Moore v. Stirling et al

Filing 149

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections, adopts the Report, and incorporates it within. Accordingly, Respondents' motion to strike, ECF No. 106 , is GRANTED IN PART, and DENIED IN PART, to allow the Court to consider the Miller and Petty affidavits. Respondents' motion for summary judgment, ECF No. 57 , is GRANTED, and Petitioner's petition for writ of habeas corpus, ECF No. 43 , is DENIED.Petitioner's motion for a hearing, ECF No. 96 , and motion to stay proceedings, ECF No. 117 , are DENIED.IT IS SO ORDERED. Signed by Honorable Mary Geiger Lewis on 03/21/2018. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
RICHARD BERNARD MOORE,
Petitioner,
vs.
BRIAN P. STIRLING, Commissioner,
South Carolina Department of Corrections,
and WILLIE D. DAVIS, Warden of Kirkland
Reception and Evaluation Center,
Respondents.

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CIVIL ACTION NO.: 4:14-04691-MGL

ORDER ADOPTING THE REPORT AND RECOMMENDATION,
GRANTING IN PART AND DENYING IN PART
RESPONDENTS’ MOTION TO STRIKE,
GRANTING RESPONDENTS’ MOTION FOR SUMMARY JUDGMENT,
DENYING PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS,
AND DENYING PETITIONER’S MOTION FOR A HEARING AND MOTION TO STAY

I.

INTRODUCTION
This is a capital habeas corpus action brought under 28 U.S.C. § 2254. Petitioner

Richard Bernard Moore (“Petitioner”) filed a petition for writ of habeas corpus on August 14,
2015. ECF No. 43. On November 16, 2015, Respondents filed a motion for summary judgment,
ECF No. 57, and return and memorandum in support, ECF No. 56. On August 11, 2017,
Petitioner filed a Traverse and Memorandum of Law in opposition to summary judgment, ECF
No. 95; Respondents replied on September 1, 2017, ECF No. 104.

On August 11, 2017, Petitioner filed a motion for hearing. ECF No. 96. Respondents
responded on September 1, 2017. ECF No. 108. On September 15, 2017, Petitioner replied.
ECF No. 116.
In addition to their reply in support of their motion for summary judgment, Respondents
filed a motion to strike on September 1, 2017. ECF No. 106. Petitioner filed a response in
opposition on September 15, 2017. ECF No. 115. On September 29, 2017, Respondents replied,
ECF No. 123, and on October 2, 2017, they filed an Amended Reply, ECF No. 125.
On September 15, 2017, Petitioner filed a motion to stay. ECF No. 117. Respondents
filed a response in opposition on September 29, 2017. ECF No. 124. On October 5, 2017,
Petitioner replied. ECF No. 130.
On December 28, 2017, the Magistrate Judge issued a Report and Recommendation
(“Report”) recommending Respondents’ motion to strike be granted in part and denied in part,
Respondents’ motion for summary judgment be granted, and Petitioner’s motion for hearing and
motion to stay be denied. ECF No. 136. On January 25, 2018, Petitioner filed objections to the
Report, ECF No. 140, to which Respondents replied on February 7, 2018, ECF No. 143. On
February 20, 2018, Respondents filed additional briefing regarding Ground Four of Petitioner’s
petition for writ of habeas corpus. ECF No. 146. Petitioner declined to file an additional reply.
Having reviewed the Report, Petitioner’s objections, Respondents’ reply and additional
briefing, the record, and the relevant case law, the Court will overrule Petitioner’s objections and
adopt the Report. The Court will thus grant in part and deny in part Respondents’ motion to
strike, grant Respondents’ motion for summary judgment, deny Petitioner’s petition for writ of
habeas corpus, and deny Petitioner’s motion for hearing and motion to stay.

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II.

FACTUAL AND PROCEDURAL BACKGROUND
In his Report, the Magistrate Judge provides a thorough recitation of the factual and

procedural history in this case. That history is uncontested; the sole exception is Respondents’
noting the Report incorrectly named the attorney who represented the State during direct appeal
of the underlying case, ECF No. 143 at 10. Thus, because the pertinent history is uncontested,
the Court draws heavily from that history in the following section.
The charges in this case stem from the September 16, 1999, armed robbery
of Nikki’s, a convenience store on Highway 221 in Spartanburg. According to
Terry Hadden, an eyewitness, [Petitioner] Moore walked into Nikki’s at
approximately 3:00 a.m. and walked toward the cooler. Hadden was playing a
video poker machine, which he did routinely after working his second shift job.
Hadden heard Jamie Mahoney, the store clerk, yell “What the hell do you think
you’re doing?” Hadden turned from the poker machine to see Moore holding
both of Mahoney’s hands with one of his hands. Moore turned towards Hadden,
pointed a gun at him, and told him not to move. Moore shot at Hadden, and
Hadden fell to the floor and pretended to be dead. After several more shots were
fired, Hadden heard the doorbell to the store ring. He heard Moore’s pickup truck
and saw him drive off on Highway 221. Hadden got up and saw Mahoney lying
face down, with a gun about two inches from his hand; he then called 911.
Mahoney died within minutes from a gunshot wound through his heart. A money
bag with $1408.00 was stolen from the store.
Shortly after the incident, Deputy Bobby Rollins patrolled the vicinity
looking for the perpetrator of the crime. Approximately one and one-half miles
from the convenience store, Deputy Rollins took a right onto [a street], where he
heard a loud bang, the sound of Moore’s truck backing into a telephone pole. He
turned his lights and saw Moore sitting in the back of a pickup truck bleeding
profusely from his left arm. As Deputy Rollins ordered him to the ground, Moore
advised him, “I did it. I did it. I give up.” A blood covered money bag was
recovered from the front seat of Moore’s pick-up truck. The murder weapon, a
.45 caliber automatic pistol, was found on a nearby highway shortly before
daylight.
ECF No. 136 at 2-3 (quoting State v. Moore, 593 S.E.2d 608, 609-10 (S.C. 2004)).
On January 13, 2000, the Spartanburg County, South Carolina, grand jury indicted

