Flowers v. Morgan

940 F. Supp. 2d 136, 2013 WL 1700922, 2013 U.S. Dist. LEXIS 54133
CourtDistrict Court, D. Delaware
DecidedApril 15, 2013
DocketCivil Action No. 12-1121-SLR
StatusPublished
Cited by2 cases

This text of 940 F. Supp. 2d 136 (Flowers v. Morgan) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flowers v. Morgan, 940 F. Supp. 2d 136, 2013 WL 1700922, 2013 U.S. Dist. LEXIS 54133 (D. Del. 2013).

Opinion

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Petitioner Gearl Flowers (“petitioner”) is a Delaware inmate in custody at the Howard R. Young Correctional Institution in Wilmington, Delaware. Presently before the court is petitioner’s application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (D.I. 1), and the State’s motion to dismiss the application without prejudice for failure to exhaust state remedies. For the reasons that follow, the court concludes that petitioner has presented a mixed application containing both exhausted and unexhausted claims. However, the court will withhold a decision on the State’s motion to dismiss until petitioner informs the court if he wishes to withdraw the unexhausted claims and proceed only with the exhausted claims, or if he wishes to have the entire application dismissed without prejudice in order to provide him with an opportunity to exhaust state remedies and proceed with all exhausted claims at a later date.

II. PROCEDURAL BACKGROUND

In January 2011, a Superior Court jury found petitioner guilty of third degree burglary and theft. (D.I. 12) In January 2012, the Superior Court sentenced petitioner to an aggregate of four years at Level V incarceration, suspended after two and one-half years for a period of probation. Id. The Delaware Supreme Court affirmed petitioner’s convictions on September 12, 2012. Flowers v. State, 53 A.3d 301 (Table), 2012 WL 3865134, at ¶ 3 (Del. Sept. 5, 2012).

Petitioner filed the instant federal habeas application on September 12, 2012. (D.I. 1) The State has filed motion to dismiss asking the court to dismiss the application without prejudice because it contains both exhausted and unexhausted claims. (D.I. 12)

III.GOVERNING LEGAL PRINCIPLES

A district court can entertain a state prisoner’s application for federal habeas relief only on the ground that his custody violates the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). Absent exceptional circumstances, a federal court cannot review a habeas application on the merits unless the petitioner has exhausted his remedies under state law. 28 U.S.C. § 2254(b); O’Sullivan v. Boerckel, 526 U.S. 838, 842-46, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). A petitioner satisfies the exhaustion requirement by fairly presenting his claim to the state’s highest court, either on direct appeal or in a post-conviction proceeding, in a manner that permits those courts to consider the claim on its merits. O’Sullivan, 526 U.S. at 844-45, 119 S.Ct. 1728; See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997). Generally, a federal court will dismiss without prejudice a habeas application consisting entirely of unexhausted claims in order to give a petitioner an opportunity to present the unexhausted claims to the state courts. Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir.2000).

Sometimes a petitioner will present a federal district court with a mixed application, which is an application containing both exhausted and unexhausted habeas claims. See generally Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). As a general rule, when a petition[139]*139er presents a district court with a mixed application, and the operation of the federal limitations period will not clearly foreclose a future collateral attack, the district court must dismiss the entire application without prejudice to permit exhaustion of state remedies for the unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004); Rose, 455 U.S. at 510, 522, 102 S.Ct. 1198; Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997). However, in Urcinoli v. Cathel, 546 F.3d 269, 275-77. 277 n. 9 (3d Cir.2008), the Third Circuit explained that, prior to dismissing a mixed application, it would be "good practice" for a district, court to provide the petitioner with a choice of three procedural options for proceeding with his mixed application. The three alternatives include: (1) dismissal of the application without prejudice in order to enable the petitioner to return to state court to exhaust state remedies; (2) deletion of the unexhausted claims from the application so that the habeas proceeding would continue with only the remaining exhausted claims; and (3) in limited circumstances, staying the mixed application and holding the case in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. Id. at 273-74. The language in the Urcinoli decision suggests that a district court should inform a petitioner of these options before deciding to dismiss the application without prejudice even when the operation of the AEDPA one-year period will not clearly foreclose a future collateral attack. Id. at 277 n. 9.

IV. DISCUSSION

Petitioner’s application asserts four grounds for relief: (1) he was deprived of a fair trial because he was not afforded peremptory challenges as guaranteed by Delaware law; (2) defense counsel rendered ineffective assistance by failing to exercise any peremptory challenges; (3) the Delaware Superior Court judge presiding over petitioner’s case was biased against him; and (4) he was improperly denied his right to appellate counsel.

The State asserts that petitioner has exhausted state remedies for claims one and three, because he presented these claims to the Delaware Supreme Court on direct appeal. In addition, the State explains that, while petitioner has not exhausted state remedies for claims two and four, he is presently in the process of exhausting state remedies for these claims via a properly filed Rule 61 motion for post-conviction relief that was filed in the Superior Court in August 2011. The record supports all of the State’s contentions and, as of the date of this opinion, it appears that the Rule 61 motion is still pending before the Superior Court.

Based on the foregoing, the court concludes that petitioner has filed a mixed application containing both exhausted and unexhausted claims, Rhines, 544 U.S. at 273-79, 125 S.Ct. 1528.

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Bluebook (online)
940 F. Supp. 2d 136, 2013 WL 1700922, 2013 U.S. Dist. LEXIS 54133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flowers-v-morgan-ded-2013.