Desmond v. Phelps et al

Filing 17

MEMORANDUM OPINION re 1 MOTION for Leave to Proceed in forma pauperis, 3 Petition for Writ of Mandamus, 5 MOTION to Appoint Counsel. Signed by Judge Leonard P. Stark on 8/15/2012. (rpg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHRISTOPHER R. DESMOND,
Petitioner,
C.A. No. 11-1102-LPS

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

MEMORANDUM OPINION
I.

BACKGROUND
Presently pending before the Court is a document filed by Petitioner Christopher R.

Desmond entitled Petition for Writ of Mandamus ("Petition") (D.I. 3), as well as two Motions to
Amend/Correct the Petition (D.I. 8; D.I. 9), a Motion to Proceed In Forma Pauperis (D.I. 1), and
a Motion to Appoint Counsel (D.I. 5). Desmond is an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware. The Petition names the Warden and the Attorney
General of the State of Delaware as Respondents.
In 1992, a Delaware Superior Court jury convicted Desmond on multiple counts of first
degree robbery, possession of a deadly weapon during the commission of a felony, second degree
conspiracy, possession of a deadly weapon by a person prohibited, theft, and third degree escape.
His convictions were affirmed on direct appeal. See Desmond v. State, 654 A.2d 821 (Del.
1994).
In 1996, Desmond filed an application for a writ of habeas corpus, which the Honorable
Gregory M. Sleet of this Court denied as meritless. See Desmond v. Snyder, 1999 WL 33220036

(D. Del. Nov. 16, 1999). Desmond filed a second application for habeas relief, which the
Honorable Joseph J. Farnan, Jr. ofthis Court dismissed for lack of jurisdiction because it was
second or successive. See Desmondv. Carroll, Civ. A. No. 02-1501-JJF, Order (D. Del. Oct. 2,
2002). On August 12, 2003, the Third Circuit Court of Appeals denied Desmond's application to
file a second or successive habeas petition. See Civ. A. No. 02-1501 at D.l. 64.
Thereafter, Desmond filed a Rule 60(b) motion for reconsideration, arguing that claims
one, five, six, and seven of his 1996 habeas application should not have been dismissed for being
procedurally barred. The Honorable Gregory M. Sleet denied the Rule 60(b) motion. See
Desmond v. Snyder, Civ. A. No. 96-327-GMS, Order (D. Del. Apr. 5, 2006). Desmond then

filed a Rule 59( e) motion for reargument, which the Honorable Gregory M. Sleet denied. The
Third Circuit Court of Appeals denied Desmond's motion for a certificate of appealability with
respect to that decision. See Desmond v. Snyder, Civ. A. No. 06-2359, Order (3d Cir. Nov. 30,
2006).
Now, in the pending Petition and two Motions to Amend, Desmond contends that two
recent Delaware state court decisions- State v. Bridgers, 988 A.2d 939 (Del. Super. Ct. 2007),
ajf'd, State v. Bridgers, 970 A.2d 257 (Table), 2009 WL 824536 (Del. Mar. 30, 2009), and State
v. Owens, 2010 WL 2892701 (Del. Super. Ct. July 16, 2010)- demonstrate that the Delaware

state courts and this Court misinterpreted the first degree robbery statute, Del. Code Ann. tit. 11,
§ 832, in refusing to vacate his convictions for eight counts of first degree robbery. Specifically,

he contends that the State of Delaware failed to establish that he committed all of the elements of
theft as required under § 832, because each of the victims for those counts were "all bystanders
by their own testimony, and nothing was ever taken from" them. (D.I. 3 at 5; D.l. 8 at 2-3) In
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short, Desmond contends that he is "actually innocent" of the first degree robbery convictions
under the interpretation of the requirements for establishing a first degree robbery offense as set
forth in Bridgers and Owens. (D.I. 8 at 5-6; D.I. 9 at 2)
The State filed an Answer to the Petition, asserting that Desmond's request for mandamus
relief actually constitutes a second or successive habeas petition and, therefore, should be
dismissed for lack of jurisdiction. (D.I. 15) Desmond filed a reply, asserting that the prohibition
against second or successive habeas petitions contained in 28 U.S.C. § 2244 is inapplicable to his
request for mandamus relief. (D.I. 16)

II.

DISCUSSION
Desmond asks the Court to direct the Attorney General of the State of Delaware to vacate

his convictions on eight counts of first degree robbery, because he is "actually innocent" ofthose
crimes, pursuant to the interpretation of the requirements for establishing a first degree robbery
offense set forth in two recent Delaware state court cases, Owens and Bridgers. Although
Desmond has presented the issue in a petition for a writ of mandamus, the relief he seeks may
only be obtained through the writ of habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475
(1973). In turn, because the instant Petition is Desmond's third request for habeas relief- with
the other habeas applications having been dismissed as meritless or for lack of jurisdiction- the
Court concludes that, for purposes of28 U.S.C. § 2244, the Petition constitutes a second or
successive habeas application. Therefore, the Court may only consider the habeas application if
Desmond obtained prior filing authorization from the Third Circuit Court of Appeals. See id.
In this case, Desmond does not allege, and there is nothing in the record to indicate, that
he obtained such authorization from the Third Circuit Court of Appeals. Hence, to the extent the

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instant Petition constitutes a second or successive habeas application, the Court will dismiss it
for lack of jurisdiction. See Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Court, 28 U.S.C. foll. § 2254 (authorizing summary dismissal of§ 2254
applications); 28 U.S.C. § 2244(b)(1); Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002)
(stating if habeas petitioner erroneously files 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 "). The
Court will also decline to issue a certificate of appealability because Desmond has failed to
make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see

also United States v. Eyer, 113 F.3d 470 (3d Cir. 1997); 3d Cir. L.A.R. 22.2 (2011).
Moreover, contrary to Desmond's contention, he is not entitled to relief even if the Court
were to construe the instant filing as a "true" request for mandamus relief. Mandamus is a
drastic remedy to be used only in extraordinary circumstances; 1 such relief is only available
when: (1) the petitioner demonstrates that he has "no other adequate means to attain the relief he
desires;" (2) the petitioner demonstrates that "his right to the issuance of the writ is clear and
indisputable;" and (3) the issuing court is satisfied that "the writ is appropriate under the
circumstances." Hollingsworth v. Perry,_ U.S._, 130 S.Ct. 705, 710 (2010). None of
Desmond's filings (D.I. 3; D.I. 8; D.I. 9; D.I. 10; 14; D.I. 16) demonstrate that he has an
indisputable right to have his first degree robbery convictions reconsidered, as there is nothing to
indicate that Owens and Bridgers re-defined or re-interpreted the elements of a first degree
robbery offense and made such re-interpretation retroactively applicable to cases on collateral

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See Kerr v. United States Dist. Ct., 426 U.S. 394,402 (1976).
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revtew. Additionally, the fact that Desmond is barred from filing another habeas application
without permission does not make mandamus an available remedy. See In re Robinson, 425 Fed.
App'x 114, 115 (3d Cir. 2011) (non-precedential) ("[M]andamus does not become available
simply because a federal court previously denied habeas relief or because the gatekeeping
provisions of28 U.S.C. § 2254 make it difficult to pursue a successive motion."). Accordingly,
to the extent Desmond's Petition constitutes a "true" Petition for Writ of Mandamus, the Court
will deny it as meritless.

III.

CONCLUSION
For the aforementioned reasons, whether treated as a Petition for Writ of Mandamus or as

an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, the Court concludes
that it must dismiss the instant proceeding. A separate Order will be entered.

Dated: August 15, 2012
UNITED STATES DISTRICT JUDGE

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