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Petitioner for one count of murder, one count of possession of a firearm during the commission
of a violent crime, and one count of assault with intent to kill (AWIK). Thereafter, the State
filed a Notice of Intent to Seek the Death Penalty. On October 4, 2001, the Spartanburg County
grand jury indicted Petitioner on one count of armed robbery.
Then-Circuit Court Judge Gary E. Clary presided over Petitioner’s trial. Appointed
counsel Michael Morin and R. Keith Kelly represented Petitioner.

Then-Seventh Circuit

Solicitor Harold W. “Trey” Gowdy, III, and then-Assistant Solicitors Barry J. Barnette and
James Donald “Donnie” Willingham, II, represented the State. On October 15, 2001, voir dire
was held, and a panel of jurors selected. Moore’s capital jury trial was held from October 18 to
October 20, 2001. On October 20, 2001, the jury returned a verdict finding Petitioner guilty on
each of the indicted offenses.
On October 22, 2001, Judge Clary presided over the sentencing phase of Petitioner’s trial
before the same jury. Judge Clary submitted the following statutory aggravating factors to the
jury:
‘That the defendant, Richard Bernard Moore, did murder James Mahoney while
in the commission of the crime or act of robbery while armed with a deadly
weapon; two, that the defendant, Richard Bernard Moore, did by his act of murder
knowingly create a great risk to more than one person in a public place by means
of a weapon or device which normally would be hazardous to the lives of more
than one person; and three, that the defendant, Richard Bernard Moore,
committed the murder of James Mahoney for himself or another for the purpose
of receiving money or a thing of monetary value.’
ECF No. 63-6 at 242:22-243:7 (quotation in original). The jury found the existence of each of
the statutory aggravating factors and recommended Petitioner be sentenced to death. Judge
Clary sentenced Petitioner to death on the murder charge, to consecutive sentences of five years

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on possession of a weapon, ten years on AWIK, and thirty years’ imprisonment on the armed
robbery charge.
Petitioner appealed. Following January 7, 2004, oral argument, the South Carolina
Supreme Court issued a published opinion on March 1, 2004, affirming Moore’s convictions and
sentences. State v. Moore, 593 S.E.2d 608 (S.C. 2004). On March 18, 2004, the Remittitur was
sent to the Spartanburg County Clerk of Court.
On March 16, 2004, Petitioner filed a counseled Petition for Stay of Execution to allow
him to pursue post-conviction relief (PCR). The State did not oppose the request. On April 7,
2004, the Supreme Court of South Carolina issued an Order granting the stay and assigning the
case to then-Circuit Court Judge Larry R. Patterson.

Judge Patterson thereafter appointed

attorneys Melissa Armstrong and Kathryn Hudgins to represent Petitioner in his state PCR
proceeding; James M. Morton was later substituted for Ms. Hudgins.
On August 8, 2004, Petitioner filed an initial application for PCR. The State filed a
Return, and Petitioner filed an amended application. Judge Roger L. Couch held a hearing on
January 31 and February 3, 2011. On August 1, 2011, Judge Couch issued an Order dismissing
the application with prejudice.
Petitioner filed a counseled petition for writ of certiorari with the South Carolina
Supreme Court seeking review of the denial of his PCR application. On September 11, 2014, the
Supreme Court of South Carolina denied his petition. Petitioner filed a petition for rehearing; the
South Carolina Supreme Court denied that petition on October 24, 2014, and issued the
Remittitur to the Clerk of Court for Spartanburg County. On October 31, 2014, Petitioner filed a
petition for stay of execution with the South Carolina Supreme Court to allow him to file a

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petition for writ of certiorari with the United States Supreme Court.

The South Carolina

Supreme Court denied the stay on December 12, 2014, and issued an execution notice to
Petitioner’s custodian setting Petitioner’s execution date for January 9, 2015.
In the meantime, on November 20, 2014, Petitioner filed the instant case in the United
States Court for the District of South Carolina. On December 12, 2014, Petitioner sought a stay
of execution in this Court, which the Court granted to allow him to file a petition for writ of
habeas corpus on or before August 16, 2015.
On March 23, 2015, Petitioner filed a petition for writ of certiorari with the United States
Supreme Court. The United States Supreme Court denied certiorari on June 29, 2015. Moore v.
S.C., 135 S. Ct. 2892 (2015).
On August 14, 2015, counsel filed Petitioner’s habeas petition in this Court, and, on
November 16, 2015, Respondents filed a motion for summary judgment. Petitioner subsequently
filed a successive PCR application in the Court of Common Pleas for Spartanburg County.
Petitioner then sought a motion to stay in this Court pending exhaustion of state court remedies;
the Court granted the stay on January 13, 2016. On May 11, 2017, Judge Couch issued an Order
dismissing Petitioner’s second state PCR application with prejudice. On June 23, 2017, the
Court lifted the stay in the instant case.
As detailed above, Petitioner and Respondents then filed additional briefing on the
petition for writ of habeas corpus and motion for summary judgment. In addition, Petitioner
filed a motion for hearing and motion to stay, and Respondents filed a motion to strike, all of
which have been fully briefed, and are ripe for decision.

