Folks v. Phelps et al

Filing 5

MEMORANDUM. Signed by Judge Gregory M. Sleet on 11/18/13. (cla, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

JOSEPH LOUIS FOLKS,
Petitioner,

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

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Civil Action No. 12-1568-GMS

MEMORANDUM
I. BACKGROUND
On February 18,1993, a Delaware Superior Court jury convicted Joseph Louis Folks of
two counts of first degree unlawful sexual intercourse with a ten year old girl. See State v. Folk<>,
1997 WL 528281 (Del. Super. Ct. Aug. 11, 1997). He was sentenced to fifteen years of Level V
incarceration on the first count. On the second count, he was sentenced to twenty years at Level
V, suspended after fifteen years for five years at Level III, suspended after six months for four
years and six months at Level II. Folks' convictions and sentences were affirmed on direct
appeal. Id.
Folks filed his first habeas petition in this court in 1998, which the Honorable Roderick

R. McKelvie denied in 1999. See Folk<> v. Snyder, Civ. A. 98-508-RRM, Order (D. Del. Dec. 1,
1999).
In November, 2012, Folks filed a second petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 ("petition"). (D.I. 2; D.I. 4) Folks' largely incomprehensible petition asserts
that no court in the United States has jurisdiction to convict him because he is a "Moorish

American National" with sovereign rights. (DJ. 2 at 3) Thus, he contends that his state
conviction is illegal, and he asks the court to release him from state custody. Id. In his
memorandum, Folks contends that his procedural default of the ineffective assistance of counsel
claims raised in his first petition should be excused pursuant to Martinez v. Ryan, _

U.S. _ ,

132 S.Ct. 1309 (2012).

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). 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 Benchoffv. 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 Folks' second request for habeas relief with respect to his 1993
convictions and sentences. Folks' first federal habeas petition was denied as procedurally barred,
which constitutes an adjudication on the merits. I See Hernandez v. Diguglielmo, 2005 WL

Graham v. Costello, 299 F.3d 129, 133 (2d Cir. 2002)(procedurally defaulted claims
"can never establish a basis for habeas relief'); see also Hawkins v. Evans, 64 F.3d 543, 547 (10 th
Cir. 1995)(where court held that, pre-AEDPA, the denial of a claim due to procedural default is a
determination on the merits for the purpose of deciding whether a second habeas petition is
successive); Howard v. Lewis, 905 F.2d 1318, 1322-23 (9 th Cir. 1990)( same); Shaw v. Delo, 971
ISee

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331734, at *2 (E.D. Pa. Feb. 10, 2005)(coUecting cases); Rauso v. Pennsylvania Board of
Probation & Parole, 2004 WL 1126283, at * 1 (E.D. Pa. May 20, 2004)(in denying petitioner's §

2244 motion for leave to file a second or successive habeas petition, the "Third Circuit noted that
the prior habeas petition had been dismissed for procedural default and that procedural default is
a dismissal on the merits for purposes of requiring leave to file an application to file a second or
successive habeas petition."). Furthermore, Folks could have asserted the instant "lack of
jurisdiction/Moorish-American nation" argument in his first petition. For these reasons, the court
concludes that the instant petition constitutes a second or successive habeas petition within the
meaning of § 2244.
Folks attempts to avoid the second or successive bar by arguing that the Martinez
decision constitutes a "new rule of constitutional law" for § 2244(b)(2)(A) purposes. This
argument is unavailing. Simply stated, whether or not Martinez triggers the § 2244(b)(2)(A)
exception to the second or successive bar is an issue that must be determined by the Third Circuit
Court of Appeals, and not by this court.
Finally, the record reveals that Folks 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 ofthe
court of appeals, the district court's only option is to dismiss the petition or transfer it to the court

F.2d 181,184 (8 th Cir. 1992)(discussing bar on consideration of successive petitions); Harvey v.
Horan, 278 F.3d 370, 379-80 (4th Cir. 2002).
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of appeals pursuant to 28 U.S.c. § 1631.").
The court will also decline to issue a certificate of appealability because Folks 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 Folks' § 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.

/Jov. l?ft ]. O'?
DATE

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