RALPH E. SWAN, Petitioner,
ROBERT M. COUPE, Commissioner, Delaware Department of Correction, and PERRY PHELPS, Warden, James T. Vaughn Correctional Center, Respondents.
Edson A. Bostic and Karl D. Schwartz, Federal Public Defender's Office, Wilmington, Delaware, and Herbert Mondros, Margolis Edelstein, Wilmington, Delaware. Counsel for Petitioner.
Gregory E. Smith and Paul R. Wallace, Delaware Department of Justice, Wilmington, Delaware, and Maria T. Knoll, Attorney General's Office, Wilmington, Delaware. Counsel for Respondents.
SUE ROBINSON, District Judge.
Petitioner Ralph E. Swan ("petitioner"), a Delaware inmate in custody at the James T. Vaughn Correctional Center, Smyrna, Delaware, filed an amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 11) The amended application contains both exhausted and unexhausted claims. Pending before the court is a request made in petitioner's reply brief that the court stay and abey these proceedings so that he can return to state court and exhaust his unexhausted claims. (D.I. 24 at 26-35) For the reasons that follow, the court will grant petitioner's request.
II. FACTUAL AND PROCEDURAL BACKGROUND
On June 30, 2001, a jury of the Superior Court of Kent County, Delaware ("Superior Court") found petitioner guilty of capital murder (D.I. 56), and on July 6, 2001, the jury recommended, by a 7 to 5 vote, that he be sentenced to death. (D.I. 57) On August 13, 2001, petitioner filed a motion for a new trial, and on August 27, 2001, the motion was denied. (D.I. 67) The Superior Court then sentenced petitioner to death. State v. Norcross and Swan, 2001 WL 1223198 (Del. Super. Oct. 3, 2001).Petitioner appealed, and on April 9, 2003, the Delaware Supreme Court affirmed his convictions and sentences. Swan v. State, 820 A.2d 342 (Del. 2003), cert. denied, 540 U.S. 896 (2003).
On January 3, 2006, petitioner filed a second motion for a new trial, as well as a motion for post-conviction relief. (D.I. 136, 137) On April 8, 2010, the Superior Court denied both motions (D.I. 236), and petitioner appealed. On September 6, 2011, the Delaware Supreme Court affirmed the Superior Court's judgment. Swan v. State, 28 A.3d 362 (Del. 2011), cert. denied, 132 S.Ct. 1807 (2012).
On September 27, 2011, petitioner filed an application for a writ of habeas corpus, and on January 24, 2012, he filed an amended application. (D.I. 3, 11) On May 24, 2012, respondents filed an answer (D. I. 15) in which they contended that the application should be dismissed because it contained both exhausted and unexhausted claims. On September 24, 2012, petitioner filed a reply (D. I. 24) in which he asked the court to stay these proceedings and allow him to return to state court to exhaust his unexhausted claims. The court has received additional briefing on this issue. (D.I. 26, 27)
III. GOVERNING LEGAL PRINCIPLES
A federal district court can entertain a state prisoner's application for a writ of habeas corpus only "on the ground that he is in custody in violation of 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 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971). A petitioner satisfies the exhaustion requirement by "fairly presenting" the substance of the federal habeas claim 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 it on the 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 dismiss a habeas application consisting entirely of unexhausted claims without prejudice 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 court with a mixed petition, which is an application containing both exhausted and unexhausted claims. See generally Rose v. Lundy, 455 U.S. 509, 510 (1982). When this happens, the court has three options: (1) it can dismiss the entire application without prejudice in order to enable the petitioner to return to state court to exhaust state remedies; (2) it can delete the unexhausted claims from the application so that the habeas proceeding can continue with only the remaining exhausted claims; and (3) in limited circumstances, it can stay the mixed application and hold the case in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. See Urcinoli v. Cathel, 546 F.3d 269, 274 (3d Cir. 2008); Buchanan v. Johnson, 723 F.Supp.2d 722, 724-25 (D. Del. 2010).
The stay and abey option was crafted in response to a problem resulting from the interplay between the total exhaustion requirement of Lundy and the one-year statute of limitations for filing applications for federal habeas corpus. See 28 U.S.C. § 2244(d). If a federal court dismisses an inmate's mixed application in order to allow him to return to state court to exhaust his unexhausted claims, the AEDPA's one-year statute of limitations for filing an application for a writ of habeas corpus could bar review of his entire habeas application when he refiled it in federal court. Rhines v. Weber, 544 U.S. 269, 275 (2005).
The Supreme Court in Rhines noted that "[N]ot all petitioners have an incentive to obtain federal relief as quickly as possible. In particular, capital habeas petitioners might deliberately engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence of death." 544 U.S. at 278. Accordingly, it held that even if a petitioner faces a substantial risk of statute of limitations problems if his mixed application is dismissed, a district court should grant a stay only if he can also establish that: (1) he had good cause for failing to exhaust all ...