United States District Court, D. Delaware
Decided: April 15, 2013.
Gearl Flowers, petitioner, Pro se.
James T. Wakley, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, Counsel for respondents.
SUE L. ROBINSON, District Judge
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 P3 (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 mariner that permits those courts to consider the claim on its merits. O'Sullivan, 526 U.S. at 844-45; See Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Generally, a federal court will ...