Aleksey v. Stirling

Filing 16

ORDER: Teresa L. Norris, Esquire, and Elizabeth Franklin-Best, Esquire, are appointed as Petitioner's counsel; Petitioner's Motion for Stay of Execution is GRANTED for ninety (90) days pursuant to 28 U.S.C. § 2251(a)(3); Prior to the expiration of the ninety (90)-day stay of execution, Petitioner may seek a longer stay of execution pursuant to 28 U.S.C. § 2251(a)(1), if needed, to file his habeas petition and to allow the court to rule on the merit s of the petition; and the Clerk of Court shall assign a civil action number to this case and shall notify the undersigned to review the stay of execution twenty (20) days prior to the expiration of the ninety (90) day stay of execution. This matter is referred to the assigned United States Magistrate Judge for preliminary proceedings, including setting a briefing schedule. Signed by Honorable J Michelle Childs on 7/28/2014.(mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION
Bayan Aleksey, # 5059,

)
)
Petitioner,
)
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v.
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)
Bryan Stirling,
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)
Respondent.
)
___________________________________________ )

Misc. No. 5:14-00200-JMC

ORDER

This death penalty habeas corpus matter is before the court on Petitioner’s Motion for Stay
and Appointment of Counsel, and also on his Motion for Leave to Proceed in forma pauperis, both
filed on June 26, 2014. (ECF Nos. 1, 2.) Respondent submitted a Response to the Motion for Stay
and Appointment of Counsel on July 14, 2014. (ECF No. 8.) Petitioner filed a Reply to the
Response on July 23, 2014. (ECF No. 14.)
1.

MOTION FOR LEAVE TO PROCEED in forma pauperis

Petitioner requests to proceed without prepaying the filing fee by filing a completed and
signed Form AO 240, which is construed as a Motion for Leave to Proceed in forma pauperis. (ECF
No. 2.) Based on a review of the motion, Petitioner’s request to proceed in forma pauperis is
GRANTED.
2.

MOTION TO STAY

Petitioner’s execution date has not yet been set, but he states that it will be an “imminent
execution.” (ECF No. 1 at 1, 5.) Petitioner asks the court to enter a stay of execution to provide his
counsel sufficient time to prepare, submit, and prosecute on his behalf a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1 at 1.) Petitioner does not request a specific length
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of time for the requested stay. Thus, as of this date it appears that Petitioner requests that the court
stay his imminent, yet unscheduled, execution.1
Respondent asserts that the Supreme Court of South Carolina likely will not issue an
execution notice in light of the Motion for Stay of Execution filed before this court. (ECF No. 8 at
1& n.1.) Thus, Respondent asserts that Petitioner is essentially seeking a stay of issuance of the
execution notice. (Id. at 19.) Respondent does not oppose a stay in this matter, but he asserts that
the stay should be limited at this time to ninety (90) days as provided by 28 U.S.C. § 2251(a)(3).
(ECF No. 8 at 20.) Respondent also asserts that “this Court should order the petition be filed within
that time and allow Petitioner additional time to seek a further stay under the provisions of 28 U.S.C.
[§] 2251(a)(1).” (ECF No. 8 at 21.) Notably, Respondent agrees with Petitioner that only seventeen
(17) days of the one-year limitations period under 28 U.S.C. § 2244 for filing habeas corpus
petitions pursuant to 28 U.S.C. § 2254 lapsed between his state conviction becoming final and the
filing of his initial PCR action. (Id. at 19; see ECF No. 1 at 2.) Petitioner replies with an objection
to Respondent’s request that the court require his habeas petition to be filed within ninety (90) days,
contending that Petitioner has a considerably longer period of time remaining on his statute of
limitations period, that there is no requirement for such a limited filing period under 28 U.S.C. §
2251, and that any such limit on his filing period is contrary to this court’s practice in previous
death-penalty related cases. (ECF No. 14 at 1-3.)
A stay of execution for a sentence of death imposed by a court of a state is governed by 28

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If an execution date has been scheduled, or if one is scheduled at any time in the future
while this case is pending, attorneys for Petitioner and Respondent are directed to promptly
notify the court.
2

