Free Motion to Stay - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE _________________________________ : MICHAEL MANLEY, : CIVIL ACTION : Petitioner, : No. 1:07-CV-00472 : v. : THIS IS A CAPITAL CASE. CARL C. DANBERG, Commissioner, : Delaware Department of Correction; and : CHIEF JUDGE GREGORY M. SLEET THOMAS L. CARROLL, Warden, : Delaware Correctional Center at Smyrna, : Respondents : : : _________________________________ :

PETITIONER'S MOTION TO STAY THE FEDERAL PROCEEDINGS TO PERMIT PETITIONER TO EXHAUST CLAIMS IN STATE COURT Petitioner, Michael Manley, through undersigned counsel, hereby moves to hold these federal proceedings in abeyance. The Consolidated Petition for Writ of Habeas Corpus by a Prisoner in State Custody and Memorandum of Law contains claims that have not been exhausted in state court. As exhaustion is not futile, Petitioner requests that this Court issue an order staying the federal proceedings so that Petitioner can exhaust state remedies. In support of this motion, Petitioner states the following. 1. 2. This is a capital habeas corpus proceeding brought by a Delaware state prisoner. Following his conviction for first-degree murder and related counts, Petitioner was

sentenced to death on January 10, 1997, in the Superior Court for New Castle County, Delaware (No. IN95111232R3). Petitioner's convictions and sentence of death were affirmed by the Delaware Supreme Court on April 14, 1998. Manley v. State, 709 A.2d 643 (Del. 1998), cert. denied, Manley v. Delaware, 525 U.S. 893 (1998).

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3.

On January 25, 1999 Petitioner filed a Motion pursuant to Superior Court Criminal

Rule 61, for Post-Conviction Relief. On appeal from the denial of relief, the Delaware Supreme Court found the circumstances of the trial judge's request for assignment to Petitioner's case ­ after having presided over the suppression hearing in co-defendant Stevenson's criminal proceedings involving theft-related offenses in which the decedent testified ­ created an unacceptable risk of bias and required a new penalty hearing before a different judge. Manley v. State, 782 A.2d 249, 258-59 (Del. 2001). 4. On October 2, 2003, the Superior Court denied Petitioner's guilt-phase Rule 61

claims and his Motion to Preclude a New Sentencing Hearing. That decision was affirmed by the Delaware Supreme Court on April 7, 2004. Manley v. State, 846 A.2d 238 (Del. 2004). 5. Manley, Following the second penalty hearing, Petitioner was sentenced to death. State v. Criminal Action Numbers IN95111323R3; IN95111324R3; IN95111325R3;

IN95120684R3; IN95120685R3; IN95120686R3 (Del. Super. 2/3/06) (Sentencing Decision, Herlihy, J). The Delaware Supreme Court affirmed Petitioner's sentences on January 3, 2007. Manley v. State, 918 A.2d 321 (Del. 2007). The United States Supreme Court denied Petitioner's petition for a writ of certiorari on May 29, 2007. Manley v. Delaware, 6. U.S. , 127 S. Ct. 2885 (5/29/07).

On July 30, 2007, Petitioner filed a Motion for Appointment of Federal Habeas

Corpus Counsel under 21 U.S.C. § 848(q)(4), and Leave to Proceed In Forma Pauperis. 7. On August 14, 2007, the Court entered an Order: granting Petitioner's request to

proceed in forma pauperis, appointing undersigned counsel to represent Petitioner, and granting Petitioner 120 days to file his Petition for Writ of Habeas Corpus, or, on December 12, 2007.

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8.

On November 30, 2007, Petitioner requested an extension of time in which to file his

Petition for Writ of Habeas Corpus, which this Court granted. On January 22, 2008, Petitioner requested and was granted a second extension, until February 22, 2008, to file his habeas. 9. During the course of investigating, researching, and drafting the Consolidated Petition

and Memorandum, it has become apparent to counsel that there are a number of compelling claims for relief that have not been exhausted in the state courts. State remedies are available for the unexhausted claims under Delaware Superior Court Criminal Rule 61. Most of these claims have been raised in Petitioner's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61, and Consolidated Memorandum of Law which was filed in the Delaware Superior Court on January 25, 2008 (copy attached as an Appendix to the Habeas Petition), and counsel has advised Petitioner to seek to amend that Petition with the additional claims in the next thirty (30) days. See DE R SUPER CT RCRP Rule 61(b)(6). 10. Since state remedies are available, Petitioner must return to state court in order to

exhaust, unless Respondents waive the exhaustion requirement. See 28 U.S.C. § 2254(b)(1))A), (b)(3). Lovasz v. Vaughn, 134 F.3d 146, 148 (3d Cir. 1998) (federal courts should not "discourage petitioners from exhausting all their claims in state court"). Accord Lambert v. Blackwell, 134 F.3d 506, 517-19 (3d Cir. 1998); Doctor v. Walters, 96 F.3d 675, 681, 683 (3d Cir. 1996); Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993). 11. Assuming that Respondents do not wish to waive their exhaustion defense, this Court

should stay these proceedings pending exhaustion. This is the course of action approved by the

