Respondents Brief — Richard Bernard Moore, Petitioner v. Bryan P. Stirling, Director, South Carolina Department of Corrections

Supreme Court briefOct 22, 2024

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NO. 24-5668

IN THE

SUPREME COURT OF THE UNITED STATES

_________________

RICHARD BERNARD MOORE,

Petitioner,

BRYAN P. STIRLING, DIRECTOR, SOUTH CAROLINA

DEPARTMENT OF CORRECTIONS,

Respondent.

_____________

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

____________

BRIEF IN OPPOSITION

_____________

ALAN WILSON

Attorney General

DONALD J. ZELENKA

Deputy Attorney General

*MELODY J. BROWN

Senior Assistant Deputy Attorney General

Office of the Attorney General

Post Office Box 11549

Columbia, South Carolina 29211-1549

(803) 734-6305

*Counsel of Record

ATTORNEYS FOR RESPONDENT

*CAPITAL CASE*

[EXECUTION SET FOR NOVEMBER 1, 2024]

QUESTION PRESENTED

Whether the Supreme Court of South Carolina failed to apply the factors

outlined by this Court in Flowers v. Mississippi, 588 U.S. 284, 139 S.Ct. 2228 (2019),

in determining whether the State had exercised its challenges in a racially

discriminatory manner given that the totality of the circumstances demonstrates that

the all-white jury that convicted Moore and sentenced him to death was empaneled

in violation of Batson v. Kentucky, 476 U.S. 79 (1986)?

COUNTERSTATMENT OF QUESTION PRESENTED

Whether this Court should dismiss Moore’s petition for lack of jurisdiction

when the ruling at issue involves the application of a state law test for determining

whether to exercise jurisdiction over an extraordinary writ and the Supreme Court

of South Carolina did not exercise jurisdiction to rule on the merits of Moore’s Batson

claim? Alternatively, whether certiorari review is warranted to conduct a redundant,

ordinary application of Batson and its progeny to the facts of this case, which were

well-developed in the state courts and supported the repeated rulings that no Batson

violation occurred?

STATEMENT OF RELATED PROCEEDINGS

Petitioner’s death sentence was imposed on October 22, 2001. Since that time,

he has been in near constant litigation. The following reflect proceedings directly

related to his trial and sentence:

Moore v. Stirling, 871 S.E.2d 423 (S.C. 2022) (state proportionality review issue

review granted; state original jurisdiction habeas relief denied )

Moore v. Stirling, 952 F.3d 174 (4th Cir. 2020), cert. denied, 141 S.Ct. 680 (2020)

(affirming denial of federal habeas corpus relief)

Moore v. Stirling, No. 4:14-CV-4691-MGL-TER, 2017 WL 8294058 (D.S.C. Dec. 28,

2017), report and recommendation adopted, No. CV 4:14-04691- MGL,

2018 WL 1430959 (D.S.C. Mar. 21, 2018), aff'd, 952 F.3d 174 (4th Cir.

2020) (denying federal habeas corpus relief)

Moore v. Stirling, No. 4:14-CV-4691-MGL-TER, 2016 WL 155050 (D.S.C. Jan.

13, 2016) (granting stay of 28 U.S.C. § 2254 action to return to state

court and attempt additional proceedings)

Moore v. State of South Carolina, C/A 2015-CP-42-5040, successive post-conviction

relief action, State’s motion to dismiss on procedural grounds granted

on December 4, 2017) (available on the Public Index for Spartanburg

County, SC at https://www.sccourts.org/case-records-search/)

Moore v. South Carolina, 576 U.S. 1058 (2015) (petition for writ of certiorari to

Spartanburg County Court of Common Pleas denied on June 29,

2015)(PCR appeal)

Moore v. State of South Carolina, appeal from the denial of post-conviction relief,

petition for writ of certiorari review denied September 11, 2014,

Appellate Case No. 2011-198472 (post-conviction relief action appeal)

(available https://ctrack.sccourts.org/public/caseView.do?csIID=39279))

Moore v. State of South Carolina, post-conviction relief denied on

August 1, 2011, 2004-CP-42-02715 (circuit court post-conviction relief

action) (available on the Public Index for Spartanburg County, SC at

https://www.sccourts.org/case-records-search/ )

State of South Carolina v. Moore, 593 S.E.2d 608 (S.C. 2004) (direct appeal)

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

COUNTERSTATEMENT OF QUESTION PRESENTED ............................................ i

STATEMENT OF RELATED PROCEEDING ............................................................. ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF AUTHORITIES .......................................................................................... v

BRIEF IN OPPOSITION............................................................................................... 1

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2

STATEMENT OF THE CASE....................................................................................... 3

Facts of the Murder .................................................................................. 4

II.

Procedural History .................................................................................. 7

Trial ............................................................................................... 7

Direct Appeal ............................................................................... 10

Post-Conviction Relief ................................................................. 11

Post-Conviction Relief Appeal .................................................... 16

Federal Habeas Corpus 28 U.S.C. § 2254 Action ....................... 17

Federal Habeas Corpus, 28 U.S.C. § 2254 Action Appeal ......... 19

First State Habeas Petition ........................................................ 19

Second State Habeas Petition ..................................................... 20

REASONS THE PETITION SHOULD BE DISMISSED

OR ALTERNATIVELY DENIED ................................................................................ 21

iii

There is no ruling based on federal law for this

Court to review, and no jurisdiction over the

matter presented. ................................................................................... 21

II.

Alternatively, this case does not warrant certiorari

review because the record shows an ordinary

application of Batson to the facts of this case, and

the record supports that no Batson violation occurred ........................ 26

CONCLUSION............................................................................................................. 28

APPENDIX

Court Reporter’s Jury Selection Sheet .................................................. A1

Trial Transcript pp. 1135-1139 ............................................................. A2

Trial Transcript pp. 47, 154-155, 191-192, 201-202 and 312-330 ....... A7

February 20, 2013 Letter to Moore from PCR Appellate Counsel

Hackett (explaining why issue was not raised on appeal) ................ A33

January 28, 2021 Order, Supreme Court of South Carolina,

Appellant Case No. 2020-001519 (allowing briefing in original

jurisdiction action, first state habeas petition) .................................. A35

TABLE OF AUTHORITIES

Cases:

Batson v. Kentucky,

476 U.S. 79 (1986) ............................i, 1, 2, 3, 8, 11, 12, 13, 19, 20, 21, 24, 25, 26

Butler v. State,

397 S.E.2d 87 (S.C. 1990) ................................................................ 22, 23, 24, 25

Coleman v. Thompson,

501 U.S. 722 (1991) ...................................................................................... 24, 25

Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004) ................................................................................................ 23