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III.

STANDARDS OF REVIEW
A)

Habeas Corpus Review
1) Exhaustion

A habeas corpus petitioner is unable to obtain relief in federal court until he has
exhausted his remedies in state court. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion
requirement, a habeas petitioner must fairly present his claim to the state’s highest court.”
Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (overruled on other grounds by United
States v. Barnette, 644 F.3d 192 (4th Cir. 2011)). “To exhaust a claim, the petitioner must
present the state court with ‘both the operative facts and the controlling legal principles.’” Gray
v. Zook, 806 F.3d 783, 798 (4th Cir. 2015) (quoting Winston v. Kelly, 592 F.3d 535, 549 (4th Cir.
2010)).
2) Procedural Default
In general, if a state prisoner’s claims would be defaulted under state procedural rules, a
federal habeas court should not review those claims. McCarver v. Lee, 221 F.3d 583, 588 (4th
Cir. 2000). Procedural default is an affirmative defense, which is waived if not raised by a
respondent. Gray v. Netherland, 518 U.S. 152, 165-66 (1996). An exception to the general bar
against federal habeas review of procedurally defaulted state claims exists where petitioner “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.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).
3) Deference to State Court

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A federal court may not grant a petition for habeas corpus from a petitioner in state
custody based upon a state court’s ruling unless the state court’s decision to deny the petition
either:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
For a state court ruling to be contrary to federal law, the state court must “(1) arrive[] at a
conclusion opposite to that reached by [the United States Supreme Court] on a question of law,
or (2) decide[] a case differently than [the United States Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state
court’s decision is an unreasonable application of federal law if the state court “identifies the
correct governing legal principle from [the United States Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. For a federal court to
grant a writ of habeas corpus under the unreasonable application clause, it must conclude not
only the state court erred in applying federal law, but also the application was unreasonable. Id.
at 411. The factual findings of the state court are presumed correct, and the petitioner has the
burden of rebutting that presumption by “clear and convincing evidence.”

28 U.S.C. §

2254(e)(1).
The standard of review is thus highly deferential. For this standard to apply, however,
the state court’s denial of the petition must have been an adjudication on the merits. See 28
U.S.C. § 2254(d). A state court has not made an adjudication on the merits when it makes its

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decision “‘on a materially incomplete record.’” Gordon v. Braxton, 780 F.3d 196, 202 (4th Cir.
2015) (quoting Kelly, 592 F.3d at 555). “A record may be materially incomplete ‘when a state
court unreasonably refuses to “permit further development of the facts” of a claim.’”
(quoting Winston v. Pearson, 683 F.3d 489, 499 (4th Cir. 2012)).

Id.

Where a state court’s

adjudication was based upon a materially incomplete record, it would be inappropriate for the
federal court to defer to that state court ruling because the ruling would not be an adjudication on
the merits as required for deference under 28 U.S.C. § 2254(d). Kelly, 592 F.3d at 555-56
(citations omitted).
For a claim to have been fairly presented to the state court, the petitioner must have
presented evidence in support of the claim, and the state court must have “‘reached a conclusion
as to which [fair-minded] jurists could disagree.’” Gray v. Zook, 806 F.3d at 791 (quoting
Moore v. Hardee, 723 F.3d 488, 4999 (4th Cir. 2013)).
4)

Ineffective Assistance of Counsel

Defendants in criminal cases have a constitutional right to the assistance of counsel. U.S.
Const. amend. VI. “‘[T]he right to counsel is the right to the effective assistance of counsel.’”
Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)).
To prevail on a claim counsel was constitutionally ineffective, a defendant must show: 1)
“counsel’s performance was deficient,” and 2) “that the deficient performance prejudiced the
defense.” Id. at 687. To meet the first element, a defendant must show counsel’s errors rose to a
level where counsel was not performing as required under the Constitution. Id. This is a
difficult bar to meet as “‘[t]here is a strong presumption that counsel’s conduct falls within the

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wide range of reasonable professional assistance.’” United States v. Rangel, 781 F.3d 736, 742
(4th Cir. 2015) (quoting United States v. Higgs, 663 F.3d 726, 739 (4th Cir. 2011)). To show
prejudice, “[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Further, even if the result of the proceeding would have been
different, a court can grant relief under Strickland only if the result counsel obtained was
“‘fundamentally unfair or unreliable.’” Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998)
(quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)). In conducting a Strickland analysis, a
court may review either element first, and may cease analysis if the defendant fails to show
either element. Strickland, 466 U.S. at 697.
When the Strickland analysis is applied in the context of federal habeas, the standard of
review is even more deferential. “Establishing that a state court’s application of Strickland was
unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and§
2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.”
Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). “When § 2254(d) applies [in
a Strickland analysis], the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Id.
5) Martinez v. Ryan Standard
Because there is no constitutional right to counsel in state PCR proceedings, a habeas
petitioner cannot make an ineffective assistance of counsel claim as to such proceedings.

