Moore v. State

• Court: Court of Appeals of South Carolina
• Decided: February 5, 2003
• Docket: 2003-UP-106
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Gregory Tyrone Moore,        Appellant,

v.

State of South Carolina,        Respondent.

---

Appeal From Greenwood County
Gary E. Clary, Circuit Court Judge

---

Unpublished Opinion No. 2003-UP-106
Submitted November 20, 2002 - Filed February 5, 2003 

---

AFFIRMED IN PART, REVERSED IN PART
AND REMANDED

---

Assistant Appellate Defender Tara S. Taggart, of Columbia; for Appellant

Attorney General Henry D. McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General B. Allen Bullard, Jr., of Columbia; for Respondent(s).

---

PER CURIAM:  Gregory Tyrone Moore appeals the denial of his petition for a writ of habeas corpus.  The circuit court dismissed the petition without an evidentiary hearing, finding the petition did not sufficiently request habeas relief.  We affirm in part, reverse in part, and remand.

FACTS

On December 10, 1997, Moore was tried by a jury and convicted of second-degree burglary and petit larceny.  The charges arose out of an incident where Moore broke into a federal building and stole two videocassette recorders. The next day, the judge sentenced Moore to fifteen years imprisonment for second-degree burglary and thirty days for petit larceny. 

Later in the day, Moore pleaded guilty to seven counts of second-degree burglary, two counts of grand larceny, and five counts of petit larceny.  Pursuant to a plea agreement, the State recommended that Moore’s sentences for these offenses be served concurrently with the fifteen-year sentence he received earlier in the day for his convictions.  At the time of the plea, Moore was on probation for charges of second-degree burglary and third-degree burglary.  The judge sentenced Moore to fifteen years imprisonment on each second-degree burglary charge, five years for each charge of grand larceny, and thirty days for each charge of petit larceny.  The judge also revoked Moore’s probation.  All of the sentences were to be served concurrently with the sentence Moore received after his jury trial convictions.  The judge instructed Moore that a reversal of his convictions on appeal would have no impact on the concurrent sentences he received for pleading guilty.  Moore and his counsel acknowledged the judge’s decision.

On February 22, 2000, Moore filed a petition for a writ of habeas corpus in the Greenwood County Court of Common Pleas.  In his petition, he asserted the State was without jurisdiction to continue his incarceration because he had completed his sentence that was based on the plea agreement.  Specifically, Moore contended he had served his sentence when this Court reversed his conviction for second-degree burglary.   In an unpublished opinion, this Court reversed Moore’s second-degree burglary conviction involving the federal building.  State v. Moore, Op. No. 99-UP-137 (S.C. Ct. App. filed Mar. 4, 1999). 

On April 2, 2000, the circuit court approved Moore’s request to proceed in forma pauperis.  The State filed a Return and moved to dismiss the petition on May 8, 2001.

By order dated May 14, 2001, and filed June 7, 2001, the circuit court dismissed the petition, finding Moore had failed to sufficiently allege:  1) he had exhausted all available post-conviction relief (PCR) remedies; and 2) other remedies such as PCR were inadequate.  The court found Moore’s claim was cognizable under the Uniform Post-Conviction Procedure Act. S.C. Code Ann. §§ 17-27-10 to 17-27-160 (1985 & Supp. 2002).

On June 15, 2001, Moore’s counsel filed a motion for reconsideration.  Counsel contended the court erred in summarily dismissing the petition for a writ of habeas corpus given the Attorney General’s office failed to serve its Return and motion to dismiss on either Moore or his counsel.  Counsel contended she had been appointed to represent Moore in April of 2000.  As such, she should have been served and given the opportunity to challenge the State’s motion to dismiss. Secondly, counsel argued the court should have treated Moore’s petition as one for PCR rather than summarily dismissing it as an insufficient petition for habeas corpus.  Counsel requested the court rescind its order of dismissal and address the petition as a PCR action.

Without a hearing, the court denied the motion by order dated June 28, 2001, and filed on July 3, 2001.  Moore appeals.

DISCUSSION

Moore argues the circuit court erred in dismissing his petition for a writ of habeas corpus rather than treating it as an application for post-conviction relief.  Furthermore, he contends the State’s failure to timely notify his counsel regarding the Return and the motion to dismiss was prejudicial and essentially constituted a complete denial of counsel.  Based on these errors, Moore asserts he is entitled to a full evidentiary hearing on his petition for a writ of habeas corpus, with the benefit of counsel, and he is entitled to have his pro se writ construed as an application for PCR. 

Although the allegations in a petition for a writ of habeas corpus are considered true, the petition must make out a prima facie case before the petitioner is entitled to a hearing.  Gibson v. State, 329 S.C. 37, 495 S.E.2d 426 (1998).  The petition must allege the following:  (1) all available PCR remedies have been exhausted including an application, an order and appellate review or its waiver, and (2) sufficient facts to show why other remedies are unavailable or inadequate.  Simpson v. State, 329 S.C. 43, 495 S.E.2d 429 (1998) (holding a matter which is cognizable under the Uniform Post-Conviction Procedure Act may not be raised by a petition for a writ of habeas corpus before the circuit or other lower courts); Keeler v. Mauney, 330 S.C. 568, 500 S.E.2d 123 (Ct. App. 1998) (holding petition for a writ of habeas corpus is procedurally barred if the issue could have been raised in a PCR application); see Tyler v. State, 247 S.C. 34, 145 S.E.2d 434 (1965) (concluding habeas corpus cannot be used as substitute for PCR).  Moore failed to allege these requirements in his petition.  As such, the circuit court correctly dismissed Moore’s petition for insufficiently requesting habeas relief.

The question then becomes whether the circuit court erred in failing to construe Moore’s petition as a PCR application.  See Gibson, 329 S.C. at 41, 495 S.E.2d at 428 (holding where appellants’ petitions for a writ of habeas corpus contained no allegations that PCR remedies had been exhausted nor any other factual justification why other remedies were unavailable or inadequate, the appellants failed to allege sufficient facts entitling them to a habeas corpus hearing, thus, petitions should have been treated as PCR applications by the circuit court); Lakes v. State, 333 S.C. 382, 385, 510 S.E.2d 228, 230 (Ct. App. 1998) (“If a habeas corpus petition does not satisfy the procedural requirements or allege sufficient facts to justify a habeas corpus hearing, the petition may be treated as a PCR application.”).  

Moore’s sentencing challenge is a cognizable claim to be raised in a PCR application.  See S.C. Code Ann. § 17-27-20(a)(5) (1985) (providing that “[a]ny person who has been convicted of, or sentenced for, a crime and who claims that his sentence has expired . . .” may institute a proceeding for post-conviction relief); Al-Shabazz v. State, 338 S.C. 354, 368, 527 S.E.2d 742, 749 (2000) (holding post-conviction relief is a proper avenue for a “claim that an applicant’s sentence has expired” pursuant to S.C. Code Ann. § 17-27-20(a)(5)). 

Because there is no evidence in the record that Moore has had an opportunity to raise this issue in a PCR application, we remand the case to provide Moore an opportunity to show whether his application is not successive and whether his claim is meritorious.  Gibson, 329 S.C. at 42, 495 S.E.2d at 428-29.

Accordingly, the decision of the circuit court is

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

CURETON, CONNOR, and STILWELL, JJ., concur.