Mahdi v. Stirling, C/A No. 8:16-3911-TMC

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtTimothy M. Cain United States District Judge
Docket NumberC/A No. 8:16-3911-TMC
PartiesMikal D. Mahdi, #5238, Petitioner, v. Bryan Stirling, Commissioner, South Carolina Department of Corrections; Willie D. Davis, Warden, Kirkland Correctional Institution, Respondents.
Decision Date24 September 2018

Mikal D. Mahdi, #5238, Petitioner,
v.
Bryan Stirling, Commissioner, South Carolina Department of Corrections;
Willie D. Davis, Warden, Kirkland Correctional Institution, Respondents.

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

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION

September 24, 2018


OPINION & ORDER

This matter is before the court on Respondents' motion for summary judgment (ECF No. 105) and motion to strike (ECF No. 125). Petitioner Mikal D. Mahdi ("Mahdi") is a death-sentenced state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2), D.S.C., pre-trial proceedings were referred to a magistrate judge. On September 24, 2018, the court withdrew the reference of this matter and now enters an order on the pending motions. (ECF No. 137). Having carefully considered the parties' submissions and the record in this case, the court grants Respondents' motion for summary judgment. (ECF No. 105). In addition, Respondents' motion to strike (ECF No. 125) is granted in part and denied in part.

BACKGROUND

The following facts are recited, verbatim, from South Carolina Supreme Court Chief Justice

Jean Hoefer Toal's concurring opinion in Mahdi's direct appeal:

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On July 14, 2004, Petitioner, then a resident of Virginia, embarked on a crime spree that would span four states. Petitioner stole a .380 caliber pistol from his neighbor, a set of Virginia license plates, and a station wagon. Petitioner left Virginia and headed to North Carolina.

On July 15, Petitioner entered an Exxon gas station in Winston-Salem, North Carolina armed with the .380 pistol. Petitioner took a can of beer from a cooler and placed it on the counter. The store clerk, Christopher Jason Boggs, asked Petitioner for identification. As Boggs was checking Petitioner's identification, Petitioner fatally shot him at point-blank range. Petitioner fired another shot into Boggs as he lay on the floor. Petitioner then attempted unsuccessfully to open the store's cash register. Petitioner left the store with the can of beer, and headed to South Carolina.1

Early in the morning of July 17, Petitioner approached Corey Pitts as he sat at a traffic light in downtown Columbia, South Carolina. Petitioner stuck his gun in Pitts' face, forced him out of his car, and stole Pitts' Ford Expedition. Petitioner replaced the Expedition's license plates with the plates he had stolen in Virginia, and headed southeast on I-26.

About thirty-five minutes down the road, Petitioner stopped at a Wilco Hess gas station in Calhoun County and attempted to buy gas with a credit card. The pump rejected the card, and Petitioner spent forty-five minutes to an hour attempting to get the pump to work. Due to his suspicious behavior, the store clerks called the police. Aware that the clerks' suspicions had been alerted, Petitioner left the Expedition at the station and fled on foot through the woods behind the station.

About a quarter to half mile from the station, Petitioner came upon a farm owned by Captain James Myers, a thirty-one year veteran law enforcement officer and fireman. Petitioner broke into a work shop on the Myers property. Once inside the work shop, Petitioner watched television and examined Myers' gun collection. Petitioner found Myers' shotgun and used the tools in the shop to saw off the barrel and paint it black. Petitioner also took Myers' .22 caliber rifle and laid in wait for Myers.

That day, Myers had been at the beach celebrating the birthdays of his wife, sister, and daughter. Myers had visited with his father before returning to his farm. Upon arriving at the farm, Myers stopped by the work shop, where he was confronted by Petitioner. Petitioner shot Myers nine times with the .22 rifle. Petitioner then poured diesel fuel on Myer's [sic] body and set the body on fire. Petitioner stole Myers' police-issued truck, and left with Myers' shotgun, his .22 rifle, and Myers'

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police-issued assault rifle.

Later that evening, Myers' wife, also a law enforcement officer, became worried when Myers did not return home. Mrs. Myers drove to the work shop and discovered Myers' burned body lying in a pool of blood.

Petitioner escaped to Florida, where he was spotted by police on July 21 driving Myers' truck. Fleeing the police, Petitioner abandoned the truck [and proceeded] on foot in possession of the assault rifle. When cornered by police, Petitioner abandoned the rifle and was eventually taken into custody.

Mahdi v. State, 678 S.E.2d 807, 809 (S.C. 2009) (Toal, C.J., concurring) (footnote added).