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Third Circuit in Crews v. Horn, 360 F.3d 146 (3d Cir. 2004).1 In light of the unique procedural posture of this case ( i.e., trial, conviction, sentencing, appeal, resentencing), as well as the likelihood that any state court proceedings will continue well beyond the statute of limitations deadline of May 29, 2008, a stay of the proceedings is the appropriate action. See Crews v. Horn, 360 F.3d 146, 14951 (3d Cir. 2004) (where outright dismissal "could jeopardize the timeliness of a collateral attack," is abuse of discretion not to offer opportunity to stay, rather than dismiss the petition). 12. Pursuant to D. Del. LR 7.1.1, Petitioner's counsel have contacted counsel for

Respondents, Deputy Attorney General Loren Myers, and left a message seeking agreement in this Motion. As of the time of filing, counsel has not yet heard back from Respondents on this request. Pursuant to D.Del. LR 16.4(b), counsel hereby certifies that a copy of this Motion has been sent to Petitioner.

See also, (attached as Exhibit A) Cox v. Beard, 2:05-cv-00427 (E.D.Pa.)(Judge Diamond) (Order 07/06/06) (Order staying proceedings to permit the petitioner to exhaust claims in state court PCRA proceedings); Chmiel v. Beard, 1:06-cv-02098) (M.D. Pa.) (Chief Judge Kane) (Order 07/16/07) (same); Taylor v. Beard, 2:06-cv-00028 (W.D. Pa.) (Chief Judge Ambrose) (Order 8/24/06) (same); Reid v. Beard, 3-CV-04-0258 (M.D. Pa.) (Judge Caputo) (Order 10/8/04) (same); Judge v. Beard, 2:02-cv-06798 (E.D. Pa.) (Judge Joyner) (Order 05/2004) (same); Johnson v. Beard, 2:03-cv-2156 (Judge Robreno) (Order 03/15/04) (same); Fears v. Beard, 2:05-cv-01421(Order 5/09/06) (same); Singley v. Beard, 4:06-cv- 00450 (M.D. Pa.) (Judge Jones) (Order 10/31/06) (same); Sepulveda v. Beard, 3:06-cv-00731 (M.D. Pa.) (Judge Vanaskie) (Order 12/6/06) (same); Randolph v. Beard, 1:06-cv-00901 (M.D.Pa.) (Judge Connor) (Order 2/8/07) (same); Dowling v. Beard, 3:06-cv-02085 (M.D. Pa.)(Judge Caputo) (Order 9/11/07) (same). 4

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WHEREFORE, Petitioner respectfully requests that this Court grant Petitioner's Motion to Stay These Federal Proceedings so that Petitioner's Counsel can Forthwith Exhaust Claims in State Court. A proposed order is attached.

Respectfully submitted,

Date: February 5, 2008

s/ Anne L. Saunders ANNE L. SAUNDERS, ESQUIRE Asst. Federal Public Defender Attorney ID #PA 48458 BETH ANN MUHLHAUSER, ESQUIRE , Asst. Federal Public Defender Attorney ID #PA 74181 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-3843 Fax No. (717) 782-3966 ([email protected]) ([email protected]) Attorneys for Michael Manley

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CERTIFICATE OF SERVICE

I, Beth A. Muhlhauser, of the Federal Public Defender's Office do hereby certify that on this date I served a copy of the foregoing by placing a copy in the United States mail, first class, in Harrisburg, Pennsylvania, addressed to the following: Loren C. Meyers, Esquire Deputy Attorney General 820 North French Street, 7th Floor Wilmington, DE 19801

Date: February 5, 2008

Respectfully submitted,

Beth Ann Muhlhauser BETH ANN MUHLHAUSER, ESQUIRE Asst. Federal Public Defender Attorney ID #PA 74181 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-3843 Fax. No. (717) 782-3966 Email: [email protected] Attorney for Michael Manley

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE ____________________________________ : MICHAEL MANLEY, : : Petitioner, : : : v. : : CARL C. DANBERG, Commissioner, : Delaware Department of Correction; and : THOMAS L. CARROLL, Warden, : Delaware Correctional Center at Smyrna, : : Respondents. : ____________________________________: ORDER And Now, this ___ day of February, 2008 upon consideration of Petitioner's Motion to Stay the Federal Proceedings to Permit Petitioner's Counsel to Forthwith Exhaust Claims in State Court, it is hereby ORDERED: 1. 2. Petitioner's Motion is GRANTED. Petitioner, Michael Manley's Consolidated Petition for Writ of Habeas Corpus by a Prisoner in State Custody and Memorandum of Law is STAYED pending exhaustion of state remedies of his unexhausted claims. Counsel are ordered to forthwith exhaust all claims in the state courts and notify the Court within thirty days of the final disposition of the state court litigation. CIVIL DOCKET: 1:07-CV-00472

CAPITAL HABEAS CHIEF JUDGE GREGORY M. SLEET

Electronically Filed

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____________________________ Gregory Sleet, USDJ