United States District Court, D. South Carolina, Florence Division
ORDER
THOMAS
E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Petitioner,
appearing pro se, filed his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on December
10, 2018. On the same date, Petitioner filed three motions
entitled “Motion to Stay and Abeyance of the Petitioner
Unexhausted claims in federal Habeas Corpus pursuant to
Rhines v. Weber, ” Motion for Leave to File
Second Post Conviction Relief pursuant to S.C. Code
17-27-45(B) Because of an Intervening Change in Both State
law, Mangal v. State . . . and federal law,
Martinzez v. Ryan . . . In South Carolina
proceedings, ” and “Motion to Challenge the
Constitutionality of the Post Conviction Relief Statue as
Unconstitutional for not having a remedy in order for the
petitioner to challenge the Ineffectiveness of post
Conviction Relief Counsel.” (ECF Nos. 3, 5, and 6).
Respondent filed a response in opposition. (ECF No. 27).
In the
Motion for Stay and Abeyance, Petitioner requests that his
case be stayed for him to pursue unexhausted claims in a
successive PCR Application and cites to Martinez v.
Ryan, 132 S.Ct. 1309 (2012), and Mangal v.
State, 421 S.C. 85, 805 S.E.2d 568 (2017) as support of
the changes in law necessary to warrant a Stay under South
Carolina Code of Laws 17-27-45(b). Respondent argues that
Petitioner is mistaken to conclude that either
Martinez or Mangal provide a basis for stay
of his federal habeas petition. The undersigned agrees. In
Martinez, the Supreme Court established a
“limited qualification” to the rule in
Coleman v. Thompson, 501 U.S. 722, that any errors
of PCR counsel cannot serve as a basis for cause to excuse a
petitioner's procedural default of a claim of
ineffectiveness of trial counsel. Martinez, 132
S.Ct. at 1319. Martinez does not provide any
authority for successive PCR applications under state law. In
Mangal v. State, the state court held that
“[T]here are situations where the interest of justice
requires . . . courts to be flexible with procedural
requirements before . . . applicants suffer procedural
default on substantial claims.” Petitioner has not
presented any substantive change in the law that would
entitle him to a stay in his federal habeas corpus petition
for him to submit a successive PCR application.
In
Rhines v. Weber, 544 U.S. 269 (2005), 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, while the petitioner
returns to state court to exhaust his previously unexhausted
claims. Id. at 275. The district court should stay,
rather than dismiss, the mixed petition if” the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petition engaged in intentionally
dilatory litigation tactics.” Id. at 278.
Rhines is not applicable in this case. Petitioner
has not filed a mixed petition as he has only raised
unexhausted claims that he alleges are due to PCR counsel
failing to raise them. Therefore, the motion to stay and
abeyance (ECF No. 3) is denied.
In the
motion entitled “Motion to file Second Post-Conviction
Relief Application, pursuant to §17-27-45(B) because of
an intervening change” in both state law and federal
law, citing to Martinez and Mangal,
Petitioner is requesting that the federal court authorize him
to file a successive PCR application. Because this issue
pertains to the state court's jurisdiction, this issue
should be dismissed because claims arising from state law are
not cognizable. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). Jurisdiction is a non-cognizable state law
issue. See Wright v. Angelone, 151 F.3d 151, 156-158
(4th Cir.). This motion (ECF No. 5) is not
cognizable in federal court and is denied.
In the
third motion entitled “Motion to Challenge the
Constitutionality of the Post-Conviction Relief Statute . .
., ” Petitioner challenges the South Carolina
Post-Conviction relief statute as unconstitutional on the
grounds that it does not provide a remedy for Petitioner to
challenge the ineffectiveness of PCR counsel. Respondent
asserts that the South Carolina PCR remedies exist as
protections beyond those guaranteed by the United States
Constitution, thus there can be no unconstitutional action in
denying recourse for ineffective assistance of PCR counsel at
the state level. Initially, such a challenge to the
state's statute is not proper by “motion”
and, thus, is denied. Additionally, no court has recognized a
constitutional right to counsel in post-conviction
proceedings. See Wise v. Williams, 982 F.2d 142, 144
(4th Cir. 1992) (“There is no constitutional right to
an attorney in state post-conviction proceedings.”)
(citing Coleman v. Thompson, 501 U.S. 772, 752
(1991)); see also Martinez v. Ryan, 132 S.Ct. 1309
(2012)(providing limited application of Strickland
violation by PCR counsel for purposes of showing cause to
overcome procedural default, based on principles of equity).
An application for a writ of habeas corpus by a person in
custody under a judgment of a state court can be granted only
for violations of the Constitution or laws of the United
States. 28 U.S.C. ยง2254(a). A federal writ is not
available ...