Moore v. Stirling

• Decision Date: 03 March 2020
• Docket Number: No. 18-4,18-4
• Citation: 952 F.3d 174
• Parties: Richard Bernard MOORE, Petitioner – Appellant, v. Bryan P. STIRLING, Commissioner, South Carolina Department of Corrections; Willie Davis, Warden of Kirkland Reception and Evaluation Center, Respondents – Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

952 F.3d 174

Richard Bernard MOORE, Petitioner – Appellant,

v.Bryan P. STIRLING, Commissioner, South Carolina Department of Corrections; Willie Davis, Warden of Kirkland Reception and Evaluation Center, Respondents – Appellees.

No. 18-4

United States Court of Appeals, Fourth Circuit.

Argued: September 20, 2019

Decided: March 3, 2020

ARGUED: Lindsey S. Vann, JUSTICE 360, Columbia, South Carolina, for Appellant. William Edgar Salter, III, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. ON BRIEF: Christopher W. Adams, ADAMS & BISCHOFF, P.C., Charleston, South Carolina, for Appellant. Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, Melody J. Brown, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees.

Before WILKINSON, WYNN, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judges Wilkinson and Wynn joined.

RICHARDSON, Circuit Judge:

This is a habeas appeal. In 2001, a South Carolina jury convicted Richard Bernard Moore of murder, armed robbery, assault with intent to kill, and possession of a firearm during the commission of a violent crime. He received a death sentence, which the South Carolina Supreme Court upheld on direct appeal. After an extensive hearing, the state court rejected Moore’s request for post-conviction relief based on the alleged ineffectiveness of his trial counsel. Now, Moore petitions this Court for a writ of habeas corpus.

Moore advances two ineffective-assistance-of-counsel claims previously rejected by the state post-conviction court. First, Moore claims his trial counsel were deficient in challenging the physical evidence from the crime scene. Second, he asserts his trial counsel were deficient in presenting mitigation evidence in the penalty phase of the trial. Moore concedes that the state court rejected both these claims, and he does not challenge the state court’s reasoning. Rather, he argues that the district court should have reviewed his claims de novo rather than applying the deference to state courts that is generally required by federal habeas law. See 28 U.S.C. § 2254(d).

Moore describes a contorted path to avoid deferential review. According to Moore, new evidence "fundamentally alters" these two ineffective-assistance-of-counsel claims so that the federal claims he now advances are distinct, new claims. Since he did not present these "new" claims to the state court, Moore reasons they are unexhausted and thus defaulted. And although we are generally precluded from considering defaulted claims, Moore argues that we must excuse his default because his state post-conviction counsel were ineffective. If we were to excuse his default, then we would remand to the district court to assess his two "new" claims de novo with no deference to the state court.

We cannot follow Moore down this twisted road. The new evidence does not fundamentally alter the heart of the two ineffective-assistance-of-counsel claims presented to the state court. So the district court properly deferred to the state court rejection of these claims.

Moore also advances a third ineffective-assistance-of-counsel claim. His trial counsel did not legally challenge the prosecutor’s discretionary decision to seek the death penalty. Moore argues that this failure constituted ineffective assistance. Moore acknowledges he defaulted this claim by not presenting it to the state court. But he asks us to excuse his failure to exhaust this claim. We cannot do so because Moore cannot make a substantial showing that his trial counsel were ineffective for not challenging the prosecutor’s decision.

I. Background

A. The 1999 murder and armed robbery

In the early morning of September 16, 1999, a dealer refused to sell crack cocaine to Moore because Moore could not pay for the drugs. In want of cash, Moore decided to rob Nikki’s Speedy Mart in Spartanburg County, South Carolina. That morning, James Mahoney tended the Speedy Mart counter while a customer played video poker. The store owner kept a .45 caliber semi-automatic pistol behind the counter, and Mahoney carried a .44 caliber handgun in his waistband for protection.

Moore entered the Speedy Mart, walked to the cooler, and then approached the counter. Overhearing a quarrel, the video-poker customer turned towards the counter and saw a scuffle. Moore, holding both of Mahoney’s hands with one of his own, pointed the .45 at the customer and ordered him not to move. Moore then fired at the customer, who dropped to the floor and played dead. The customer then heard several gunshots while Mahoney and Moore struggled.¹

After hearing someone leave, the customer stood up and saw that Mahoney had been shot. Although the customer dialed 911, Mahoney died within minutes from a gunshot through the heart. Stippling around Mahoney’s chest wound

signified a close-range gunshot. Another gunshot wound, to his arm, lacked stippling and—depending on the positioning of Mahoney’s body at the time of the shooting—may have been caused by the same bullet.