Ex parte McMillan,

461 S.E.2d 43 (1995) .......................................................................................... 10

Flowers v. Mississippi,

588 U.S. 284, 139 S.Ct. 2228 (2019) ............................................................... i, 26

Harris v. Reed,

489 U.S. 255 (1989) ............................................................................................ 24

John v. Paullin,

231 U.S. 583 (1913) ...................................................................................... 22, 25

Key v. Currie,

406 S.E.2d 356 (S.C. 1991) ................................................................................ 22

McWee v. State,

593 S.E.2d 456 (S.C. 2004) ................................................................................ 22

Moore v. Stirling,

871 S.E.2d 423 (S.C. 2022) .................................................................. ii, 7, 20, 22

Moore v. Stirling,

952 F.3d 174 (4th Cir. 2020) .......................................................................... ii, 19

Moore v. Stirling,

No. CV 4:14-04691-MGL, 2018 WL 1430959 ii

(D.S.C. Mar. 21, 2018), aff'd, 952 F.3d 174 (4th Cir. 2020). ........................ ii, 19

Moore v. Stirling,

No. 4:14-CV-4691-MGL-TER, 2017 WL 8294058 (D.S.C. Dec. 28, 2017) ... ii, 18

Moore v. Stirling,

No. 4:14-CV-4691-MGL-TER, 2017 WL 155050 (D.S.C. Jan. 13, 2016) ........... ii

Moore v. South Carolina,

576 U.S. 1058 (2015) ...................................................................................... ii, 17

State v. Inman,

760 S.E.2d 105 (S.C. 2014) ................................................................................ 21

State v. Moore,

593 S.E.2d 608 (S.C. 2004) ............................................................................ 5, 10

State v. Rogers,

748 S.E.2d 247 (S.C. Ct. App. 2013).................................................................. 21

State v. Stewart,

775 S.E.2d 416 (S.C. Ct. App. 2015), cert. denied (May 19, 2016) ................... 20

State v. Torrence,

406 S.E.2d 315 (S.C. 1991) ................................................................................ 10

State v. Young,

No. 2013-000149, 2017 WL 5483256 (S.C. Ct. App. Nov. 15, 2017) ................ 20

Strickland v. Washington,

466 U.S. 668 (1984) ............................................................................................. 16

Tucker v. Catoe,

552 S.E.2d 712 (S.C. 2001) ............................................................................... 22

Wainwright v. Witt,

469 U.S. 412 (1985) .............................................................................................. 8

Wilson v. Moore,

178 F.3d 266 (4th Cir. 1999) .................................................................... 2, 23, 24

Witherspoon v. State of Ill.,

391 U.S. 510 (1968) .............................................................................................. 8

Yates v. Aiken,

349 S.E.2d 84 (S.C. 1986), rev'd, 484 U.S. 211 (1988))..................................... 24

Constitutional Provisions:

U.S. Const. amend. XIV ................................................................................................. 2

Article V, § 5, S.C. Constitution .................................................................................. 22

Statutes:

28 U.S.C.A. § 1257(a) ................................................................................................. 2, 3

28 U.S.C.A. § 2254 ................................................................................. 1, 4, 17, 19, 23

S.C. Code Ann. § 16-3-20(C)(a)(1)(e) & (3)-(4) ............................................................ 10

Court Rules:

Sup.Ct.Rule 15.2 ............................................................................................................ 3

vii

BRIEF IN OPPOSITION

Moore is nearing execution and makes this late attempt to revive review of a

ruling made at his October 2001 trial. Defense counsel made a Batson 1 motion at trial

and challenged two of the State’s peremptory strikes. However, once having heard

and considered the State’s reasons, Moore’s counsel expressed satisfaction with the

State’s non-racial reasons for the strikes. The trial judge also found the State had

not violated Batson. Moore did not attempt to appeal the trial judge’s finding.

Further, Moore explored the State’s reasons again in post-conviction relief and again

the state court found no violation of Batson. Moore did not appeal the issue. In 28

U.S.C. § 2254 federal habeas corpus proceedings, he argued that trial counsel failed

to pursue the Batson motion given the evidence in the record. However, the district

court found the record would not support a meritorious issue and did not excuse the

procedural default. Moore did not appeal the ruling to the Fourth Circuit. 2

Moore, though, does not present this Court with a ruling on a federal issue

made in a regular appeal from an ordinary remedy. Rather, he seeks review of the

denial of a petition submitted to the Supreme Court of South Carolina after he had

exhausted his ordinary state and federal remedies that requested the court exercise

its original jurisdiction to consider his Batson claim. The state supreme court, under

its own well-established state law test, declined to exercise its original jurisdiction,

Batson v. Kentucky, 476 U.S. 79 (1986).

Present counsel for Mr. Moore, Ms. Vann, also represented him in the federal habeas corpus

proceedings both in district court and in the Fourth Circuit. C/A No. 4:14-cv-04691 and COA4: Appeal

No. 18-4.

thus, did not rule on the merits of the offered Batson claim. Moore cannot meet the

jurisdictional limitation requiring a federal law-based ruling for review given the

denial was based on state law. See 28 U.S.C. § 1257(a). The petition should be denied.

JURISDICTION

On August 12, 2024, the Supreme Court of South Carolina denied a petition

for writ of habeas corpus seeking original jurisdiction review of the Batson motion

from Moore’s October 2001 trial. Moore attempts to invoke this Court’s jurisdiction

pursuant to 28 U.S.C. § 1257(a). (Pet. 1). Respondent submits that the Court lacks

jurisdiction because the Supreme Court of South Carolina rejected review on state

law grounds – its test for determining whether to exercise its original jurisdiction.

See Wilson v. Moore, 178 F.3d 266, 275-76 (4th Cir. 1999) (a determination by the

Supreme Court of South Carolina not to exercise its original jurisdiction is not a

merits ruling on the underlying claim presented).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Moore contends his petition question involves the Fourteenth Amendment.

(Pet. 1).

Respondent submits that 28 U.S.C. § 1257(a) is involved:

(a) Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court by writ of certiorari where

the validity of a treaty or statute of the United States is

drawn in question or where the validity of a statute of any

State is drawn in question on the ground of its being

repugnant to the Constitution, treaties, or laws of the

United States, or where any title, right, privilege, or

immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any

commission held or authority exercised under, the United

States.

28 U.S.C. § 1257(a).

STATEMENT OF THE CASE

Cognizant that misstatements in the petition should be addressed in the brief

in opposition, see Sup.Ct. Rule 15.2, Respondent initially brings two points to the

front. First, Moore attempts to minimize his crime and opines “this case was an

improbable one for capital prosecution.” (See Pet. 2). Moore fails to acknowledge this

argument has been consistently rejected based on the facts of record. Moreover, his

opinion to the contrary does not lessen the crime or impugn the jury’s determination

of his sentence.

