Stokes v. Byars

Filing 86

ORDER denying Petitioner's 76 MOTION to Stay and hold Federal Proceedings in Abeyance. The parties are instructed to continue with the briefing schedule set forth in the First Amended Scheduling Order, as modified by subsequent orders. [ECF Nos. 55, 85]. Signed by Magistrate Judge Shiva V Hodges on 1/24/2017. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Sammie Louis Stokes, #5069,
Petitioner,
vs.
Bryan P. Stirling, Director, South
Carolina Department of Corrections;
Joseph McFadden, Lieber Correctional
Institution,
Respondents.

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C/A No.: 1:16-845-RBH-SVH

ORDER DENYING STAY

Petitioner Sammie Louis Stokes is an inmate at the Lieber Correctional Institution
of the South Carolina Department of Corrections who filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. [ECF Nos. 22, 51]. This matter comes before the
court on Petitioner’s Motion to Stay Proceedings Pending Exhaustion of State Remedies.
[ECF No. 76]. Specifically, Petitioner asks this court to stay the instant federal habeas
corpus matter pending the outcome of his state habeas corpus petition. [ECF No. 76 at
2]. Respondents have filed a response in opposition [ECF No. 79], and Petitioner has
filed a reply [ECF No. 82]. Thus, this motion is ripe for this court’s review. For the
reasons that follow, the undersigned denies the motion to stay.
I.

Background
Petitioner was indicted by the Orangeburg County Grand Jury during the May

1999 term of court for (1) murder (98GS38-1246), (2) criminal conspiracy (98GS381247), (3) kidnapping (98GS38-1248), and (4) criminal sexual conduct–first degree

(98GS38-1245). [ECF No. 19-4 at 189–90, 199–200, 202–05]. Subsequently, a jury
convicted Petitioner on all counts and he was sentenced to death. Petitioner pursued
direct appeal and post-conviction relief remedies in state court unsuccessfully.
This federal habeas action was initiated on March 9, 2016, by Petitioner’s motion
to stay execution and motion to appoint counsel. [ECF No. 1]. Thereafter, Petitioner
filed a federal petition for a writ of habeas corpus on June 13, 2016, pursuant to this
Court’s directive that Petitioner comply with 28 U.S.C. § 2251(a)(1) should he seek a
further stay of execution. [See ECF Nos. 8, 21, 22]. Petitioner’s initial petition identified
five grounds for relief, and Petitioner subsequently briefed three of those grounds. [ECF
Nos. 22, 51]. On December 20, 2016, Petitioner filed an amended petition for a writ of
habeas corpus, which added three grounds for relief. [ECF No. 75]. Simultaneously,
Petitioner filed a motion to stay and to hold these proceedings in abeyance pending a
decision by the South Carolina Supreme Court on Petitioner’s state habeas corpus
petition filed on December 20, 2016. [ECF No. 76; see also ECF No. 82-1 (indicating
that the state petition for writ of habeas corpus was filed on December 20, 2016) 1].
According to Petitioner, the state petition raises to the South Carolina Supreme Court the
same issue set forth in Ground VI of the instant petition: “TRIAL AND COLLATERAL
COUNSEL WERE INEFFECTIVE TO THE PREJUDICE OF THE APPLICANT BY
FAILING TO INVESTIGATE, DEVELOP AND PRESENT ANY MITIGATION

1

This information is taken from the State of South Carolina’s Return to the Petition for
Writ of Habeas Corpus. The state petition itself has not been provided to the court.

EVIDENCE.” [ECF No. 76 at 5; see also ECF No. 75 at 5–32]. The state habeas petition
remains pending in the state supreme court.
II.

Discussion
Petitioner asks this court to stay the case pursuant to Rhines v. Weber, 544 U.S.

