KAYMANI D. WEST, Magistrate Judge.
Petitioner, Alfonso Staton ("Petitioner" or "Staton"), a state prisoner, filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) DSC for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment, ECF Nos. 24, 25, and Petitioner's Motion to Stay Proceedings Pending the Exhaustion of State Remedies ("Motion to Stay"), ECF No. 43. Respondent opposes the Motion, ECF No. 45, and Petitioner has submitted a Reply, ECF No. 46.
Originally proceeding pro se, Petitioner brought this habeas action on August 24, 2012.
Petitioner is currently confined in the Lee Correctional Institution of the South Carolina Department of Corrections pursuant to orders of commitment of the Clerk of Court for Marlboro County. The Marlboro County grand jury indicted Petitioner for kidnapping (1996-GS-34-0979, count 1), murder (1996-GS-34-0979, count 2), 1st-degree criminal sexual conduct (1996-GS-34-0979, count 3), and criminal conspiracy (1996-GS-34-0979, count 4) in the November 1994 murder of Darlene Davis Patterson ("Victim"). See App. 1905-07.
Petitioner and co-defendants Martin McIntosh, Ricky Stuckey, Jeffery Walls, Leroy Staton, and Robert Graham
Represented by Joseph Savitz, Esquire, of the South Carolina Office of Appellate Defense, Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals. In his Brief to the Court of Appeals, Petitioner raised the following issues: (1) The trial judge erred in denying appellant's motions for directed verdict; and (2) The trial court erred in refusing to grant a severance. Final Br. Appellant 3; ECF No. 24-18. The State filed a responsive brief. ECF No. 24-19. On November 8, 2001, the Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished Opinion. State v. Alfonzo Staton, Unpub. Op. No. 2001-UP-477 (Ct. App. filed Nov. 8, 2001); ECF No. 24-20. Represented by Mr. Savitz, Petitioner filed a Petition for Writ of Certiorari to the Supreme Court of South Carolina, ECF No. 24-21, which the State opposed, ECF No. 24-22. The South Carolina Supreme Court denied Petitioner's Petition for Writ of Certiorari on November 21, 2002, ECF No. 24-24, and the Remittitur was issued on November 25, 2002, ECF No. 24-25.
On May 6, 2009, pursuant to Rule 29(b), SCRCrimP, Petitioner filed a Motion for a New Trial Based on After-Discovered Evidence (hereinafter "Rule 29(b) Motion"). The court has not been provided a copy of the Rule 29(b) Motion or the transcript of the hearing on that Motion. Based on the parties' representations in their briefs on the Motion to Stay and the Orders regarding the Motion, following is the court's understanding of the basis for the Rule 29(b) Motion: Petitioner moved for a new trial pursuant to Rule 29(b), SCRCrimP, "based upon alleged after discovered evidence, that being a conflict of interest by his trial defense attorney, Will Rogers, Esq.[,] who at the time was a new prosecutor for the Fourth Circuit Solicitor's Office." Oct. 20, 2011 Order denying Rule 29(b) Mot 1; ECF No. 1-1 at 14-15. Rogers indicated he let all of his clients know he was asking to be relieved from his cases because of his new position with the Solicitor's Office. A judge relieved Rogers as counsel on January 28, 1997, and signed and entered an Order relieving Rogers on January 29, 1997. Id. On January 30, 1997, the judge "rescinded that Order as to [Petitioner] and that matter was placed on record." Id.
The Rule 29(b) Motion was heard in October 2011 before the Honorable Howard P. King. For this hearing Petitioner was represented by Will E. Grove of the Office of Public Defender for the Fourth Judicial Circuit of South Carolina. Judge King issued a written Order denying the Rule 29(b) Motion on October 19, 2011, which was served on Petitioner on January 4, 2012. ECF No. 24-36. Petitioner filed a Motion for Reconsideration, which Judge King denied in an Order dated January 15, 2012, and filed January 19, 2012. ECF No. 24-37. Petitioner filed a Notice of Appeal of this Order on February 13, 2012. See Mot to Stay 2, ECF No. 43. On March 27, 2012, the Court of Appeals dismissed this appeal "[d]ue to the failure of Appellant to timely serve opposing counsel[.]" Order (Mar. 27, 2012); ECF No. 24-38. Petitioner filed a Petition to Reinstate Appeal on April 3, 2012. ECF No. 43-2 at 8-10. The South Carolina Court of Appeals denied this request on September 7, 2012. ECF No. 43-2 at 11 (denying "petition for rehearing"). On September 21, 2012, Petitioner filed a Petition for Writ of Certiorari to the Supreme Court of South Carolina. See ECF No. 43-3. The State filed a return on October 30, 2012. See ECF No. 43-4. As of May 1, 2013, the Petition for Writ of Certiorari remained pending. See Mot. 3, ECF No. 43.
