Mahdi v. Stirling

Filing 91

ORDER ADOPTING REPORT 83 Report and Recommendation denying without prejudice 78 Motion to Stay filed by Mikal D Mahdi. Signed by Honorable Timothy M Cain on 12/5/17. (jtho, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA

Mikal D. Mahdi,
Petitioner,
vs.
Bryan Stirling, Commissioner,
South Carolina Department of
Corrections,
Respondent.

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C/A No. 8:16-3911-TMC-JDA

ORDER

Petitioner Mikal D. Mahdi, a state prisoner sentenced to death, has filed this action
seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has filed a motion to
stay these habeas proceedings pending exhaustion of state court remedies. (ECF No. 78). The
motion was automatically referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Civil Rule 73.02(B)(2)(c). On October 3, 2017, the magistrate judge filed a Report
and Recommendation (“Report”) recommending that the motion for a stay be denied. (ECF No.
83). This matter is before the court for review of that Report. Petitioner timely filed objections
to the Report (ECF No. 84), and Respondent has filed a response to those objections (ECF No.
89).
I. Standard of Review
The Report has no presumptive weight and the responsibility to make a final
determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 27071 (1976). The court is obligated to conduct 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

court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the
magistrate judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
II. Background
In November 2006, Petitioner pled guilty to murder, second degree burglary, and grand
larceny. Finding two statutory aggravating circumstances, Judge Clifton Newman sentenced
Petitioner to death for the murder. He also sentenced Petitioner to fifteen years imprisonment
for the burglary and ten years imprisonment for the larceny, to run consecutively. Petitioner
unsuccessfully pursued a direct appeal and post-conviction relief (“PCR”) in state court. He
filed the instant action for habeas relief on September 26, 2016, when he filed a motion for a stay
of execution and for the appointment of counsel. He filed a placeholder petition for a writ of
habeas relief on February 9, 2017, and an amended petition for habeas relief on September 7,
2017. On September 7, 2017, Petitioner also filed this motion to stay while he pursues a second
PCR action in state court which was filed on January 10, 2017. The state PCR court recently
dismissed Petitioner’s second PCR application, and denied his motion for reconsideration.
Petitioner sought a writ of certiorari from the South Carolina Supreme Court, and at this time,
that petition remains pending.
III. Discussion
In his motion, Petitioner contends that his Amended Petition for habeas relief is a mixed
petition, and pursuant to Rhines v. Weber, 544 U.S. 269 (2005), this action should be stayed to
allow him time to exhaust his state remedies. Respondent opposes the motion for a stay arguing

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that Petitioner cannot met the requirements for a stay under Rhines. The magistrate judge
recommends that the court deny the motion, and Petitioner has filed objections.
In Rhines, 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. 544 U.S. at 275. Under this procedure, rather than dismissing a mixed
petition, a district court can stay the petition and hold it in abeyance while the petitioner exhausts
the unexhausted claims. Id. Once all of the claims have been exhausted, the district court can
lift the stay and adjudicate the petition. Id. Pursuant to Rhines, a petitioner must satisfy three
requirements to justify a stay. Id. at 277-78. 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.
Here, the magistrate judge recommends the court deny the motion to stay because
Petitioner has not demonstrated good cause for failure to exhaust his claims, and his second PCR
was without merit because it is successive and time-barred.

In his objections, Petitioner

contends that the magistrate judge misapprehended the legal standard and evidence.
A. Good Cause
Petitioner argues that while good cause has not been defined, “the requirement is not a
particularly demanding one.” (Pet’r’s Mot. to Stay at 4; Objections at 2). Petitioner asserts
ineffective assistance of counsel can satisfy the good cause requirement relying on Blake v.
Baker, 745 F.3d 977, 981-82 (9th Cir. 2014). (Objections at 3). In Blake, the Ninth Circuit
acknowledged “a bald assertion [of ineffective assistance of counsel] cannot amount to a
showing of good cause,” and it found good cause existed because the petitioner “supported his
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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. Here, Petitioner contends
that the magistrate judge erred in finding that his allegations of ineffective assistance of counsel
did not provide good cause.

Specifically, he contends that the magistrate judge erred by

focusing only on the information set forth in the motion and ignoring his Amended Petition and
his references to the Amended Petition. Id. Petitioner is seeking PCR in state court on Claims
III and VI as set forth in his Amended Petition at ¶ 11 (a) and (b), and he is also seeking a
belated review, pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 2002), of three claims which he
contends he raised in his first PCR, but that his PCR counsel did not raise in his appeal of the
denial of PCR. (Pet’r’s Mot. to Stay at 2).
Petitioner contends that he could not have brought at least one of the issues in his first
PCR because it is based on a 2016 United States Supreme court case, Hurst v. Florida, 136 S.Ct.
616 (2016), which he contends is retroactive. In Hurst, 136 S. Ct. 616, the Supreme Court held
that Florida’s capital sentencing scheme violated Ring v. Arizona, 536 U.S. 584 (2002), and
Apprendi v. New Jersey, 530 U.S. 466 (2000). Under the Florida scheme, a jury makes an
advisory verdict while the judge makes the ultimate factual determinations necessary to sentence
a defendant to death. Id. at 621-22. The Court held that this procedure was invalid because it
“does not require the jury to make the critical findings necessary to impose the death penalty.”
Id. at 622. The holding in Hurst was not a significant change in the law as the Supreme Court
simply applied prior precedent, its holdings in Ring and Apprendi, to Florida’s capital sentencing
statutes. The Court has held that “Ring announced a new procedural rule that does not apply
retroactively to cases already final on direct review.” Schriro v. Summerlin, 542 U.S. 348, 358
(2004), and in United States v. Sanders, 247 F.3d 139 (4th Cir. 2001), the Fourth Circuit held
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that the rule announced in Apprendi is not retroactively applicable to cases on collateral review.
Moreover, the holding in Hurst does not apply retroactively because the Supreme Court has not
declared it is to be applied retoractively. See Tyler v. Cain, 533 U.S. 656, 663 (2001) (holding
that a “new rule of constitutional law” is “made retroactive to cases on collateral review by the
Supreme Court” only if the Supreme Court holds as much).
As to the claims which PCR appellate counsel failed to appeal, the court finds Petitioner
has not alleged good cause for failing to exhaust these claims first in state court. See Martinez v.
Ryan,

U.S.

