Terry v. Byars, C/A No. 4:12-1798-SB-TER

CourtU.S. District Court — District of South Carolina
Writing for the CourtThomas E. Rogers. III
PartiesGary Dubose Terry, # SK-5054, Petitioner, v. William R. Byars, Jr., Commissioner, South Carolina Department of Corrections; Wayne C. McCabe, Warden of Lieber Correctional Institution, Respondents.
Docket NumberC/A No. 4:12-1798-SB-TER
Decision Date10 December 2012

Gary Dubose Terry, # SK-5054, Petitioner,
William R. Byars, Jr., Commissioner, South Carolina Department of Corrections;
Wayne C. McCabe, Warden of Lieber Correctional Institution, Respondents.

C/A No. 4:12-1798-SB-TER


Date: December 10, 2012

[formerly Misc. No. 3:12-0111-SB-TER]


This is a counseled habeas corpus action filed pursuant to 28 U.S.C. § 2254 by an inmate on Death Row in the South Carolina Department of Corrections. On September 21, 1997, the Court of General Sessions for Lexington County sentenced Petitioner to death for murder, thirty years for first-degree burglary, thirty years for first-degree criminal sexual conduct, and ten years for malicious injury to a telephone. Petitioner's convictions arise out of the murder of Urai Jackson on or about May 24, 1994. See State v. Terry, 339 S.C. 352, 529 S.E.2d 274 (2000), cert. denied, Terry v. South Carolina, 531 U.S. 882 (2000). Petitioner filed an application for post-conviction relief (Case No. 2000-CP-32-3470) on November 30, 2000. The Court of Common Pleas for Lexington County denied relief in the post-conviction case on February 18, 2009. The Supreme Court of South Carolina affirmed the denial of post-conviction relief on August 29, 2011. Terry v. State, 394 S.C.

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62, 714 S.E.2d 326 (2011), cert. denied, Terry v. South Carolina, 182 L.Ed.2d 179, 132 S.Ct. 1548 (2012).

On April 5, 2012, the Honorable Sol Blatt, Jr., Senior United States District Judge, granted the motion for stay of execution and motion to appoint counsel. Judge Blatt also granted Petitioner's Motion for Leave to Proceed in forma pauperis. On July 5, 2012, the undersigned directed Respondents to file an Answer.1

Counsel for Petitioner on June 29, 2012, filed the Petition and a Motion to Stay Proceedings pursuant to the holding in Rhines v. Weber, 544 U.S. 269, 276 (2005) (allowing stays of habeas cases in limited circumstances), so that Petitioner could exhaust several unexhausted grounds via a contemporaneously-filed application for post-conviction relief (Case No. 2012-CP-32-2718) in the Court of Common Pleas for Lexington County. Counsel for Respondents on July 16, 2012, filed a response in opposition to the motion to stay. Counsel for Petitioner filed a reply on July 25, 2012. Respondents' supplemental filing (ECF No. 30) on August 6, 2012, indicates that, in the pending post-conviction action, Respondents have filed a return and a motion to dismiss (ECF No. 30-1) and a proposed order for use by the Court of Common Pleas (ECF No. 30-2).

Petitioner seeks to exhaust grounds designated as Grounds II through V of his habeas petition filed in this case. Ground II alleges an actual conflict of interest on the part of Isaac McDuffie Stone, one of Petitioner's trial counsel. This ground relates to Mr. Stone's allegedly undisclosed representation of the State of South Carolina and numerous law enforcement agencies. Ground III is a claim of ineffective assistance of counsel based on trial counsel's failure to conduct an adequate

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or appropriate voir dire and appropriately object to preserve the issues for appellate review. Ground IV concerns trial counsel's failure to develop evidence of a "guilty but mentally ill" defense. Ground V is based on counsel's failure to object to testimony by Petitioner's ex-spouse that Petitioner raped her.


Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (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, 522 (1982) (requiring "total exhaustion" of claims).2 That practice was substantially changed upon the passage of the AEDPA as a result of the one-year statute of limitations contained within the AEDPA. See 28 U.S.C. § 2244(d). Generally, a habeas petitioner who presents a mixed-petition may proceed with the exhausted claims with the unexhausted claims being dismissed, or dismiss the entire petition to return to state court to exhaust the unexhausted claims. See note 2, supra. However, when faced with a mixed petition, district courts maintain the discretion in limited circumstances to stay the federal habeas action while maintaining it on its docket to allow a

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petitioner to return to state court to exhaust unexhausted claims. Rhines v. Weber, 544 U.S. 269, 276-77 (2005)(citing Clinton v. Jones, 520 U.S. 681 (1997)("district court has broad discretion to stay proceedings as an incident to its power to control its own docket"). "[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. American Water Works & Electric 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 the AEDPA's purposes is "to further the principles of comity, finality, and federalism." Duncan v. Walker, 533 U.S. 167, 178 (2001)(citing Williams v. Taylor, 529 U.S. 420, 436 (2000)). Consistently, one of the its purposes is "to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases." Rhines, 544 U.S. at 276 (internal citation omitted). 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)3 "balances the interest served by the exhaustion requirement and the limitation period." Id. The "AEDPA thus encourages petitioners to seek relief from state courts in the first instance by tolling the 1-year limitations period while a "properly filed" application for State post-conviction review is pending." Id. "This scheme reinforces the importance of Lundy's 'simple and clear instruction to potential

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litigants: before you bring any claim to federal court, be sure that you first have taken each one to state court." Id. (citing and quoting Lundy, 455 U.S. at 520).4

Staying a federal habeas action while a petitioner returns to state court to exhaust unexhausted claims causes delay which frustrates the statute's objective of encouraging finality and undermines 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. Id. at 277. A stay is appropriate, however, when there is good cause for the failure to exhaust, the unexhausted claims are not plainly meritless, and there are no intentionally dilatory litigation tactics by the petitioner. Rhines, 544 U.S. at 277-78.5 The Court reasoned that in such circumstances the petitioner's interest in obtaining federal review outweighs the twin interests of speedy review and finality. Id.

Petitioner asserts there is good cause in this case based on his dependence upon the competence and judgment of his trial counsel and PCR counsel. He asserts that his trial attorney and PCR counsel committed error. Specifically, he contends that trial counsel committed error as set forth in his Grounds II through V of his habeas petition. He asserts that PCR counsel "failed to conduct an adequate and independent investigation to determine the existence of claims for relief based on evidence not contained within the record generated at trial and failed to present meritorious issues to the PCR court," as set forth in Grounds II through V of the habeas petition.

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A. Good Cause

To satisfy the first part of the Rhines test, a petitioner must show that there was good cause for failure to exhaust the claims in state court. 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 suggests that the requirement is not a particularly demanding one, citing to Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). Pace addressed whether or not a state post-conviction relief petition denied as untimely would qualify as "properly filed" under the federal habeas tolling statute, 28 U.S.C. §2244(d)(2). Id. at 410. Addressing in dicta a situation where a petitioner is pursuing a state post-conviction matter about which the petitioner has a "reasonable confusion" as to whether it is timely filed (thus, whether it will be considered "properly filed" under the AEDPA), the Supreme Court suggested as a possible solution filing a "protective" federal habeas petition and seeking a Rhines stay. Id. 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.6

Petitioner contends that one of his trial counsel, Duffie Stone (Stone), failed to disclose...

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