Moore v. Bush
5:16-cv-04012
D.S.C.Aug 15, 2017Background
- Petitioner John J. Moore, Jr. filed a 28 U.S.C. § 2254 habeas petition challenging his state conviction; Respondent is Warden Bush.
- Magistrate Judge West issued an R&R recommending summary judgment for Respondent and denial of the petition; Moore filed objections to the R&R.
- Moore’s habeas claims include multiple ineffective-assistance-of-counsel (IAC) allegations; Grounds 1–4 (the only ones he objects to) concern jury instructions (deadly-weapon via vehicle), alleged sleeping jurors/Hurd hearing, failure to investigate/call witnesses about a third party (Gene Derrick) and failure to object to an accomplice liability instruction.
- The PCR (post-conviction relief) court applied Strickland and rejected these IAC claims; Magistrate Judge West found those adjudications reasonable and recommended denial of habeas relief.
- The District Court reviewed objections de novo where made, found no clear error as to unobjected grounds (5–11), and overruled Moore’s objections to Grounds 1–4, adopting the R&R and granting summary judgment for Respondent.
Issues
| Issue | Plaintiff's Argument (Moore) | Defendant's Argument (Warden/State) | Held |
|---|---|---|---|
| Ground 1: Failure to request jury instruction that a vehicle can be a deadly weapon | Trial counsel was ineffective for not requesting a tailored instruction on vehicle-as-deadly-weapon for self-defense | No sanctioned SC jury charge existed; given self-defense instruction was correct; counsel not deficient and no Strickland prejudice | Court: PCR court reasonably applied Strickland; claim denied |
| Ground 2: Failure to request Hurd hearing / move for mistrial for purportedly sleeping jurors | Counsel ineffective for not securing inquiry/mistrial when jurors were drowsy or asleep during closing | State: record shows jurors were addressed, only limited dozing at most; counsel reasonably chose not to object and believed sleep favored Moore; no prejudice | Court: factual findings not unreasonable under §2254(e)(1); no Strickland deficiency or prejudice; claim denied |
| Ground 3: Failure to investigate/call witnesses about Gene Derrick’s drug use/state of mind | Counsel ineffective for not presenting investigator reports, Langford witnesses, or a toxicology expert to show Derrick’s impairment | State: counsel investigated, had reports, but strategically declined to present to preserve alternate theory (Petitioner's passenger was the shooter) and retain final argument; tactical choice | Court: trial strategy reasonable and articulated; PCR court reasonably found no deficient performance; claim denied |
| Ground 4: Failure to object to accomplice-liability instruction and use of term “jointly” | Instruction was legally improper; counsel ineffective for not objecting | State: jury charge, as given, correctly stated South Carolina law; no federal due-process issue; counsel not ineffective | Court: questions of state-law jury instructions upheld absent a federal due-process claim; PCR court reasonably applied Strickland; claim denied |
Key Cases Cited
- Mathews v. Weber, 423 U.S. 261 (standard for magistrate judge recommendations and de novo review of objections)
- Thomas v. Arn, 474 U.S. 140 (failure to object to R&R treated as waiver)
- Strickland v. Washington, 466 U.S. 668 (two-prong ineffective-assistance-of-counsel test)
- Cullen v. Pinholster, 563 U.S. 170 (§2254(d)(1) review limited to state-court record)
- Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir.) (clear-error review for unobjected portions of R&R)
- Lovitt v. True, 403 F.3d 171 (4th Cir.) (deference to reasonable tactical decisions by trial counsel)
- Fitzgerald v. Thompson, 943 F.2d 463 (4th Cir.) (reasonableness of counsel’s strategic choices on collateral review)
- Grandison v. Corcoran, 78 F. Supp. 2d 499 (D. Md.) (jury instruction errors are state-law unless federal due-process implicated)
- State v. Hurd, 480 S.E.2d 94 (S.C. Ct. App.) (procedures when a juror allegedly falls asleep)