U.S.C. § 2251(a)(1) and (a)(3).2 See Gray v. Kelly, 131 S. Ct. 2956 (2011) (citing 28 U.S.C.§
2251(a)(3)); McFarland v. Scott, 512 U.S. 849 (1994); Powell v. Kelly, 492 F. Supp. 2d 552, 556–57
(E.D. Va. 2007) (applying 28 U.S.C. § 2251(a)(3)); Donald E. Wilkes, Jr., Federal Postconviction
Remedies Handbook § 7:20 (May 2013) (explaining that the Patriot Act amended 28 U.S.C. § 2251
to expressly ratify the holding in McFarland). “The federal habeas corpus statute grants any federal
judge ‘before whom a habeas corpus proceeding is pending’ power to stay a state-court action ‘for
any matter involved in the habeas corpus proceeding.’” McFarland, 512 U.S. at 857 (citing 28
U.S.C. § 2251) (emphasis in original). When a capital defendant invokes his or her right to counsel
under 28 U.S.C. § 2251, a federal court has jurisdiction to issue a stay of execution. See 28 U.S.C.
§ 2251(a)(3); McFarland, 512 U.S. at 858 (“once a capital defendant invokes his right to appointed
counsel, a federal court also has jurisdiction under § 2251 to enter a stay of execution”). As
mentioned previously and discussed in more detail below, Petitioner also requests appointment of
Teresa L. Norris and Elizabeth Franklin-Best of Columbia, South Carolina to represent him in the
preparation and filing of a timely petition for habeas relief. Thus, Petitioner has invoked his right
to appointed counsel and, therefore, this “federal court also has jurisdiction under § 2251 to enter
a stay of execution.” McFarland, 512 U.S. at 858; see also 28 U.S.C. § 2251(a)(3).
The court finds that Petitioner should be granted a stay of execution for ninety (90) days

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Chapter 154 of Title 28 contains special habeas corpus procedures in capital cases if
specified criteria are met. See 28 U.S.C. §§ 2261–2266. The USA Patriot Improvement and
Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192 (2006), amended Chapter 154 to
shift the eligibility determination from the federal courts to the Attorney General of the United
States. See 28 U.S.C. § 2261(b). The United States Department of Justice issued regulations on the
Certification Process for State Capital Counsel Systems, effective October 23, 2013. 28 C.F.R. §§
26.20 through 26.23. According to Respondent, South Carolina has not applied for or received
certification under the regulations; thus, this Order is drafted with the understanding that Chapter
154 is not applicable in this case. (ECF No. 8 at 18 n.3.)
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from the date counsel is appointed as prescribed by 28 U.S.C. § 2251(a)(3). Additionally, prior to
the expiration of the ninety (90) day stay of execution, Petitioner should seek a longer stay of
execution pursuant to 28 U.S.C. § 2251(a)(1), if needed, in order to submit his habeas petition within
his § 2244 limitations period, to allow Respondent to file a response to his submission, and to allow
the court to rule on the merits of the petition. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996) (“If
the district court cannot dismiss the petition on the merits before the scheduled execution, it is
obligated to address the merits and must issue a stay to prevent the case from becoming moot.”).
3.

MOTION TO APPOINT COUNSEL

Petitioner seeks appointment of Teresa L. Norris and Elizabeth Franklin-Best, both of
Columbia, South Carolina, as counsel pursuant to 18 U.S.C. § 3599 prior to the filing of a habeas
petition and in order to pursue federal habeas corpus remedies and because he is financially unable
to obtain adequate representation. (ECF No. 1 at 2, 4-6; ECF No. 2.) Both Ms. Norris and Ms.
Franklin-Best are currently members of the court’s Criminal Justice Act (“CJA”) Death Penalty
panel of attorneys. Ms. Franklin-Best is a member of the CJA Death Penalty panel of attorneys
designated lead counsel, and Ms. Norris is currently a member of CJA Death Penalty panel of
attorneys designated second chair.3
A.

Qualifications of Counsel

The qualifications for appointed counsel in capital cases are governed by 18 U.S.C. § 3599
and the Plan of the United States District Court for the District of South Carolina for Implementing
the Criminal Justice Act. See In re Amendments to the Plan of the U.S. Dist. Ct. for the Dist. of S.C.
for Implementing the Criminal Justice Act, No. 3:10-mc-5005-CIV (D.S.C. May 5, 2010) (“CJA

