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Moore v. Stirling

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

March 21, 2018

RICHARD BERNARD MOORE, Petitioner,
v.
BRIAN P. STIRLING, Commissioner, South Carolina Department of Corrections, and WILLIE D. DAVIS, Warden of Kirkland Reception and Evaluation Center, Respondents.

         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

          MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE.

         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.

         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 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 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 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.

         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 ...


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