Petitioner filed an application for PCR on July 10, 2003. (2003-CP-34-0244). The State filed a Return to the PCR application on November 3, 2003. In the application, Petitioner alleged the following grounds:
PCR Appl., App. 1758-63.
An evidentiary hearing into the matter was convened on January 11, 2005 at the Darlington County Courthouse before the Honorable John Milling, Circuit Court Judge ("the PCR Court"). App. 1778-1887 (PCR hr'g tr.). Petitioner was present at the hearing and was represented by Candice A. Liveley, Esquire. Karen C. Ratigan, Esquire of the South Carolina Office of the Attorney General represented Respondent. On September 16, 2005, the PCR Court issued an Order of Dismissal denying and dismissing the PCR application with prejudice. App. 1888-1903.
Petitioner appealed the denial of his PCR application. For the appeal of his PCR Petitioner was represented by Wanda Carter, Esquire, and the State was represented by Karen Ratigan, Esquire. Petitioner raised the following six issues to the Supreme Court of South Carolina:
Pet. Writ Cert. 2-3, ECF No. 24-26. The State filed a Return to the Petition for Writ of Certiorari. ECF No. 24-27. The Supreme Court of South Carolina granted certiorari on the two issues related to the solicitor's argument, which the parties briefed. See ECF Nos. 24-28 through 24-33. On March 6, 2009, the Supreme Court of South Carolina dismissed the appeal, finding certiorari had been improvidently granted. ECF No. 24-34. The Remittitur was issued on March 11, 2009. ECF No. 21-35.
On April 26, 2013, Petitioner filed a PCR application in which his only ground concerns the ineffective assistance of his Rule 29(b) counsel, including counsel's alleged failure to "properly research [and] brief" Petitioner's issues, counsel's failure to notify Petitioner "immediately when [the] 29(b) motion was denied," and his failure to "file an appeal of the dismissing of the 29(b)." 2013 PCR Appl. 3, ECF No. 46-1. Petitioner seeks a belated appeal pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974).
Petitioner raises the following grounds in his federal petition for a writ of habeas corpus, as set forth in his Petition:
Pet., ECF No. 1 at 5-11, 13-16.
On January 4, 2013, Respondent responded to the Petition by filing a Return and Motion for Summary Judgment, ECF Nos. 24, 25, in which he argues the following: the Petition is untimely; certain grounds are procedurally barred from habeas review; and the Petition should be dismissed on its merits. Petitioner filed the instant Motion to Stay on May 2, 2013. ECF No. 43. With Respondent's consent, the court granted Petitioner's request that he not be required to respond to the pending Motion for Summary Judgment prior to the court's ruling on the Motion to Stay.
Citing Rhines v. Weber, 544 U.S. 269 (2005), Petitioner asks that the court stay his pending habeas Petition and hold it in abeyance so that he may return to South Carolina's state courts to exhaust his unexhausted claims related to his trial counsel's purported conflict of interest, which is Ground Eight in the Petition. See Pet.'s Mot. 6, ECF No. 43.
Generally, a habeas petitioner who presents a mixed petition—one containing exhausted and unexhausted claims—may dismiss the unexhausted claims and proceed with the exhausted claims, or dismiss the entire petition to return to state court to exhaust the unexhausted claims. As discussed within, these options are not without potential roadblocks for a petitioner. Prior to the enactment of the AEDPA, federal courts routinely dismissed without prejudice habeas petitions containing a mixture of exhausted and unexhausted claims, pursuant to Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (requiring "total exhaustion" of claims and directing courts to effectuate that requirement by dismissing mixed petitions without prejudice and permitting petitioners to return to state court to present the unexhausted claims). In 1996, though, the AEDPA's enactment changed this landscape. Although the statute preserved the total exhaustion requirement, it also added a one-year statute of limitations for habeas matters filed pursuant to 28 U.S.C. § 2554. See 28 U.S.C. § 2244(d). Accordingly, dismissal of a "mixed petition" can result in the application of the AEDPA's one-year statute of limitations to a petitioner's claims. Duncan v. Walker, 533 U.S. 167, 172 (2001) (filing of federal habeas petition does not toll the limitations period for filing a timely petition under 28 U.S.C. § 2254). Alternatively, a petitioner can proceed with a federal habeas claim of only those claims that have been exhausted with a dismissal of any unexhausted claims. See Rose v. Lundy, 455 U.S. at 522. However, the unexhausted claims would later become subject to the successive petition standards under the AEDPA. See Rule 9, Rules Governing Section 2254 Cases in USDC: "Before presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2243(b)(3) and (4)."