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Coleman, 501 U.S. at 752 (citations omitted). However, the Supreme Court has recognized “a
narrow exception: Inadequate assistance of counsel at initial-review-collateral proceedings may
establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.”
Martinez v. Ryan, 566 U.S. 1, 9 (2012). More specifically:
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trialcounsel claim in a collateral proceeding [as does South Carolina], a prisoner may
establish cause for a default of an ineffective-assistance claim in two
circumstances. The first is where the state courts did not appoint counsel in the
initial-review collateral proceeding for a claim of ineffective assistance at trial.
The second is where appointed counsel in the initial-review collateral proceeding,
where the claim should have been raised, was ineffective under the standards of
Strickland v. Washington . . . . To overcome default, a prisoner must also
demonstrate that the underlying ineffective-assistance-of-trial-counsel claim has
some merit.
Id. at 14. If the ineffective assistance of counsel claim “is insubstantial, i.e. it does not have any
merit or . . . is wholly without factual support,” the procedural default will preclude federal
habeas review. Id. at 16.
B)

Summary Judgment

“The court shall grant summary judgment if the movant shows there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Summary judgment should be granted under Rule 56 when A‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any, show there is no genuine issue as to any material fact and the moving party is entitled to a
judgment as a matter of law.’@ Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)(quoting Fed.
R. Civ. P. 56(c)). A genuine issue of material fact exists Aif the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.@ Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A fact is material if it might Aaffect the outcome of the suit under
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the governing law.@ Id. On a motion for summary judgment, all evidence must be viewed in the
light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121,
124 (4th Cir. 1990) (citing Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d
482, 486 (1st Cir. 1981)).
C)

Report and Recommendation

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo
determination of those portions of the Report to which specific objection is made, and the Court
may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge,
or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1). In the absence of a
timely filed objection, a district court need not conduct a de novo review, but instead must “only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.2005).

IV.

ANALYSIS
A)

Motion to Stay

Petitioner objects the Magistrate Judge erred in recommending Petitioner’s motion to stay
be denied. Petitioner claims his case should be stayed pending the United States Supreme
Court’s decision in Ayestas v. Davis, No. 16-6795 (U.S. argued October 30, 2017). According to
Petitioner, Ayestas raises the issue central to the instant case of whether the record in a habeas
action can be expanded to overcome procedural default. The Court agrees with the Magistrate
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Judge.
“[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the causes on its docket with economy of time and effort for itself, for
counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Deciding when a
stay is appropriate involves weighing competing interests. Id. at 254-55 (citations omitted).
These interests include whether the case upon which the stay is sought would be dispositive of
the instant case, judicial economy, public welfare, and the hardship involved in staying the case.
Id. at 255-56.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) circumscribes the
discretion of district courts to issue stays. Rhines v. Weber, 544 U.S. 269, 276 (2005). A stay in
an AEDPA case, like the instant case, must “be compatible with AEDPA’s purposes.” Id. “One
of [AEDPA’s] purposes is to ‘reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases.’” Id. (quoting Woodford v. Garceau, 538 U.S. 202, 206
(2003)). AEDPA also promotes the finality of state court judgments. Id. (citing Duncan v.
Walker, 533 U.S. 167, 179 (2001)).
The question presented in Ayestas is: “Whether the Fifth Circuit erred in holding that 18
U.S.C. § 3599(f) withholds ‘reasonably necessary’ resources to investigate and develop an
[ineffective assistance of counsel] claim that state habeas counsel forfeited, where the claimant’s
existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is
made.”

Ayestas,

No.

16-6795,

Questions

Presented,

available

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/166795.html (Last accessed March 2, 2018).

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via:

The grounds for habeas relief raised by Petitioner here do not include any claims under
18 U.S.C. § 3599(f). Accordingly, the Court holds a stay of this case pending the decision in
Ayestas is unwarranted, especially in light of the interests AEDPA was enacted to promote.
B)

Petition for Writ of Habeas Corpus and Motion for Summary Judgment

Petitioner’s petition for writ of habeas corpus advances eight grounds in support. ECF
No. 43. The instant Order discusses five of those grounds in depth. Petitioner withdrew Ground
Seven before the Report was issued, ECF No. 95 at 52 n.33; thus, Ground Seven is no longer at
issue. Petitioner fails to object to the Magistrate Judge’s recommendation Respondents’ motion
for summary judgment be granted as to Grounds Two and Six; those Grounds are thus not
specifically discussed in this Order.
1)

Ground One

Ground One of Petitioner’s petition alleges his trial counsel were constitutionally
ineffective for failing to adequately investigate and prepare a rebuttal to the State’s physical
evidence. ECF No. 43 at 15-17. Petitioner claims in his Traverse and Memorandum of Law in
Opposition to Summary Judgment his state PCR counsel presented an inadequately developed
Ground One argument to the South Carolina Supreme Court.

Through the Martinez

investigation conducted while his federal case was stayed, Petitioner averred he had uncovered
new evidence in support of Ground One, and sought to have this Court consider the evidence.
The new evidence included trial counsel’s purported notes, ECF No. 95-1, a declaration from an
expert witness with experience in forensics and crime scene construction who was not contacted
prior to the trial, ECF No. 95-2, and a declaration from crime scene investigation expert Donald
Girndt, ECF No. 95-3, whom trial counsel had consulted but ultimately decided not to have

