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Moore v. Warden, Kershaw Correctional Institution

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

June 28, 2018

TYRONE MOORE, Petitioner,
v.
WARDEN, KERSHAW CORRECTIONAL INSTITUTION, Respondent.

          REPORT AND RECOMMENDATION

          THOMAS E. ROGERS UNITED STATES MAGISTRATE JUDGE

         Petitioner, Tyrone Moore (“Petitioner/Moore”), is an inmate in the custody of the South Carolina Department of Corrections (SCDC). Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254[1] on May 12, 2017. Respondent filed a motion for summary judgment on November 6, 2017, along with a return and supporting memorandum. Because Petitioner is proceeding pro se, he was advised on or about November 7, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), that a failure to respond to the Respondent's motion for summary judgment could result in the dismissal of his petition. Petitioner filed a response on December 12, 2017, and Respondent filed a reply on December19, 2017.

         I. PROCEDURAL HISTORY

         The procedural history as set forth by the Respondent in his memorandum has not been seriously disputed by Petitioner. Therefore, the undersigned will set out the undisputed procedural history as set forth by the Respondent, in part.

         Petitioner is currently confined at the Kershaw Correctional Institution in the South Carolina Department of Corrections pursuant to orders of commitment from the Clerk of Court for Berkeley County. Petitioner was indicted by the Berkeley County Grand Jury for two counts of lewd act upon a minor. Eduardo Curry represented Petitioner on the charges. (Attachment 1, PCR App. pp. 1). A trial was held July 27-28, 2009, before the Honorable R. Markley Dennis, Jr. The jury found Petitioner guilty on both charges, and Judge Dennis sentenced Petitioner to fifteen years incarceration for each charge, to run consecutively.

         Petitioner filed a direct appeal. The Court of Appeals returned an unpublished opinion affirming the conviction on June 6, 2012. The remittitur was filed on June 26, 2012.

         PCR Action

         On January 18, 2013, Petitioner filed an Application for Post-Conviction Relief in the Court of Common Pleas for Berkeley County. The State made its return to the petition on October 10, 2013. At the hearing, Petitioner was represented by Rodney D. Davis, esquire. The PCR hearing was held before the Honorable G. Thomas Cooper, Jr. who summarized the allegations of error as follows:

         1. Ineffective assistance of counsel.

a. Counsel failed to properly advise the Applicant regarding his right to testify at trial.
b. Counsel failed to preserve for appeal the issue regarding his cross-examination of a law enforcement officer.

(Attachment 1. PCR App. pp. 424).

         An evidentiary hearing was held on September 8, 2014. Judge Cooper denied Petitioner's application on December 11, 2014, by Order of Dismissal filed December 15, 2014.

         Petitioner, represented by Appellate Defendant Tiffany L. Butler, filed a Petition for Writ of Certiorari in the Supreme Court of South Carolina on July 27, 2015. Petitioner raised the following issue:

Did the PCR judge err by finding trial counsel provided effective representation where counsel failed to seek a ruling from the trial judge on whether the State could introduce Petitioner's convictions for lewd act upon a minor and criminal sexual conduct with a minor to impeach his credibility, Petitioner did not testify at trial because counsel advised him that the State could use his prior criminal record to impeach his credibility, and if Petitioner had testified at trial, he would have explained that the allegations against him were not true?

(Attachment 2, p.3).

         The Supreme Court of South Carolina denied the Petition on September 21, 2016, issued the remittitur on October 18, 2016, and it was filed with the Berkeley County Clerk of Court on October 20, 2016.

         This Petition for Writ of Habeas Corpus followed with a Houston v. Lack delivery date of May 9, 2017.

         GROUNDS FOR RELIEF

         In his pro se Petition for Writ of Habeas Corpus, Petitioner raises the following grounds for relief, quoted verbatim:

Ground One: Was not given the opportunity to give evidence to weather I was their or not.
Supporting facts: It was stated that I committed these to acts between 2004 and 2006. I often travelled to ministries at different times to take care of outreach ministries. I always had Willie Moore with me. And I always kept the receipts of the hotel or persons house we ... I could not prove that I was not their at the time I was accused. They gave a broad time line .
Ground Two: That office Bullard (Sgt. Eddie Bullard) falsified the statements.
Supporting facts: Sgt. Eddie Bullard was the only police taking down the statement. I informed my lawyer that he was a correctional officer at the prison I serve time at. Since the trial, officer Bullard has been fired, because he shot his self with a gun and said falsely that two black men did it. He's be charged for lieing, and has since been fired. No. other office, recording STC was in the room when Sgt. Eddie Bullard took the statements.
Ground Three: Ineffective representation Supporting Facts:
1) Failure to allow me to testify in my defense
2) Failure to object to preserve the record on appeal.
3) Failure to investigate potential witnesses who could have provided credible testimony of police misconduct (Sgt. Bullard).

(Petition)(errors in original).

         SUMMARY JUDGMENT

         The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).

         The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).

         To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with ... affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.

         STANDARD OF REVIEW

         Since Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 117 S.Ct. 2059 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998); Green v. French, 143 F.3d 865 (4th Cir. 1998). That statute now reads:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--(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 ...

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