Bixby v. Stirling et al

Filing 12

ORDER granting 1 Motion to Stay. The stay shall expire ninety (90) days from the date counsel is appointed; (2) The Clerk of Court shall assign a civil action number to this case; (3) The Clerk of Court shall notify the und ersigned to review the stay of execution twenty (20) days prior to the expiration of the ninety (90) day limit; and (4) This matter is referred to the assigned United States Magistrate Judge for all preliminary proceedings. Signed by Honorable Bruce Howe Hendricks on 04/12/2017.(dsto)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Steven Vernon Bixby,
Petitioner,
vs.
Bryan P. Stirling, Director, South
Carolina Department of Corrections;
Joseph McFadden, Lieber Correctional
Institution,
Respondents.

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C/A No.: 4:17-mc-00138-BHH-TER

ORDER GRANTING MOTION TO
STAY EXECUTION

The petitioner, Steven Vernon Bixby (“Petitioner”), is a state prisoner sentenced
to death. This matter is before the Court on Petitioner’s Motion for Stay of Execution
and Appointment of Counsel (ECF No. 1).1 Respondents filed a response to the
pending motions on April 6, 2017 (ECF No. 9). Petitioner filed a reply on April 12, 2017
(ECF No. 11). Accordingly, the motion for stay is ripe for the Court’s consideration.
Petitioner’s execution date has not yet been set. However, Petitioner states that
his execution is imminent. (ECF No. 1 at 1 n.1.) Respondents do not object to a stay in
this matter. (ECF No. 9 at 2.)
A federal court has jurisdiction to stay state court proceedings when a state
prisoner sentenced to death applies for appointment of counsel pursuant to 28 U.S.C. §
3599. See 28 U.S.C. § 2251(a)(3); McFarland v. Scott, 512 U.S. 849, 858 (1994)
(“[O]nce a capital defendant invokes his right to appointed counsel, a federal court also
has jurisdiction under § 2251 to enter a stay of execution.”). As noted, Petitioner has

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Also pending is Petitioner’s motion for leave to proceed in forma pauperis (ECF No. 2). A ruling on that
motion and Petitioner’s request for counsel will issue separately.

filed a request for appointment of counsel. (ECF No. 1.) Accordingly, this Court has the
authority to grant a stay of execution. Section 2251(a)(3) provides that the stay “shall
terminate” not more than ninety (90) days after the appointment of counsel or after the
application for appointment is withdrawn or denied.
Having carefully reviewed the relevant authority, the Court finds that Petitioner
should be granted a stay of execution. The stay shall terminate ninety (90) days after
the appointment of counsel or after the application for appointment of counsel is
withdrawn or denied, as required by 28 U.S.C. § 2251(a)(3). Once Petitioner files his
habeas petition, he may move for an indefinite stay pending the outcome of his habeas
proceeding under § 2251(a)(1).
Accordingly, the Court orders the following:
(1) Petitioner’s Motion for Stay of Execution (ECF No. 1) is GRANTED. The
stay shall expire ninety (90) days from the date counsel is appointed;
(2) The Clerk of Court shall assign a civil action number to this case;
(3) The Clerk of Court shall notify the undersigned to review the stay of
execution twenty (20) days prior to the expiration of the ninety (90) day
limit; and
(4) This matter is referred to the assigned United States Magistrate Judge for
all preliminary proceedings.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks__
United States District Judge
April 12, 2017
Greenville, South Carolina

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