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March v. Stevenson

United States District Court, D. South Carolina, Orangeburg Division

November 17, 2016

Eric D. Marsh, # 354716, Petitioner,
v.
Warden Stevenson, Respondent.

          ORDER AND OPINION

         Eric D. Marsh (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 16, 2015. Currently pending before the court are: (1) Warden Stevenson's (“Respondent”) Motion to Separate the Petition (ECF No. 42), (2) Petitioner's Motion to Stay (ECF No. 25), and (3) Respondent's Motion to Amend/Correct the Return (ECF No. 43). Having carefully considered the parties' submissions and the record in this case, the court GRANTS Respondent's Motion to Separate the instant Petition (ECF No. 42), GRANTS IN PART and DENIES IN PART Petitioner's Motion to Stay his habeas Petition (ECF No. 25), and GRANTS IN PART and DENIES IN PART Respondent's Motion to Amend/ Correct the Return (ECF No. 43).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Petitioner is currently incarcerated in the Broad River Correctional Institution of the South Carolina Department of Corrections. (ECF No. 1 at 1.) In 2011, Petitioner was indicted at the May Term of the Richland County Grand Jury for Second-Degree Criminal Sexual Conduct (“CSC”) with a Minor (2011-GS-40-01996). (App. 122-23[1]; ECF No. 19-19 at 2.) Additionally, Petitioner was also charged with second-degree CSC with a minor in Lexington County in April of 2013 (2013-GS-32-00965) and an indictment was returned by the Lexington County Grand Jury. (ECF No. 19-19 at 1; ECF No. 19-20.)[2] On March 20, 2013, Petitioner waived venue and jurisdiction of the Lexington charge in order to plead guilty to both charges in Richland County, South Carolina. (ECF No. 19-20 at 3.) On March 20, 2013, Petitioner pleaded guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 37 (1970), to the two counts of second-degree CSC with a minor before the Honorable G. Thomas Cooper. (App. 1-39.)

         After Petitioner initiated this action on November 16, 2015, Respondent filed his Return and Motion for Summary Judgment on April 13, 2016. (See ECF Nos. 19, 20.) Rather than filing a substantive Response to the Motion for Summary Judgment, Petitioner filed a Motion to Stay the action. (See ECF Nos. 24, 25.) In the Motion, Petitioner asserts that this court should stay his federal action because his case presents a “mixed” petition, as part of his habeas Petition was exhausted, and part of his habeas Petition was unexhausted. (See id.) In another “Response to Motion for Summary Judgment, ” Petitioner represented he should be granted a stay because he had a pending appeal with the South Carolina Court of Appeals in Case Number 2013-002816. (See ECF No. 38.)

         Thereafter, Respondent filed a Motion to Separate the instant Petition into two petitions (see ECF No. 42) and a Motion to Amend/Correct the Return (see ECF No. 43). In his Motion, filed August 24, 2016, Respondent argues that Petitioner's habeas action should only proceed in relation to Petitioner's Richland County CSC conviction. (ECF No. 42 at 1.) Petitioner opposed Respondent's Motion to Separate in a Response filed October 31, 2016. (ECF No. 44.) Respondent submitted a Status Report and Reply on November 8, 2016. (ECF No. 45.)

         II. ANALYSIS

         A. Respondent's Motion to Separate the Habeas Petition (ECF No. 42)

         In his Motion, Respondent argues that Petitioner's habeas action should be separated into two petitions. (ECF No. 42.) Specifically, Respondent asks the court to “treat the single habeas petition filed in this case as two separate petitions: One timely filed in relation to Petitioner's Richland County conviction in which state remedies have been duly exhausted, and one prematurely filed in relation to Petitioner's Lexington County conviction in which state court remedies remain pending.” (See Id. at 7-8.)

         Rule 2(e) of the Rules Governing § 2254 Cases provides: “A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each count.” Some district courts have used discretion to separate habeas matters for failure to comply with Rule 2(e). See, e.g., McKnight v. United States, 27 F.Supp.3d 575, 578 (D.N.J. 2014) (“When a litigant raises different habeas challenges in a single action, the court either dismisses his claims for failure to comply with Habeas Rule 2(e) or severs each line of challenges into its own habeas case.”); Edwards v. Hollingsworth, No. CIV.A. 13-3153 RMB, 2014 WL 806444, at *2 (D.N.J. Feb. 27, 2014) (“[W]here a litigant raises different habeas challenges in a single action, the court either dismisses his claims for failure to comply with Habeas Rule 2(e) or severs each line of challenges into its own, new and separate, habeas matter in order to address its procedural or substantive properties.”).

         In the interests of judicial economy, Respondent's Motion to Separate (ECF No. 42) will be granted. Petitioner is entitled to pursue relief from each conviction in separate actions. Therefore, Petitioner's habeas claims concerning his Lexington County conviction will be dismissed without prejudice with leave to refile once Petitioner has exhausted his state remedies concerning that conviction.

         B. Petitioner's Motion to Stay (ECF No. 25)

         In his Motion, Petitioner asks that the court allow him to withdraw three of his claims for relief and asks that the court hold them in abeyance to allow him time to exhaust his state remedies. (ECF No. 25.) Respondent opposes Petitioner's Motion and argues that “Petitioner's motion should be denied because his pro se petition is not a mixed petition” pursuant to Rhines v. Weber, 544 U.S. 269, 275 (2005). (ECF No. 28 at 2.)

         In Rhines, the Supreme Court approved a “stay and abeyance” procedure that district courts can use when presented with “mixed” petitions; that is, petitions containing exhausted and unexhausted claims. 544 U.S. at 275. Under this procedure, rather than dismissing a mixed petition, a district court can stay the petition and hold it in abeyance while the petitioner exhausts the unexhausted claims. Id. Once all of the claims have been exhausted, the district court can lift the stay and adjudicate the petition. Id. To obtain a stay of a mixed petition, the petitioner must show “good cause” for failing to exhaust his state remedies, that his unexhausted claims are potentially meritorious, and that he has not engaged in dilatory tactics. Id. at 278. Additionally, the Rhines Court held:

[I]f a petitioner presents a district court with a mixed petition and the court determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would ...

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