Second, Moore complains that the composition of his trial jury lacked diversity

claiming he was convicted and sentence by an “all white jury,” (Pet. 1), 3 but does not

make a stand alone claim concerning diversity. 4 Rather, Moore makes these

assertions while he sidles toward a Batson motion ruling that has been part of the

record since October 2001. Notably, the prosecution’s two strikes were explained at

trial, and again in state post-conviction relief and supported by the records made

during those proceedings. There has never been any error to correct.

Respondent offers the following details which rebut the misstatements (and

fills in the omissions) Moore relies upon.

Moore has consistently failed to recognize the Hispanic male juror. He does so once again in

the petition to this Court.

He veers into such a claim from time to time, dissecting the jury pool and asserted only 3 of 38

qualified jurors were African American. (See Pet. 3).

Facts of the Murder.

Moore went to George Gibson’s residence between 8:00 and 10:00 p.m. on

September 15, 1999, and asked Gibson to get him some crack cocaine. Gibson knew

Moore, but declined because Moore did not have any money. He further declined to

give Moore crack on credit. The unemployed Moore told Gibson he was going to work

and would return the following morning. He then left. JA 2672-74. 5 The Supreme

Court of South Carolina summarized the State’s evidence surrounding the murder as

follows:

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, Moore walked into Nikki’s at approximately

3:00a.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 Hillside

drive, where he heard a loud bang, the sound of Moore’s

Citation to JA refers to the Joint appendix filed in the Fourth Circuit Court of Appeals on

review of the denial of federal habeas corpus relief under 28 U.S.C. § 2254. COA4 Appeal No. 18-4.

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. 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.

State v. Moore, 593 S.E.2d 608, 609-10 (S.C. 2004).

Though bleeding profusely from a gunshot wound after the murder, Moore did

not seek treatment at a nearby hospital. Instead, he drove back to Gibson’s house to

buy crack, discarding the .45 caliber handgun with his blood on it along the way. JA

2674-76; 2688-91.

It was undisputed at trial and during state post-conviction relief proceedings

that both guns involved in the shootout were initially within victim’s control, and that

Moore did not bring either gun to the store. No one disputed, however, that Moore

certainly chose to use the .45.

In addition to Mr. Hadden’s eyewitness testimony, officers who had

investigated testified they found the victim lying in the kitchen floor. He was

deceased, and his right arm was bent at such a peculiar angle that it was clearly

broken. In addition to finding evidence of the victim’s blood, Moore’s blood was found

across the back of the victim’s clothing and a trail of his blood led out the front door.

A meat cleaver that did not belong to Nikki’s Speed Shop (State’s Ex. 83) was found

at the victim’s feet with Moore’s blood on it. Also, officers found six shell casings, two

lead bullet cores, two fired bullets that had been fired by the .45 semi-automatic, and

several fragments that were consistent with having been fired by the .45. JA 26972719; 2731-47; 2777-79; 2790-95; 2847-58; 2886-2906.

The pathologist explained that the fatal shot “passed through the lower border

of the eighth rib” before going through the victim’s liver, through his stomach,

diaphragm, heart and left lung. It then exited the right side of his chest. Because the

victim’s shirt was overlaying the wound when the shot was fired, the pathologist

“could not tell for sure” if it was a contact wound. Initially, he was uncertain if

stippling was present but, after reviewing photographs, opined that it was “more

likely” that the gun had been fired “slightly away from the body.” The victim also

had a gunshot wound to his lower right arm, which broke his right arm. JA 2917-26.

A bullet fired by the victim’s .44 caliber weapon went through Moore’s left arm.

The pathologist opined that it is possible that either there were two gunshot wounds

or all of the victim’s injuries could have been caused by a single gunshot if his body

had been positioned in such a manner in which that could have occurred. He died

from internal hemorrhaging caused by the wound to his torso and death would have

occurred within six to ten minutes after receiving this wound. JA 2917-34. JA 280710. 6 On this evidence, Moore was convicted and sentenced to death.

Moore later challenged the proportionality of his sentence in the Supreme

Court of South Carolina through an petition for writ of habeas corpus in the original

jurisdiction of the state court and emphasized he was not armed upon entry of the

store. His arguments this made his crime less “egregious” were rejected:

Police also found an open pocketknife in Moore’s truck when he was arrested, JA 2740-41;

State’s Ex. 86, which may or may not have been used in the robbery.

We disagree with Moore’s characterization, as his own

offenses were similarly egregious and appropriate for

comparison with the selected cases. Whether Moore

entered the store with a weapon or whether he armed

himself once inside is not determinative of either his intent

or the egregiousness of the offenses he ultimately

committed. The significant fact is that Moore became

armed at some point during the commission of the offenses.

See generally State v. Keith, 283 S.C. 597, 598–99, 325

S.E.2d 325, 326 (1985) (holding a defendant is guilty of

armed robbery if he becomes armed with a deadly weapon

at any point while the robbery is being perpetrated and

need not be armed at all times during the offense).

After hearing the evidence at trial, a jury found Moore

intentionally shot and killed the store employee during an

armed robbery and he endangered the life of a bystander

for the obvious purpose of eliminating the only eyewitness

to the murder. The robbery in this case could have resulted

in two deaths but for the astute actions of the eyewitness,

who “played dead” when Moore shot at him.

Moore v. Stirling, 871 S.E.2d 423, 432–33 (S.C. 2022).

In other words, every court to delve deeply into the evidence has disagreed with

Moore’s claim, that he again repeats to this Court, that his is not truly a capital case.

Having lost his arguments attempting to minimize his crime, and his execution

nearing, Moore has now submitted the instant petition on the possibility of reviving

a long-abandoned Batson claim.

II.

Procedural History.

Trial.

The State of South Carolina charged Moore with murder, armed robbery,

possession of a firearm during the commission of a violent crime, and assault with

intent to kill (AWIK). The State served notice of capital proceedings. Attorneys

Michael Morin, R. Keith Kelly, and Jennifer Johnson, represented Moore on the

charges.

A capital jury trial was held October 16-22, 2001. The Honorable Gary E. Clary

presided. Moore was present with counsel. The Honorable Harold W. “Trey” Gowdy,

III, Solicitor for the Seventh Judicial Circuit, represented the State with deputy

solicitors Barry J. Barnette 7 and James D. Willingham. Only two African-American

jurors were Witherspoon 8 qualified by the trial court and presented during the jury

selection before the parties. The State struck those two jurors. The twelve main

jurors selected included (7) White females; (4) White males; and (1) Hispanic male.

BIO App. A1, Court Reporter’s Jury Selection Sheet.

At the conclusion of jury

selection, defense counsel challenged the strikes under Batson v. Kentucky, 476 U.S.

