Wilson v. Phelps et al

Filing 4

MEMORANDUM. Signed by Judge Leonard P. Stark on 3/14/14. (mdb).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KEVIN W. WILSON, JR.,
Petitioner,
C.A. No. 13-140-LPS

V.

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

MEMORANDUM
I.

BACKGROUND
Presently pending before the Court is Petitioner Kevin W. Wilson, Jr.'s ("Petitioner")

Application for a Writ ofHabeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application"). (D.I. 1)
Petitioner asserts that his defense counsel rendered ineffective assistance during the criminal
proceedings leading to his 2001 convictions for first degree rape, second degree rape, second
degree assault, and possession of a deadly weapon during the commission of a felony. Petitioner
was already denied habeas relief for these same convictions on one prior occasion, when the
Honorable Joseph J. Farnan, Jr., now retired, dismissed his first application as time-barred. See
Wilson v. Phelps, 2008 WL 4372729 (D. Del. Sept. 23, 2008). Petitioner appealed that denial of
his first application, and the Third Circuit Court of Appeals declined to issue a certificate of
appealability. (D.I. 25 in Wilson v. Carroll, C.A. No. 07-567-JJF)

II.

LEGAL STANDARDS
Pursuant to 28 U.S.C. § 2244(b)(1), 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
The denial ofPetitioner's first habeas application as time-barred constitutes an

adjudication on the merits for§ 2244 purposes. See Murray v. Greiner, 394 F.3d 78 (2d Cir.
2005). Because Petitioner asserted, or could have asserted, the instant ineffective assistance of
counsel 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.
Petitioner does not allege, and there is no reason to conclude, that the 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).

IV.

CONCLUSION
For the reasons set forth above, the Court will summarily dismiss Petitioner's Application

for federal habeas relief. The Court will also decline to issue a certificate of appealability
because Petitioner has failed to make a "substantial showing of the denial of a constitutional
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right." 28 U.S.C. § 2253(c)(2); see also 3d Cir. L.A.R. 22.2 (2011); United States v. Eyer, 113
F.3d 470 (3d Cir. 1997). A separate order will be entered.

Dated: March 14,2014
UNITED STATES DISTRICT JUDGE

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