Zebroski v. Phelps
MEMORANDUM OPINION re 100 MOTION to Stay - filed by Craig Zebroski. Signed by Judge Leonard P. Stark on 5/13/2013. (rpg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 03-853-LPS
WARDEN PERRY PHELPS,
Pending before the Court is Petitioner ("Petitioner") Craig Zebroski' s Motion for Stay
and Abeyance. Warden Perry Phelps ("Respondent") opposes. For the reasons that follow,
Petitioner' s request will be granted.
The Superior Court for New Castle County, Delaware ("Superior Court") sentenced
Petitioner to death in August 1997, after he had been convicted of two counts of first degree
murder in January 1997. See State v Zebroski, 1997 WL 528287 (Del. Super. Aug. 1, 1997).
Petitioner filed a Petition for a Writ of Habeas Corpus ("Petition") in this Court on September 3,
2003. On September 27, 2007, the Honorable Joseph J. Farnan, Jr. stayed the instant case
pursuant to a de facto stay of all similar cases involving the death penalty as a result of
proceedings in Jackson v. Taylor, C.A. No. 06-300 (D. Del.) ("Jackson"). (D.I. 62) In particular,
Judge Farnan "denied with leave to renew" Petitioner' s Motion to Supplement and Expand the
Record and To Amend The Petition. 2 (!d.) (emphasis in original)
The lengthy state court procedural history will not be recited in its entirety.
0n September 24,2010, following Judge Farnan's retirement, this case was reassigned
to the undersigned judge.
During the 2007-2010 stay, Zebroski filed a second petition for state post-conviction
relief in the state system. (D.I. 101 at 4) On December 15,2010, the Court lifted the stay in light
of the issuance of the Third Circuit' s mandate affirming Judge Robinson's rulings in Jackson.
(D.I. 64; see also Jackson v. Danberg, 601 F. Supp. 2d 589 (D. Del. 2009), aff'd, 594 F.3d 210
(3d Cir. 2010)) Thereafter, the stay ofhis federal proceedings was extended from December 15,
2010 until July 6, 2011 while the parties waited for the state system to resolve his second petition
for post-conviction relief. (D.I. 66) On July 7, 2011 , the Court granted the parties ' joint request
to stay Zebroski's execution pursuant to 28 U.S.C. § 2251. (D.I. 73)
On March 6, 2012, Zebroski filed an amended application for a writ of habeas corpus
("Amended Petition"). (D.I. 90) His Amended Petition contains several new claims which have
not been presented to the state courts. Respondent answered on July 23, 2012. (D.I. 94) On
January 10,2013, the date Petitioner's reply to Respondent' s answer was due, Petitioner filed the
pending motion to stay and abey. (D.I. 100) The Court has received full briefing on Petitioner' s
motion and has also heard argument from the parties during a teleconference. (See D.l. 100,
101,102, 106, 107, 111, 112)
A district court can hear a state prisoner' s application for federal habeas relief on the
grounds that his custody violates the Constitution or laws or treaties of the United States. See 28
U.S .C. § 2254(a). Ordinarily, this Court cannot review a habeas petition unless the petitioner has
exhausted all remedies under state law. See 28 U.S.C. § 2254(b); O 'Sullivan v. Boerckel, 526
U.S. 838, 842-46 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). When a petition contains
both exhausted and unexhausted claims, the Court may: (1) dismiss the action without prejudice
to return to state courts to exhaust state remedies; (2) delete unexhausted claims so that the
petition may continue on the remaining exhausted claims; or (3) stay the mixed petition and hold
the case in abeyance while petitioner returns to the state court to exhaust the unexhausted claims.
See Urcinoli v. Cathel, 546 F.3d 269, 275-77, 277 n.9 (3d Cir. 2008); see also Buchanan v.
Johnson, 723 F. Supp. 2d 722, 725 (D. Del. 2010).
With respect to the third of these options, district courts "have authority to issue stays,
where such a stay would be a proper exercise of discretion." Ryan v. Gonzales,_ U.S._,
133 S.Ct. 696, 708 (2013) (internal quotation marks omitted); see also Enelow v. New York Life
Ins. Co. , 293 U.S. 379, 382 (1935) (stating district court may stay case "pending before it by
virtue of its inherent power to control the progress of the cause so as to maintain the orderly
processes of justice"). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDP A")
"does not deprive district courts of [this] authority ... [although] it does circumscribe their
discretion. Any solution to this problem must ... be compatible with AEDPA's purposes."
Rhines v. Weber, 544 U.S. 269, 276 (2005). Thus, in considering whether to grant a request for a
stay and abeyance, the Court looks at: (1) whether the habeas petitioner has shown good cause
for failure to exhaust his claims in state court; (2) whether unexhausted claims are not plainly
meritless; and (3) whether the habeas petitioner has engaged in abusive litigation tactics or
intentional delay. See id. at 277-78. If the Court does stay a habeas action, "reasonable time
limits on a petitioner's trip to state court and back" should be imposed. !d. at 277-78.