79 (1986). Solicitor Gowdy responded to the motion:

… I would just initially want to say for the record

that the fact that two African-Americans were struck, I

don’t believe, makes out a prima facie case.

I would like to go on and give the race neutral

reasons.

BIO App. A2, Trial Transcript p.1135. And he did.

Mr. Gowdy was subsequently elected to Congress and Mr. Barnette became the Solicitor for

the Seventh Judicial Circuit. Mr. Barnette remains the current solicitor for the judicial circuit.

Witherspoon v. State of Ill., 391 U.S. 510, 520-522 (1968) (jurors may not be excluded “for cause

simply because they voiced general objections to the death penalty or expressed conscientious or

religious scruples against its infliction” but should be excluded if they “would not even consider

returning a verdict of death”). See also Wainwright v. Witt, 469 U.S. 412, 424 (1985) (exclusion

permissible where juror’s “views on capital punishment are such as would ‘prevent or substantially

impair the performance of his duties as a juror in accordance with his instructions and his oath.’”

As to the first, Ms. Morrow, the Solicitor stated that he had “dropped the ball”

as he should have timely moved to have her disqualified. Id, Trial Transcript p.1135. 9

She did not truthfully respond during questions about her criminal record. Further,

the State noted, she had asserted that “guns are used improperly,” and due to the

circumstance of the case – specifically with the victim having been armed – the

statement signaled a possible problem. Third she was a teacher who originally

attempted to be removed and called for another term of court, then “when she was

confronted with the fact that she would miss her vacation” she chose to stay. The

Solicitor noted “obviously, we only want jurors who want to be here.” Id, Trial

Transcript p. 1136. The Solicitor continued:

But the primary reason, Your Honor, is the

withholding of the convictions, and only when confronted

with the fact that she had an alias did we begin to get any

truthful responses.

Id.

As for the second, Mr. Alexander, the Solicitor initially noted that the same

logic to strike Mr. Alexander was shared with Mr. Huffman, a white juror also struck

by the Solicitor. Id, see also BIO App. A1. The Solicitor’s Office had prosecuted Mr.

Alexander’s son for murder; Mr. Huffman had a close family member also prosecuted

for murder. BIO App. A3, Trial Transcript p. 1136. Simply, the State “did not want

a juror who had recently had a son sent to prison” for murder on the jury. Id. Though

there was also a notation in the State’s notes that Mr. Alexander had “misunderstood”

The State did move to have her disqualified, but that motion was denied by the trial judge as

untimely. BIO App. A31-32, Trial Transcript pp. 329-330. The transcript shows that the trial judge

did not ask for the State’ s position before qualifying the juror. BIO App. A29, Trial Transcript p. 327.

a question earlier, the primary reason remained his son’s prosecution and conviction.

BIO A4, Trial Transcript p. 1137.

The trial court, as it should, asked the defense to respond with any argument

to challenge the State’s stated reasons, and the defense asserted they had no

argument with the State’s responses. Id. The trial court then placed its ruling on

the record, understanding that the defense had “accepted” the reasons expressed by

the State, found “that they are race neutral reasons, and, as such, … these strikes

were not just pretext,” and denied the motion. BIO A3-A4, Trial Transcript pp. 11371138. Ultimately, the jury convicted him of all offenses. JA 1489-3039; 3197.

Following a separate sentencing proceeding, the same jury found death was the

appropriate sentence. 10

Direct Appeal.

The South Carolina Supreme Court affirmed his conviction and death sentence

on direct appeal. State v. Moore, 593 S.E.2d 608 (S.C. 2004). No claim regarding the

Batson motion was raised. 11

The jury found three statutory aggravating circumstances: the murder was committed while

in the commission of robbery while armed with a deadly weapon; Moore, by his act of murder, had

knowingly created a risk of death 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 Moore had

committed the murder for the purpose of receiving money or a thing of monetary value. S.C. Code Ann.

§ 16-3-20(C)(a)(1)(e) & (3)-(4). In addition to imposing the death sentence as returned by the jury, the

trial judge sentenced Moore to five years for the weapons charge, ten years for AWIK and thirty years

for armed robbery. JA 3041-3195.

South Carolina requires an issue to be preserved for appeal. See, e.g., State v. Torrence, 406

S.E.2d 315, 328 (S.C. 1991) (abolishing exception for capital trials: “we hold a contemporaneous

objection is necessary in all trials beginning after the date of this opinion to properly preserve errors

for our direct appellate review”). Though the trial court ruled on the issue, it is likely that this issue

would not be considered preserved for direct appeal review because defense counsel did not have any

argument to show pretext. See Ex parte McMillan, 461 S.E.2d 43, 45 (1995) (finding conceded issue is

Post-Conviction Relief.

Among other claims not relevant here, Moore’s post-conviction relief (PCR)

counsel raised this claim:

e. Applicant was denied due process of law and also denied the right

to effective assistance of counsel in violation of the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the U.S. Constitution, the

South Carolina Constitution and South Carolina law because trial

counsel failed to pursue their Batson v. Kentucky, 476 U.S. 79 (1986)

claim, despite the fact that Applicant’s jury was exclusively white in

the state struck the only two African-Americans qualified to serve as

jurors. Applicant is African-American and the alleged victim, James

Mahoney, was Caucasian. The State’s decision to strike the only two

qualified African-American jurors on the jury panel established a

prima facie case of racial discrimination. Trial Counsel raised a

Batson challenge, but later abandoned it. (Tr. P. 1137). Trial Counsel’s

failure to pursue and/or preserved for direct appeal a Batson challenge

was unreasonable, as the State’s alleged race-neutral reasons for

striking jurors Morrow and Huffman were pre-textual, as white jurors

who gave almost mirror like responses and/or were similarly— if not

exactly— situated insofar as having relatives who were prosecuted,

were not challenged by the State and were seated on Applicant’s jury.

Counsel’s failure to preserve this meritorious issue was deficient and

unreasonable, as well as prejudicial. Strickland v. Washington, supra.

J.A. 3223-3224. 12

At the hearing, further testimony on the same strikes was offered, with former

defense counsel testifying why he did not further pursue his Batson motion:

If I recall, there were two African-Americans that

were selected. The State struck them both, but then

the State gave race neutral reasons for striking

them.

And you accepted those as being race neutral?

procedurally barred from merits review on appeal). However, the record shows Moore did not attempt

to appeal the ruling by the trial court.

Moore’s allegation confused Juror Huffman with Juror Alexander.

I think they were.

JA 4011-4012. See also JA 4046-4047 (“… when I heard their reasoning,” he concluded

“that they met Batson’s standards for striking”).

