No error in rejecting ‘substantially similar’ claims and arguments in habeas

Where the claims and arguments in a death row inmate’s habeas petition did not “fundamentally alter” those previously rejected by the post-conviction court, the district court did not err in rejecting them under a deferential standard of review. A new claim presented for the first time was also correctly dismissed because it was procedurally defaulted.

Background

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.

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.

Analysis

Although Moore raised his physical and mitigation evidence claims in his state post-conviction relief, or PCR, proceedings, he argues that new evidence so “fundamentally alters” these claims that they are new claims not presented to the state court by his PCR counsel. If so, then the claims are defaulted. Moore then contends his default should be excused—and his claims reviewed with no deference to the state court—based on his PCR counsel’s ineffectiveness in failing to present these claims to the state court.

To begin, we must determine whether Moore presented these claims to the state court. A federal habeas claim has been presented to the state court when that claim remains fundamentally the same as the one presented to the state court. In contrast, a claim has not been presented to a state court when new evidence “fundamentally alter[s]” the “substance” of the claim so as to make the claim a new one. Here, Moore’s physical evidence and mitigation evidence claims were presented in substantially identical terms to the state court. And the legal arguments made remain substantially the same. Finally, Moore’s claim that his counsel were ineffective in developing mitigation evidence likewise fails.

The new evidence Moore presented in support of his physical evidence and mitigation evidence claims fails to fundamentally alter the federal claims and render them new claims that were not presented to the state court. So the district court properly applied the statutorily mandated deferential review for claims presented to, and rejected on the merits by, the state court.

Moore’s third claim—presented for the first time before the district court—is that trial counsel were ineffective for failing to challenge the prosecutor’s decision to seek the death penalty. The district court dismissed the claim. We agree with the district court that this claim was procedurally defaulted and that none of the exceptions to the default apply here.

Affirmed.

Moore v. Stirling, Appeal No. 18-4, March 3, 2020. 4th Cir. (Richardson), from DSC at Florence (Lewis). Lindsey S. Vannn for Appellant, William Edgar Salter III for Appellees. VLW 020-2-045. 22 pp.