Alibi Defense Moore claims that trial counsel Bonner created a false alibi defense, and then suborned perjury by pressuring Moore and his sisters Clara Jean Baker and Colleen McNiese to testify in support of the alibi. Moore claims that Bonner engaged in this conduct notwithstanding Bonner’s knowledge that Moore’s confession accurately portrayed the shooting as accidental, rather than intentional. Moore identifies this conduct -as deficient performance within the meaning of Strickland. Moore supported his habeas claim in the state habeas evidentiary hearing with his own testimony, and that of his sisters, to the effect that Bonner told them on the day of trial that alibi was the only possible means of avoiding the death penalty. McNiese testified that she did not understand what Bonner was asking her to do. Baker testified that she understood, and that she testified falsely at Moore’s criminal trial shortly after talking to Bonner because she thought she was saving her brother’s life. The state habeas court heard conflicting evidence from Bonner that the alibi defense was insisted upon by Moore and corroborated by his family. Bonner also testified that he was skeptical of the alibi defense at first because most of his clients initially protested innocence, but that he became increasingly more comfortable with using the defense when he determined in the course of his pretrial investigation that none of the state’s witnesses had been able to identify Moore, that Moore no longer lived with Betty Nolan, that Nolan’s son, Michael Pittman, had a record, that the shotgun recovered from Nolan’s house could not be definitively linked to either Moore or the offense, and that the state was not able to connect either of the wigs found at the crime scene to Moore using exemplar hair samples. The state habeas court resolved this conflicting evidence with a credibility determination. The state court found that Bonner’s testimony on the issue of subornation was credible, and that Bonner did not suborn perjury or attempt to suborn perjury from Moore’s sisters. Implicit in that fact finding is the additional determination that Bonner likewise did not suborn perjury from Moore. The district court found deficient performance based upon counsel’s presentation of a perjured alibi defense. The district court identified the state habeas court’s factual determination that Bonner did not suborn perjury, but stated that the fact finding was not entitled deference because the state habeas court’s finding was “confounded by overwhelming evidence to the contrary and is not supported by the record.” The district court also found that the “conduct of trial counsel was so contrary to the great weight of evidence that only a foolish man would insist upon presenting such a defense.” Both rationales for rejecting the state habeas court’s factual determination are problematic. With regard to the first rationale, we note that the state court’s factual finding that Bonner did not suborn or attempt to suborn perjury is a credibility determination made on the basis of conflicting evidence that is virtually unreviewable by the district court or our Court. Marshall, 103 S.Ct. at 850. Section 2254(d) does not grant federal habeas courts a “license to redetermine [the] credibility of witnesses whose demeanor has been observed by the state trial court.” Id. at 851. Moreover, even though we may share the district court’s skepticism, the state habeas court’s credibility determination draws fair support from the record in the form of Moore’s trial testimony and Bonner’s evi-dentiary hearing testimony. For that reason, the district court’s first rationale for rejecting the state habeas court’s credibility determination and its contrary fact finding must be rejected as clearly erroneous. See Bryant, 28 F.3d at 1414 n. 3. The district court’s second rationale is more subtle, but is apparently driven by the underlying premise that a reasonably competent attorney would have dissuaded Moore from pursuing an alibi defense. The district court opined that trial counsel cannot be permitted to evade their burden to provide reasonably effective assistance under the constitution by shifting the blame for selection of an implausible defense to the defendant. Although we find ourselves somewhat in sympathy with the district court’s comments, we cannot agree. Moore is presumed to be the master of his own defense. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2533-34, 45 L.Ed.2d 562 (1975); United States v. Masat, 896 F.2d 88, 92 (5th Cir.1990); Mulligan v. Kemp, 771 F.2d 1436, 1441-42 (11th Cir.1985). Were it otherwise, we might well face ineffective assistance of counsel challenges anytime a chosen defense failed. Moreover, Moore bears the burden of proving his allegation that the alibi defense was unwillingly foisted upon him. See Brewer v. Aiken, 935 F.2d 850, 860 (7th Cir.1991) (“[W]e refuse to hold that the presentation of perjured testimony at the request of the defendant is adequate to constitute ineffective assistance of counsel.”). The state habeas court found that Moore maintained his innocence and endorsed the alibi defense at trial. That determination is fairly supported by Moore’s trial testimony and Bonner’s evi-dentiary hearing testimony. In addition to the evidence described above, the state tendered excerpts from Moore’s pro se brief on direct appeal into the record of the state court habeas proceeding. Moore’s pro se brief argues