Recognizing these changes and the interplay between the one-year limitations period and the requirement of Lundy that a district court dismiss a mixed petition so the petitioner may exhaust remedies, the Rhines Court noted that some district courts had adopted a procedure of staying the petition and holding it in abeyance while the petitioner returns to state court with his unexhausted claims. 544 U.S. at 275-76. "[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. Am. Water Works & Elec. Co., Inc., 299 U.S. 248, 254 (1936). That discretionary authority to stay mixed petitions in habeas cases, however, "must be compatible with AEDPA's purposes[,]" Rhines, 544 U.S. at 276, one of which is "to reduce delays in the execution of state and federal criminal sentences. ..." Id. at 276 (internal citation omitted). Further, the one-year "limitations period quite plainly serves the well-recognized interest in the finality of state court judgments" by restricting the time within which to seek federal habeas review. Id. (internal quotations and citations omitted). The tolling provision in § 2244(d)(2)
The Court cautioned that the stay-and-abeyance procedure should not be used too frequently because it causes delay, frustrating the statutory objective of encouraging finality and undermining the statute's goal of "streamlining" federal habeas actions by diminishing the incentive to exhaust all claims in state court before filing a federal habeas petition. 544 U.S. at 277. A stay is appropriate, however, when (1) there is good cause for failing to first exhaust claims in state court, (2) the unexhausted claims are not plainly meritless, and (3) there are no intentionally dilatory litigation tactics by the petitioner. Id. at 277-78.
Petitioner submits he is entitled to a stay pursuant to Rhines, first arguing he can demonstrate good cause for filing this Petition before exhausting the claim raised in Ground Eight of his Petition and now pending before the South Carolina courts. Pet.'s Mem. 4-6, ECF No. 43. See Rhines, 544 U.S. at 277 ("stay and abeyance 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."). Rhines does not define good cause. Petitioner cites to language in Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), that "a petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute `good cause' for him to file in federal court." Pet.'s Mem. 4 (quoting Pace). He submits facts surrounding the Rule 29(b) Motion and its appeal caused sufficient confusion to establish "good cause" here.
Pace did not concern a mixed petition, but addressed whether a state PCR application denied as untimely would qualify as "properly filed" under the federal habeas tolling statute, 28 U.S.C. § 2244(d)(2). 544 U.S. at 410. In dicta, the Pace Court noted a petitioner who has "reasonable confusion" as to whether a state PCR application is timely filed (thus, whether it will be considered "properly filed" under 28 U.S.C. § 2244(d)(2)), may consider filing a "protective" federal habeas petition and seeking a Rhines stay. 544 U.S. at 416. The Court noted that a "petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute `good cause' for him to file in federal court." Id. The discussion in Pace does not address circumstances involving a mixed petition, but does indicate that a "reasonable confusion" about the timeliness of the filing in state court ordinarily would be "good cause" for failure to exhaust.
As explained by Petitioner, he received the order denying reconsideration of the denial of his Rule 29(b) Motion based on after-discovered evidence on January 24, 2013. Pet.'s Mem. 5; see ECF No. 1-1 at 16 (Order). Petitioner also received a letter dated January 24, 2013, from Will Grove, his appointed attorney for the Rule 29(b) Motion, stating the following:
Ltr. from Grove to Pet. (Jan. 24, 2013), ECF No. 1-1 at 16. Petitioner submits this letter caused him "reasonable confusion" regarding whether filing an appeal of the motion for a new trial based on after discovered evidence would be timely. In fact, as Petitioner points out, the State has argued that the February 13, 2012 Notice of Appeal was not timely filed pursuant to Rule 203(b)(2), SCACR. See Resp't's Return to Pet. Cert. as to Appeal of Rule 29(b) Denial, ECF No. 43-4. Further, Petitioner points out his uncertainty/confusion regarding whether the appeal would be timely also prompted him to file an application for PCR regarding the alleged ineffectiveness of his Rule 29(b) appointed counsel in which he seeks permission to file a belated appeal pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974). Pet.'s Mem. 5, ECF No. 43; see ECF No. 46-1 (2013 PCR Appl.).
