Opinion
ID # 0003016874 No. 677, 2014
05-29-2015
RE: State v. Milton E. Taylor
FRED S. SILVERMAN JUDGE Herbert W. Mondros, Esquire
Margolis Edelstein
300 Delaware Avenue, Suite 800
Wilmington, DE 19801 Elizabeth R. McFarlan, Esquire
Department of Justice
820 N. French Street
Wilmington, DE 19801 Dear Counsel:
In many ways this is a first. Indirectly, the Supreme Court of Delaware has called for the court to touch-on the so-called "stay-and-abeyance" procedure used by the federal courts in capital litigation. In the process, this court must comment on its authority to consider successive postconviction relief proceedings while under a federal court stay. Finally, the court must opine about whether an order here is interlocutory, making it not subject to review under the Delaware Constitution.
After the Supreme Court of Delaware affirmed the denial of Defendant's first motion for postconviction relief, the court set a new execution date. On February 10, 2012, Defendant obtained a stay of execution in the United States District Court for the District of Delaware. That stay is in force.
Taylor v. State, 32 A.3d 374 (Del. 2011).
Super. Ct. Crim. Rule 61(l)(6); Admin. Directive No. 131 (Del. July 11, 2001).
Ostensibly, the stay of execution was issued to enable the federal court to consider in a deliberative way Defendant's petition for a writ of habeas corpus. It appears, however, the stay was merely a procedural gambit by the federal court to enable Defendant to pursue a second petition for postconviction relief in state court.
This device, where a federal court uses its authority in order to force state court litigation in derogation of the state's sovereignty, is called "stay and abeyance." In other words, the federal court is staying a state court's order, but holding-off actual litigation in federal court. In effect, the federal court has remanded the case while retaining jurisdiction, but this court is not part of the federal judiciary.
In any event, after the federal habeas proceeding had been held in abeyance for 33 months, in November 2014 Defendant asked for permission to file a 200-page motion for postconviction relief, which would have been Defendant's second motion here under Rule 61. In response, this court issued an order holding, in pertinent part:
As far as the court knows, this case is pending in the federal district court and this court does not have authority to consider it further. Accordingly, until the State submits an order lifting the stay, this court will not undertake further review of this case.
Upon submission of an order lifting the stay, the court will enter a new sentence order. Thereafter, Defendant may file another motion for postconviction relief, which
SHALL not exceed 50 pages without prior leave of the court.
Defendant appealed that order. In response, apparently, the Supreme Court of Delaware issued a notice to show cause why the appeal should not be dismissed pursuant to Supreme Court Rule 29(b) based on the Court's lack of jurisdiction to entertain a criminal interlocutory appeal. Defendant responded on December 15, 2014, precipitating the State's answer on December 24, 2014.
See 10 Del. C. §147. --------
In its answer, the State announced: "[The Superior Court] incorrectly determined that the federal stay divested the state court of the jurisdiction to hear the motion . . . ." That confession of error prompted the Clerk of the Supreme Court, on January 21, 2015, to require the State to advise the Superior Court of the State's position. The letter further provided that the Supreme Court would not take further action until this court "responded to the State's position."
In order to provide the response contemplated by the Clerk's letter, on February 12, 2015, the court called on the State to provide various documents concerning the federal litigation. From them, the court learned that the State has filed an appeal of the federal trial court's "stay-and-abey order." In the Third Circuit, the State has argued, among other things: "Taylor is attempting to use the stay-and-abeyance procedure as part of litigation strategy to delay resolution of this capital case." As far as this court can see, briefing in the Third Circuit closed last December, and there has been no further action there.
The State also submitted a supplemental memorandum on February 4, 2015. The State seems to argue in circular fashion that because Superior Court Criminal Rule 61(d)(2) allows this court to summarily dismiss a second motion, it has jurisdiction regardless of what the federal court has done. Rule 61(d)(2), however, was meant to discourage what Defendant is attempting. Second, the State argues that: "No part of the state record ha[s] been removed to federal court." And, Rule 61(d)(3) provides that if the record has been removed to federal court, this court may stay proceedings until the record has been returned. Accordingly, "Rule 61 clearly provides the Superior Court with discretion to stay state court proceedings while a federal habeas matter is pending." The rule, however, does not address this court's authority when a federal court, under its habeas power, has issued a stay preventing it from issuing an order under state law.
The State concludes, in an argument to expedience:
Rather than finding that the Court lacked authority to consider Taylor's successive motion, the State respectfully requests this Court accept Taylor's filing and summarily dismiss the motion pursuant to Rule 61(d)(2).
If, as the State has concluded, this court has jurisdiction to consider a successive motion for postconviction relief despite a federal court stay of execution, and the court has discretion not to consider a successive petition under that circumstance, then the court would decline to exercise its discretion to hear the successive petition under the circumstances. While the court will honor the federal stay, it will not acquiesce to, much less encourage, the "stay-and-abeyance" procedure. This court views that procedure as an extension of federal judicial authority not contemplated by Congress or the Constitution of the United States.
Meanwhile, to be clear, this court does not consider its last order as final. If Defendant loses in the federal system, as this court's pending order says, this court would enter a new sentence order. Then, Defendant may file a second motion for postconviction relief. When that motion is granted, dismissed, or denied, the order will be final.
Very truly yours,
/s/ Fred S. Silverman FSS:mes
oc: Prothonotary (Criminal)
Cathy L. Howard, Clerk of the Supreme Court