Additionally, a former deputy solicitor from the trial also testified during the

collateral proceedings. He again explained the State’s race-neutral reasons for the

strikes and relied on contemporaneous notes supporting the strikes for non-racial

reasons. J.A. 4150-4179. 13

As to Juror Morrow, he confirmed that he questioned the juror. The juror had

withheld responses about her criminal history, “and only when confronted with the

fact she had any aliases did she begin to give any truthful response.” J.A. 4167.

As to Juror Alexander, he also explained that State struck Juror Alexander,

an African-American juror (whose son was convicted of murder), and Juror Huffman,

a White juror (whose brother-in-law was convicted of murder), which debunked a

“similarly situated,” but failed to similarly strike allegation:

(JA 4154).

Similarly situated in that he had a family member charged,

but I see brother-in-law versus son being a little different.

But either way, both of them were struck by the State.

The PCR court denied the ineffective assistance of counsel claim for failing to

pursue the Batson motion. First, the PCR counsel found trial counsel’s testimony

credible, as was the former deputy solicitor’s, and then found Moore had “failed to

prove deficient performance” as counsel “made a reasonable strategic decision not to

Moore’s PCR counsel objected to the witness expanding on the evidence in PCR and maintained

the notes, not introduced at trial, should not come in; however, the PCR judge overruled the objection

to allow the testimony based on the contemporaneous notes. JA 4162.

further argue the Batson motion because, based upon his knowledge of the record,

the reasons proffered by the State were race-neutral.” JA 4374-4375. After detailed

review of the exchange between the potential juror and the State, the PCR court

reasoned that Moore’s “[c]ounsel was thus aware that juror Morrow consciously

withheld information about her prior criminal conviction and that she only revealed

a prior conviction when the State confronted her with its knowledge that she was

formerly known by” another name; that she had made the statement about guns

being “used inappropriately” ; and, knew that the record supported another juror was

less than “similarly situated” as to withholding criminal background information

when the other juror was acquitted rather than convicted; and that the State had

struck both Jurors Alexander and Huffman for the reason of having family members

convicted of murder, with Mr. Alexander being African American and Mr. Huffman

being white. JA 4377-4379. Then, turning to the possibility of prejudice, the PCR

court found:

In an effort to demonstrate prejudice from the strike

of juror Morrow, he points out that the State failed to strike

juror Gantt, the second alternate. He ignores, however,

that the State had exercised its only challenge for

alternates to strike juror Huffman. Further, Ms. Gantt

failed to disclose a charge of which she was acquitted, but

Ms. Morrow as not forthcoming about a prior conviction.

The Court rejects Moore’s contention that the State

indicated that Ms. Morrow’s use of an alias was one of the

reasons for striking her. Rather, it challenged her because

she was unwilling to admit her prior marijuana conviction

until confronted with the alternate identity. [FN 27]

Further, the State used a peremptory challenge to strike

white juror Charles Kent (# 145), who had failed to reveal

past offenses, after the trial judge had denied the State’s

request to strike Kent for cause. R. pp. 715-18; 1765. Nor

has Moore proved that the State’s other reasons for

striking Ms. Morrow were pretext.

[FN 27]

The Court would note, as did the

Solicitor at trial, that the trial judge subsequently

excused juror Rookard (#235) because he had been

dishonest in no disclosing a number of arrests and

convictions on his questionnaire. Also, the trial

judge informed Mr. Rookard that he would hold a

contempt hearing as to the dishonest responses

following Moore’s trial. R. pp. 485-92.

Although the Solicitor noted that other jurors

expressed some concern over use of firearms, he noted that

none had used the term “improperly” in doing so. Moore

has not pointed to any other juror that the State accepted

who expressed his or her reservations about gun use in this

fashion or who had such strong reservations about

possessing a weapon. Moreover, because this challenge

was based upon an assessment of the juror’s concern about

gun use, this Court finds that it should defer to the trial

judge. Again, he had the opportunity to actually listen to

the responses and assess the demeanor of the various

jurors when they responded to questioning.

Thus, he was in the best position to determine

whether the State’s assessment of Ms. Morrow’s distrust of

gun use was more than fellow members of the venire,

whereas this Court must rely solely upon the cold record.

[FN 28] Likewise, he has not pointed to any other juror

that the State accepted who sought to avoid jury service in

this case, only to change his or her mind when informed

that such a decision would result in the loss of vacation

time. The Court further finds that Moore has failed to

show pretext in the striking of juror A[lexander].

[FN 28]

Even if the Solicitor was mistaken in

regard to his assessment, the Court finds that Moore

has not shown pretext. Rather the reason offered

was still race-neutral, see Hurd v. Pittsburg State

Univ., 109 F.3d 1540, 1546-47 (10th Cir. 1997)

(finding that a proffered race-neutral explanation

for peremptory strike based solely on strike

proponent’s mistaken belief satisfied the second

prong of Batson analysis), abrogated on other

grounds, Migneault v. Peck, 204 F.3d 1003 (10th Cir.

2000), United States v. Watford, 468 F.3d 891, 91213 (6th Cir. 2006); and because resolution of this

claim rests on credibility, “the best evidence often

will be the demeanor of the attorney who exercises

the challenge.” Miller-El, 537 U.S. at 339. For this

Court to reverse the trial judge’s findings “would

require this Court to give greater weight to

inferences and assumptions drawn from the cold

appellate record concerning what the prosecutor

must have known, than to specific credibility

determinations made by the [trial judge] … with the

benefit of firsthand observation.” The Court declines

to make those inferences and assumptions based

upon this record. Cf. Watford, 468 F.3d at 914.

To the contrary, he recognizes that Mr. A[lexander]

and Mr. Huffman were similarly situated jurors and that

they were of different races. However, he has their races

reversed, erroneously asserting that Mr. A[lexander] was

white and Mr. Huffman was African-American. More

importantly, he ignores that the prosecution struck both

men (R. p. 1736) and for the same reason: a close family

member of each juror was prosecuted by the Seventh

Circuit Solicitor’s Office for murder. See Applicant’s

proposed order, pp. 4, 17. As noted, this is a race-neutral

reason for exercising for [sic] the State’s exercise of its

peremptory challenges. [citations omitted]. Further, and

as noted, the State had already exhausted its peremptory

challenges by the time Ms. Gantt was presented and,

therefore, it could not strike her.

J.A. 4380-4382. 14

After this thorough review of the record and reasons for the strikes, the PCR

Court concluded that since the State’s reasons for exercising its peremptory

While correctly referencing Mr. Alexander in other parts of the discussion, in this section, the

PCR court inadvertently referenced Mr. Alexander as Mr. Anderson; however, by context, the Court is

referring directly to the reasons for striking Mr. Alexander. Respondent has bracketed a corrective

change for ease in review.

challenges were race neutral and the record showed they were not pretextual, Moore

failed to show either deficient performance or resulting prejudice under Strickland v.

Washington, 466 U.S. 668 (1984). JA 4382.

