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Mahdi v. Stirling

United States District Court, D. South Carolina

December 5, 2017

Mikal D. Mahdi, Petitioner,
Bryan Stirling, Commissioner, South Carolina Department of Corrections, Respondent.


          Timothy M. Cain United States District Judge.

         Petitioner 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).

         I. Standard of Review

         The 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).

         II. Background

         In 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.

         III. Discussion

         In his 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.

         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. 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.

         Here, 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.

         A. Good Cause

         Petitioner 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 2).

         Petitioner 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).

         As to 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 ...

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