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testify at trial.
Petitioner objects the Magistrate Judge erred in recommending Ground One was fairly
presented to the state PCR Court and in disallowing new evidence in support of Ground One.
The Magistrate Judge suggested Petitioner’s additional evidence should not be allowed because
Ground One was previously raised and ruled upon in state Court, and because the new evidence
fails to fundamentally alter the Ground One claim. Petitioner avers Ground One was not fairly
presented because Petitioner’s state PCR counsel did not present competent evidence in support
of trial counsel’s ineffectiveness on Ground One. Petitioner further advances his new evidence
fundamentally alters Ground One, and thus should be allowed.
As noted above, the standard of review in a federal habeas proceeding is highly
deferential if the state court rendered a decision on the merits. See 28 U.S.C. § 2254(d). Further,
the factual findings of the state court are presumed correct unless Petitioner rebuts that
presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Having reviewed the
record, the Court holds the state PCR court reviewed Petitioner’s Ground One on the merits.
Accordingly, this Court’s review “is limited to the record that was before the state court that
adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
New evidence may be presented to the district court, however, where the new evidence
fundamentally alters the claim that was before the state court such that the claim was not
exhausted before the state court. See Gray v. Zook, 806 F.3d 783, 799 (4th Cir. 2015). Despite
Petitioner’s objection to the Magistrate Judge’s reliance on the Gray v. Zook standard in the
instant case, the Court agrees with the Magistrate Judge the standard is correctly applied here.
New evidence does not fundamentally alter the claim that was before the state court where “[t]he

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heart of the claim remains the same,” such that the evidence “has perhaps strengthened the claim,
but it has not ‘fundamentally altered it.’” Id. (quotation in original).
The heart of Petitioner’s state PCR claim was trial counsel were ineffective for: 1) failing
to properly investigate and rebut the State’s physical evidence, and 2) failing to present their own
expert or evidence to rebut the State’s physical evidence, or challenge admissibility. The heart
of Petitioner’s claim before this Court is the same. Thus, even if Petitioner’s new evidence
strengthens his claim, it does not fundamentally alter the claim.
Petitioner also alleges this Court should overrule the Magistrate Judge’s finding “trial
counsel’s consultation with Donald Girndt . . . before trial discharged their duty to investigate the
physical evidence. In reaching this erroneous conclusion, the Magistrate Judge ignored Girndt’s
affidavit,” which was part of the newly presented evidence. ECF No. 140 at 9. As a preliminary
matter, the Magistrate Judge did not find trial counsel’s consultation with Girndt discharged their
duty to investigate. See ECF No. 136 at 39, 45. Rather, the Magistrate Judge noted one of the
reasons the state PCR court relied upon in dismissing Petitioner’s claim trial counsel were
ineffective for failing to retain their own crime scene expert was trial counsel retained Girndt,
and consulted with him before trial, but made the objectively reasonable decision not to call
Girndt at trial given his testimony would have harmed Petitioner’s case. Id. Further, the
affidavit Petitioner wishes the Court to consider is new evidence, and is inappropriate for
consideration by the Court as discussed above. For those reasons, the Court declines to further
analyze this objection, and the Court will overrule Petitioner’s objections as to the Magistrate
Judge’s recommendation on Ground One.
2)

Ground Three
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Ground Three of Petitioner’s petition alleges Petitioner’s trial counsel were ineffective
for failing to pursue a claim under Batson v. Kentucky, 476 U.S. 79 (1986), after the State struck
the only two African-American jurors qualified to serve on the jury. ECF No. 43 at 23-27. This
claim was presented to the state PCR Court, which rejected the claim on the merits. Petitioner
sought to raise the issue on PCR appeal, but his appellate counsel declined to do so. Petitioner
then sought to raise the issue via a pro se motion and a pro se supplemental petition for writ of
certiorari filed with the South Carolina Supreme Court; that court declined to take action on the
motion, and refused to accept the supplemental petition for filing.
Petitioner argues the Magistrate Judge erred in recommending Petitioner cannot
overcome his procedural default of Ground Three. The Magistrate Judge suggested Petitioner’s
claim was not exhausted because Petitioner’s pro se petitions to the South Carolina Supreme
Court were not properly before that court. Further, the Magistrate Judge concluded the narrow
exception in Martinez does not apply to claims of ineffective assistance of PCR appellate
counsel, and, even if Martinez did apply, Petitioner could not meet the Martinez/Strickland
standard because he could not show deficient performance or prejudice, and there was no
fundamental miscarriage of justice.

Petitioner avers his pro se efforts should prevent his

appellate counsel’s failures from being held against him, Martinez should be extended to his
claim, and he can show prejudice from counsel’s failure to raise his Batson claim.
Petitioner relies on his pro se petition to the South Carolina Supreme Court to overcome
his state PCR appellate counsel’s failure to raise Ground Three before that court, and thus his
procedural default of Ground Three. The law, however, bars Petitioner’s argument. Neither the
United States nor the South Carolina Constitutions provide a right to hybrid representation. State

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v. Stuckey, 508 S.E. 2d 564, 564 (S.C. 1998) (citations omitted). Petitioner was represented by
counsel in his state PCR appeal; therefore, substantive documents filed in that appeal had to be
submitted by counsel to be properly before the South Carolina Supreme Court. See id. at 564-65
(holding pro se documents submitted by a counseled petitioner were not properly before the
court). Petitioner’s state PCR appellate counsel neglected to raise Ground Three before the
South Carolina Supreme Court; therefore, Ground Three was procedurally defaulted.
To overcome procedural default, Petitioner must show cause for the default and prejudice
from the violation of federal law alleged. Coleman, 501 U.S. at 750. Though Petitioner avers
his claim is one of ineffective assistance of trial counsel, he concedes his claim is about the
failure of state PCR appellate counsel to raise his Batson claim, not about the failure of state
PCR counsel to raise the claim. This is not the type of claim Martinez allows.

Martinez is a

“narrow exception,” where “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective
assistance at trial.” Martinez, 566 U.S. at 9. Petitioner further advances the equitable principles
underlying habeas law should allow the Martinez exception to be extended to Petitioner’s state
PCR appellate counsel’s failure to raise the Batson claim.

