Weber v. Phelps et al
MEMORANDUM. Signed by Judge Sue L. Robinson on 6/30/14. (cla, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PAUL EDWARD WEBER,
PERRY PHELPS, Warden,
and ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
) Civ. No. 13-283-SLR
MEMORANDUM AND ORDER
1. Background. In February 2013, petitioner filed a counseled habeas
application in this court, challenging his 2010 conviction by a Delaware Superior Court
jury for attempted first degree robbery. (D.L 11) The attorney representing petitioner in
the instant proceeding is the same attorney who represented petitioner in his 2010
Superior Court trial and on direct appeal before the Delaware Supreme Court.
2. In August 2013, petitioner filed in the Delaware Superior Court a pro se
motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61
("Rule 61 motion"), alleging that his trial/appellate counsel provided ineffective
assistance in state court. Id. at 1-2. Upon receiving a copy of petitioner's Rule 61
motion, petitioner's counsel sent a letter to the Delaware Superior Court, recognizing
the "dilemma" caused by his continued representation of petitioner in state court, but
noting that petitioner still wished counsel to represent him in his cases "except for the
Rule 61." (D.L 11-14) Petitioner's counsel then stated, "I would welcome Your Honor's
direction on how to proceed with this matter since J am unsure how to proceed." (D.1.
3. In September 2013, the State filed a motion to stay the briefing schedule in
this proceeding pending resolution of petitioner's counsel's apparent conflict of interest
in representing petitioner in his state proceedings. (0.1. 11) The State explains that
"the dilemma inherent in [counsel's] continued representation of petitioner, while
petitioner asserts his previous representation was ineffective, pervades this habeas
action. Petitioner's [Rule 61 motion] alleges [counsel] was ineffective in allowing the
very same state court circumstances that petitioner alleges violated his federal rights,
and these overlapping allegations track each other nearly word for word." (0.1. 11 at 2)
According to the State's motion to stay, the Superior Court, petitioner's counsel, and the
State were all working to timely resolve the issue in the Superior Court. Id. The State
subsequently filed a response to the habeas application pending in this court. (0.1. 12)
4. In a December 26, 2013 letter from the Delaware Superior Court judge to
petitioner, the state court judged stated that it would be ethically inappropriate for
present counsel to represent petitioner on his Rule 61 motion. (0.1. 19-1 at Entry No.
192) The judge gave petitioner the option of proceeding pro se in the Rule 61 matter or
having the court appoint new counsel, and asked that petitioner make his choice by
January 14, 2014. Id. It appears that petitioner never directly responded to the
Delaware Superior Court. Rather, after explaining that he never requested current
counsel to represent him in his Rule 61 proceeding, petitioner requested a hearing on
his request for a limited appointment of counsel for the purpose of his Rule 61 motion.
(0.1.19-1 at Entry No. 196)
5. In May 2014, petitioner's counsel filed in this proceeding a reply to the State's
motion to stay, opposing the stay and asserting that petitioner wishes counsel to
continue to represent him in the instant proceeding. (0.1. 16) Counsel also filed a
motion for partial summary judgment, asking this court to grant partial summary
judgment on ground one of the application and issue the writ of habeas corpus. (0.1.
16; 0.1. 17)
6. The court ordered the State to provide an update regarding petitioner's Rule
61 proceeding and an update on any Delaware state court ruling regarding the alleged
conflict of interest. (0.1. 18) In that same order, the court directed the State to refrain
from responding to petitioner's motion for partial summary judgment until ordered to do
so by the court. Id.
7. On May 28,2014, the State provided a written update to the court, stating
that the Rule 61 proceeding was still pending in the Delaware Superior Court and that
no resolution had been reached with respect to counsel's conflict of interest stemming
from counsel's continued representation of petitioner in his state court proceedings.
8. Standard of Review. As a general rule, a federal habeas court is only
authorized to stay a habeas proceeding if the habeas application contains both
exhausted and unexhausted claims (Le., a "mixed application"), and the petitioner's
ability to file a future habeas application after proper exhaustion in the state courts will
be clearly foreclosed by the expiration of AEDPA's one-year filing period. Rhines v.
Weber, 544 U.S. 269 (2005); Pliler v. Ford, 542 U.S. 225 (2004). However, the Third
Circuit has held that district courts may stay and abey applications containing only
unexhausted claims, where "(1) good cause exists for the petitioner's failure to exhaust
his claims; (2) the unexhausted claims are not plainly meritless; and (3) the petitioner
has not engaged in dilatory or abusive tactics." He/eva v. Brooks, 581 F.3d 187, 192
(3d Cir. 2009).
9. Discussion. The instant case does not fall within either of the
aforementioned scenarios because the application pending before the court is not a
mixed application, and it does not contain only unexhausted claims. Rather, all of the
claims in the application are either exhausted and reviewable under § 2254(d), or are
exhausted but procedurally defaulted. (0.1. 11 at 2-3; 0.1. 12 at 4-9) Nevertheless, the
State requests a stay because of the potential alleged conflict of interest created by the
fact that petitioner's counsel in this proceeding is the same counsel who represented
petitioner during his state criminal proceeding and direct appeal, and petitioner has filed
a pro se Rule 61 motion in the Delaware Superior Court alleging that this same attorney
provided ineffective assistance during his state criminal proceeding. (0.1. 11 at 2-3)
As the State explains, U(g]iven the substantial overlap between petitioner's ineffective
assistance of counsel claims (pending in his Rule 61 motion] and his constitutional
claims [presented in his federal habeas application]," "it is appropriate to stay
petitioner's habeas action while the conflict of interest generated by his unexhausted
allegations of ineffective assistance of counsel is resolved either by a ruling on that
conflict, or a ruling on the ineffective assistance claims themselves." (0.1. 11 at 21}6)
The State's motion implicitly acknowledges the possibility that, once petitioner's Rule 61
proceeding is decided, petitioner may wish to amend his habeas application to include
the ineffective assistance of counsel claims in his currently pending Rule 61 motion.
