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Mercer v. Stirling

United States District Court, District of South Carolina, Rock Hill Division

March 20, 2015

Kevin Mercer, Petitioner
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections; Joseph McFadden, Warden of Lieber Correctional Institution, Respondents.



Petitioner Kevin Mercer (“Petitioner”), a state prisoner proceeding pro se, initiated this suit by filing a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254[1] on June 26, 2014. See Pet., ECF No. 1. Petitioner also filed a motion to stay the habeas proceedings pending the resolution of plea discussions with the state in the underlying state criminal case. See ECF No. 8. Respondents filed a motion for summary judgment and return to the petition on August 7, 2014. See ECF Nos. 12–13. Respondents also filed a response in opposition to the motion to stay. See ECF No. 14. Petitioner then filed a reply in support of his motion to stay, see ECF No. 22, and a response in opposition to Respondents’ motion for summary judgment, see ECF No. 23. The matter is now before the court for review of the Report and Recommendation (“R & R”) of United States Magistrate Judge Paige J. Gossett.[2] See R & R, ECF No. 26. In her R & R, the Magistrate Judge recommends that Petitioner’s motion to stay be denied, Respondents’ motion for summary judgment be granted, and that the petition be dismissed without prejudice. See Id. at 5.


Petitioner was tried before a jury on April 17–19, 2006, and was found guilty of murder, armed robbery, and possession of a firearm while in the commission of a violent crime. See Order Granting Post Conviction Relief, ECF No. 12-12 at 14–15. On April 22, 2006, the jury found the existence of the presented aggravating factor and recommended a sentence of death. See Id. at 15. The Circuit Court then sentenced Petitioner to death for the murder charge, thirty years’ imprisonment for the armed robbery charge, [3] and five years’ imprisonment for the weapon conviction. See Id. at 15–16. Petitioner is currently incarcerated at Broad River Correctional Institution in Columbia, South Carolina.

Petitioner appealed, but the Supreme Court of South Carolina issued an opinion affirming the convictions and sentences of the lower court. See State v. Mercer, 672 S.E.2d 556 (S.C. 2009). Petitioner sought and received a stay of execution so that he could file a petition for a writ of certiorari to the United States Supreme Court. See Pet. for Stay, ECF No 12-17; Order Granting Stay, ECF No. 12-18. The Supreme Court denied Petitioner’s petition by order dated October 5, 2009. See ECF No. 12-2 at 110.

Petitioner then received a second stay of execution while he filed his post-conviction relief application. See Order, ECF No. 12-21. By order filed June 29, 2011, the PCR court granted relief as to the claim raised in Ground 9(b)(3), which alleged that trial counsel was deficient in not investigating and presenting evidence of a mental retardation claim on Petitioner’s behalf. See ECF No. 12-12 at 91–92. In its order, the PCR court granted relief on this ground and vacated Petitioner’s death sentence, stating as follows:

The Court finds, by a preponderance of the evidence, that Applicant has met his burden of proof in demonstrating that his trial attorneys rendered deficient performance by failing to investigate and present the issue of his mental retardation. Further, the Court finds that Applicant was prejudiced by his trial counsel’s deficient performance because there exists, at a minimum, a reasonable probability of a different outcome had trial counsel properly investigated and presented a mental retardation claim. Accordingly, the sentence of death is vacated and this matter is remanded to the Court of General Sessions in Lexington County for a new sentencing trial. In accordance with Franklin v. Maynard, 356 S.C. 276, 588 S.E.2d 604 (2003), Applicant is entitled to a pre-trial determination by the trial judge concerning whether or not Applicant is mentally retarded by a preponderance of the evidence offered at the pre-trial hearing. If the trial judge finds Applicant is mentally retarded, then Applicant is not eligible for the death penalty and shall be resentenced. Id. at 279, 588 S.E.2d at 606. If, however, the trial judge does not find that Applicant is mentally retarded, Applicant is nonetheless entitled to submit evidence of his mental retardation for the jury’s consideration as a mitigating factor. Id. If the jury finds that mitigating factor, then a death sentence will not be imposed. Id.

ECF No. 12-12 at 59-60. The PCR court denied relief as to all other claims, specifically finding that since Petitioner could have raised his freestanding Eighth Amendment claim at trial and in his direct appeal, that claim was not properly presented to the PCR court. See ECF No. 12-12 at 90–91. Both parties filed motions to alter or amend judgment, which were denied by the PCR court. See Form 4 Order, ECF No. 12-12 at 117. Both parties appealed the PCR court’s decision by filing petitions for a writ of certiorari, which were denied by the South Carolina Supreme Court in its order filed September 6, 2013. See Order, ECF No. 12-27. The remittitur was issued September 24, 2013. See Remittitur, ECF No. 12-28.

Standard of Review

The Magistrate Judge makes only a recommendation to the district court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo determination of those portions of the R & R to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).

The court is obligated to conduct a de novo review of every portion of the Magistrate Judge’s report to which objections have been filed. Id. However, the court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (“[D]e novo review [is] unnecessary in . . . situations when a party makes general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendation.”). The Court reviews only for clear error in the absence of a specific objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310 (4th Cir.2005). Furthermore, in the absence of specific objections to the R & R, this Court is not required to give any explanation for adopting the recommendation. See Diamond, 416 F.3d at 315; Camby v. Davis, 718 F.2d 198 (4th Cir. 1983).


I. R & R and Objections

In the R & R, the Magistrate Judge recommends the Court dismiss the Petition without prejudice, as Petitioner’s death sentence was vacated in the PCR action. See ECF No. 26 at 4. The Magistrate Judge noted that Petitioner challenges whether he can receive a sentence of death at the resentencing for his murder conviction, but reasons that since he does not currently have a sentence for that conviction, he is not currently “in custody” pursuant to a state court judgment on that conviction. See Id. (citing 28 U.S.C. § 2254). The Magistrate Judge explained that “[f]inal judgment in a criminal case means sentence. The sentence is the judgment.” Burton v. Stewart, 549 U.S. 147, 156 (2007) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)). The Magistrate Judge then found that, as Petitioner is not currently in custody pursuant to the judgment of a state court on the murder conviction, this matter must be dismissed. See ECF No. 26 at 4. The Magistrate Judge also noted, that to the extent Petitioner seeks to convert his petition to a § 2241, that conversion would not afford him the relief he seeks. See Id. at 4 n.4 (citing Younger ...

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