Mangal v. Warden, Perry Corr. Inst., Civil Action No. 6:18-106-RBH-KFM

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtKevin F. McDonald United States Magistrate Judge
PartiesFarid Ahmad Mangal a/k/a Farid Ahmad Maugal, Petitioner, v. Warden, Perry Correctional Institution, Respondent.
Decision Date18 December 2019
Docket NumberCivil Action No. 6:18-106-RBH-KFM

Farid Ahmad Mangal a/k/a Farid Ahmad Maugal, Petitioner,
v.
Warden, Perry Correctional Institution, Respondent.

Civil Action No. 6:18-106-RBH-KFM

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

December 18, 2019


REPORT OF MAGISTRATE JUDGE

The petitioner, a state prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.

I. BACKGROUND

The petitioner is currently incarcerated at Perry Correctional Institution in the South Carolina Department of Corrections (doc. 1 at 1). He was indicted by the Spartanburg County Grand Jury in August 2006 on charges of incest (06-GS-42-2830) and criminal sexual conduct ("CSC") with a minor in the first degree (06-GS-42-2831). The Grand Jury indicted him in October 2006 for a lewd act or attempt to commit a lewd act upon a child under 16 (06-GS-42-4217), and he was indicted in January 2007 for CSC with a minor in the second degree (06-GS-42-4869) (doc. 20-39). The petitioner was represented by Lawrence W. Crane on these charges. On March 12-15, 2007, the petitioner was tried before the Honorable J. Mark Hayes, and the jury found him guilty as charged (app. 1-533).1 On March 16, 2007, Judge Hayes imposed concurrent sentences of 30 years imprisonment for CSC with a minor in the first degree, 20 years imprisonment

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for CSC with a minor in the second degree, 15 years imprisonment for lewd act on a minor, and one year imprisonment for incest. Judge Hayes also ordered that the petitioner receive credit for time served (app. 534-55).

A. Trial in Underlying Case

The petitioner was found guilty of committing various acts of sexual misconduct against his biological daughter, spanning approximately six years and beginning when she was ten years old (see app. 531-32). The State called the victim as the first witness. She testified that when she was ten years old, the petitioner "told me that he was gonna explain what sex was to me and that he was gonna show me what ... I shouldn't allow other people to do to me." The petitioner sexually assaulted her and told her it would not happen again, but it happened again the next day (app. 10-14). The victim further testified that the petitioner told her that her mother would not believe her if she reported the incidents. Instead, it would embarrass her and the entire family. Several years later, he threatened to kill the whole family if she ever told anyone about the sexual assaults. Even when other people were in the room with them, he would grab and touch her on her breasts, legs, and "behind." He would also force her to bathe in front of him, and he would wash her (app. 14-15). The victim testified that the sexual abuse "happened many times over the six years" and only ended when she was 16 years old. She could not recall the specific number of times that the petitioner abused her, but she testified, "When it first started it was pretty much every single day I came home from school." He continued to assault her once or twice a week until she was in the middle of the tenth grade (app. 15-16). The victim testified that the house was more peaceful if the victim complied with his demands, and he would yell at her mother and her brothers when she did not. Also, he would call her mother a "whore" and call the victim's brother names such as "fat ass" and "bastard." She felt that she had to comply with his demands to prevent him from abusing them (app. 19-20).

The victim testified that although the petitioner did not fully penetrate her during many of the assaults because he was concerned that she might get pregnant, he

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fully penetrated her on several occasions. The first time he fully penetrated her occurred when she was 13 or 14 years old (app. 18-21). The victim testified that the last time that the petitioner abused her was on the night before her mother had neck surgery. She refused because her mother was in the next room. He punished her brothers the next day because she had rejected him (app. 28-29). The first person to whom she disclosed the abuse was her brother, Rashan. The victim testified:

My brother Rashan was the first person I told because after he went to bed that night that my dad had hit him, I went in there and I was very upset because he had come in there and called me a whore..... And I told Rashan I had something to tell him because ... I didn't feel it was fair that they had to live in misery because ... I felt like it was my fault. .... I didn't really tell him upright. He guessed ... what was going on. I mean it took him a while because I didn't want, I didn't want to tell him and my main reason for not wanting to tell him was because I didn't want my mom to find out. [M]y mom had had it hard enough. My mom's had a very hard life and my dad was never good to her, and I grew up watching that, and I didn't want to be another burden on her shoulders. And Rashan told me if I didn't tell her that he would.