This argument is likewise

unsupported by case law. See Davila v. Davis, 137 S. Ct. 2058 (2017) (declining to extend
Martinez to claims of ineffective assistance of appellate counsel). Because Petitioner’s claim
does not fall within the narrow Martinez exception, he fails to establish cause for the procedural
default of Ground Three.
In addition to being unable to show cause for the procedural default on Ground Three,
Petitioner fails to show prejudice. As analyzed in the Report, Petitioner’s trial counsel made a

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Batson motion when the State struck the only two African-Americans qualified to serve on the
jury. The State provided race-neutral reasons for those strikes, and Petitioner’s trial counsel
declined to challenge the State’s reasons as pretextual. The trial judge concluded the reasons for
the contested strikes were race-neutral and denied Petitioner’s Batson motion. This issue was
raised at state PCR proceedings, and the state PCR Court specifically held Petitioner had failed
to prove deficient performance or prejudice under Strickland.
Petitioner argues the Magistrate Judge ignored Petitioner’s arguments showing the
purportedly race-neutral reasons provided by the State were pretextual, and failed to address his
claims under 28 U.S.C. § 2254(d). Both those arguments are unavailing. First, having reviewed
Petitioner’s claims regarding the allegedly race-neutral reasons being pretextual, the Court agrees
with the Magistrate Judge’s recommendation: there is no prejudice here. Second, federal habeas
relief is unavailable where the claim has not been exhausted in the state’s highest court. The
Magistrate Judge here suggested, and the Court agrees, Petitioner’s Batson claim was
unexhausted, and thus correctly declined to review Petitioner’s § 2254(d) claims. Because
Petitioner fails to show cause for procedural default of Ground Three, and also neglects to show
prejudice, the Court will overrule his objections to the Magistrate Judge’s recommendation on
Ground Three.
3)

Ground Four

Ground Four of Petitioner’s petition claims trial counsel were ineffective for failing to
challenge the State’s decision to seek the death penalty as arbitrary and disproportionate to the
crime with which Petitioner was charged.

ECF No. 43 at 27-30.

The Magistrate Judge

suggested Ground Four was procedurally defaulted, and Petitioner could not meet the Martinez

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standard to overcome the procedural default because he failed to show the State engaged in
selective prosecution and, thus failed to establish his underlying ineffective assistance of trial
counsel claim was substantial. Petitioner objects his Ground Four claim was not a selective
prosecution claim. He clarifies he “does not allege that the prosecutor intentionally based his
charging decision on [Petitioner’s] or the victim Mahoney’s race [Petitioner is AfricanAmerican; Mahoney was Caucasian] but alleged the imposition of the death penalty was
arbitrary and disproportionate in his case in violation of the Eighth Amendment.” ECF No. 140
at 15. In additional briefing, Respondents aver even under an Eighth Amendment standard,
Petitioner fails to show the cause and prejudice necessary under Martinez/Strickland to overcome
his Ground Four procedural default.

The Court agrees with the Magistrate Judge and

Respondents.
As a preliminary matter, a state prosecutor has largely unfettered discretion in
prosecuting his case.
In our system, so long as the prosecutor has probable cause to believe that the
accused committed an offense defined by statute, the decision whether or not to
prosecute, and what charge to file or bring before a grand jury generally rests
entirely in his discretion. Within the limits set by the legislature’s constitutionally
valid definition of chargeable offenses, “the conscious exercise of some
selectivity in enforcement is not in itself a federal constitutional violation” so long
as “the selection was [not] deliberately based upon an unjustifiable standard such
as race, religion, or other arbitrary classification.”
Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (footnote omitted) (quoting Oyler v. Boles,
368 U.S. 448 (1962)); see also In re Richland Cty. Magistrate’s Court, 699 S.E.2d 161, 163
(S.C. 2010) (holding under South Carolina law, the prosecutor has “unfettered discretion to
prosecute,” which includes decisions about whether to prosecute, what evidence to present, and
negotiating plea bargains).
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Additionally, Petitioner has failed to submit, and the Court has been unable to find, any
case law stating the South Carolina death penalty statute is constitutionally invalid. Petitioner
also explicitly avers he is not advancing a claim the prosecutor made his charging decision based
upon race.
To the extent Petitioner claims imposing the death penalty in his case was arbitrary and
disproportionate in violation of the Eighth Amendment, that claim fails. In McCleskey v. Kemp,
481 U.S. 279 (1987), the United States Supreme Court held capital habeas petitioner McCleskey
was unable to argue his death penalty sentence was disproportionate under the Eighth
Amendment. The McCleskey court held McCleskey neglected to deny the murder at issue was
committed during a planned robbery, which was an act for which the death penalty could be
imposed under Georgia’s capital sentencing scheme. Id. at 306.
Like Georgia’s statute, South Carolina law allows for imposition of the death penalty
where a murder is committed during the course of an armed robbery. S.C. Code. Ann. § 16-320(c)(1)(e). Petitioner advances his case differs from other death penalty cases because the
weapons involved were originally in the control of the victim. To the extent Petitioner seeks to
argue the murder was thus not committed during an armed robbery, his claim is foreclosed by
South Carolina law. See State v. Damon, 328 S.E.2d 628, 631 (S.C. 1985) (holding the State
need not show the aggravating circumstance came before the murder for it to be an aggravating
circumstance) (overruled on other grounds by State v. Torrence, 406 S.E.2d 315 (S.C. 1991)).
This Court is bound by the South Carolina Supreme Court’s interpretation of the South Carolina
statutory aggravating factors for imposing the death penalty. Estelle v. McGuire, 502 U.S. 62,
67-68 (1991).

