Albert James Brown Pro se petitioner.
Elizabeth R. McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware. Counsel for respondents.
SUE L. ROBINSON, District Judge.
Petitioner Albert James Brown ("petitioner") is a Delaware inmate in custody at the Sussex Correctional Institution in Georgetown, Delaware. Presently before the court is petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (D.I. 2; D.I. 7) For the reasons that follow, the court will dismiss his application.
II FACTUAL AND PROCEDURAL BACKGROUND
As set forth by the Delaware Supreme Court in petitioner's post-conviction appeal:
[O]n the afternoon of March 20, 2007, Wilmington police officer Todd Riley was conducting surveillance using binoculars from an elevated position on Jefferson Street. In a half-hour period, Riley twice observed [petitioner], who carried a cane, cross the street, retrieve a small package from a plastic bag lying on the ground and return to the other side of the street, where he handed the small package to an unknown individual in exchange for another object. A short while later, Riley saw [petitioner] cross the street a third time, remove an object from the plastic bag and continue walking down the block. Riley called for other officers to apprehend Brown. Riley retrieved the larger plastic bag that [petitioner] had left on the street. Inside were smaller zip lock bags, which were described in the police report (written by a different officer) as "pink-tinted" bags. The contents of the bags field tested positive for crack cocaine. The responding officers arrested [petitioner] and found $159 in his pockets.
Brown v. State, 3 A.3d 1096 (Table), 2010 WL 3222418 (Del. Aug. 16, 2010).
In April 2007, petitioner was charged by indictment with one count each of possession with the intent to deliver cocaine, distributing cocaine within 300 feet of a park, and possession of drug paraphernalia. A Superior Court jury convicted petitioner of possession with intent to deliver cocaine and possession of drug paraphernalia, and acquitted him of distribution within 300 feet of a park. See Brown v. State, 963 A.2d 138 (Table), 2008 WL 5308097 (Del. Dec. 22, 2008). Petitioner was sentenced to a total period of eleven years at Level V incarceration, to be suspended after serving five years in prison for decreasing levels of supervision. Id. The Delaware Supreme Court affirmed petitioner's convictions and sentences on direct appeal. See Brown v. State, 963 A.2d 138 (Table), 2008 WL 5308097 (Del. Dec. 22, 2008).
In February 2009, petitioner filed a motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion"), asserting, among other issues, ineffective assistance of counsel. Petitioner's trial counsel filed an affidavit in response to petitioner's allegations, and the State filed its response to petitioner's motion. The Superior Court denied petitioner's Rule 61 motion after determining that twelve claims were procedurally barred and the ineffective assistance of counsel claims lacked merit. (0.1. 19, State v. Brown, Crim. A. 10 No. 0703022100, Mem. Op., Herlihy, J. (Del. Super. Jan. 13, 2010)). The Delaware Supreme Court affirmed that judgment. Brown, 2010 WL 3222418.
Petitioner timely filed a § 2254 application in this court, and then filed an amended application. (D.I. 2; D.I. 7) The State filed an answer (D.I. 17), arguing that the claims either fail to warrant relief under § 2254(d) or that they should be denied as procedurally barred.
III. GOVERNING LEGAL PRINCIPLES
A. Exhaustion and Procedural Default
A federal court may consider a habeas petition filed by a state prisoner 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). One prerequisite to federal habeas review is that a petitioner must exhaust all remedies available in the state courts. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). 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 ...