PROCEDURAL HISTORY
Guilty Plea & Sentencing

On August 23, 2004, the Calhoun County grand jury indicted Mahdi for murder, grand larceny, and second degree burglary, and the State filed its Notice of Intent to Seek the Death Penalty. (ROA 1829-35).2 The South Carolina Supreme Court ordered South Carolina Circuit Court Judge Clifton Newman to preside over Mahdi's case. (ROA 1841). Judge Newman appointed attorneys Carl Grant and Glenn Walters to represent Mahdi. (ROA 8). However, in 2016, upon Grant's motion and with the State and Mahdi's consent, the court relieved Mr. Grant as counsel because he had sustained a serious injury in a motorcycle accident. (ROA 104-05). Mr. Walters replaced Mr. Grant as lead counsel and the court appointed Joshua Koger, Jr., as second chair counsel. (ROA 109).

From November 26th to 29th, 2006, the parties engaged in individual voir dire and selected a capital jury. (ROA 207-1318). However, on November 30th, prior to the jury being sworn, Mahdi waived his right to a jury trial and pled guilty to all charges. (ROA 1336-68). Following the

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mandatory twenty-four hour statutory waiting period, Mahdi's sentencing proceeding before Judge Newman began on December 4, 2006. (ROA 1372). As aggravating circumstances, the State alleged that Mahdi: (1) committed the murder during the commission of a burglary; (2) committed the murder during the commission of a larceny with a deadly weapon; (3) committed the murder during the commission of a robbery while armed with a deadly weapon; and (4) murdered a law enforcement officer during or because of the performance of his official duties. (ROA 1838). Judge Newman found the State proved the first two aggravating circumstances beyond a reasonable doubt and, after carefully considering all of the evidence, sentenced Mahdi to death. (ROA 1810-26).

Direct Appeal

On direct appeal, Mahdi raised one issue:

Did the trial judge improperly consider Mikal Mahdi's initial exercise of his constitutional right to a trial by jury in imposing a death sentence?

(ECF No. 31-1 at 3). On June 15, 2009, the South Carolina Supreme Court affirmed Mahdi's sentence. See Mahdi v. State, 678 S.E.2d 807 (S.C. 2009). (App. A000193).3 Mahdi did not appeal this decision, but moved for a stay of execution in order to pursue post-conviction relief ("PCR"). On July 23, 2009, the South Carolina Supreme Court granted Mahdi's motion and assigned South Carolina Circuit Court Judge Doyet A. Early, III, to preside over Mahdi's PCR action.

First PCR Action

On August 18, 2009, Mahdi filed his initial PCR application pro se. (App. A000853-59). Through appointed counsel, Teresa Norris and Robert Lominack, Mahdi amended his application and raised the following grounds:

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10(a) Applicant was denied the effective assistance of counsel during the sentencing phase of his trial in violation of South Carolina law and the Sixth and Fourteenth Amendments to the United States Constitution.

11(a)(I) Trial counsel failed to object when the trial judge improperly based his decision to impose a death sentence on petitioner's assertion of his right to a jury trial, thereby effectively punishing him for exercising this constitutional right. Counsel's deficient performance in failing to preserve the issue for appellate review deprived petitioner of the right to effective assistance of counsel.

(ii) Counsel failed to adequately advise Applicant of the advantages of jury sentencing, which resulted in the Applicant pleading guilty and purporting to waive his right to jury sentencing.

(iii) Counsel failed to adequately investigate, develop, and present mitigation evidence concerning Applicant's family, social, institutional, and mental health history.

(iv) Counsel failed to assert that Applicant's death sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution due to Applicant's developmental deficits.

(v) Counsel failed to assert that S.C. Code § 16-3-20 is unconstitutional in that it automatically precludes jury sentencing following a guilty plea in violation of the Sixth, Eighth, and Fourteenth Amendments as addressed in Ring v. Arizona, 536 U.S. 584 (2002). Moreover, this statute forces a capital defendant to choose between his right to a jury trial and his right to present mitigating evidence, namely that he has accepted responsibility for the crime. While this issue has been rejected by state courts, see State v. Downs, 361 S.C. 141, 604 S.E.2d 377 (2004), it has not been reviewed by federal courts and counsel were thus ineffective in failing to adequately preserve the record for subsequent litigation.

Counsel's conduct in each instance separately and cumulatively was both unreasonable and prejudicial in sentencing. Strickland v. Washington, 466 U.S. 668 (1984); Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005); Council v. State, 380 S.C. 159, 670 S.E.2d 356 (2008).

10(b) Applicant's death sentence violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution due to Applicant's developmental deficits.

11(b) At the time of the offenses, Applicant was developmentally impaired such that he had the "mental age" of a juvenile due to his atrocious background of

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deprivation, neglect, abuse, and institutionalization. The Cruel and Unusual
...

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