Post-Conviction Relief Appeal.

Moore’s PCR appeal counsel did not raise the denial of the claim in his petition

to the Supreme Court of South Carolina. During the appeal, Moore sought to file a

pro se Petition for Writ of Certiorari raising the Batson direct appeal claim or the

related ineffective assistance of counsel claim. His attempt was rejected as improper

because South Carolina does not recognize hybrid representation. However, PCR

appellate counsel wrote a letter to Moore explaining why they did not raise the claim

– because it did not have any merit:

Your letter and your Motion indicate concern that

we did not raise your Batson claim in the petition for writ

of certiorari. We have talked about this by phone, but this

presents a good opportunity to discuss it again. In the PCR

court’s order denying you relief, the court addressed your

Batson claim. The state struck two black jurors, Morrow

and Alexander. Your trial attorneys made a Batson motion,

and the trial judge inquired as to the reasons for the

strikes. The state provided reasons, and your trial attorney

did not pursue the motion any further. Your PCR

allegation is that your trial attorney should have pursued

the motion. Concerning Alexander, the prosecutor struck

him because his son was prosecuted for murder. Nothing in

the PCR presentation indicated this information was false

or that the prosecutor struck Alexander for a race-based

reason. The reason was race-neutral, and no evidence was

presented to indicate the stated reason was a pretext. We

see no merit to raising the exercise of a peremptory strike

against Alexander as an issue in your petition.

Turning to Morrow, the prosecutor stated he struck

her because she failed to disclose her criminal record and

she expressed a concern about the improper use of guns.

The state did not strike Stacey Gantt, a white juror, who

also failed to disclose a prior arrest. The PCR order stated

that the state could not have struck Gantt because it had

exercised its only strike against Huffman. We went

through the record to be sure this was accurate because

Gantt and Morrow were arguably similarly situated (one

having failed to disclose an arrest, and one having failed to

disclose a conviction). On page 1765 of the Appendix, the

strike sheet shows the state exercised its first strike as to

alternates against Edward T. Huffman. Page 1134 of the

Appendix indicates that the jury was struck, but this

process is not transcribed. Thus, we were left with only the

strike sheet to indicate the order of the strikes. No evidence

was presented in the PCR hearing that the order listed on

the strike sheet was incorrect. Further undercutting this

claim is the fact that the prosecutor moved to excuse Gantt

for cause during the qualifications. This occurred on pages

907-909. Thus, the prosecutor would likely have struck

Gantt with a peremptory if he had any available.

Ultimately, the court found Gantt qualified. We hope this

provides a clear understanding of our analysis of the issue

presented.

BIO App. A33-A34. See also JA 834-35.

The Supreme Court of South Carolina denied the petition that addressed three

unrelated claims on June 29, 2015. Moore v. South Carolina, 576 U.S. 1058 (2015).

Federal Habeas Corpus, 28 U.S.C. § 2254 Action.

Among other issues, Moore raised the following allegation:

III: Moore’s Rights to Due Process and the Effective

Assistance of Counsel as Guaranteed by the Fifth, Sixth,

and Fourteenth Amendments to the United States

Constitution were Violated Due to Trial Counsel’s Failure

to Pursue a Batson v. Kentucky, 476 U.S. 79 (1986), Claim

After the State Struck the Only Two African-American

Jurors Qualified to Serve on the Jury.

JA 48.

Respondents moved for summary judgment. On November 16, 2015, the

Magistrate Judge issued a Report and Recommendation recommending that the

motion for summary judgment be granted and the petition for federal habeas corpus

relief be dismissed. The Magistrate addressed the ineffective assistance/Batson claim

finding it procedurally defaulted given the failure to raise the claim in the PCR appeal

and that Moore had not shown cause or prejudice to excuse the procedural bar. In

considering the trial record and the PCR testimony on the Batson hearing, the

Magistrate found no prejudice to allow Moore to avoid the procedural default, noting

that “[t]he PCR judge specifically found that trial counsel’s testimony and [the deputy

solicitor’s] testimony as to this issue was credible, and that in light of the trial

transcript, Moore had not proved [Strickland] deficient performance or prejudice….”

Moore v. Stirling, No. 4:14-CV-4691-MGL-TER, 2017 WL 8294058, at *39–41 (D.S.C.

Dec. 28, 2017).

On March 21, 2018, the Honorable Mary G. Lewis, United States District

Judge, agreeing with the Magistrate, adopted the Report and Recommendation, and

granted summary judgment in Respondents’ favor. Regarding the defaulted claim,

the district court found:

In addition to being unable to show cause for the

procedural default on Ground Three, Petitioner fails to

show prejudice. As analyzed in the Report, Petitioner’s

trial counsel made a Batson motion when the State struck

the only two African-Americans qualified to serve on the

jury. The State provided race-neutral reasons for those

strikes, and Petitioner’s trial counsel declined to challenge

the State’s reasons as pretextual. The trial judge concluded

the reasons for the contested strikes were race-neutral and

denied Petitioner’s Batson motion. This issue was raised at

state PCR proceedings, and the state PCR Court

specifically held Petitioner had failed to prove deficient

performance or prejudice under Strickland.

Petitioner argues the Magistrate Judge ignored

Petitioner’s arguments showing the purportedly raceneutral reasons provided by the State were pretextual, and

failed to address his claims under 28 U.S.C. § 2254(d). Both

those arguments are unavailing. First, having reviewed

Petitioner’s claims regarding the allegedly race-neutral

reasons being pretextual, the Court agrees with the

Magistrate Judge’s recommendation: there is no prejudice

here. Second, federal habeas relief is unavailable where

the claim has not been exhausted in the state’s highest

court.

Moore v. Stirling, No. CV 4:14-04691-MGL, 2018 WL 1430959, at *9

(D.S.C. Mar. 21, 2018), aff'd, 952 F.3d 174 (4th Cir. 2020).

Federal Habeas Corpus, 28 U.S.C. § 2254 Action Appeal.

Moore, represented by the same attorneys, abandoned the ineffective

assistance/Batson defaulted claim in the appeal to the Fourth Circuit Court of

Appeals. See Moore v. Stirling, 952 F.3d 174 (4th Cir. 2020). The only reference to

Batson within the brief is found in the Statement of the Case, Procedural History.

COA Appeal: 18-4, Doc. 17 at 15 (noting trial counsel made a Batson motion, but

“abandoned the challenge,” and asserting, “As a result, Moore, an African American

defendant charged with killing a white victim, was tried by an all-white jury.”).

First State Habeas Petition

On November 19, 2020, Moore, represented by counsel, filed a state habeas

petition seeking original jurisdiction review in the Supreme Court of South Carolina.

