United States District Court, D. South Carolina, Florence Division
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
GEIGER LEWIS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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)).
January 13, 2000, the Spartanburg County, South Carolina,
grand jury indicted 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
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
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 on possession
of a weapon, ten years on AWIK, and thirty years'
imprisonment on the armed robbery charge.
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.
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.
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
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 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.
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.
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).
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
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.
STANDARDS OF REVIEW
Habeas Corpus Review
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 ...