Stokes v. Byars

Filing 98

ORDER adopting and incorporating 87 Report and Recommendation; denying Petitioner's 76 Motion to Stay without prejudice to refiling in the event there are developments in Petitioner's pending state habeas corpus action warranting reconsideration of a stay in this federal case; and denying as moot Petitioner's 94 Motion to Stay the briefing schedule and hold in abeyance. Signed by Honorable R Bryan Harwell on 3/24/2017. (mwal)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Sammie Louis Stokes,

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Petitioner,
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v.
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Bryan P. Stirling, Director, South Carolina )
Department of Corrections, and
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Joseph McFadden, Lieber Correctional
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Institution,
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Respondents.
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____________________________________)

Civil Action No.: 1:16-cv-00845-RBH-SVH

ORDER

Petitioner Sammie Louis Stokes, a state prisoner sentenced to death, initiated this action by
filing a motion to stay his execution along with a motion to appoint counsel. See ECF No.1 1.
Petitioner has since filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an
amended petition. See ECF Nos. 22, 51, & 75. In conjunction with his amended petition, Petitioner
filed a motion to stay these proceedings pending the exhaustion of state remedies—specifically,
Petitioner has filed a state habeas corpus action2 and asks this Court to stay the instant matter while that
state action is pending.

1

2

The matter is now before the Court for review of the Report and

“ECF No.” stands for “electronic court filing number.”

In South Carolina, a state prisoner has two primary means of attacking the validity of his conviction: (1) by
filing a direct appeal, or (2) by filing an application for post-conviction relief. A prisoner may file a petition for a
writ of habeas corpus in the South Carolina Supreme Court’s original jurisdiction, “[b]ut, this remedy is available
only under the most extra ordinary circumstances,” Wilson v. Moore, 178 F.3d 266, 276 (4th Cir. 1999), and is not
part of the ordinary procedure for exhausting a claim for federal habeas review. See id. at 276 (“The South Carolina
Supreme Court, sitting in its original jurisdiction, will grant a writ of habeas corpus to correct only those infractions
which ‘in the setting, constitute[] a denial of fundamental fairness shocking to the universal sense of justice.’ Butler
v. State, 302 S.C. 466, 397 S.E.2d 87, 88 (1990) (internal quotation marks omitted) (emphasis in original). At
bottom, habeas relief exists in South Carolina for prisoners who, after exhausting all other m eans of relief, have
‘been utterly failed by [the] criminal justice system.’ State v. Torrence, 305 S.C. 45, 406 S.E.2d 315, 328 (1991)
(Toal, J., concurring).” (alterations in original) (emphasis added)).

Recommendation (R & R) of United States Magistrate Judge Shiva V. Hodges.3 See R & R, ECF No.
87. The Magistrate Judge recommends denying the motion to stay. R & R at 8. Petitioner has filed
objections to the R & R, and Respondents have filed a reply to the objections. See ECF Nos. 91 & 95.
Standard of Review
Out of an abundance of caution, the Magistrate Judge made only a recommendation to the Court
on the motion to stay.4 The Magistrate Judge’s recommendation has no presumptive weight, and the
responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261,
270-71 (1976). The Court must conduct a de novo review of those portions of the R & R to which
specific objections are made, and it may accept, reject, or modify, in whole or in part, the
recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C.
§ 636(b)(1).
The Court must engage in 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 [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199-200 (4th Cir. 1983).
3

This matter was automatically referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 73.02(B)(2)(c) for the District of South Carolina.

4

The Magistrate Judge made only a recommendation on the motion to stay in light of existing Ninth Circuit
case law, which indicates “that motions to stay are generally, but not always, dispositive of unexhausted state claims
in federal habeas corpus petitions filed under 28 U.S.C. § 2254.” R & R at 1-2 n.1.

2

Background5
The State of South Carolina indicted Petitioner for murder, criminal conspiracy, kidnapping, and
first-degree criminal sexual conduct in May 1999. Petitioner was convicted of all counts and sentenced
to death. Thereafter, he pursued both direct appeal and post-conviction relief (PCR) remedies in state
court but was unsuccessful.
Petitioner’s federal petition for a writ of habeas corpus6 is currently pending in this Court. On
December 20, 2016, Petitioner filed a motion to stay this action so that he can pursue a state habeas
corpus action, which he simultaneously filed in the South Carolina Supreme Court on December 20,
2016. See ECF No. 76. Petitioner’s claim in both his state habeas action and the instant federal habeas
action (as Ground VI) is that his trial counsel and PCR counsel were ineffective by failing to investigate,
develop, and present any mitigation evidence regarding Petitioner’s background and history. See ECF
No. 75 at 5 (federal petition); ECF No. 91-1 at 12-28 (state habeas petition). Respondents filed a
response opposing the motion, and Petitioner filed a reply. See ECF Nos. 79 & 82. The Magistrate
Judge issued an R & R recommending that the Court deny Petitioner’s motion to stay. R & R at 8.
Petitioner filed timely objections to the R & R,7 and Respondents filed a timely reply to Petitioner’s
objections. See ECF Nos. 91 & 95.
Discussion
The Magistrate Judge recommends denying Petitioner’s motion to stay because the information

5

The R & R summarizes the background of this case, with applicable dates and citations to the record. See
R & R at 2-3.