He alleged ineffective assistance for failure to present certain evidence unrelated to

the Batson motion, trial court error in the malice charge, and that his death sentence

was “disproportionate” and inappropriate for his case. Notably, Moore did not

attempt to raise the present claim in that action even though he could have done so.

The state court accepted the case in its original jurisdiction only on the

proportionality complaint and ordered briefing. BIO App. A35. The Court ultimately

considered and rejected the proportionality claim on the merits and denied relief.

Moore v. Stirling, 871 S.E.2d 423 (S.C. 2022).

Second State Habeas Petition

On August 24, 2023, Moore filed another petition, this time attempting to raise

the Batson claim. Pet. App. 14a - 43a. The Supreme Court of South Carolina, in

contrast to the proportionality claim petition, denied the petition without any further

proceedings. 15 Pet. App. 1a.

Moore asserts in his petition to this Court that “[t]he Supreme Court of South Carolina’s

reluctance to enforce Batson’s mandate is well-established” and cites unidentified “numerous appeals

raising claims of Batson error” with only two reversals in thirty-two years. (Pet. 2). Of course, many

claims are raised in many different cases, but that does not make the claims meritorious. Even so,

Moore neglects to inform this Court that the South Carolina Court of Appeals is the intermediate court

in the state and would conduct the first review in most every non-capital criminal case. The State has

simply not appealed some of the rulings to allow the state supreme court an opportunity to pass on the

matter. See State v. Young, No. 2013-000149, 2017 WL 5483256, at *4 (S.C. Ct. App. Nov. 15, 2017)

(reversing conviction where “the State fail[ed] to articulate a race neutral reason for its disparate

treatment of the jurors”). Further, the Supreme Court of South Carolina has denied certiorari allowing

the Court of Appeals’ finding of Batson error to stand. See State v. Stewart, 775 S.E.2d 416, 421 (S.C.

Ct. App. 2015), cert. denied May 19, 2016 (reversing conviction “even though the State offered a

racially-neutral explanation for striking the African American jurors, the State negated the reason by

seating similarly-situated Caucasian jurors”). Moreover, the Supreme Court of South Carolina has

reversed a conviction finding the trial court erred in erroneously granting the State’s Batson motion

against the defense, State v. Inman, 760 S.E.2d 105, 110 (S.C. 2014), as has the Court of Appeals, State

v. Rogers, 748 S.E.2d 247, 256 (S.C. Ct. App. 2013). Moore’s statement lacks support.

REASONS WHY THE PETITION SHOULD BE DISMISSED OR,

ALTERNATIVELY, DENIED

The petition should be denied as Moore cannot meet the jurisdictional

requirements for review by this Court. However, even if Moore could show a basis,

and if this Court would wish to engage in a fact-intensive and redundant review, the

lengthy record in this case shows no Batson violation occurred.

There is no ruling based on federal law for this Court to

review, and no jurisdiction over the matter presented.

Moore alleges error in the Supreme Court of South Carolina’s analysis of his

Batson claim. His problem is that the Supreme Court of South Carolina, applying its

own state-law test, never exercised jurisdiction and did not rule on the merits of

Moore’s federal claim. 16 The only decision at issue is the one whether to exercise

jurisdiction which does not present a federal question for this Court to review:

“Without any doubt it rests with each state to prescribe the jurisdiction of its

appellate courts, the mode and time of invoking that jurisdiction, and the rules of

practice to be applied in its exercise; and the state law and practice in this regard are

no less applicable when Federal rights are in controversy than when the case turns

entirely upon questions of local or general law.” John v. Paullin, 231 U.S. 583, 585

(1913).

The Supreme Court of South Carolina has, under the state constitution, the

authority to issue writs in its original jurisdiction. Article V, § 5, S.C. Constitution.

However, the court primarily functions as an appellate court. See, e.g., Key v. Currie,

Moore is really attempting to challenge the 2001 trial court ruling which in no way could be

considered properly presented to the state appellate court or timely presented for this Court’s review.

406 S.E.2d 356, 357 (S.C. 1991). A petition must overcome the longstanding rule that

“a writ of habeas corpus is reserved for the very gravest of constitutional violations,

‘which, in the setting, constitute[ ] a denial of fundamental fairness shocking to the

universal sense of justice.’ ” Moore v. Stirling, 871 S.E.2d 423, 429 (S.C. 2022) (citing

Butler v. State, 397 S.E.2d 87, 88 (S.C. 1990)). The “in the setting” requirement refers

not just to a presence or absence of error, but consideration is made as to whether

there was “a meaningful opportunity to protect” defendant’s “rights.” Tucker v. Catoe,

552 S.E.2d 712, 718 (S.C. 2001). See also McWee v. State, 593 S.E.2d 456, 458 (S.C.

2004) (explaining that in Butler then again in Tucker, to grant relief, the Supreme

Court of South Carolina “found it was the combination of the constitutional violation

and other circumstances which compelled it to conclude the applicant had been

denied fundamental fairness shocking to the universal sense of justice”) (italics in

original).

To be sure, initial review of the petition is necessary, but the review is not

simply of the proposed claim, but also the context of the case. “While the allegations

in the petition are treated as true, the petition must set forth a prima facie case

showing the petitioner is entitled to relief” which is to say, “it must allege that the

petitioner has exhausted all other remedies, and it must set out a constitutional claim

that meets the standard delineated in Butler.” Moore, at 429. Moore could not make

this preliminary showing under state law to have the state court exercise review in

its original jurisdiction. Thus, the petition was dismissed on the basis of the state

law test, not federal law.

The Fourth Circuit has similarly found that denial of original jurisdiction

petitions submitted to the Supreme Court of South Carolina do not constitute rulings

on merits. 17 Wilson v. Moore, 178 F.3d 266, 277 (4th Cir. 1999). Wilson’s case was

based in federal habeas corpus reviewed under 28 U.S.C. § 2254, consequently,

whether the state court considered the claim on the merits affected not only

procedural default, but also whether the materials submitted in the petition for

original jurisdiction review could be considered a part of the state court record for §

2254 review. Id, at 273. The Fourth Circuit rejected Wilson’s argument that the

order, which reflected the petition was “denied,” indicated that Supreme Court of

South Carolina considered the merits of the federal claim. The Fourth Circuit

resolved “[a]fter examining the totality of the circumstances accompanying the entry

of the state order, we conclude that the order fairly appears to rest on state procedural

grounds, not federal law.”

Id, at 275-276.