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The court refers to the CJA Death Penalty Panel Attorney List revised April 14, 2014.
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Plan”). The statutory authority for the federal courts to appoint legal counsel for indigent,
death-sentenced prisoners seeking habeas corpus relief is contained in the following relevant
portions of 18 U.S.C. § 3599:
(a)(2) In any post conviction proceeding under section 2254 or 2255 of title 28,
United States Code, seeking to vacate or set aside a death sentence, any defendant
who is or becomes financially unable to obtain adequate representation or
investigative, expert, or other reasonably necessary services shall be entitled to the
appointment of one or more attorneys and the furnishing of such other services in
accordance with subsections (b) through (f). . . .
(c) If the appointment is made after judgment, at least one attorney so appointed must
have been admitted to practice in the court of appeals for not less than five years, and
must have had not less than three years experience in the handling of appeals in that
court in felony cases.
(d) With respect to subsection[] . . . (c), the court, for good cause, may appoint
another attorney whose background, knowledge, or experience would otherwise
enable him or her to properly represent the defendant, with due consideration to the
seriousness of the possible penalty and to the unique and complex nature of the
litigation.
Courts interpreting the appointment-of-counsel provisions of § 3599 have held that this “provision
grants a first time, indigent, capital habeas corpus petitioner ‘a mandatory right to qualified legal
counsel.’” Staton v. Folino, No. 3:11-cv-00144, 2011 WL 5085029, at *1 n.1 (W.D. Pa. Oct. 26,
2011). Also, the United States Supreme Court has held that an attorney’s assistance in preparing
a capital habeas petition is crucial, owing to the complex nature of capital habeas proceedings and
the seriousness of the death penalty. McFarland v. Scott, 512 U.S. at 855–56. In particular, the
McFarland Court stated, “the right to counsel necessarily includes a right for that counsel
meaningfully to research and present a defendant's habeas claims.” Id. at 858. At least one federal
district court and one federal circuit court of appeals have construed the language of § 3599 as
allowing appointment of counsel under subsection (d) either “alternatively or in addition” to an

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appointment under subsection (c). See In re Lindsey, 875 F.2d 1502, 1057 n.3 (11th Cir. 1989);
United States v. Sampson, No. CR. 01-10384-MLW, 2008 WL 2563374, at *1 (D. Mass. June 25,
2008) (noting that the Guide to Judicial Policies and Procedures, vol. 7, ch. VI, §6.01(C)(3)
describes § 3599(d) as a “waiver” provision, allowing appointment of an attorney whose experience
level does not technically meet the requirements of §3599(c)). The CJA Plan further requires “in
appointing counsel for death-sentenced state prisoners, consideration will be given to attorneys who
are members of the first-tier of the death penalty CJA panel, which shall be maintained by the Office
of the Clerk of Court. However, the court shall not be precluded from making appointments from
the second-tier death penalty CJA panel or from the general CJA panel.” See CJA Plan at 19.
The statute provides for appointment of “one or more” counsel. 18 U.S.C. § 3599(a)(1)(B),
(a)(2). As previously stated, Petitioner seeks appointment of Ms. Franklin-Best and Ms. Norris as
counsel for this § 2254 habeas case, and, without specifying whether either counsel meet the
requirements set forth in 18 U.S.C. § 3599(c) or (d), he alleges that Ms. Norris previously served
as Director of the Center for Capital Litigation in Columbia, South Carolina; has represented over
forty (40) clients in capital cases in every stage of the proceedings; and has been appointed as lead
counsel in capital habeas proceedings in the District Court of South Carolina at least six (6) times,
where she also served as lead counsel on five (5) of those cases in the Fourth Circuit Court of
Appeals. (ECF No. 1 at 4.) Petitioner also states that Ms. Norris was appointed as lead counsel in
a capital direct appeal in the United States District Court for the Eastern District of Virginia in 2011.
(ECF No. 1 at 4 (citing United States v. Runyon, No. 09-11 (E.D. Va.)).) As previously stated, Ms.
Norris is a member of the court’s CJA Death Penalty panel of attorneys and designated second chair.
It appears that she meets all of the experience requirements of 18 U.S.C. § 3599(d).