269 (2005), while he seeks a state court determination of his unexhausted ineffective
assistance of counsel claim, and Respondent opposes the stay. Pursuant to Rhines, a
federal habeas case may be stayed and held in abeyance “where such a stay would be a
proper exercise of discretion.” Id. at 276. The Supreme Court further stated that in
certain instances where a petitioner files a mixed petition (i.e., containing exhausted and
unexhausted claims), an exercise of such discretion would be proper. Id. at 272–73, 276.
Prior to Rhines and the enactment of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), total exhaustion of state remedies was required prior to
the filing of a federal habeas petition, requiring all mixed petitions be dismissed without
prejudice. Rose v. Lundy, 455 U.S. 509 (1982); Rhines, 544 U.S. at 273–74. The
AEDPA included a one-year statute of limitations for the filing of federal habeas
petitions under § 2254. After AEDPA’s enactment, the Supreme Court modified the rule
regarding mixed petitions in certain limited circumstances, such as situations where a
mixed petition is timely filed in federal court, but dismissal of the federal habeas petition
may result in time-barring the petition from returning to federal court after a petitioner
completes his obligation to exhaust all issues in state court. Rhines, 544 U.S. at 275.
Therefore, the Rhines Court held that a district court may in limited circumstances stay a
habeas proceeding; however, a stay is “only appropriate when the district court

determines there was good cause for the petitioner’s failure to exhaust his claims first in
state court.” Id. at 277. Additionally, “even if a petitioner had good cause for that
failure, the district court would abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless.” Id. Accordingly, 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.
Petitioner argues his petition constitutes a mixed petition that satisfies the
requirements of Rhines. As to his good cause for failure to exhaust, Petitioner asserts that
good cause exists for his failure to exhaust because it “was a direct result of his
dependence on the competence and judgment of the lawyers appointed to represent him
in his first state post-conviction relief proceedings,” and that his counsel’s “fail[ure] to
abide by their obligation to identify and pursue viable claims for post-conviction relief
that are apparent from the face of the trial record.” [ECF No. 76 at 4]. Respondents
respond that the motion to stay is premature as they have yet to assert that any of
Petitioner’s claims are unexhausted or procedurally defaulted.

[ECF No. 79 at 3].

Respondents further argue that “the state court records support the assumption of
ineffective PCR counsel is far from justified[,]” noting that PCR counsel raised, but
abandones, a claim of ineffective assistance of trial counsel for failure to investigate and
present mitigation evidence prior to the evidentiary hearing. [ECF No. 79 at 3–4].
Petitioner repliesnotes that the good cause requirement “is not ‘meant to be inordinately
demanding,’” [ECF No. 82 at 4], citing other capital habeas cases in this court where

stays were granted pending the outcome of second state PCR actions filed in state court.
[ECF No. 82 at 4–5].
Based on a review of the record and the arguments of counsel, the undersigned
cannot find good cause for Petitioner’s failure to exhaust his claim of ineffective
assistance of trial counsel for having failed to present mitigation evidence. As noted by
Respondents, PCR counsel at one time raised that claim, but subsequently abandoned it,
and PCR counsel failed to further brief or to present any evidence in support of that issue
at the PCR evidentiary hearing. The undersigned declines to presume PCR counsel was
ineffective for failing to pursue the claim that trial counsel was ineffective for having
failed to present available mitigation evidence, particularly where the record suggests that
PCR counsel intended to proceed on that claim, but then decided against it.
In considering the merits of Petitioner’s pending state habeas corpus petition, the
undersigned is mindful that the state habeas corpus procedure is outside the normal
exhaustion procedures for direct and collateral claims in South Carolina.2 See Wilson v.
Moore, 178 F.3d 266, 276 (4th Cir. 1999) (“[T]his remedy is available only under the
most extra ordinary circumstances.”). To wit:
It has long been the case under South Carolina law that habeas corpus
“cannot be used as a substitute for appeal or other remedial procedure[s] for
the correction of errors of law of which the defendant had an opportunity to
avail himself.” Tyler v. State, 145 S.E.2d 434, 436 (S.C. 1965). Thus, a
prisoner may not disguise what is really a PCR application by calling it a
habeas petition. See Simpson[ v. State, 495 S.E.2d 429, 431 (S.C. 1998).
This is so because South Carolina, like other jurisdictions, has a strong
2

