United States District Court, D. South Carolina
Mikal D. Mahdi, Petitioner,
Bryan Stirling, Commissioner, South Carolina Department of Corrections, Respondent.
Timothy M. Cain United States District Judge.
Mikal D. Mahdi, a state prisoner sentenced to death, has
filed this action seeking a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner has filed a motion to stay
these habeas proceedings pending exhaustion of state court
remedies. (ECF No. 78). The motion was automatically referred
to a magistrate judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c). On October
3, 2017, the magistrate judge filed a Report and
Recommendation (“Report”) recommending that the
motion for a stay be denied. (ECF No. 83). This matter is
before the court for review of that Report. Petitioner timely
filed objections to the Report (ECF No. 84), and Respondent
has filed a response to those objections (ECF No. 89).
Standard of Review
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). 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). In the absence
of a timely filed, specific objection, the magistrate
judge's conclusions are reviewed only for clear error.
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
November 2006, Petitioner pled guilty to murder, second
degree burglary, and grand larceny. Finding two statutory
aggravating circumstances, Judge Clifton Newman sentenced
Petitioner to death for the murder. He also sentenced
Petitioner to fifteen years imprisonment for the burglary and
ten years imprisonment for the larceny, to run consecutively.
Petitioner unsuccessfully pursued a direct appeal and
post-conviction relief (“PCR”) in state court. He
filed the instant action for habeas relief on September 26,
2016, when he filed a motion for a stay of execution and for
the appointment of counsel. He filed a placeholder petition
for a writ of habeas relief on February 9, 2017, and an
amended petition for habeas relief on September 7, 2017. On
September 7, 2017, Petitioner also filed this motion to stay
while he pursues a second PCR action in state court which was
filed on January 10, 2017. The state PCR court recently
dismissed Petitioner's second PCR application, and denied
his motion for reconsideration. Petitioner sought a writ of
certiorari from the South Carolina Supreme Court, and at this
time, that petition remains pending.
motion, Petitioner contends that his Amended Petition for
habeas relief is a mixed petition, and pursuant to Rhines
v. Weber, 544 U.S. 269 (2005), this action should be
stayed to allow him time to exhaust his state remedies.
Respondent opposes the motion for a stay arguing that
Petitioner cannot met the requirements for a stay under
Rhines. The magistrate judge recommends that the
court deny the motion, and Petitioner has filed objections.
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. Pursuant to
Rhines, a petitioner must satisfy three requirements
to justify a stay. Id. at 277-78. A stay should be
granted where a petitioner demonstrates “good cause for
his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation
tactics.” Id. at 278.
the magistrate judge recommends the court deny the motion to
stay because Petitioner has not demonstrated good cause for
failure to exhaust his claims, and his second PCR was without
merit because it is successive and time-barred. In his
objections, Petitioner contends that the magistrate judge
misapprehended the legal standard and evidence.
argues that while good cause has not been defined, “the
requirement is not a particularly demanding one.”
(Pet'r's Mot. to Stay at 4; Objections at 2).
Petitioner asserts ineffective assistance of counsel can
satisfy the good cause requirement relying on Blake v.
Baker, 745 F.3d 977, 981-82 (9th Cir. 2014). (Objections
at 3). In Blake, the Ninth Circuit acknowledged
“a bald assertion [of ineffective assistance of
counsel] cannot amount to a showing of good cause, ”
and it found good cause existed because the petitioner
“supported his good cause argument with evidence of his
abusive upbringing and history of mental illness, compiled by
his federal post-conviction counsel.” 745 F.3d at 982.
Here, Petitioner contends that the magistrate judge erred in
finding that his allegations of ineffective assistance of
counsel did not provide good cause. Specifically, he contends
that the magistrate judge erred by focusing only on the
information set forth in the motion and ignoring his Amended
Petition and his references to the Amended Petition.
Id. Petitioner is seeking PCR in state court on
Claims III and VI as set forth in his Amended Petition at
¶ 11 (a) and (b), and he is also seeking a belated
review, pursuant to Austin v. State, 409 S.E.2d 395
(S.C. 2002), of three claims which he contends he raised in
his first PCR, but that his PCR counsel did not raise in his
appeal of the denial of PCR. (Pet'r's Mot. to Stay at
contends that he could not have brought at least one of the
issues in his first PCR because it is based on a 2016 United
States Supreme court case, Hurst v. Florida, 136
S.Ct. 616 (2016), which he contends is retroactive. In
Hurst, 136 S.Ct. 616, the Supreme Court held that
Florida's capital sentencing scheme violated Ring v.
Arizona, 536 U.S. 584 (2002), and Apprendi v. New
Jersey, 530 U.S. 466 (2000). Under the Florida scheme, a
jury makes an advisory verdict while the judge makes the
ultimate factual determinations necessary to sentence a
defendant to death. Id. at 621-22. The Court held
that this procedure was invalid because it “does not
require the jury to make the critical findings necessary to
impose the death penalty.” Id. at 622. The
holding in Hurst was not a significant change in the
law as the Supreme Court simply applied prior precedent, its
holdings in Ring and Apprendi, to
Florida's capital sentencing statutes. The Court has held
that “Ring announced a new procedural rule
that does not apply retroactively to cases already final on
direct review.” Schriro v. Summerlin, 542 U.S.
348, 358 (2004), and in United States v. Sanders,
247 F.3d 139 (4th Cir. 2001), the Fourth Circuit held that
the rule announced in Apprendi is not retroactively
applicable to cases on collateral review. Moreover, the
holding in Hurst does not apply retroactively
because the Supreme Court has not declared it is to be
applied retoractively. See Tyler v. Cain, 533 U.S.
656, 663 (2001) (holding that a “new rule of
constitutional law” is “made retroactive to cases
on collateral review by the Supreme Court” only if the
Supreme Court holds as much).
the claims which PCR appellate counsel failed to appeal, the
court finds Petitioner has not alleged good cause for failing
to exhaust these claims first in state court. See
Martinez v. Ryan, __U.S.__, 132 S.Ct. 1309, 1320 (2012)
(finding that attorney error during appeals from
initial-review collateral proceedings does not constitute
good cause for failure to exhaust initial collateral review
claims). Moreover, the South Carolina Supreme Court has
recently held that the ineffective assistance of PCR