Free Response to Habeas Petition - District Court of Delaware - Delaware

Case 1:07-cv-00200-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BRUCE L. WAPLES, Petitioner, v. RICHARD KEARNEY, 1 et al., Respondents. ) ) ) ) ) ) ) ) )

C.A.No. 07-200-GMS

ANSWER Pursuant to the Rules Governing § 2254 Actions, 28 U.S.C. foll. § 2254, Respondents state the following in response to the petition for writ of habeas corpus: Facts Bruce Waples was an inmate at the Sussex Violation of Probation Center. On October 30, 2006 at approximately 6:15 a.m., Correctional Officer Michael Megee ordered Waples to not sit on the sill of the side panel of the fire door. Rather than comply with Officer Megee's order, Waples referred to Officer Megee and other staff as a bunch of bitches. Officer Megee then ordered Waples to put on his boots for Instant Work Incentive and escorted him to the inside footprints located in the outside staging area. Waples rambled off at the mouth saying, "only while I'm in here." While Waples was standing on the footprints, Officer Megee ordered him two times to tie his boots for instant work incentive. Instead, Waples stood smiling and laughing at Officer Megee. Officer Megee then pulled his pepper spray and ordered Waples for a third time to tie his boots. When Waples refused to comply, Officer Megee sprayed Waples with pepper spray. Waples then punched Officer Megee in the mouth. Officer Megee then pushed

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Waples has been transferred to the Delaware Correctional Center and Warden Thomas Carroll should therefore be substituted as named Respondent.

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Waples away, and Waples struck Officer Megee in the mouth for the second time, causing Megee to fall into a table and then onto the floor. Procedural History On October 30, 2006, correctional officers arrested Bruce L. Waples. (D.I. 1). 2 On November 13, 2006, the grand jury indicted Waples on the charge of Assault in a Detention Facility (11 Del. C. § 1254). (D.I. 2). A jury trial began in Superior Court on February 28, 2007. (D.I. 19). On March 1, 2007, Waples was convicted of the charged offense, and Superior Court immediately sentenced him to 4 years at level V (imprisonment), suspended after 2 years imprisonment for decreasing levels of supervision. (D.I. 22). Waples appeal of his conviction is presently pending in the Delaware Supreme Court. Argument Waples presented three claims for relief in his original petition: 1) insufficient evidence to support his conviction; 2) ineffective assistance of counsel based on counsel's failure to move for judgment of acquittal; and 3) ineffective assistance of counsel for failure to investigate. (D.I. 1). In an amendment filed May 29, Waples repeated those three claims and added four claims: the instruction defining reasonable doubt was defective; the prosecutor's closing argument made the trial unfair; the prosecution introduced hearsay statements; and the prosecution failed to disclose exculpatory evidence to the defense. (D.I. 5). On June 20, 2007, Waples filed an amended petition in which he alleged an additional claim: that the prosecution offered false testimony. (D.I. 11). A state prisoner seeking federal habeas relief must first exhaust remedies available in the state courts. 28 U.S.C. § 2254(b); Castille v. Peoples, 489 U.S. 346, 351 (1989). In order to demonstrate that a claim has been "exhausted" in state court, a petitioner must show that he
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"D.I." references in this section are to the Superior Court's docket items (ID No. 0610029325).

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presented each claim to the Delaware Supreme Court. Bailey v. Snyder, 855 F.Supp. 1392, 1399 (D. Del. 1993). The habeas petitioner must afford each level of the state courts a fair opportunity to address the claims. Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 1993). Waples has not presented his claims to the Delaware Supreme Court, and thus he has failed to exhaust his state remedies. See Rose v. Lundy, 455 U.S. 509 (1982); Smith v. Digmon, 434 U.S. 332 (1978). Ordinarily, a failure to exhaust state remedies results in dismissal so that the petitioner may exhaust state remedies. Rose, 455 U.S. at 510. If however, there is no available state remedy, the prisoner is excused from the exhaustion requirement. See Teague v. Lane, 489 U.S. 288, 298 (1989). Waples has filed an appeal of the Superior Court conviction and sentence to the Delaware Supreme Court. Waples thus has an available state remedy through a direct appeal which can be used to present all of his claims, except those alleging ineffective assistance of counsel, to the Delaware Supreme Court. See Pringle v. Carroll, 2006 WL 1319545, at *2 (D. Del. May 15, 2006); Norword v. Kearney, 2002 WL 1998360, at *2 (D. Del. Aug. 12, 2002). If Waples' conviction is affirmed on direct appeal, he then can still present his claims of ineffective assistance of counsel to the state courts in a motion for post-conviction relief under Criminal Rule 61. See, e.g., Flamer v. State, 585 A.2d 736, 753 (Del. 1990). Because all of Waples' claims are unexhausted, the petition must be dismissed. 3 Transcripts of Waples' trial on February 28-March 1, 2007 have been prepared. Transcripts of the January 19, 2007 hearing regarding Waples' motion to compel have been prepared. Transcripts of the December 8, 2006 VOP hearing have been prepared. In the event that the Court deems production of these transcript necessary, Respondents anticipate that production of such transcript would require 90 days from the date an order by this Court. For the
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Because the limitations period for filing a federal habeas petition has not begun to run, see 28 U.S.C. § 224(d)(1), there is no basis for staying the instant proceedings while Waples exhausts state remedies. See generally, Rhines v. Weber, 544 U.S. 269 (2005); Pringle, 2006 WL 1319545 at *2 n.3.

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foregoing reasons, the petition for a writ of habeas corpus should be dismissed without further proceedings. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/_Gregory E. Smith___________ Gregory E. Smith, I.D. No. 3869 Deputy Attorney General 820 North French Street, 7th Floor Carvel State Building Wilmington, Delaware 19801 (302) 577-8398

Dated: July 5, 2007

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CERTIFICATION OF SERVICE The undersigned certifies that on July 5, 2007, he electronically filed the attached Answer with the Clerk of Court using CM/ECF. The undersigned further certifies that on July 5, 2007 that he mailed by United States Postal Service the document(s) to the following non-registered participant:

Bruce L. Waples SBI No. 00170369 Delaware Correctional Center 1181 Paddock Road Smyrna, Delaware 19977

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/_Gregory E. Smith__________ Gregory E. Smith, ID # 3869 Deputy Attorney General 820 North French Street, 7th Floor Carvel State Building Wilmington, Delaware 19801 (302) 577-8398