Moore—bleeding from a .44 caliber gunshot wound

to his left arm—drove not to the hospital, but straight to his drug dealer’s home to buy crack cocaine. Moore told his dealer that he had been shot and said, "I done something bad, and I got to go turn myself in, and I got money." J.A. 2675. Not wanting to get involved, the dealer refused to sell to Moore or to drive him to the hospital.

As he left the drug dealer’s house, Moore accidentally crashed his truck into a telephone pole. A sheriff’s deputy found the wreck and approached Moore, who was bleeding profusely. As the deputy ordered him to the ground, Moore repeatedly shouted, "I did it, I did it, I give up, I give up." J.A. 2665. A bag with $1,408 from the Speedy Mart was in the front seat of Moore’s truck, as was an open pocketknife. And the .45 caliber murder weapon was found discarded on a nearby highway. At the hospital, Moore claimed to have both cocaine and alcohol in his system.

B. Moore’s trial

South Carolina prosecutors tried Moore as a capital defendant, bifurcating his trial into guilt and sentencing phases. Though he did not testify during the trial, at the end of the guilt phase, Moore exercised the right of capital defendants to address the jury personally in closing argument. See S.C. Code § 16-3-28. The jury found Moore guilty of all offenses—murder, armed robbery, assault with intent to kill, and possession of a firearm during commission of a violent crime.

In the sentencing phase, the state presented victim-impact testimony and evidence of Moore’s criminal history. The impact of Mahoney’s death was discussed by his father, sister, and brother, along with coworkers and friends. On Moore’s criminal history, the state introduced evidence of his extensive criminal activities in Michigan and South Carolina—including unlawful possession of a weapon, an attempted breaking and entering to steal handguns, assault and battery with attempted robbery, assault and battery of a high and aggravated nature, and another robbery of a store clerk. In mitigation, Moore’s trial counsel called Moore’s wife and stepson. They each pleaded for Moore’s life and testified that Moore was a good father. Moore chose not to address the jury at the close of the sentencing phase.

The jury recommended a sentence of death, which the trial judge imposed in 2001. The South Carolina Supreme Court upheld the verdict and sentence on direct appeal. State v. Moore , 357 S.C. 458, 593 S.E.2d 608 (2004).²

C. Moore’s state post-conviction relief proceedings

In state post-conviction-relief ("PCR") proceedings begun in 2004, Moore claimed his trial counsel were ineffective. The state court heard evidence in 2011 and found that Moore failed to establish, under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that counsel’s representation was constitutionally deficient or that Moore was prejudiced.

The state PCR court heard testimony from Moore and found him "not credible." J.A. 4345. Moore testified that he entered the Speedy Mart only to purchase items. At the counter, Moore claimed that he argued with Mahoney over change. That argument escalated, Moore contended, when Mahoney used a racial slur, pulled out a gun, and ordered Moore to leave the store. According to Moore, the two struggled over the gun; it fired, then jammed; Moore gained possession of it; and as he worked to unjam it, Mahoney pulled out the second gun and shot him. He claimed that he shot Mahoney only after Mahoney shot him—and that he did so "blindly," shooting around a pillar behind which he had sheltered after being shot. J.A. 3713. Moore also denied having ever intentionally fired at the customer, claiming that the gun "went off" during the struggle with Mahoney—despite the customer’s testimony. J.A. 3709. Moore also claimed to have shot Mahoney from six feet away—despite the stippling around Mahoney’s wound

. And, in what the state court found "completely beyond belief," Moore contended that he only took the money as an afterthought when he stood over the man he had killed. J.A. 4345. Finally, Moore asserted that, after leaving the store with the cash, he drove to his drug dealer’s house for help bandaging his wound—not to buy crack cocaine.

Moore raised ten ineffective assistance of counsel claims before the state court, but only two are relevant here. First, Moore claimed his counsel were ineffective for failing to adequately investigate and rebut the state’s physical evidence ("physical-evidence claim"). At trial, Moore’s counsel had employed a crime-scene analyst, a forensic pathologist, a private investigator, and a mitigation investigator. During the state PCR hearing, Moore’s counsel supported the ineffectiveness claim with testimony from a crime-scene technician, Paul Dorman. He testified that of the six shell casings located at the crime...