Collins v. Morgan et al
Filing
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OPINION regarding dismissal of Petition without prejudice for failure to exhaust state remedies. Order to follow. Signed by Judge Jerome B. Simandle on 5/24/2011. (dlk)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JEROME M. COLLINS,
Petitioner,
v.
PHIL MORGAN, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.
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Civil Action No. 11-103 (JBS)
OPINION
APPEARANCES:
JEROME M. COLLINS
Howard R. Young Correctional Institution
P.O. Box 9561
Wilmington, DE 19809
Petitioner Pro Se
SIMANDLE, District Judge
Jerome M. Collins (“Petitioner”) has filed a Petition for a
Writ of Habeas Corpus under 28 U.S.C. § 2254 (“Petition”)(D.I.
2), as well as a Motion for Leave to Proceed In Forma Pauperis
(D.I. 1).
Petitioner is a prisoner in the custody of the State
of Delaware who is currently incarcerated at the Howard R. Young
Correctional Institution in Wilmington, Delaware.
Having
thoroughly reviewed Petitioner’s submissions, this Court will
summarily dismiss the Petition without prejudice for failure to
exhaust state remedies.
I.
BACKGROUND1
Petitioner was sentenced to fifteen (15) years of
imprisonment after pleading guilty to second degree murder in the
Delaware Superior Court on July 8, 2010.
(D.I. 2)
Petitioner
did not appeal his conviction or sentence, and he has not yet
pursued post-conviction review in the Delaware State Courts.
Id.
The Petition, docketed in this Court on February 1, 2011,
asserts two claims: (1) the prosecution violated Brady v.
Maryland, 373 U.S. 83 (1963) by withholding exculpatory and
material evidence; and (2) Petitioner’s trial counsel provided
constitutionally ineffective assistance of counsel.
II.
STANDARD OF REVIEW
Federal courts are required to liberally construe pro se
filings.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998).
Nevertheless, a district court may summarily dismiss a habeas
petition “if it plainly appears from the face of the petition and
any attached exhibits that the petitioner is not entitled to
relief.”
See Rule 4, 28 U.S.C. foll. § 2254;
see also 28 U.S.C.
§ 2243 (“A court, justice or judge entertaining an application
for a writ of habeas corpus shall . . . issue an order directing
the respondent to show cause why the writ should not be granted,
unless it appears from the face of the application that the
1
The Court’s recitation of the procedural history is based
upon the information provided by Petition in his form Petition
under 28 U.S.C. § 2254. See (D.I. 2).
2
applicant or person detained is not entitled thereto.”)
Except
in unusual circumstances, a petitioner is not entitled to federal
habeas relief unless he has exhausted state remedies for all of
his habeas claims.
28 U.S.C. § 2254(b)(1)(A);
455 U.S. 509, 515-16 (1982).
Rose v. Lundy,
A petitioner demonstrates that a
claim has been “exhausted” in state court by showing that he
presented the legal and factual basis of each claim to the
Delaware Supreme Court.
Duncan v. Henry, 513 U.S. 364, 365
(1995).
When a claim has not been exhausted but further state court
review is clearly foreclosed, the claim is deemed to be
procedurally defaulted.
(3d Cir. 2002).
Carpenter v. Vaughn, 296 F.3d 138, 147
Such procedurally defaulted claims may be
reviewed in a federal habeas proceeding upon a showing of cause
and prejudice, or upon a showing that a miscarriage of justice
will result from lack of review.
446, 451 (2000);
2000).
Edwards v. Carpenter, 529 U.S.
Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.
However, under § 2254(c), a petitioner will not be deemed
to have exhausted available state remedies if he has the right
under the law of the state to raise, by any available procedure,
the question presented.
(1999).
O’Sullivan v. Boerckel, 526 U.S. 838
Consequently, if a petitioner presents a federal court
with a federal habeas application consisting entirely of
unexhausted claims, and further review of those claims is still
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available in the state courts, the federal court will ordinarily
dismiss the habeas application without prejudice in order to give
the petitioner an opportunity to present the unexhausted claims
to the state courts.
See Rose, 455 U.S. at 519-22;
Waples v.
Phelps, 2008 WL 1743400, at *2 (D. Del. Apr. 16, 2008).
III.
