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Philhower v. Metzger

United States District Court, D. Delaware

July 25, 2018


          Harold E. Philhower. Pro se Petitioner

          Katherine Joy Garrison, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware. Attorney for Respondents.



         Presently 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.

         I. BACKGROUND

         As set forth by the Delaware Supreme Court in Petitioner's direct appeal,

[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 *2.

         The 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)


         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). 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 pertinent part:

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).

         The 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 (1989).

         A 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).

         Federal 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.

         Alternatively, 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 ...

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