10. Petitioner's counsel opposes a stay and asserts that petitioner wants
counsel to continue representing him in this federal habeas proceeding. (D.1. 15)
Counsel contends that petitioner "enjoys the absolute right to proceed with his
constitutional claims in any manner he chooses within the confines of the rules of the
court and provisions of the statute. The State may not intrude or in any way influence
or oppress his strategy." (D.1. 15 at 3) Notably, neither petitioner nor his counsel have
filed anything in this court explicitly indicating petitioner's wishes regarding counsel's
continued representation of him in this proceeding. 1
11. The court now turns to the three factors to be considered in determining
whether to grant a stay. First, with respect to the potential merit of petitioner's
unexhausted ineffective assistance of counsel claims, the court finds significance in the
fact that the State does not allege that the claims are "plainly meritless." Although the
State does assert that the unexhausted claims may be time-barred under Rule 61 (i)(1),
that is an issue to be determined by the Delaware state courts. Given the possibility
that the issue of counsel's conflict of interest may affect the Superior Court's
determination of the timeliness of petitioner's pro se claims, the court cannot conclude
that those potentially time-barred claims are "plainly meritless" for the purposes of a
stay. See Neville v. Dretke, 423 F.3d 474, 479-80(5th Cir. 2005)(holding that
procedurally defaulted claims are "plainly meritless" for purposes of a stay).
1Counsel filed an affidavit titled "verified statement of informed consent" signed
by petitioner and stating that petitioner wishes counsel to continue representing him.
(D.1. 15-1) The affidavit is captioned for the Delaware Superior Court and clearly only
relates to petitioner's proceedings in that state court. Id. Therefore, the court does not
view the affidavit as indicating petitioner's intent regarding counsel's representation in
12. Similarly, two of the unexhausted ineffective assistance of counsel claims in
petitioner's pro se Rule 61 motion (0.1. 11 at Exh. 2) appear to allege that counsel was
ineffective for failing to raise two of the issues asserted in this case, namely, a double
jeopardy violation stemming from the Delaware Supreme Court's 2009 remand, and the
failure to give complete jury instructions. Petitioner also appears to assert the two
underlying substantive issues (double jeopardy and incomplete jury instructions) as
independent claims in his Rule 61 motion. Id. As noted by the State in its answer in
this proceeding, these two underlying substantive claims (double jeopardy and
incomplete jury instructions) were never presented to the Delaware state courts. (0.1.
12 at 4) Granting a stay in this case would allow the Delaware state courts to
determine if the two allegations of ineffective assistance related to these two underlying
claims have merit which, in turn, may result in the Delaware state courts reviewing the
merits of those underlying claims. Given these circumstances, the court has an
additional reason for finding that these two unexhausted ineffective assistance of
counsel claims are not plainly meritless.
13. Second, the record does not indicate, and the State does not allege, that
petitioner engaged in any intentionally dilatory tactics in bringing these claims in the
Delaware state courts. Again, the court notes that counsel's conflict of interest may
have been a factor in any such delay.
14. Finally, "[n]either the Supreme Court nor the Third Circuit has defined what
constitutes good cause within the stay and abey context." Swan v. Coupe, 967 F.
Supp. 2d 1008, 1012 (D. Del. 2013). However, after considering the unique
circumstances of this case, the court concludes that there is good cause for staying the
instant application. Significantly, if the court were to address the application at this
point in time, petitioner would be foreclosed from obtaining federal habeas review of the
ineffective assistance of counsel claims presently pending before the Delaware
Superior Court, either because those claims would be time-barred or considered
second or successive if presented in a subsequent federal habeas application. As
recently explained by the District Court for the Eastern District of Pennsylvania in an
almost identical situation,
[r]espondents want to ensure that petitioner is not effectively foreclosed from
obtaining federal habeas review of any ineffectiveness claims. Such a concern
is well founded where, as here, petitioner's habeas counsel and trial counsel are
one and the same. In other words, staying the instant petition rather than
addressing it at this time will eliminate any confusion arising from the fact that
petitioner's trial counsel represents him in the instant petition, and will ensure
that petitioner is not foreclosed from asserting trial ineffectiveness claims merely
because his trial counsel represents him during his habeas proceedings.
Gibison v. Kerestas, 2014 WL 1652200, at *3 (E.D. Pa. Apr. 24, 2014).
15. For all of these reasons, the court concludes that it is appropriate to stay the
instant matter pending a resolution of petitioner's counsel's conflict of interest or a
resolution in petitioner's post-conviction proceeding in the Delaware state courts.
However, the parties shall notify the court within thirty (30) days of any resolution of the
conflict of interest issue or within thirty (30) days of the final disposition of petitioner's
Rule 61 proceeding in the Delaware state courts, whichever occurs first. At that same
time, if appropriate, the parties shall also request that the stay of litigation be vacated.
16. In turn, the court will deny without prejudice to renew petitioner's motion for
partial summary judgment asking the court to grant partial summary judgment on
ground one of the application and issue the writ of habeas corpus. (0.1. 16) The court's
decision to stay the instant proceeding inevitably impacts the filing of dispositive
17. Conclusion. For the above reasons, the court will grant the State's motion
to stay the instant proceeding. The court will also deny without prejudice to renew
petitioner's motion for a partial summary judgment. A separate order shall issue. See
Fed. R. Civ. P. 58(a)("every judgment must be set out in a separate document").
UNITED STAT S DISTRICT JUDGE
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