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Moore v. Stirling

United States District Court, D. South Carolina, Florence Division

January 13, 2016

Richard Bernard Moore, Petitioner,
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections; Joseph McFadden, Warden of Lieber Correctional Institution, Respondents.



This death penalty habeas corpus matter is before the court on a motion to stay filed by the petitioner, Richard Bernard Moore.[1] Counsel for Petitioner filed the petition for writ of habeas corpus on August 21, 2015. (ECF No. 43). On November 16, 2015, Respondents filed a return and memorandum along with a motion for summary judgment. (ECF Nos. 56 & 57).

On December 4, 2015, counsel for Petitioner filed the Motion to Stay Proceedings Pending Exhaustion of State Remedies pursuant to the holding in Rhines v. Weber, 544 U.S. 269, 276 (2005) (allowing stays of habeas cases in limited circumstances), so that Petitioner could exhaust several unexhausted grounds via a contemporaneously-filed application for post-conviction relief in the Court of Common Pleas for Spartanburg County.[2] Counsel for Respondents on December 21, 2015, filed a response in opposition to the motion to stay. (ECF No. 64). Counsel for Petitioner filed a reply on January 4, 2016. (ECF No. 66). This matter is before the Court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC. Upon review of the parties’ filings, the record, and the applicable law, the undersigned grants Petitioner’s motion to stay.


On October 22, 2001, the Court of General Sessions for Spartanburg County sentenced Petitioner to death for murder and to incarceration for thirty years for armed robbery, ten years for assault with intent to kill, and five years for possession of a weapon during the commission of a violent crime. Petitioner’s convictions arise out of the murder of Jamie Mahoney during the commission of an armed robbery at Nikki’s Speedy Mart early in the morning of September 16, 1999. See State v. Moore, 357 S.C. 458, 593 S.E.2d 608 (2004). Petitioner filed an application for post-2 conviction relief (Case No. 2004-CP-42-2715) on August 8, 2004. The Court of Common Pleas for Spartanburg County denied relief in the post-conviction case on August 1, 2011. Thereafter, Petitioner filed a petition for writ of certiorari in the Supreme Court of South Carolina, which was denied on September 11, 2014.

In the instant petition, Petitioner presents eight grounds, seven of which are potentially unexhausted, in whole or in part, according to the information provided to this Court by both parties.[3] Thus, in his pending PCR action, Petitioner seeks to exhaust the grounds designated as Grounds I through V, VII, and VIII of his habeas petition filed in this case. Ground I alleges that trial counsel failed to adequately investigate and prepare to confront and rebut the State’s physical evidence. Grounds II and III concern whether trial counsel adequately handled juror qualification and selection. Ground IV alleges trial counsel should have challenged the State’s decision to seek the death penalty as arbitrary and disproportionate to the crime with which Petitioner was charged. Ground V concerns whether trial counsel failed to adequately investigate and present mitigating evidence. And Grounds VII and VIII are based on counsel’s failure to request a charge on the statutory mitigating circumstance of provocation by the victim and to oppose the charges on the aggravating statutory circumstances of murder committed while in commission of an armed robbery and murder committed for the purpose of receiving money.


Petitioner argues that his petition is a “mixed” petition and therefore requests that the undersigned stay this habeas action pursuant to Rhines v. Weber, 544 U.S. 269 (2005), until the state court rules on his pending second PCR application.

Under Rhines, a federal habeas case may be stayed and held in abeyance “where such a stay would be a proper exercise of discretion.” Id. at 276. The Supreme Court further stated that in certain instances where a petitioner had filed a “mixed” petition-a petition containing exhausted and unexhausted claims-an exercise of discretion would be proper. Id. at 273-73, 276-78.

Prior to Rhines and the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), total exhaustion of state remedies was required prior to the filing of a federal habeas petition, which required all mixed petitions to be dismissed without prejudice. Rose v. Lundy, 455 U.S. 509 (1982); Rhines, 544 U.S. at 273-74. After the enactment of AEDPA, which included a one-year statute of limitations for the filing of federal habeas petitions under § 2254, the Supreme Court modified the rule regarding mixed petitions in certain limited circumstances. The modification was due to the fact that situations could arise where a mixed petition is timely filed in federal court, but the result of dismissing the federal habeas petition may result in time-barring the petitioner from returning to federal court after completing his obligation to exhaust all issues. Rhines, 544 U.S. at 275. Therefore, the Rhines Court held that a district court may in limited circumstances stay a habeas proceeding; however, it is “only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court.” Id. at 277. Additionally, “even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.” Id. Accordingly, a stay should be granted where a petitioner demonstrates “good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278.

In support of his motion, Petitioner argues that his petition constitutes a “mixed” petition and that he satisfies the requirements of Rhines. Respondents first dispute whether Petitioner’s petition is a mixed petition. There does not appear to be any dispute that Grounds II, IV, and VIII were never presented to the state courts. However, Respondents argue that the petition does not contain any “unexhausted claims” because based on state law, Petitioner’s recently filed PCR application will be dismissed as successive and/or untimely. As explained herein, the undersigned cannot find under the circumstances in this case that the state court remedies are unavailable; moreover, that determination should be made by the state court in Petitioner’s pending PCR action. See, e.g., Staton v. McCall, C/A No. 5:12-cv-2483-GRA, 2013 WL 3551546 at *4 (D.S.C. July 11, 2013) (“Moreover, with regard to any questions about whether Petitioner is procedurally barred from proceeding in the pending state court proceedings with his claim because of his failure to raise it on direct appeal, the Court finds, as the Magistrate Judge did, that such questions are best resolved there.”).

Good Cause

With regard to the Rhines factors, Petitioner argues that while “good cause” has not been defined, “the requirement is not a particularly demanding one.” (ECF No. 58 at 5). In support of his “good cause, ” Petitioner appears to argue that counsel in his original PCR proceedings (both initial and appellate) were ineffective in failing to raise Grounds I through V, VII, and VIII. Petitioner relies on the Supreme Court’s decision in Martinez v. Ryan, ___U.S.___, 132 S.Ct. 1309');">132 S.Ct. 1309 (2012), to support his argument that the ineffectiveness of PCR counsel constitutes good cause to stay this federal habeas action while his second PCR action is pending.

Respondents admit that Petitioner’s Grounds II, IV, and VIII are procedurally defaulted but contend there is not “good cause” under Rhines because those grounds are meritless as argued in Respondents’ return. Respondents also contend that Petitioner has construed Martinez far too broadly.[4] However, Respondents concede that the South Carolina Supreme Court has granted certiorari and has heard oral argument in Robertson v. State (App. Case ...

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