Petitioner’s pursuit of a state habeas corpus action, rather than a second post-conviction
relief action, makes this case dissimilar from the many other federal capital habeas corpus
cases he references where this court granted Rhines stays.

interest in promoting finality in the criminal justice system and in limiting
the stream of attempts at collateral relief in any one case which often are
“limited only by the imagination and creativity of skilled attorneys.” Aice[
v. State, 409 S.E.2d 392, 394 (S.C. 1991)]. As the South Carolina Supreme
Court has explained:
Finality must be realized at some point in order to achieve
some semblance of effectiveness in dispensing justice. At
some juncture judicial review must stop, with only the very
rarest of exceptions, when the system has simply failed a
defendant and where to continue the defendant’s
imprisonment without review would amount to a gross
miscarriage of justice.
Id. (citing Butler[ v. State, 397 S.E.2d 87, 87 (S.C. 1990)]. Therefore,
“[h]abeas corpus is available only when other remedies, such as PCR, are
inadequate or unavailable.” Gibson v. State, 495 S.E.2d 426, 428 (1998).
And, in order to demonstrate that they are not executing an end-run around
PCR procedures, state habeas petitioners must generally show that “PCR is
unavailable, all other remedies have been exhausted, and the issues raise
now could not have been raised in their prior PCR applications.” Id. at 429.
Id. at 277. Rhines directs that it would likely be an abuse of discretion for a court to deny
a stay if a petitioner had good cause, if his claims were potentially meritorious, and if he
had not created any intentional delays. 544 U.S. at 278. At the same time, it would be an
abuse of discretion to grant a stay where a claim is plainly meritless.

Id. at 277.

Petitioner asserts that “[t]he magnitude of the constitutional violation in Mr. Stokes’ case
eclipses those in [other cases where the writ was granted] and represents a complete
failure of the capital representation system.” [ECF No. 76 at 7]. However, based on the
information presented to this court, the undersigned cannot find that Petitioner’s state
habeas corpus claim is potentially meritorious given the strong language from the South
Carolina Supreme Court, as compiled by the Fourth Circuit above, that the writ of habeas
corpus is not to be used as a mere substitute for post-conviction relief claims in South

Carolina. It cannot be said that the issue raised in Petitioner’s state habeas corpus
petition could not have been raised in Petitioner’s prior PCR application because the
record shows that the claim regarding trial counsel’s failure to present mitigation
evidence actually was raised during Petitioner’s PCR, but was not pursued.
AEDPA was promulgated, in-part, “to ‘reduce delays in the execution of state and
federal criminal sentences, particularly in capital cases.’”

Rhines, 544 U.S. at 276

(quoting Woodford v. Garceau, 538 U.S. 202, 206 (2002)). However, the statutory
scheme was also designed to ensure that petitioners first seek review of their federal
claims in state courts. Id. The Rhines Court specifically cautioned:
Stay and abeyance, if employed too frequently, has the potential to
undermine these twin purposes. Staying a federal habeas petition frustrates
AEDPA’s objective of encouraging finality by allowing a petitioner to
delay the resolution of the federal proceedings. It also undermines
AEDPA’s goal of streamlining federal habeas proceedings by decreasing a
petitioner’s incentive to exhaust all his claims in state court prior to filing
his federal petition. Cf. Duncan[ v. Walker, 533 U.S. 167, 180 (2001)]
(“[D]iminution of statutory incentives to proceed first in state court would .
. . increase the risk of the very piecemeal litigation that the exhaustion
requirement is designed to reduce”).
Id. at 277. The undersigned is not convinced either that there was good cause for
Petitioner’s failure to exhaust the claim he now raises in his state habeas corpus petition,
or of the potential merit of that claim. Accordingly, the court denies Petitioner’s motion
to stay. The parties are instructed to continue with the briefing schedule set forth in the
First Amended Scheduling Order, as modified by subsequent orders. [ECF Nos. 55, 85].

IT IS SO ORDERED.

January 24, 2017
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge