Swan v. Coupe

Decided: September 4, 2013.

Page 1009

Edson A. Bostic and Karl D. Schwartz, Federal Public Defender's Office, Wilmington, Delaware; Herbert Mondros, Margolis Edelstein, Wilmington, Delaware, Counsel for Petitioner.

Gregory E. Smith and Paul R. Wallace, Delaware Department of Justice, Wilmington, Delaware; Maria T. Knoll, Attorney General's Office, Wilmington, Delaware, Counsel for Respondents.

OPINION

Page 1010

MEMORANDUM OPINION

Sue L. ROBINSON, District Judge.

I. INTRODUCTION

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). ^[2] 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, 124 S.Ct. 252, 157 L.Ed.2d 174 (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, 182 L.Ed.2d 629 (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 ...