United States District Court, D. Delaware
HAROLD E. PHILHOWER, Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
E. Philhower. Pro se Petitioner
Katherine Joy Garrison, Deputy Attorney General of the
Delaware Department of Justice, Wilmington, Delaware.
Attorney for Respondents.
ANDREWS, UNITED STATES DISTRICT JUDGE.
pending before the Court is Petitioner Harold E.
Philhower's Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 ("Petition").
(D.I. 3; D.I. 22) The State filed an Answer in opposition,
contending that the Petition should be dismissed in its
entirety. (D.I. 27) For the reasons discussed, the Court will
dismiss the Petition.
forth by the Delaware Supreme Court in Petitioner's
[t]he trial transcript reflects that the State introduced
into evidence a redacted recording of [Petitioner's]
statement to the police on October 6, 2014. During that
statement, [Petitioner] admitted receiving three or four nude
pictures on his telephone from the then thirteen-year-old
victim. During the same interview, [Petitioner] also
confessed to engaging in one incident of oral sex with the
victim. After [Petitioner's] statement was introduced at
trial through the testimony of the investigating officer, the
victim testified that she had sent [Petitioner] three nude
photographs of herself at [Petitioner's] request. She
testified that, after she sent the photographs, [Petitioner]
acknowledged looking at them. The victim also testified about
an incident during which [Petitioner] pulled down her pants
and performed oral sex on her. [Petitioner] testified at
trial and denied the allegations.
Philhower v. State, 150 A.3d 777 (Table), 2016 WL
6407472 (Del. Oct. 28, 2016). On January 29, 2016, a Delaware
Superior Court jury found Petitioner guilty of third degree
rape (as a lesser-included offense of second degree rape) and
three counts of dealing in child pornography. (D.I. 16-1 at
344-50) The Superior Court sentenced him on May 25, 2016 to
an aggregate of one hundred years of Level V incarceration,
suspended after eight years, for three years of Level III
probation. (D.I. 16-1 at 374-377) Petitioner appealed, and
the Delaware Supreme Court affirmed his convictions on
October 28, 2016. See Philhower, 2016 WL 6407472 at
instant Petition originally asserted four claims for relief.
(D.I. 3) The State filed a Motion to Dismiss the Petition
without prejudice because two of the claims raised therein
were unexhausted. (D.I. 12) The Court issued a Memorandum
Opinion concluding that two claims identified by the State
were unexhausted, but provided Petitioner with an opportunity
to withdraw the unexhausted claims before dismissing his
Petition. (D.I. 20 at 5) Petitioner opted to withdraw the
unexhausted claims and proceed with the remaining two claims.
(D.I. 22) The State filed an Answer asserting that the Court
should deny the remaining claims as non-cognizable or as
meritless under § 2254(d). (D.I. 27) Petitioner filed a
Response in opposition. (D.I. 30)
GOVERNING LEGAL PRINCIPLES
Exhaustion and Procedural Default
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). Absent
exceptional circumstances, a federal court cannot grant
habeas relief for a claim challenging the validity of the
petitioner's state custody unless the petitioner has
exhausted all means of available relief under state law.
See 28 U.S.C. § 2254(b); O'Sullivan v.
Boerckel, 526 U.S. 838, 842-44 (1999); Picard v.
Connor, 404 U.S. 270, 275 (1971). The AEDPA states, in
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that -
(A) the applicant has exhausted the remedies available in the
courts of the State; or (B)(i) there is an absence of
available State corrective process; or
(ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
exhaustion requirement is based on principles of comity,
requiring a petitioner to give "state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process." O'Sullivan, 526 U.S. at
844-45; see Werts v. Vaughn, 228 F.3d 178, 192 (3d
Cir. 2000). A petitioner satisfies the exhaustion requirement
by demonstrating that the habeas claims were "fairly
presented" to the state's highest court, either on
direct appeal or in a post-conviction proceeding, in a
procedural manner permitting the court to consider the claims
on their merits. Bell v. Cone, 543 U.S. 447, 451 n.3
(2005); Castille v. Peoples, 489 U.S. 346, 351
petitioner's failure to exhaust state remedies will be
excused if state procedural rules preclude him from seeking
further relief in state courts. See Lines v.
Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Teague v.
Lane, 489 U.S. 288, 297-98 (1989). Although treated as
technically exhausted, such claims are nonetheless
procedurally defaulted. See Lines, 208 F.3d at 160;
Coleman v. Thompson, 501 U.S. 722, 750-51 (1991).
Similarly, if a petitioner presents a habeas claim to the
state's highest court, but that court "clearly and
expressly" refuses to review the merits of the claim due
to an independent and adequate state procedural rule, the
claim is exhausted but procedurally defaulted. See
Coleman, 501 U.S. at 750; Harris v. Reed, 489
U.S. 255, 260-64(1989).
courts may not consider the merits of procedurally defaulted
claims unless the petitioner demonstrates either cause for
the procedural default and actual prejudice resulting
therefrom, or that a fundamental miscarriage of justice will
result if the court does not review the claims. See
McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999);
Coleman, 501 U.S. at 750-51. To demonstrate cause
for a procedural default, a petitioner must show that
"some objective factor external to the defense impeded
counsel's efforts to comply with the State's
procedural rule." Murray v. Carrier, 477 U.S.
478, 488 (1986). To demonstrate actual prejudice, a
petitioner must show "that (the errors at trial] worked
to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimensions."
Id. at 494.
a federal court may excuse a procedural default if the
petitioner demonstrates that failure to review the claim will
result in a fundamental miscarriage of justice. See
Edwards v. Carpenter,529 U.S. 446, 451 (2000);
Wenger v. Frank,266 F.3d 218, 224 (3d Cir. 2001). A
petitioner demonstrates a miscarriage of justice by showing a
"constitutional violation has probably resulted in the
conviction of one who is actually innocent."
Murray, 477 U.S. at 496. Actual innocence means
factual innocence, not legal insufficiency. See Bousley
v. United States,523 U.S. 614, 623 (1998). In order to
establish actual innocence, the petitioner must present new
reliable evidence - not presented at trial - that
demonstrates "it is more likely than not that no