The Parties' Contentions
The parties are in agreement that Petitioner has filed a mixed petition containing both
exhausted and unexhausted claims. (D.I. 94 at 5, 105) Petitioner contends that the proceedings
in this matter should be stayed to permit him to return to state court and exhaust the unexhausted
claims in his Amended Petition. (D.I. 100 at 1) In advocating such a course of action, Zebroski
relies on Delaware Superior Court Criminal Rule 61(i)(5). Rule 61(i)(5) permits a litigant to file
a motion for post-conviction relief if the purported constitutional violation on which it is based
"undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading
to the judgment of conviction." Here, Petitioner contends that this case should be stayed and
remanded to the state court due to "the substantial nature of [his] constitutional claims and the
availability of additional state court remedies that would enable him to return to state court so
that there can be no question but that all claims are exhausted and properly before this Court."
(ld.) If, alternatively, the mixed Amended Petition Zebroski filed were dismissed without
prejudice, statute oflimitations issues might arise if Petitioner attempted to refile his claims after
exhausting his unexhausted claims in state court. See 28 U.S.C. § 2244(d); Duncan v. Walker,
u.s. 167, 121 (2001).
Respondent counters that Petitioner' s request for a stay is a dilatory tactic. (D.I. 101)
Respondent argues Petitioner is unable to satisfy any of the three factors outlined by the Supreme
Court in Rhines. (Jd. at 4) Respondent also contends that Petitioner cannot meet the
requirements ofRule 61(i)(5)'s miscarriage of justice provision. (Jd. at 2-4) Hence, Respondent
requests that the Court dismiss the unexhausted claims and adjudicate exhausted claims.
For the reasons stated below, the Court will grant Petitioner' s request for stay and
Petitioner has good cause for not exhausting all his claims
Petitioner argues that the reason the third claim in his Amended Petition was not
presented to the state courts is because it is based on evidence discovered after his state postconviction proceedings concluded, and the reason his first, second, fourth, and eighth claims
were not presented in his state post-conviction proceedings is because his counsel for those
proceedings rendered ineffective assistance. (D.I. 102) Both ofthese reasons may be found to
satisfy the good cause requirement. See e.g. , Wogenstahl v. Mitchell, 668 F.3d 307, 322 (6th Cir.
2012); Weber v. Baker, 2012 WL 4911778 (D. Nev. October 15, 2012); see also State v. Wilmer,
2003 WL 751181 at *5 (Del. Super. Mar. 12, 2003), aff'd, 827 A.2d 30 (Del. 2003) (claim of
ineffective assistance of counsel, by its very nature, qualifies as exception under Rule 61 ). Here,
the Court finds Petitioner has shown good cause for not exhausting all his claims.
Petitioner's unexhausted claims are not plainly meritless
Because the term "plainly meritless" is not defined, the Court looks at whether it appears
from the Amended Petition that the Petitioner is not entitled to relief. See 28 U.S.C. § 2243; see
also Aiello v. Curtin, 2011 WL 4962670 (E.D. Mich. Sept. 8, 2011); Blevin v. Quarterman, 2007
WL 1428734 (S.D. Tex. May 10, 2007). Petitioner concedes that five of his claims of alleged
constitutional and prejudicial error in his state court proceedings are unexhausted. (See D.I. 105)
Among his unexhausted claims is Petitioner' s claim that his counsel was ineffective during the
sentencing phase by failing to request access to, investigate, and develop information contained
in a "presentence investigation report that was never disclosed to [his] counsel or to the appellate
court on direct review in violation of [his] constitutional rights." (D.I. 105 at 1-2)
The Delaware Supreme Court has held that a judicial officer' s undisclosed request for
assignment of a case can be reviewed pursuant to Rule 61. See State v. Jackson, 21 A.3d 27, 37
(Del. 2011). The Delaware state courts might view Petitioner' s claim regarding the undisclosed
presentence report similarly. Hence, it appears that at least this unexhausted claim is not plainly
meritless. Further, at least one court has determined it to be appropriate to stay a case such as
this one "as long as at least one claim has potential merit." McConnell v. Baker, 2012 WL
3100559, at *4 (D. Nev. Jul. 27, 2012).
Petitioner has not engaged in abusive litigation tactics or intentional delay
Petitioner filed his initial Petition on September 3, 2003. His habeas case has now been
pending nearly ten years. Notwithstanding that great length oftime, the Court finds that
Petitioner's pending motion is not an abusive litigation tactic, nor is it filed with an intent to
For more than three years, from September 27, 2007 through December 15, 2010, this
case was stayed, in large part pursuant to the de facto stay arising from the proceedings in
Jackson. (D.I. 62) That delay cannot be attributed to Petitioner, nor can it properly form the
basis for a contention that he has engaged in abusive litigation tactics or acted for the purpose of
Respondent points out that Zebroski has already returned to state court to exhaust new
claims once before, that his pending new claims were raised in 2011 - quite late in the litigation
-and his motion to stay and abate was filed on the day his traverse was due. Zebroski concedes
that the reason he is seeking to return to state court a second time is because his substitute
counsel discovered additional claims. Although as a general matter petitioners should not be
allowed to think up new claims in a piecemeal fashion and, thereby, stay their federal cases
multiple times, the Court notes that the first time Zebroski exhausted his new claims in state
court he did so while his federal case was already stayed for unrelated reasons; and, this second
time, he is raising new claims only because they were discovered by his substitute counsel.
These circumstances suggest to the Court that Zebroski ' s motive in returning to the state court is
to seek relief, not simply to delay the resolution of this litigation.
For the reasons stated above, Petitioner's Motion for Stay and Abeyance (D.I. 100) is
UNITED STATES DISTRICT JUDGE
Dated: May 13, 2013
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