(App. 29-30). The victim told her mother the following day that the petitioner had been sexually abusing her for six years (app. 30-31).

On cross examination, the victim testified that the petitioner was very strict. He would take her straight home from school, where she had to do chores, she could not use the telephone, could not have friends over to the house, she could not go out, and she could not celebrate Christmas. Moreover, she was staying in the dining room at the time of the petitioner's arrest, and she did not like this. Also, the petitioner tried to arrange her marriage to a cousin. Although she denied that this was the reason she accused her father, she admitted that things got better after his arrest, and, within about four months after his arrest, she began smoking and drinking, and she had a college-age boyfriend (app. 61-65, 73). The victim confirmed that when she talked to counselors form the Children's Advocacy Center she did not tell them about getting suspended from school in November 2002 for having oral sex with another student (app. 66). The petitioner's trial counsel also

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questioned the victim about discrepancies between her family court testimony and her testimony at trial as to the time periods during which different types of sexual abuse occurred (app. 70-71).

The victim's brother, Rashan, testified that the petitioner "verbally and physically" abused the family and that he hit the victim with an extension cord. Also, he called her names, such as "slut and bitch and whore" (app. 92-93; 103). Rashan confirmed that his mother was working during the day during this time period and that the petitioner would usually pick up the victim after school. He confirmed that his sister reported the abuse to their mother (app. 95-97). He also testified:

I would see [the petitioner and [the victim] go in her room or maybe I . . . just didn't know where they were, and . . . couldn't find them. So, I'd go and I'd knock on the door, on his or her door . . . and I jiggled the door handle and it was locked. And I asked ... is anybody in there and he would answer. He said we're talking, just go away, and, you know, the door was locked. So, I didn't understand. You know, if he had something to yell at her about or say to her, he usually just did it out in the open.

(App. 97-98). He explained that the victim and the petitioner would be behind closed doors for 20 or 30 minutes at a time. When they came out, she would be "visibly upset, crying, and she [would] just head to the bathroom." However, he never heard them fighting over anything. He saw this happen roughly 20 or 30 times over the years (app. 98). Further, the petitioner installed a keyed lock on his bedroom door around 2000 or 2001, and the State introduced photographs of the lock (app. 100, 107).

The State also presented the testimony of Wiley Garrett, a licensed independent social worker, who conducted two forensic interviews of the victim. He was qualified by the trial judge as an expert "in the area of forensic interviewing to give opinion testimony in that area" (app. 119-22). On direct examination by the State, he testified that one of his "ultimate purpose[s]" in conducting forensic interviews is to determine whether a child has made "a clear[,] consistent disclosure," and he confirmed that part of the process is "to determine whether there's fabrication" (app. 12-24). Garrett interviewed the

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victim twice in July 2004 at the Children's Advocacy Center in Spartanburg, South Carolina (app. 117, 125, 129). The victim—who was 16 years old at the time of the interview—disclosed to him that she had been sexually assaulted multiple times beginning at age ten and that this happened in her parents' bedroom (app. 125-26). Garrett testified that the victim's disclosure was a "clear, consistent, and compelling disclosure of sexual abuse" (app. 130). On cross examination, Garrett conceded that he had cases where 16 year old girls had lied about being sexually abused, and he did not speak to the petitioner about the allegations against him (app. 139-43). Garrett also testified that at the time he did his assessment, he had not been told by the victim or her mother that the victim had been suspended from school for allegedly engaging in oral sex with another student nor had he been told of other issues the victim had at school (app. 138-42).

Dr. Nancy Henderson, a board certified pediatrician whose practice focused on the diagnosis of child abuse, including sexual abuse, also testified for the State. The trial judge found her qualified as an expert "in the examination, diagnosis, and treatment of child sexual abuse" (app. 147-53). She performed a medical examination of the victim on July 9, 2004, which revealed an abnormality of the hymen, which she explained as...

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