Harrell v. Metzger et al

Filing 3

MEMORANDUM re 1 Petition for Writ of Habeas Corpus. Signed by Judge Richard G. Andrews on 10/19/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COREY HARRELL,
Petitioner,
v.

Civil Action No. 17-1211-RGA

DANA METZGER, Warden, and
ATTORNEY GENERAL OF THE STATE
OF DELAWARE,
Respondents.

MEMORANDUM
Presently pending before the Court is Petitioner Corey Harrell's Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254. (D.I. 1) In March 2015, Petitioner was convicted
of second degree murder and possession of a firearm during the commission of a felony. (D.I. 1
at 1) Petitioner did not appeal that conviction. (D.I. 1 at 2) Petitioner filed the instant Petition
in August 2017 challenging his 2015 conviction. (D.I. 1 at 5-9) The Petition asserts that
Petitioner filed a Rule 61 motion in the Superior Court, which was denied, and that his postconviction appeal is still pending before the Delaware Supreme Court. (D.I 1 at 5, 8, 12)
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
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 Petitioner's statements about his pending post-conviction appeal, it plainly appears
that Petitioner has not yet exhausted state remedies. 1 Accordingly, the Court will summarily
dismiss Petitioner's § 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: OctoberJL, 2017

1

~JNAA~.~
uNiTEDSTATES DISTRICT JUDGE

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