Sells v. Pierce

Filing 4

MEMORANDUM. Signed by Judge Gregory M. Sleet on 12/28/2016. (lmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
WILLIAMS. SELLS,

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Petitioner,

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v.
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DAVID PIERCE, Warden, and
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ATTORNEY GENERAL OF THE STATE )
OF DELA WARE,
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Respondents.
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Civil Action No. 16-505-GMS

MEMORANDUM

DISTRICT OF DELAWARE

Presently pending before the Court is petitioner William Sells' petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (DJ. 1) In July 2015, Sells was convicted of first
degree robbery, second degree conspiracy, possession of a firearm during the commission of a
felony, and second degree assault. (DJ. 1 at 1) The Delaware Supreme Court affirmed his
convictions on January 29, 2015. 1 See Sells v. State, No. 429,201, Cr. ID No. 1108023648
Opinion (Del. Jan. 29, 2015). Petitioner's instant petition asserts two ineffective assistance of
counsel claims. (DJ. 1 at 7, 5) However, the petition also contains Sells' statement that he still
has a post-conviction motion pending before the Delaware Superior Court. Id.
A federal district court may summarily dismiss a habeas petition "if it plainly appears
from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to
relief." Rule 4, 28 U.S.C. foll. § 2254. A petitioner is not entitled to federal habeas relief unless

1

Petitioner does not explicitly mention his direct appeal. However, the petition identifies the
relevant Delaware criminal case as 1108023648 (DJ. 1at1), which is the same criminal ID
number identified in caption of the Delaware Supreme Court's opinion on the Delaware State
Courts' website.

he has exhausted state remedies for his habeas claims by "fairly presenting" the substance of the
claims to the state's highest court, either on direct appeal or in a post-conviction proceeding, and
in a procedural manner permitting the state courts to consider them on the merits. See 28 U.S.C.
§ 2254(b)(l)(A); Duncan v. Henry, 513 U.S. 364, 365 (1995); Lambert v. Blackwell, 134 F.3d
506, 513 (3d Cir. 1997).
Given Sells' statement about his pending post-conviction motion, it plainly appears that
he has not yet exhausted state remedies.2 Accordingly, the court will summarily dismiss Sells' §
2254 petition without prejudice. The court will also decline to issue a certificate of appealability
because petitioner has failed to make a "substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2); 3d Cir. L.A.R. 22.2 (2011); United States v. Eyer, 113 F.3d 470
(3d Cir. 1997). A separate order follows.

Dated: December_h, 2016

2Habeas

petitions filed pursuant to 28 U.S.C. § 2254 must be filed within a one-year limitations
period. Sells is responsible for determining the events that trigger and toll the limitations period.
2