It reached that conclusion having

considered that there was no mention of federal law in the order and there was no

discernable difference in the state court’s use of “denied” rather than “dismissed” to

indicate the type of review given. Id. The Fourth Circuit considered other state case

orders including one that had been presented to this Court previously, Yates v. Aiken,

where this Court had reversed the denial of a petition and remanded to the Supreme

Court of South Carolina for further proceedings. Id, at 275 n. 9 (citing Yates v. Aiken,

349 S.E.2d 84, 85 (S.C. 1986), rev'd, 484 U.S. 211 (1988)). It noted, however, that

In general, this Court may depend on the federal court of appeals to have “familiarity” with

the state law at issue. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16 (2004) (“ Our custom

on questions of state law ordinarily is to defer to the interpretation of the Court of Appeals for the

Circuit in which the State is located.”).

subsequent guidance from this Court was then available to determine whether the

action was based on independent and adequate state law grounds, citing Harris v.

Reed, 489 U.S. 255 (1989), and Coleman v. Thompson, 501 U.S. 722, 729 (1991), and

that precedent reinforced its conclusion that the ruling was not on the merits. Id. 18

Further, Moore’s own petition to the Supreme Court of South Carolina

acknowledged the state test for exercising original jurisdiction. Moore plainly

recognized the Butler test and that review in Butler was based, in part, on the “unique

and compelling circumstances” not just the proposed constitutional claim. Pet. App.

22a-23a.

Relatedly, the State argued in response to Moore’s state petition that 1)

the claim had been denied in whatever fashioned raised because the underlying

Batson claim has no merit; 2) Moore could not meet the standard for state habeas

review; and 3) the defenses of abandonment, res judicata, law of the case, finality of

litigation, and collateral estoppel would bar the claim. Pet. App. 83a. Essentially,

under the two-prong state test, the claim had been considered and denied and no

extraordinary circumstances to allow Butler review existed, rather, to the contrary,

multiple principles barred further review. The Supreme Court of South Carolina

denied the petition having both these arguments – Petitioner’s and the State’s –

before it.

Additionally, as the Supreme Court of South Carolina explained in the subsequent opinion

following remand, Yates had filed both a petition for writ of certiorari to review his denial of postconviction relief and a petition for writ of habeas corpus in the original jurisdiction. Those petitions

were consolidated before the Court, logically making review of one over the other difficult. See Yates,

349 S.E.2d at 85.

Further still, the treatment of Moore’s first petition for writ of habeas corpus

in the state court’s original jurisdiction is telling. In that first petition, in regard to

proportionality, briefing was granted along with oral argument, but no such review

was conducted for the other issues raised. See BIO App. A35. Further, and in

contrast, no order was issued that authorized briefing for Moore’s later presented

Batson claim.

Simply, the Supreme Court of South Carolina did not pass on the merits of

Moore’s Batson claim given that Moore did not meet the requirements to exercise

original jurisdiction. A passing or light review of the claim, if indeed that was done,

is not enough for Moore to show proper jurisdiction in this Court where in addition

to showing a possible constitutional error, a state petition still must establish the

procedural or other failures that demonstrate the extraordinary exercise of original

jurisdiction would be warranted. Either way, Moore fails to present this Court with

a federal issue to review based on the Supreme Court of South Carolina’s summary

denial of the exercise of its original jurisdiction – it is undeniable that the state test

requires more than consideration of the claim for the exercise of jurisdiction and that

test is a matter solely of state law that will not support jurisdiction here. John, supra.

See also Coleman, 501 U.S. at 729 (“This Court will not review a question of federal

law decided by a state court if the decision of that court rests on a state law ground

that is independent of the federal question and adequate to support the judgment.”).

II.

Alternatively, this case does not warrant certiorari review

because the record shows an ordinary application of Batson

to the facts of this case, and the record supports that no

Batson violation occurred.

Should the Court reject the Fourth Circuit’s interpretation of South Carolina

law, and find it does in fact have jurisdiction, the Court should still deny the petition

because the trial court and the PCR court, and even the federal district court in

considering the matter under a default analysis, were properly guided by Batson and

its progeny and reasonably concluded the record supports that no Batson violation

occurred. There is no need for a redundant application of Batson to the facts of this

case.

Moore attempts to gain this Court’s attention by reference to an alleged failure

to consider the claim in compliance with this Court’s guidance in Flowers v.

Mississippi, 588 U.S. 284, 302 (2019). However, this Court plainly stated in Flowers:

“[W]e break no new legal ground. We simply enforce and reinforce Batson by

applying” to the facts and circumstance of that particular case. Id. at 288. The claim

has not changed in character or requirement. Further, Flowers does not expand or

take away from the trial court’s authority to consider credibility and other evidence

to reveal pretext.

“As the Batson Court itself recognized, the job of enforcing Batson rests first

and foremost with trial judges.” Flowers, 588 U.S. at 302. The trial court did so in

this case, and the defense did challenge the strikes but even the defense was satisfied

with the non-racial reasons for the strikes. Further, when the reasons were tested

again in context of the other arguments on disparate questions or treatment, again,

there was no error. Moore did not appeal these related rulings either in his PCR

appeal or his federal habeas corpus appeal. This claim was not overlooked or

abandoned without the benefit of careful consideration of the evidence. Rather, the

evidence fully and fairly supported what the prosecutors set out in the 2001 trial –

the prosecution appropriately exercised the two contested strikes based on specific,

non-racial, bases.

The record supports that Juror Morrow was not forthcoming about her

criminal record and confirms her responses related the shooting murder of her

stepson, her statement she believes guns are used inappropriately, and that she

attempted to avoid jury service. BIO App. A22-A28, Trial Transcript pp. 320-326.

Further, long before the strike was made on the primary basis of her reticence on full

disclosure regarding her criminal record, the prosecution had moved to strike the

juror for cause, and the trial judge only denied the motion based because he

considered the motion untimely. BIO App. A31-A32, Trial Transcript pp. 329-330.

The record also supports that Juror Alexander had, in fact, disclosed that his

son was incarcerated after being convicted of murder by Solicitor Gowdy’s office. BIO

App. A10-A11, Trial Transcript pp. 191-192. Additionally, the record supports that

the prosecution similarly struck a White male juror, Mr. Huffman, because he a had

a brother-in-law who was convicted of murder. BIO App. A1 and A12-A13, Trial

Transcript pp. 201-202.

There is no pretext; there is no discrimination; and there is no cause for yet

another review of the same information that has been a matter of record for years.

Moore cannot create controversy ripe for resolution by this Court – either by a failure

of the state court to exercise state court jurisdiction on an extraordinary petition, or

on a record that shows no improper basis for either of those two strikes.

CONCLUSION

The Court should dismiss the petition for want of jurisdiction, or alternatively,

deny the petition.

Respectfully submitted,

ALAN WILSON

Attorney General

DONALD J. ZELENKA

Deputy Attorney General

MELODY J. BROWN

Senior Assistant Deputy Attorney General

Office of the Attorney General

Post Office Box 11549

Columbia, SC 29211

(803) 734-6305

s/Melody J. Brown

By: _______________________________

ATTORNEYS FOR RESPONDENT

October 22, 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.