Petitioner also provides a letter he sent to the Clerk of the South Carolina Court of Appeals on April 15, 2012, explaining he had not received certain paperwork regarding his appeal and requesting that counsel be appointed. See Pet'r's Mem., 5-6, ECF No. 43; Apr. 15, 2013 Ltr. from Petitioner to Clerk of Court of Appeals, ECF No. 43-1. He submits this further indicates his "reasonable confusion" regarding whether his appeal of the denial of his Rule 29(b) Motion was timely. Based on this uncertainty, Petitioner submits he "erred on the side of caution" and filed the instant Petition. Pet'r's Mem. 6.
Other than generally stating Petitioner "fails to meet any of the requirements" of Rhine, Resp't's Mem. 3, ECF No. 45, Respondent does not specifically argue that Petitioner has not shown "good cause" for filing his federal habeas Petition prior to fully exhausting issues raised in Ground Eight of the Petition.
Based on the factual information presented, the undersigned is of the opinion that Petitioner has satisfied the good-cause prong of Rhine. The letter from Petitioner's appointed Rule 29(b) counsel regarding the potential appeal of the denial of the Rule 29(b) Motion is not a model of clarity. See ECF No. 1-1 at 17. Petitioner's confusion on whether an appeal regarding the Rule 29(b) Motion was timely is "reasonable" and well-indicated by his filings and letters. His "protective" filing of this federal petition in August 2012, while his appeal was pending, was appropriate. Rhines, 544 U.S. at 273-78; cf. Pace, 544 U.S. at 410; see generally Terry v. Byars, C.A. No. 4:12-1798-SB-TER, 2012 WL 6102938, at *6 (Dec. 10, 2012) ("The ultimate uncertainty of the state court's disposition of the claim qualifies for good cause under Rhines.").
The second consideration when considering a stay as set forth in Rhines is that the unexhausted claim or claims must not be meritless. Rhines, 544 U.S. at 277 ("[E]ven if a petitioner had good cause for [failing to present his claims first to the state courts], the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless."). In support of his argument that his unexhausted claim is not "plainly meritless," Petitioner begins: "It is hard to imagine a more egregious conflict of interest than to have the prosecuting attorney, represent a criminal defendant in the same county that he tries cases. Certainly, [Petitioner's trial counsel] would have been hesitant to present the reasonable alternative defense that the law enforcement he worked with coerced his testifying codefendants." Pet'r's Mem. 6. Petitioner's principal and reply briefs include substantive argument regarding the relative merits of the conflict-of-interest issue raised as Ground Eight in the instant Petition. See id. at 6-7, ECF No. 43; Pet'r's Reply 2-5.
Respondent counters that Petitioner's "claim of after-discovered evidence is plainly meritless[,]" noting the state court found, as a matter of state law, that Petitioner's claim that his trial counsel had a conflict of interest while representing him is not a claim of after-discovered evidence under South Carolina law. Resp't's Mem. 1, ECF No. 45. Respondent cites to findings by the state trial court on the Rule 29(b) Motion, as well as the findings of the Court of Appeals that the appeal from the denial of the Rule 29(b) Motion was untimely. Id. at 1-2. Respondent further submits the unexhausted claim is meritless as Petitioner did not raise it on appeal or in his initial PCR, making it procedurally defaulted at the state court level. Id. at 2. Respondent also cites generally to his pending Motion for Summary Judgment and includes a blanket argument that the Motion to Stay should be denied because Petitioner's Petition is time-barred in its entirety.
In his Reply, Petitioner accurately points out that Respondent's arguments focused on the untimeliness of his Rule 29(b) Motion and appeal of same hinge on both factual and legal findings that are still on appeal in South Carolina courts. Pet'r's Reply 1-3. Accordingly, Petitioner submits the arguments do not show a lack of merit. Id. Further, Petitioner submits the court is to consider whether the substantive claim raised in Ground Eight itself is "plainly meritless," and need not dwell on Respondent's focused argument that the Rule 29(b) motion was untimely under South Carolina law. See Reply 4-5, n.8.
