United States District Court, D. Delaware
HAROLD E. PHILHOWER, Petitioner,
DAVID PIERCE, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
E. Philhower. Pro se Petitioner.
Knoll, Deputy Attorney General of the Delaware Department of
Justice, Wilmington, Delaware. Attorney for Respondents.
ANDREWS UNITED STATES DISTRICT JUDGE.
before the Court is a Petition for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 ("Petition")
filed by Petitioner Harold E. Philhower
("Petitioner"). (D.I. 3) The State filed a Motion
to Dismiss without prejudice to allow Petitioner to exhaust
state remedies in state court. (D.I. 12-1) For the reasons
discussed, the Court will provide Petitioner with an
opportunity to withdraw his two unexhausted ineffective
assistance of counsel claims. If Petitioner fails to choose
this option, the Court will dismiss his Petition without
prejudice for failure to exhaust state remedies.
January 2016, a Delaware Superior Court jury convicted
Petitioner of third degree rape (as a lesser included offense
of second degree rape) and three counts of dealing in child
pornography. (D.I. 12-1 at 1) The Superior Court sentenced
him to an aggregate of 100 years of Level V incarceration,
suspended after eight years for three years of Level III
probation. Id. The Delaware Supreme Court affirmed
Petitioner's conviction on October 28, 2016. See
Philhower v. State, 150 A.3d 777 (Table), 2016 WL
6407472 (Del. Oct. 28, 2016).
November 17, 2016, Petitioner filed a federal habeas Petition
asserting four Claims, two of which allege ineffective
assistance of counsel (Claims Three and Four). (D.I. 3 at
8-11) In response, the State filed a Motion to Dismiss the
Petition without prejudice, because Petitioner had not filed
in the Superior Court a Rule 61 motion asserting the
ineffective assistance of counsel claims. (D.I. 12-1)
Petitioner filed a Response, arguing that he is not
procedurally barred from presenting Claims Three and Four to
the Court at this point in time. (D.I. 17)
GOVERNING LEGAL PRINCIPLES
district court can entertain a state prisoner's petition
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
petition 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, 842-44
(1999); Picardv. Connor, 404 U.S. 270, 275 (1971). A
petitioner satisfies the exhaustion requirement by presenting
his claim to the state's highest court, either on direct
appeal or in a post-conviction proceeding. 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 without prejudice a habeas
petition consisting entirely of unexhausted claims in order
to give a petitioner an opportunity to present the
unexhausted claim to the state courts. Lines v.
Larkins, 208 F.3d 153, 159-60 (3d Cir. 2000).
a petitioner will present a federal district court with a
mixed petition, which is a petition containing both exhausted
and unexhausted habeas claims. See generally Rose v.
Lundy, 455 U.S. 509 (1982). When a petitioner presents a
district court with a mixed petition, 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 (2005); Pliler v. Ford, 542
U.S. 225 (2004); Rose, 455 U.S. at 510, 522;
Lambert, 134 F.3d at 513.
instant Petition asserts a total of four Claims: (1) the
State failed to establish the corpus delecti
independent of his statement; (2) the trial court failed to
include a corpus delecti jury instruction; (3) trial
counsel provided ineffective assistance by failing to obtain
resolution of pretrial motions; and (4) trial counsel
provided ineffective assistance by failing to challenge the
credibility and admissibility of the victim's statement
and testimony. (D.L 3) The State asserts, and the record
reveals, that Petitioner presented Claims One and Two to the
Delaware Supreme Court on direct appeal. (D.I. 12-1 at 2;
D.I. 15-4 at 1-5) The State also asserts that Petitioner has
not presented Claims Three and Four to any Delaware state
court, because he has not filed a Rule 61 motion raising
these Claims. (D.I. 12-1 at 2; D.I. 15-4 at 1-5)
these circumstances, the Court concludes that Petitioner has
exhausted state remedies for Claims One and Two. However,
Claims Three and Four will not be exhausted until Petitioner
presents them to the Delaware Superior Court in a motion for
post-conviction relief under Delaware Superior Court Criminal
Rule 61, and then appeals any adverse decision to the
Delaware Supreme Court. See Pringle v. Carroll, 2006
WL 1319545, at *2 (D. Del. May 15, 2006).
on this record, the Court concludes that the instant Petition
is a mixed petition containing both exhausted and unexhausted
claims. At this point, Petitioner has until November 18, 2017
to exhaust his state remedies for Claims Three and Four by
filing a Rule 61 motion. (D.I. 12-1 at 4) In turn,
AEDPA's one-year limitations period will not expire until
late January 2018. (D.I. 12-1 at 4); see Kapral v. United
States,166 F.3d 565, 575, 578 (3d Cir. l999)(when a
petitioner does not pursue certiorari review in the United
States Supreme Court, his judgment of conviction does not
become final until the expiration of the 90 day period for
seeking such review). Consequently, dismissing the Petition
without prejudice will not jeopardize the
timeliness of a future habeas petition, provided Petitioner
diligently pursues state remedies and pays attention to the
one-year statute of limitations period applicable to federal
habeas petitions.The Court also notes that a stay of
the instant proceeding is not warranted, because AEDPA's
one year limitations period is not close to expiring.
See 28 U.S.C. 2244(d)(1); see generally