Gibbs v. Phelps et al

Filing 7

MEMORANDUM ORDER DISMISSING CASE as second or successive. The Court declines to issue a certificate of appealability. The Clerk shall forthwith serve a copy of the Application, Motion, and this Memorandum Order upon: (1) the above-named warden of the facility in which Gibbs is housed; and (2) the Attorney General for the State of Delaware(copy to pltf.) (CASE CLOSED). Signed by Judge Leonard P. Stark on 8/13/12. (dzb, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

EDWARD GIBBS, JR.,

Petitioner,

v.

CA. No. 11-819-LPS

PERRY PHELPS, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

MEMORANDUM ORDER
At Wilmington this 13th day of August, 2012:

1.

BACKGROUND
Presently pending before the Court is Petitioner Edward Gibbs, Jr.'s Application For A

Writ Of Habeas Corpus Pursuant To 28 US.C § 2254 ("Application"), in which Gibbs asserts
that the Delaware Superior Court judge presiding over his state criminal proceeding erred in
sentencing him as an habitual offender for his 2003 conviction for escape after conviction. (D.I.
1) Gibbs also filed a Motion to Vacate Judgment and Sentence asserting the same claim. (D.I.4)
Gibbs has already requested, and has been denied, habeas relief with respect to the same 2003
conviction and sentence on one prior occasion. Specifically, the Honorable Joseph J. Farnan, Jr.
dismissed his first application after determining that three claims raised therein lacked merit, and
one claim failed to assert a proper basis for federal habeas relief. See Gibbs v. Phelps, 2008 WL
2019363 (D. DeL May 9,2008).

II.

LEGAL STANDARDS
Pursuant to 28 U.S.C § 2244(b)(l), if a habeas petitioner erroneously files a second or

successive habeas application "in a district court without the permission of a court of appeals, the
district court's only option is to dismiss the petition or transfer it to the court of appeals pursuant
to 28 U.S.C. § 1631." Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002). A habeas
application is classified as second or successive within the meaning of 28 U.S.c. § 2244 if a
prior application has been decided on the merits, the prior and new applications challenge the
same conviction, and the new application asserts a claim that was, or could have been, raised in a
prior habeas application. See Benchoffv. Colleran, 404 F.3d 812, 817 (3d Cir. 2005); In re

Olabode, 325 F.3d 166,169-73 (3d Cir. 2003).

III.

DISCUSSION
Gibbs has requested, and has been denied, federal habeas relief with respect to his 2003

conviction and sentence on one prior occasion, which constitutes an adjudication on the merits.
Because Gibbs could have asserted the instant arguments in his first application, the Court
concludes that the instant Application constitutes a second or successive habeas application
within the meaning of28 U.S.C. § 2244.
Gibbs does not allege, and there is no reason to conclude, that the Third Circuit Court of
Appeals authorized the filing of the pending Application. Accordingly, the Court will dismiss
the Application for lack of jurisdiction. See Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Court, 28 U.S.C. foIL § 2254 (authorizing summary dismissal of

§ 2254 petitions); 28 U.S.C. § 2244(b)(l).
The Court will also decline to issue a certificate of appealability because Gibbs has failed
to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2);

see United States v. Eyer, 113 F.3d 470 (3d Cir. 1997); 3d Cir. L.A.R. 22.2 (2011).
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IV.

CONCLUSION
For the reasons set forth above,

IT IS HEREBY ORDERED that:

1.

Petitioner Edward Gibbs, Jr.'s Application For A Writ Of Habeas Corpus

Pursuant To 28 U.S.c. § 2254 and his duplicative Motion To Vacate Judgment And Sentence are

DISMISSED as second or successive. (D.1. 1; D.1. 4)
2.

The Court declines to issue a certificate of appealability.

3.

Pursuant to Rule 4, 28 U.S.c. foIl. § 2254, the Clerk shall forthwith serve a copy

of the Application, Motion, and this Memorandum Order upon: (1) the above-named warden of
the facility in which Gibbs is housed; and (2) the Attorney General for the State of Delaware.
The Clerk shall also send a copy of this Memorandum Order to Gibbs at his address on record.
4.

The Clerk is directed to close the case.

UNITED S

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