Bixby v. Stirling
| Docket Number | 22-4 |
| Decision Date | 27 November 2023 |
| Parties | STEVEN VERNON BIXBY, Petitioner - Appellant, v. BRYAN P. STIRLING, Commissioner, South Carolina Department of Corrections; LYDELL CHESTNUT, Deputy Warden, Broad River Correctional Institution, Respondents - Appellees. LEGAL ETHICS PROFESSORS, Amici Supporting Appellant |
| Court | U.S. Court of Appeals — Fourth Circuit |
DAVID WEISS, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC. CHARLOTTE, NORTH CAROLINA, FOR APPELLANT. WILLIAM JOSEPH MAYE, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA COLUMBIA, SOUTH CAROLINA, FOR APPELLEES.
ON BRIEF:
John G. Baker, Federal Public Defender, Gretchen L. Swift Assistant Federal Public Defender, Federal defenders of western North Carolina, Inc., Charlotte, North Carolina; Joshua Snow Kendrick, Kendrick & leonard, P.C., Greenville, South Carolina, for Appellant.
Alan Wilson, Attorney General, Donald J. Zelenka, Deputy Attorney General, Melody J. Brown, Senior Assistant Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, for Appellees. Joseph B. Warden, Wilmington, Delaware, Daniel A. Tishman, FISH &RICHARDSON P.C., Washington, D.C., for Amici Curiae.
Before DIAZ, Chief Circuit Judge, and AGEE and HARRIS, Circuit Judges.
After the district court denied Steven Vernon Bixby's initial 28 U.S.C. § 2254 petition, he obtained new counsel and filed a motion to reopen that judgment under Federal Rule of Civil Procedure 60(b). He argued that exceptional circumstances warranted this relief because his original § 2254 counsel had, in effect, abandoned him by submitting a § 2254 petition that omitted several potentially meritorious issues and inadequately presented the issues that had been raised. He asked the court to reopen the judgment and allow him to file additional briefing and new claims.
The district court concluded that Bixby's motion was not a true Rule 60(b) motion. Rather, Bixby was attempting to use Rule 60(b) to circumvent the statutory limits placed on second or successive § 2254 petitions. Recognizing that it would lack jurisdiction to consider a second § 2254 petition, the district court denied Bixby's motion without considering its merits.
Bixby now appeals, and for the reasons set out below, we agree with the district court's conclusion that it lacked jurisdiction to consider Bixby's Rule 60(b) motion because he effectively sought to file a second or successive § 2254 petition, something that a district court cannot authorize. Because we also conclude that the district court should have dismissed Bixby's motion rather than deny it, we vacate the district court's order and remand with instructions to dismiss.
Amidst a dispute involving the state of South Carolina's claim to a right of way across the Bixby family property, Bixby and his father shot and killed two law enforcement officers. State v. Bixby, 698 S.E.2d 572, 535-39 (S.C. 2010).
After Bixby and his parents learned of the state's plan to expand a road across their property, they resisted construction efforts and responded with threats of violence. Id. at 536. So state officials scheduled a meeting with the Bixbys to discuss the construction plans, which they asked law enforcement to mediate. Id. at 536-37. The day before the meeting, Bixby told others that he and his family had been planning an armed altercation for some time, that "[t]omorrow" they intended to shoot "anybody [who] comes in the yard, " and that "if the shooting starts I won't come out alive." Id. at 577.
The next day, when law enforcement approached the Bixby home, Bixby and his father shot and killed two officers. In the hours that followed, Bixby and his father engaged in an armed stand-off with additional law enforcement officers, but surrendered late in the evening after law enforcement "returned fire and shot tear gas into the home." Id. at 578.
For his role in these events, Bixby was indicted in South Carolina state court on multiple counts, and the State sought the death penalty for the two murders. Id. at 578. A jury found Bixby guilty on all counts and recommended a sentence of death for each murder. Id. The trial judge agreed and sentenced Bixby to death. Id. 1[]
On direct appeal, the Supreme Court of South Carolina affirmed the convictions and imposition of the death penalty. Id. at 578-89. Two of the five justices dissented on two issues implicating constitutional concerns related to sentencing. Id. at 589-91 (Pleicones, J., dissenting). The dissenting justices would have vacated the death sentences and remanded for a new sentencing proceeding. Id.