6

The § 2254 petition includes all of the grounds articulated and further discussed in the initially filed petition,
the subsequent memorandum in support of the petition, and the supplemental petition. See ECF Nos. 22, 51, & 75.

7

Petitioner submitted with his objections a copy of his state habeas petition. See ECF No. 91-1.

3

currently available does not establish a stay is warranted under the framework set forth by the United
States Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005).8 R & R at 8. The Magistrate Judge
concluded Petitioner (1) failed to demonstrate good cause and (2) failed to show his unexhausted claim
was potentially meritorious. See R & R at 4-8. Petitioner objects to both conclusions.
Good Cause9
Petitioner asserts the Magistrate Judge erred in finding “that Mr. Stokes failed to demonstrate
good cause for the failure to raise the claim in state court because he failed to demonstrate that PCR
counsel was presumptively ineffective.”10 Pet.’s Objs. at 4. The Court disagrees with Petitioner’s
characterization and notion that the Magistrate Judge imposed a requirement on Petitioner to show
presumptive ineffective assistance of PCR counsel to demonstrate good cause. Rather, the Magistrate
Judge agreed with Respondents’ contention that Petitioner attempted to demonstrate good cause by
asking the Court to assume PCR counsel was ineffective—for not pursuing a claim regarding trial
counsel’s alleged failure to present mitigation evidence—without tendering any evidence other than the

8

The R & R correctly summarizes Rhines and the law regarding when it is appropriate for a district court to
exercise its discretion to issue a stay in a federal habeas corpus case while a petitioner attempts to exhaust state court
remedies, and the Court adopts and incorporates that law by reference without repeating it here. See R & R at 3-4.
The Court notes Respondents raise an argument that under Martinez v. Ryan, 566 U.S. 1 (2012), federal habeas
petitioners now have the ability to excuse the default caused by PCR counsel, an exception that did not exist at the
time of Rhines.

9

“The Fourth Circuit and courts in this district have yet to precisely define what constitutes good cause under
Rhines.” Clement v. Ballard, No. 2:15-CV-02320, 2015 W L 6690158, at *10 (S.D.W . Va. Sept. 22, 2015)
(collecting the split authority on whether ineffective assistance of PCR counsel may constitute good cause for a stay),
adopted by, 2015 W L 6680893 (S.D.W . Va. Nov. 2, 2015). The Court emphasizes its good cause analysis is limited
to the specific facts and circumstances of Petitioner’s case.

10

Petitioner also cites several cases from this district in which stays were entered based upon the theory that
the South Carolina Supreme Court should rule on whether ineffective assistance of PCR counsel would be a sufficient
claim to allow a successive PCR application in light of Martinez. Pet.’s Objs. at 3-4; see Robertson v. State, 418 S.C.
505, 795 S.E.2d 29 (2016). The Court notes the cited cases are not similarly situated to Petitioner’s because they
did not implicate state habeas procedure; rather, those cases implicated one of the primary means—PCR— for
attacking the validity of a conviction.

4

fact that PCR counsel did not pursue that claim. See R & R at 5. The Court finds the Magistrate Judge
properly declined to follow Petitioner’s own reasoning and assume ineffectiveness from PCR counsel’s
mere failure to pursue the claim, given that the record reflects PCR counsel initially raised this claim
but subsequently abandoned it, and that the record contains no evidence supporting a blind assumption
that abandonment of the claim was ineffectiveness as opposed to a strategic decision on PCR counsel’s
part.
Next, Petitioner argues “[a]bandonment of a claim is not per se effective assistance of counsel.”
Pet.’s Objs. at 6-7. However, the Magistrate Judge simply concluded, for the sole purpose of ruling on
the motion to stay, that the mere failure to pursue a particular claim against trial counsel did not
necessarily indicate ineffectiveness on PCR counsel’s part. The Magistrate Judge further noted (and
all parties agree) that PCR counsel initially raised the claim regarding trial counsel’s alleged
ineffectiveness (at least generally), but did not pursue it in the PCR proceedings. See R & R at 5. There
is no finding in the R & R that such actions were the result of either effective or ineffective assistance
on PCR counsel’s part.11
Having reviewed the relevant parts of the record, as well as the parties’ arguments, the Court
finds the good cause requirement of Rhines has not been sufficiently satisfied at this time to warrant a
stay while Petitioner pursues his state habeas corpus claim. At this point, the Court has only
Petitioner’s allegation—raised in both the instant case (as a Martinez claim) and in his pending state
habeas action—that PCR counsel was ineffective for failing to pursue the claim that trial counsel was
ineffective for failing to properly investigate and present a mitigation case. Given the information

11

The Magistrate Judge concluded Petitioner had not demonstrated good cause for purposes of deciding the
motion to stay, and therefore recommended denying the motion to stay. She was in no way ruling on the merits of
the Martinez claim in Ground VI.