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Also, according to Petitioner, Ms. Franklin-Best is a licensed attorney in the states of New
York and South Carolina. (ECF No. 1 at 4.) She is a member of the Bars of this court, the Fourth
Circuit Court of Appeals, and the United States Supreme Court. (Id.) She worked as a part-time
public defender in both New York and South Carolina; as an associate in a private law firm in
Columbia, South Carolina; as an assistant appellate defender with the South Carolina Commission
on Indigent Defense, Appellate Division, and she is currently a partner with Ms. Norris in the law
firm of Blume Norris & Franklin-Best, LLC in Columbia, South Carolina. (Id.) Ms. Franklin-Best
has served as second counsel in several State of South Carolina capital appeals: South Carolina v.
Barnes, 753 S.E.2d 545 (S.C. 2014); South Carolina v. Winkler, 698 S.E.2d 596 (S.C. 2011); Weik
v. South Carolina (pending); South Carolina v. Starnes, 698 S.E.2d 604 (S.C. 2010); Vasquez v.
South Carolina, 698 S.E.2d 561 (S.C. 2010). (ECF No. 1 at 4-5.) Ms. Franklin-Best also
represented Petitioner as his appellate attorney in connection with a petition for writ of certiorari to
the South Carolina Supreme Court, and she is currently appointed counsel in two other death
penalty-related cases in this court: Terry v. Byars, No. 4:12-cv-01798-SB-TER (D.S.C.); Bryan v.
Byars, No. 1:13-2655-CMC-SVH (D.S.C.). (ECF No. 1 at 5.) As previously stated, Ms. Norris is
a member of this court’s CJA Death Penalty panel of attorneys and designated first chair. It appears
that she meets all of the experience requirements of 18 U.S.C. § 3599(d).
Although Respondent takes no position on who should be appointed as counsel for Petitioner
in this matter, Respondent submits that Ms. Franklin-Best should have knowledge of and familiarity
with Petitioner’s case due to her participation in Petitioner’s state PCR proceedings as appellate
counsel. (ECF No. 8 at 21.) Respondent further recognizes that Ms. Norris is experienced in the
capital litigation field and that “both counsel should have a familiarity with the case as a whole

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which would likely allow for more efficient representation in this action.” (Id.) Based on their
stated and known experience and on the lack of objection from Respondent, the court finds that both
Ms. Norris and Ms. Franklin-Best are qualified to represent Petitioner under the statutory
requirements of § 3599 and the court’s CJA Plan.
B.

Cost Containment and Budgeting

On February 28, 2012, pending receipt and consideration of public comments, the Judicial
Council of the United States Court of Appeals for the Fourth Circuit stayed the implementation of
a resolution it had previously adopted governing review of attorney compensation requests in death
penalty habeas corpus cases that it had previously adopted. Judicial Council of the Fourth Circuit,
http://www.ca4.uscourts.gov/pdf/suspension-resolution-attorney-compensation-capital-cases.pdf
(notice of suspension of resolution’s March 1, 2012 effective date; last consulted July 15, 2014); see
also Judicial Council of the Fourth Circuit, http://www.ca4.uscourts.gov/pdf/notice-of-specialprocedures-for-reviewing-attorney-compensation-capitalcases.pdf. (January 4, 2012 notice issued
attaching originally adopted resolution dated December 6, 2011; last consulted July 15, 2014 ).
Under this yet-to-be-implemented resolution, any request for compensation in excess of $100,000.00
per attorney at the district court level is presumptively excessive.
Even though the subject resolution has not yet been formally implemented, the court cautions
appointed counsel to make every effort to contain expenses and fees in this matter below the
presumptively excessive figure to the extent they can do so without detracting from their vigorous
representation of the Petitioner’s positions in this case. Toward that end, counsel shall submit a
confidential proposed litigation budget within thirty (30) days of the date of this Order to Claire
Woodward O’Donnell, Panel Administrator, at the Federal Public Defender’s Office in Columbia,

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South Carolina.4 The proposed budget shall estimate the number of hours counsel anticipates
expending for the following stages of the litigation: (1) preparation and filing of the petition for
habeas corpus; (2) preparation of legal memoranda in opposition to Respondent’s return; and (3)
evidentiary hearing, if one is sought. The proposed budget shall also contain cost estimates for
investigative, expert, or other services, including law clerks and paralegals, if any. Additionally,
counsel shall submit interim payment vouchers every sixty (60) days so that costs and fees may be
monitored.
Accordingly, the court orders the following:
Teresa L. Norris, Esquire, and Elizabeth Franklin-Best, Esquire, are appointed as
Petitioner’s counsel;
Petitioner’s Motion for Stay of Execution is GRANTED for ninety (90) days
pursuant to 28 U.S.C. § 2251(a)(3);
Prior to the expiration of the ninety (90)-day stay of execution, Petitioner may seek
a longer stay of execution pursuant to 28 U.S.C. § 2251(a)(1), if needed, to file his
habeas petition and to allow the court to rule on the merits of the petition; and
The Clerk of Court shall assign a civil action number to this case and shall notify the
undersigned to review the stay of execution twenty (20) days prior to the expiration
of the ninety (90) day stay of execution.
This matter is referred to the assigned United States Magistrate Judge for preliminary
proceedings, including setting a briefing schedule.
IT IS SO ORDERED.

United States District Judge
July 28, 2014
Columbia, South Carolina

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Contact information for the Federal Public Defender’s Office: BB&T Bank Building,1901
Assembly St., Suite 200,Columbia, SC 29201; Phone: [phone]; Fax: [phone].
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