DISCUSSION
The statements in the Petition clearly demonstrate that
Petitioner did not appeal his conviction and sentence to the
Delaware Supreme Court, and that he also has not pursued any
further collateral review in the Delaware State Courts. (D.I. 2)
Therefore, Petitioner has failed to exhaust state remedies for
both of his claims.
In turn, even though the time for filing a direct appeal
from his conviction and sentence to the Delaware Supreme Court
has passed,2 Petitioner can still pursue state remedies by filing
a Rule 61 motion for post-conviction relief in the Delaware
Superior Court.
See Del. Super. Ct. Crim. R. 61(i).
Although
Rule 61 imposes several procedural hurdles that must be satisfied
before a state court will consider the merits of a petitioner’s
claims,3 it does not appear that further state review is clearly
foreclosed in this case.
2
For instance, it would seem that a Rule
Del. Supr. Ct. R. 6(a)(ii).
3
See Younger v. State, 580 A.2d 552, 554 (Del. 1990);
McNeil v. Snyder, 2002 WL 202100, at *5 (D. Del. Feb. 8, 2002).
4
61 motion would not be time-barred because one year has not yet
passed from the date on which Petitioner’s conviction became
final.
See Del. Super. Ct. Crim. R. 61(i)(1)(imposing a one year
filing deadline from the date on which Petitioner’s conviction
became final).
It also appears that the bars contained in Rule
61(i)(2) and (4) also would not apply to either of the instant
claims because Petitioner did not file a direct appeal or a
previous Rule 61 motion.
(4);
See Del. Super. Ct. Crim. R. 61(i)(2),
Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989).
Additionally, a Rule 61 motion raising the instant ineffective
assistance of counsel claim would not seem to be barred by Rule
61(i)(3), because Delaware law requires ineffective assistance of
counsel claims to be presented to the Superior Court in a Rule 61
motion, not to the Delaware Supreme Court on direct appeal.
Del. Super. Ct. Crim. R. 61(i)(3);
See
Webster v. Kearney, 2006 WL
572711, at *4 (D. Del. Mar. 8, 2006);
State v. McCluskey, 2000
WL 33114370, at *11 (Del. Super. Ct. Nov. 29, 2000).
And finally, even though Petitioner’s failure to present his
Brady claim on direct appeal may cause that claim to be
procedurally defaulted under Rule 61(i)(3), there is the
possibility that this procedural default can be avoided through
Rule 61(i)(5)’s miscarriage of justice provision.
Super. Ct. Crim. R. 61(i)(5);
A.2d
See Del.
see, e.g., Zebroski v. State,
, 2010 WL 797013 (Del. Mar. 9, 2010)(remanding case to
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Superior Court to consider whether further review of the
defendant’s procedurally barred claims was required under the
“miscarriage of justice” exception contained in Rule 61(i)(5)).
Given this possibility, and the absence of any other indication
that a Rule 61 motion would not be accepted by the Delaware
Superior Court if promptly and properly pursued, the Court finds
that further state court post-conviction review of either claim
is not clearly foreclosed.
In short, it is clear that Petitioner has not exhausted
state remedies for the instant claims because he has not yet
pursued post-conviction review in the Delaware State Courts.
In
turn, should the Superior Court deny a Rule 61 motion filed by
Petitioner, Petitioner can satisfy the exhaustion requirement of
28 U.S.C. § 2254(b)(1)(A) by appealing the adverse decision to
the Delaware Supreme Court.
Accordingly, the Petition will be
dismissed without prejudice for failure to exhaust state court
remedies.4
IV.
CONCLUSION
For the aforementioned reasons, the Court will dismiss
without prejudice the instant § 2254 Petition.
The Court will
also decline to issue a certificate of appealability because
4
Petitions filed pursuant to 28 U.S.C. § 2254 must be filed
within a one-year limitations period. Acting pro se, Petitioner
is responsible for determining the events that trigger and toll
the limitations period, as well as the time remaining in the
limitations period once it starts again after such tolling.
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Petitioner has failed to make a “substantial showing of the
denial of a constitutional right.”
Cir. L.A.R. 22.2 (2008);
28 U.S.C. § 2253(c)(2);
3d
United States v. Eyer, 113 F.3d 470 (3d
Cir. 1997).
An appropriate Order accompanies this Opinion.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
Date:
May
24
, 2011
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