United States District Court, D. South Carolina, Florence Division
REPORT AND RECOMMENDATION
E. ROGERS UNITED STATES MAGISTRATE JUDGE
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 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
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.
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
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unpublished opinion affirming the conviction on June 6, 2012.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.
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:
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).
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.
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
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).
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.
Petition for Writ of Habeas Corpus followed with a
Houston v. Lack delivery date of May 9, 2017.
pro se Petition for Writ of Habeas Corpus,
Petitioner raises the following grounds for relief, quoted
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.
(Petition)(errors in original).
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.
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).
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.
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 ...