Moore v. State

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Unpublished Opinion No. 2003-UP-106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.