, 132 S.Ct. 1309, 1320 (2012) (finding that attorney error during appeals

from initial-review collateral proceedings does not constitute good cause for failure to exhaust
initial collateral review claims). Moreover, the South Carolina Supreme Court has recently held
that the ineffective assistance of PCR appellate counsel does not entitle a state prisoner to a
second PCR action in South Carolina. Robertson v. State, 795 S.E.2d 29 (S.C. 2016).
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 PCR claims. Moreover, even if a
Petitioner had good cause for that failure, a district court abuses its discretion if grants a stay
when unexhausted claims are plainly meritless. Rhines, 544 U.S. at 277. As discussed below,
the court finds the claims are plainly meritless.
B. Merits
Petitioner contends that the magistrate judge erred in finding that the claims in his second
PCR are plainly meritless. Petitioner contends that the magistrate judge relied solely on the
dismissal of the second PCR application.
The magistrate judge concluded she could not find any potential merit in Petitioner’s
state habeas action in light of the fact that the PCR court has already found the application to be
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both successive and time-barred. (Report at 5). Petitioner contends that his claims are not
plainly meritless and he states that his Amended Petition contains detailed factual and legal
allegations supporting each of his claims which demonstrates that they are not plainly meritless.
However, Petitioner does not address the magistrate judge’s conclusion that his claims are
meritless because his PCR application was recently determined by the PCR court to be
successive and time-barred.
South Carolina allows a second or subsequent PCR application only in limited
circumstances. See S.C. Code Ann. § 17-27-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991)
(holding that an allegation that prior PCR counsel was ineffective is not per se a sufficient reason
allowing for a successive PCR application). And successive PCR cases are disfavored. Aice,
409 S.E.2d at 392 (successive application can be considered if “sufficient reason” why the new
grounds were not raised before). Petitioner alleges he is entitled to review of the denial of his
successive PCR application pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 1991). “Under
Austin, a defendant can appeal a denial of a PCR application after the statute of limitations has
expired if the defendant either requested and was denied an opportunity to seek appellate review,
or did not knowingly and intelligently waive the right to appeal.” Odom v. State, 523 S.E.2d
753, 755 (S.C. 1999).
“A PCR applicant is entitled to an Austin appeal if the PCR [court] affirmatively finds
either[ ](1) the applicant requested and was denied an opportunity to seek appellate review[,] or
(2) the right to appellate review of a previous PCR order was not knowingly and intelligently
waived.” Odom, 523 S.E.2d at 756. Petitioner has to overcome significant procedural hurdles
for obtaining actual review by the South Carolina Supreme Court.

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[T]he South Carolina Supreme Court is generally reluctant to consider successive
PCR applications, and will do so only if it was not possible for the applicant to
raise the issue in his first application. See Aice v. State, 305 S.C. 448, 409 S.E.2d
392, 394 (1991). The South Carolina Supreme Court has allowed successive PCR
applications in only three circumstances: when the initial application was filed
without the assistance of counsel, see Case v. State, 277 S.C. 474, 289 S.E.2d
413, 413-14 (1982) (per curiam); when PCR counsel was the same as trial
counsel, see Carter v. State, 293 S.C. 528, 362 S.E.2d 20, 21 (1987); and when
procedural irregularities were so egregious as to result in a denial of due process,
see Washington v. State, 324 S.C. 232, 478 S.E.2d 833, 835 (1996). The mere
fact that PCR counsel was ineffective is not sufficient grounds for a successive
PCR application. See Aice, 409 S.E.2d at 394.
Ivey v. Catoe, 36 Fed.App’x 718, 730 (4th Cir. 2002). With this in mind, and after reviewing
Petitioner’s claims, the court concludes Petitioner has not shown his unexhausted claims are
potentially meritorious.
Petitioner also contends that the magistrate judge’s order has the effect of depriving him
of numerous claims and “can be fairly construed as a final order on the merits of those claims,
which may give rise to the right to appeal.” (Objections at 5 & n.3).1 Although there may be a
remote possibility that the state court will review the claims on the merits in a successive PCR
application, even if the PCR court ultimately reviews the claims on the merits, any ruling of this
court that the claims raised in this habeas petition are without merit would not preclude the state
PCR court from reaching a contrary conclusion and granting relief. See Ivey v. Catoe, 36
Fed.App’x at 734.
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.

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Rhines, 544 U.S. at 277 (citations omitted). 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 should circumstances change.
IV. Conclusion
After a thorough review of the Report and the record in this case, the court adopts the
magistrate judge’s Report (ECF No. 83) and incorporates it herein. Therefore, Petitioner’s
Motion to Stay (ECF No. 78) is DENIED without prejudice.
IT IS SO ORDERED.

s/Timothy M. Cain
United States District Judge
December 5, 2017
Anderson, South Carolina

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