Shelley v. Filino et al
Filing
3
MEMORANDUM. Signed by Judge Gregory M. Sleet on 11/18/13. (cla, )
IN THE UNITED STATES DISTRlCT COURT
FOR THE DISTRlCT OF DELAWARE
LEROY SHELLEY III,
aka TYRON DAVIS
Petitioner,
v.
LOUIS FILINO, Sup't, and
ATTORNEY GENERAL OF
THE STATE OF DELAWARE,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No. 12-1340-GMS
MEMORANDUM
I.
BACKGROUND
In April 1998, while he was incarcerated in Pennsylvania, Shelley was indicted in
Delaware on charges of robbery and related charges. (D.I. 1) On November 7,2007, a Delaware
Superior Court jury convicted Shelley, inter alia, of two counts of first degree robbery and two
counts of possession of a firearm during the commission of a felony. (D.!. 18) The Delaware
Superior Court sentenced Shelley to a total of twenty-four and one-half years at Level V, to be
suspended after serving eighteen and one-half years for decreasing levels of supervision. Shelley
did not file a direct appeaL (D.I. 12 at 1)
In February 2012, this court denied as time-barred Shelley'S first petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See Shelley v. Att'y Gen '/ ofthe State ofDelaware,
Civ. A. 10-1019- Mem. Op. and Order (D. Del. Feb. 6, 2012). Thereafter, Shelley filed another
petition for a writ of habeas corpus pursuant to 28 U.S.c. § 2254 ("petition"), which is presently
pending before the court. (D.I. 1) The instant petition asserts the following three challenges to
Shelley's 2007 convictions for first degree robbery and possession of a fireann during the
commission of a felony: (1) a police detective committed perjury while testifying before the
grand jury and during the trial, in violation of Shelley'S due process rights; (2) the 2007
indictment was defective because the 1998 indictment was never dismissed; and (3) the trial
court lacked jurisdiction over Shelley's case due to the age of the original 1998 indictment.
II.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2244(b)( 1), if a habeas petitioner erroneously files a second or
successive habeas petition "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). Notably, a
habeas petition is not considered second or successive simply because it follows a prior petition.
See Panetti v. Quarterman, 551 U.S. 930, 944 (2007). Rather, a habeas petition is classified as
second or successive within the meaning of 28 U.S.C. § 2244 if a prior petition has been decided
on the merits, the prior and new petitions challenge the same conviction, and the new petition
asserts a claim that was, or could have been, raised in a prior habeas petition. See BenchojJ v.
Colleran, 404 F.3d 812,817 (3d Cir. 2005); In re Olabode, 325 F.3d 166, 169-73 (3d Cir. 2003).
III.
DISCUSSION
The instant petition is Shelley's second request for habeas relief with respect to his 2007
convictions and sentences. Shelley'S first federal habeas petition was denied as time-barred,
which constitutes an adjudication on the merits. See Murray v. Greiner, 394 F.3d 78, 80 (2d Cir.
2005). In tum, Shelley already asserted his perjury/due process argument in his first petition, and
he could have asserted his other two arguments in that first petition as well. For these reasons,
2
the court concludes that the instant petition constitutes a second or successive habeas petition
within the meaning of § 2244.
The record reveals that Shelley did not obtain permission from the Third Circuit Court of
Appeals before filing his pending habeas request. Accordingly, the court will dismiss the instant
unauthorized second or successive petition for lack ofjurisdiction. See 28 U.S.C. § 2244(b)(1);
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002)(holding that when a second or successive
habeas petition is erroneously filed "in a district court without the permission of the 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 \\-111 also decline to issue a certificate of appealability because Shelley has
failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. §
2253(c)(2); 3d Cir. L.A.R. 22.2 (2011); United States v. Eyer, 113 F.3d 470 (3d Cir. 1997).
IV.
CONCLUSION
For the aforementioned reasons, the court will deny Shelley's § 2254 petition for lack of
jurisdiction because it constitutes an unauthorized second or successive habeas petition under
28 U.S.C. § 2244. A separate order will be entered.
DOE
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?