Bixby later filed a timely state petition for post-conviction relief (PCR), which the PCR court denied. The Supreme Court of South Carolina denied certiorari.
Bixby, through counsel, filed documents indicating an intent to file a federal petition for writ of habeas corpus under § 2254 and requested that counsel be appointed to represent him during those proceedings. A magistrate judge granted Bixby's request for appointed counsel, selecting two attorneys from the District of South Carolina's Criminal Justice Act Death Penalty Panel Attorney List, Miller Williams Shealy, Jr., and William H. Monckton, VI (collectively "initial § 2254 counsel"). They prepared a § 2254 petition setting out twenty-nine enumerated claims, all but one of which had been raised in the state PCR proceedings. Although the petition was seventy-six pages in length, the first ten pages reflected responses to the form § 2254 petition provided to pro se petitioners and recounted basic case information and procedural history. The next sixty-one pages were copied and pasted from the state-court decision and PCR filings, which recounted the factual and procedural narrative as well as background information related to the investigation and Bixby's social history. The final substantive pages raised issues that had been brought and rejected in the state PCR proceedings. Instead of providing any analysis or argument about these issues, though, the petition simply "incorporate[d] by reference" the arguments relating to those issues that had been presented in the state PCR filings. J.A. 1320. The initial § 2254 petition also identified one new issue for the district court's consideration: whether trial counsel had provided ineffective assistance based on a purported failure to protect Bixby's rights under the Americans with Disabilities Act (ADA). With the district court's permission, initial § 2254 counsel filed a supplemental eight-page memorandum laying out arguments in greater detail supporting that issue. Later, in response to the State's 116-page memorandum supporting summary judgment as to all claims, initial § 2254 counsel filed a nine-page memorandum asserting that the petition had established adequate grounds for a hearing, particularly as to the ADA-related claim.
A magistrate judge prepared a report and recommendation (the MR&R) on the § 2254 petition. Before addressing the merits of the summary judgment motion, the magistrate judge observed that the § 2254 petition had failed to frame the issues in the light necessary to obtain relief under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). This Act requires that federal courts review claims by state prisoners to determine "whether the state court's ruling on [the issues] is the result of unreasonable factual findings or an unreasonable application of federal law." Bixby v. Stirling, No. 4:17- cv-00954-BHH-TER, 2019 WL 8918824, at *17 (D.S.C. Jan. 11, 2019) (citing § 2254(d)). Because state prisoners can only obtain relief upon such a showing, the magistrate judge undertook that analysis for each of Bixby's claims and recommended granting summary judgment to the State and denying relief on all claims.
In response to the MR&R, Bixby's initial § 2254 counsel filed a seventeen-page set of objections.
The district court adopted the MR&R, granted summary judgment to the State, and denied habeas relief. But the district court also chastised Bixby's initial § 2254 counsel, observing that the § 2254 "[p]etition is largely a conglomeration of" "others' writing[s]" and failed to discuss how to apply § 2254(d)'s standards to the issues raised. Bixby v. Stirling, No. 4:17-cv-954-BHH, 2021 WL 783660, at *5 (D.S.C. Mar. 1, 2021). Despite these concerns, however, the district court engaged in an extensive, § 2254-centered analysis of the claims Bixby had raised, issuing a thorough decision before denying relief.
Bixby then filed a Rule 59(e) motion for reconsideration, which the district court denied in part and granted in part. The limited grant related solely to the district court's failure to rule on whether a certificate of appealability (COA) should be issued, as required by 28 U.S.C. § 2253. The district court then amended its order to deny Bixby a COA as to any claim.
Bixby appealed the denial of his initial § 2254 petition and new counsel was appointed to represent him before this Court. But we denied Bixby a COA and dismissed his appeal. Bixby v. Stirling, No. 21-5, 2022 WL 4494130 (4th Cir. Apr. 29, 2022), cert. denied, 143 S.Ct. 2468 (2023) (mem.).
While Bixby's appeal from the denial of his § 2254 petition was pending before this Court, the new counsel who had been appointed to represent him in that appeal moved to be appointed to represent him "for any remaining actions required in the district court and any subsequent and available post-conviction process." Motion for Appointment of Counsel at 2, Bixby, No....
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