Based on the factual information available to the court, it cannot determine that Petitioner's unexhausted claim is "plainly meritless." Although the Order denying the Rule 29(b) Motion and the Order denying reconsideration include findings that the issue of Petitioner's trial counsel's affiliation with the prosecutor's office was raised prior to his trial and could have been raised then, see ECF No. 1-1 at 14-16, those Orders are on appeal, as noted above. Further, the record does not include sufficient information for the court to determine what was or was not raised prior to trial, or what was or was not raised in the Rule 29(b) Motion.
In addition, even if the Supreme Court of South Carolina denies the pending Petition for Writ of Certiorari concerning the timeliness of the appeal regarding the Rule 29(b) Motion's denial, another proceeding is pending in state court that relates to Petitioner's unexhausted claim: his recently filed PCR application claiming his Rule 29(b) counsel was ineffective and seeking a belated appeal of the denial of the Rule 29(b) Motion. Respondent's short argument, Resp't's Mem. 3 n.3, that any belated appeal Petitioner may receive is similarly meritless is also unavailing. That argument supposes Petitioner "could have raised" the unexhausted claim on direct appeal or in his first PCR application but did not. Id. Again, this presupposes facts not finally decided below and not fully available to this court. Although Respondent's arguments may eventually bear out, Petitioner's claims cannot be branded "meritless" by this court at this juncture.
To the extent there are questions about Petitioner's ability to proceed in the pending state court proceedings, such questions are best resolved there. The court finds no reason to prematurely foreclose Petitioner's opportunities here, while these issues are now pending before the state court, whose determination it is to make. In light of Rhines, it seems that when a state court is willing to consider a prisoner's claims, there is no legitimate federal interest in impairing access to that consideration by refusing a stay.
Rhines' third and final prong requires the court to consider whether a petitioner seeking a stay has "deliberately engage[d] in dilatory tactics" that "could frustrate the AEDPA's goal of finality by dragging out indefinitely their federal habeas review." 544 U.S. 277-78. Although Rhines focused this prong on capital petitioners, id., the court considers it here.
Petitioner submits that he has no history of stalling or otherwise attempting to manufacture delay. He filed his first PCR seven months after certiorari was denied on his direct appeal. When certiorari was denied on his PCR appeal, he filed a motion for a new trial based on after-discovered evidence two months later. This is not the record of a petitioner who is trying to stall or delay. Pet'r's Mem. 7-8.
Respondent does not specifically address this prong of Rhines (other than generally stating Petitioner cannot satisfy any prong). Based on the record presented, it does not appear that Petitioner, pro se or through counsel, has engaged in any deliberately dilatory tactics. Accordingly, the undersigned finds Petitioner has satisfied this prong of the Rhines analysis, as well.
The court is mindful of the warnings in Rhines that stays should be available only in limited circumstances and, if employed too frequently, have the potential to undermine the AEDPA purposes of finality and speedy resolution of federal claims. However, under the unique facts and circumstances of this case, the undersigned is of the opinion that a Rhines stay is appropriate. Furthermore, in addition to satisfying the factors set forth in Rhines, a more complete factual record to aid this court's review may be available after his pending appeal and second PCR are concluded in state court. See Lundy, 455 U.S. at 519 (noting under comity principles the important interest in a state court's complete factual record and citing 28 U.S.C. § 2244(d) (presumption of correctness of factual findings made by a state court)); see also id. at 522 (total exhaustion requirement was not intended to "unreasonably impair the prisoner's right to relief").
Accordingly, it is recommended that Petitioner's Motion to Stay, ECF No. 43, be granted. Based on this recommendation, the undersigned further recommends Respondent's Motion for Summary Judgment, ECF No. 24, be denied without prejudice so Respondent can refile any appropriate dispositive motions after the stay is lifted.
It is further recommended that, should the United States District Judge adopt this recommendation, counsel for Petitioner be required to submit a status report to the court within 14 days of the final decision regarding the pending appeal and within 14 days of the final decision in Case No. 2013-CP-34-00089. See Rhines, 544 U.S. at 278. At that time, the court will issue briefing instructions regarding this habeas matter.
IT IS SO RECOMMENDED.