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Petitioner also advances the death penalty was disproportionate and arbitrary in his case
because no death penalty case in South Carolina has similar facts to his. This argument,
likewise, fails.

See McCleskey, 481 U.S. 279, 306 (1987) (Petitioner “cannot base a

constitutional claim on an argument that his case differs from other cases in which defendants
did receive the death penalty. On automatic appeal, the Georgia Supreme Court found that
McCleskey’s death sentence was not disproportionate to other death sentences imposed in the
State.”) (citation omitted). As in McCleskey, the South Carolina Supreme Court here held on
direct appeal “[Petitioner’s] death sentence was not the result of passion, prejudice, or any other
arbitrary factor, and the jury’s finding of aggravating circumstances is supported by the
evidence. Further, the death penalty is not excessive or disproportionate to the penalty imposed
in similar capital cases.” Moore, 593 S.E.2d at 612.
Finally, Petitioner argues defendants in the same circuit who committed worse crimes
than he were not sentenced to death. This claim is likewise unavailing. See McCleskey, 481
U.S. at 306-07 (“absent a showing that the Georgia capital punishment system operates in an
arbitrary and capricious manner, McCleskey cannot prove a constitutional violation by
demonstrating that other defendants who may be similarly situated did not receive the death
penalty.”). As noted above, the South Carolina death penalty statute has not been held to be
constitutionally deficient.
For the foregoing reasons, Petitioner is unable to show his claim trial counsel were
ineffective for failing to challenge the State’s decision to seek the death penalty has merit. As a
result, Petitioner is unable to demonstrate cause under Martinez to overcome procedural default
on Ground Four. Because Petitioner fails to establish cause, the Court declines to address the

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issue of prejudice. See Karsten v. Kaiser Found. Health Plan of Mid-Atl. States, Inc., 36 F.3d 8,
11 (4th Cir. 1994) ("If the first reason given is independently sufficient, then all those that follow
are surplusage; thus, the strength of the first makes all the rest dicta."). Thus, the Court will
overrule Petitioner’s objections as to Ground Four.
4)

Ground Five

Ground Five of Petitioner’s petition alleges trial counsel were ineffective by failing to
adequately investigate and present mitigating evidence. ECF No. 43 at 30-35. Petitioner objects
the Magistrate Judge erred in disallowing new evidence in support of Ground Five.
The Magistrate Judge suggested Respondents could not have waived their objection to
the introduction of new evidence. The Magistrate Judge also recommended the additional
evidence should not be allowed because Ground Five was previously raised and ruled upon in
state court, and because the new evidence did not fundamentally alter the Ground Five claim.
Petitioner avers Respondents waived their objection to the introduction of new evidence.
Petitioner further advances Ground Five was not decided on the merits in state court because
Petitioner’s state PCR counsel did not present evidence in support of trial counsel’s
ineffectiveness on Ground Five, and Petitioner’s new evidence fundamentally alters Ground
Five.
As a preliminary matter, the Court agrees with the Magistrate Judge: Respondents could
not have waived procedural default. Respondents filed their motion for summary judgment and
return and memorandum in opposition to Petitioner’s petition for writ of habeas corpus on
November 16, 2015. ECF Nos. 56, 57. Approximately two months later, before Petitioner
responded to the motion for summary judgment, the Court stayed the case. ECF No. 67. The

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Court lifted the stay some seventeen months later, on June 23, 2017. ECF No. 91. Petitioner
then responded to the motion for summary judgment, providing new evidence in support of his
petition. ECF No. 95. Petitioner argued Respondents waived procedural default as to the new
evidence because they failed to argue in their return new evidence in support of Ground Five was
defaulted because it had not been presented to the state court. Id. at 42 (citing Jones v. Sussex I
State Prison, 591 F.3d 707, 716 (4th Cir. 2010)). Respondents, however, could not, in their
November 2015 return, have waived objection to evidence newly presented in June 2017.
Petitioner’s remaining objections to the Magistrate Judge’s recommendation on Ground
Five fail for the same reasons his objections to the Magistrate Judge’s recommendation on
Ground One fail. First, federal habeas court review is highly deferential if the state court
rendered a decision on the merits, and the state court’s findings on the facts are presumed correct
unless rebutted with clear and convincing evidence. See 28 U.S.C. §§ 2254(d)-(e)(1). Having
reviewed the record, the Court holds the state PCR court reviewed Petitioner’s Ground Five on
the merits.
When the state court adjudicated the claim on the merits, federal habeas review is
“limited to the record that was before the state court.” Cullen, 563 U.S. at 181. A district court
may, however, review new evidence where that evidence fundamentally alters the claim before
the state court such that the claim was not exhausted before the state court. See Gray v. Zook,
806 F.3d at 799. A claim is not fundamentally altered if the evidence “has perhaps strengthened
the claim,” but “[t]he heart of the claim remains the same.” Id.
The heart of Petitioner’s state PCR claim was trial counsel were ineffective for failing to
investigate and present mitigation evidence. Specifically, Petitioner’s state PCR claim was trial

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counsel failed to conduct an investigation in Michigan, where Petitioner was raised, and that
such an investigation would have revealed Petitioner’s good character and struggle with
addiction, and would have provided friends or relatives willing to testify on Petitioner’s behalf.
That claim is also at the heart of Petitioner’s Ground Five before this Court. Assuming arguendo
Petitioner’s new evidence strengthens his claim, it does not fundamentally alter it. For the above
reasons, the Court will overrule Petitioner’s objection to the Magistrate Judge’s recommendation
on Ground Five.
5)