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currently available, this Court cannot conclude good cause exists for Petitioner’s failure to exhaust.12
Potentially Meritorious State Claim
Petitioner asserts, the Magistrate Judge erred in concluding his claim is “plainly meritless.”
Pet.’s Objs. at 7. However, the Magistrate Judge did not make such a conclusion; instead, the
Magistrate Judge applied Rhines and concluded she could not find Petitioner’s state habeas action is
potentially meritorious in light of the fact that (1) the claim was raised and abandoned during a state
PCR action and (2) state law indicates state habeas corpus should not be used as a mere substitute for
PCR. See R & R at 5-7; see also Wilson, 178 F.3d at 277 (observing “South Carolina eschews the use
of habeas as a belated substitute for a previously denied PCR application”). The Court agrees it is
difficult to discern at this stage whether there is potential merit to Petitioner’s state habeas corpus
action.13 The Court is fully aware that the bar to a grant of habeas relief has been set very high by the

12

Petitioner asserts “the ‘good cause’ requirement need not be a highly restrictive standard,” relying on Blake
v. Baker, 745 F.3d 977, 981-82 (9th Cir. 2014). Pet.’s Objs. at 5-6. However, as Respondents note in their reply,
“Blake supports that more than an assertion of ineffectiveness is necessary to warrant a stay.” ECF No. 95 at 4. In
Blake, the Ninth Circuit acknowledged “a bald assertion 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; see id.
at 983 (“Blake’s showing of good cause was not a bare allegation of state postconviction IAC, but a concrete and
reasonable excuse, supported by evidence that his state post-conviction counsel failed to discover, investigate, and
present to the state courts the readily available evidence of Blake’s abusive upbringing and compromised mental
condition.”).
Respondents further detail information from Petitioner’s supplemental petition which they believe suggest
that Petitioner intentionally abandoned the claim against trial counsel after investigation. See ECF No. 95 at 5. At
this stage, it is unclear whether PCR counsel’s abandonment of the claim against trial counsel was a result of
deficiency or some strategic decision, and such a finding is premature at this point.
Additionally, the Court notes the petitioner in Blake was seeking to exhaust his unexhausted claims in the
state courts of Nevada. See 745 F.3d at 979. The precise issue here— whether Petitioner can demonstrate good cause
to justify a stay based on his pursuit of the extraordinary writ of habeas corpus in the South Carolina Suprem e
Court’s original jurisdiction, which is not a prim ary m eans for attacking a conviction—was not im plicated in
Blake.

13

As Respondents note in their reply to Petitioner’s objections, Petitioner is not similarly situated to the other
capital habeas petitioners in this district who received stays under Rhines to pursue successive PCR actions in state
court since the South Carolina Supreme Court has now made clear that Martinez does not entitle state prisoners to
second PCR actions in South Carolina. See ECF No. 95 at 3 (citing Robertson v. State, 418 S.C. 505, 795 S.E.2d
29 (2016)). None of the other stays in this district were granted in order for the petitioners to seek state habeas

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state supreme court. See Tucker v. Catoe, 346 S.C. 483, 494-95, 552 S.E.2d 712, 718 (2001) (“[R]elief
is appropriate only where the violation ‘in the setting, constitutes a denial of fundamental fairness
shocking to the universal sense of justice.’” (quoting Butler v. State, 302 S.C. 466, 468, 397 S.E.2d 87,
88 (1990))). Though Petitioner’s federal habeas counsel believe he can meet this extraordinarily high
bar, see Pet.’s Objs. at 2 & n.2, the Court agrees with Respondents that a motion for a stay is at best
premature given the enormous procedural hurdles for obtaining the actual exercise of the state supreme
court’s original jurisdiction. See Wilson, 178 F.3d at 278 (recognizing it is an “‘extraordinary’ step”
to have the South Carolina Supreme Court exercise its original jurisdiction and review a habeas petition
on the merits). The Court cannot conclude Petitioner has made a showing of potential merit for his
unexhausted claim.
Should there be developments in Petitioner’s pending state habeas action that warrant
reconsideration of a stay in this federal action, the parties may bring such information to the Court’s
attention. At this time, however, the Court will deny Petitioner’s motion to stay without prejudice to
refiling.14
Conclusion
The Court has conducted a de novo review of those portions of the R & R to which Petitioner
objects. For the reasons stated in this Order and in the R & R, the Court overrules Petitioner’s
objections and adopts and incorporates the R & R [ECF No. 87] by reference. Accordingly, the Court
DENIES Petitioner’s motion to stay and hold federal proceedings in abeyance [ECF No. 76] without

corpus relief, as explained in Footnote Ten, supra, of this Order.
14

In their reply, Respondents acknowledge denial without prejudice is appropriate, stating, “At a minimum,
the motion should be denied without prejudice at this juncture as the critical assertions made in support of the motion
for stay are not ripe for consideration.” ECF No. 95 at 7.

7

prejudice to refiling in the event there are developments in Petitioner’s pending state habeas corpus
action warranting reconsideration of a stay in this federal case. The Court DENIES AS MOOT
Petitioner’s motion to stay the briefing schedule and hold in abeyance [ECF No. 94].
IT IS SO ORDERED.

Florence, South Carolina
March 24, 2017

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

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