Whether the Sixth Amendment right to effective assistance of counsel was violated when the state post-conviction court failed to appoint counsel for Mikal D. Mahdi's second application for post-conviction relief

No question identified. : in filing his second application for post-conviction relief which is the subject of the attached petition for writ of certiorari. The South Carolina Supreme Court issued an order, a copy of which is attached, to review Mr. Mahdi’s application for post-conviction relief and to consider whether to appoint counsel. Because of the procedural history of this case in the state court, the post-conviction judge never considered appointment of counsel. Undersigned counsel has represented Mr. Ms. Mahdi pro bono in the state court post-conviction procedures that are subject to this appeal and in preparing the attached petition for writ of certiorari. Respectfully submitted, By /s/E. Charles Grose, Jr. E. Charles Grose, Jr. Counsel of Record The Grose Law Firm, LLC 404 Main Street Greenwood, SC 29646 (864) 538-4466 Counsel for Petitioner Mikal D. Mahdi September 24, 2018. 2 Date Filed 10/13/16 EntryNumber19 Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON/GREENWOOD DIVISION Mikal D. Mahdi, ) Case No. Petitioner, V. ORDER Bryan Stirling, Commissioner South Carolina Department of Corrections, ) Respondent. a) The petitioner in this matter, Mikal D. Mahdi (“Petitioner”), is a state prisoner convicted of murder, grand larceny, and second degree burglary and is sentenced to death. This matter is before the Court on Petitioner's motion to appoint counsel and motion to proceed in forma pauperis. [Docs. 1, 2.] Respondents filed a response on October 4, 2016, which addressed the motion to appoint counsel. [Doc. 10.] And on October 11, 2016, Petitioner filed a reply. [Doc. 17.] Accordingly, these motions are ripe for review. Motion for Leave to Proceed In Forma Pauperis Petitioner has filed a motion for leave to proceed in forma pauperis. The Court has reviewed this submission and finds that Petitioner has shown that he is indigent and qualifies to proceed in forma pauperis in this case. Accordingly, the Court grants Petitioner's motion to proceed in forma pauperis. [Doc. 2.] Motion for Appointment of Counsel The qualifications for appointed counsel in capital cases are governed by 18 U.S.C. § 3599 and the Plan of the United States District Court for the District of South Carolina for Implementing the Criminal Justice Act. See In re Amendments to the Plan of the U.S. Dist. Date Filed 10/13/16 EntryNumber 19 Page 2 of 7 Ct. for the Dist. of S.C. for Implementing the Criminal Justice Act, No. 3:10-mc-5005-CIV (D.S.C. May 5, 2010) (“CJA Plan”). The statutory authority for the federal courts to appoint legal counsel for indigent, death-sentenced prisoners seeking habeas corpus relief is contained in the following relevant portions of 18 U.S.C. § 3599: (a)(2) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f). (c) If the appointment is made after judgment, at least one attorney so appointed must have been admitted to practice in the court of appeals for not less than five years, and must have had not less than three years experience in the handling of appeals in that court in felony cases. (d) With respect to subsection[] . . . (c), the court, for good cause, may appoint another attorney whose background, knowledge, or experience would otherwise enable him or her to properly represent the defendant, with due consideration to the seriousness of the possible penalty and to the unique and complex nature of the litigation. Courts interpreting the appointment of counsel provisions of § 3599 have held that this “provision grants a first time, indigent, capital habeas corpus petitioner ‘a mandatory rig