Ground Eight

In Ground Eight of his petition, Petitioner alleges trial counsel were ineffective for failing
to object to the application of the statutory aggravating circumstances permitting the State to
seek the death penalty in his case. ECF No. 43 at 39-40. The Magistrate Judge suggested
Ground Eight is procedurally defaulted and the Court is unable to excuse the procedural default
under Martinez because Petitioner’s underlying ineffective assistance of trial counsel claim lacks
merit. Petitioner concedes the Magistrate Judge properly suggested under South Carolina law
armed robbery can be committed even when the perpetrator becomes armed during the robbery,
and armed robbery can be a statutory aggravating factor in a death penalty case even when the
robbery is not completed until after the murder. ECF No. 140 at 16. Petitioner’s sole basis for
objecting to the Magistrate Judge’s recommendation on Ground Eight is Petitioner did not form
the intent to rob until after committing the murder, thus the murder was not committed while in
the commission of a robbery, nor for the purpose of monetary gain. Id. at 16-18.
Under South Carolina law, when the State seeks the death penalty for a murder charge,
the Defendant may be sentenced to death only when one or more statutory aggravating factors is

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found beyond a reasonable doubt. S.C. Code Ann. §§ 16-3-20(A)-(B). Those aggravating
factors include: (1) “[t]he murder was committed while in the commission of . . . robbery while
armed with a deadly weapon,” id. § 16-3-20(C)(a)(1)(e), and (2) “[t]he offender committed the
murder for himself or another for the purpose of receiving money or a thing of value,” id. § 16-320(C)(a)(4).

Moore’s state PCR counsel waived a claim based on an additional statutory

aggravating factor at the state PCR proceeding, and the PCR Court acknowledged that waiver.
ECF No. 63-9 at 73:19-74:6.
South Carolina case law precludes Petitioner’s objection as to the murder not being
committed while in the commission of a robbery. In State v. Damon, the South Carolina
Supreme Court rejected the very argument Petitioner advances here: the intent to rob came after
the murder, and thus the statutory aggravating circumstances did not apply. State v. Damon, 328
S.E.2d 628, 631 (S.C. 1985) (“The appellant contends his motive for the murders was not
robbery; that he stole the victims’ property as an afterthought. He argues, therefore, the state
could not rely on armed robbery or larceny as an aggravating circumstance. We disagree. In
South Carolina, there is no requirement that the state prove motive.”) (overruled on other
grounds by State v. Torrence, 406 S.E.2d 315 (S.C. 1991)). This Court is bound by the South
Carolina Supreme Court’s interpretation of the South Carolina statutory aggravating factors.
Estelle v. McGuire, 502 U.S. at 67-68 (“Today we reemphasize that it is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.

In

conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States.” (citations omitted)).
Even assuming Petitioner was correct the statutory aggravating factors he contests in

26

Ground Eight were improperly applied in his case, he would still fail to show prejudice arising
from trial counsel neglecting to raise the claim. At Petitioner’s trial, the jury found the existence
beyond a reasonable doubt of all three aggravating factors charged. One of those factors was:
“offender by his act of murder knowingly created a great risk of death to more than one person in
a public place by means of a weapon or device which normally would be hazardous to the lives
of more than one person.” S.C. Code Ann. § 16-3-20(C)(a)(3). When Petitioner formed the
intent to rob relative to committing the murder would have no impact on this statutory
aggravating factor, and the existence of this factor alone would be sufficient to support the
imposition of the death penalty. S.C. Code Ann. § 16-3-20(A). For the above reasons, the Court
will overrule Petitioner’s objections to the Magistrate Judge’s recommendation on Ground Eight.
C)

Motion for Hearing

Petitioner objects the Magistrate Judge erred in suggesting Petitioner’s motion for
hearing be denied. Petitioner requests a hearing to show his PCR counsel were ineffective for
failing to raise Grounds One, Four, Five, Eight, and possibly Three, and to overcome procedural
default under Martinez.

Petitioner notes he “assumes the Magistrate Judge recommended

denying Moore a hearing based on the finding that Grounds 1 and 5 were fairly presented to the
South Carolina courts and the remaining claims had no merit.” ECF No. 140 at 18. Because the
Magistrate Judge made incorrect recommendations on these Grounds, Petitioner argues, the
Court should grant him a hearing. Id. As analyzed above, however, this Court agrees with the
Magistrate Judge’s recommendations.

For that reason, the Court will overrule Petitioner’s

objection to the Magistrate Judge’s suggestion Petitioner’s motion for hearing be denied.

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V.

CONCLUSION
In conclusion, for the reasons stated above, the Court overrules Petitioner’s objections,

adopts the Report, and incorporates it within. Accordingly, Respondents’ motion to strike, ECF
No. 106, is GRANTED IN PART, and DENIED IN PART, to allow the Court to consider the
Miller and Petty affidavits.

Respondents’ motion for summary judgment, ECF No. 57, is

GRANTED, and Petitioner’s petition for writ of habeas corpus, ECF No. 43, is DENIED.
Petitioner’s motion for a hearing, ECF No. 96, and motion to stay proceedings, ECF No. 117, are
DENIED.

IT IS SO ORDERED.
Signed this 21st day of March, 2018, in Columbia, South Carolina.

s/ Mary Geiger Lewis
MARY GEIGER LEWIS
UNITED STATES DISTRICT JUDGE

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