Buchanan v. Delaware Family Court et al
MEMORANDUM ORDER DISMISSING application for writ of habeas corpus and DENYING writ. (copy to pltf.; copy with petition served on respondent and Attorney General for DE) (CASE CLOSED). Signed by Judge Sue L. Robinson on 10/16/13. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DAVID J. BUCHANAN,
DELAWARE FAMILY COURT,
COURT, and ATTORNEY
GENERAL OF THE STATE OF
) Civ. No. 13-915-SLR
At Wilmington this
day of October, 2013, having reviewed the above
captioned case pursuant to Rule 4,28 U.S.C. foil. § 2254;
IT IS ORDERED that petitioner David Buchanan'S ("petitioner") "petition for
special writ pursuant to 28 U.S.C. § 1651" (0.1. 1) is DISMISSED as a second or
successive habeas application, for the reasons that follow:
1. Background. In 2008, a Delaware Superior Court jury convicted petitioner of
resisting arrest, criminal contempt, possession of a deadly weapon by a person
prohibited, and carrying a concealed deadly weapon. In 2010, the court denied
petitioner's § 2254 application challenging the legality of those convictions. See
Buchanan v. Johnson, 723 F. Supp. 2d 727 (D. Del. 2010). Petitioner filed a motion for
reargument of that decision, which the court denied. See Buchanan v. Johnson, C.A.
08-639-SLR (D. Del.) at 0.1. 69 and 0.1. 78. Petitioner then filed a motion to reopen
that case pursuant to Fed. R. Civ. P. 60(b)(3) and (6), which the court denied as a
second or successive habeas application. Id. at D.1. 92. Thereafter, petitioner filed the
instant petition for a "special writ" pursuant to the All Writs Act, 28 U.S.C. § 1651(a).
(D.1. 1) The petition asserts that U[s]pecific allegations before this court on state
prisoner's petition for federal writ of habeas corpus, as captioned, together with issues
included in the appeal of Bankruptcy Court's orders, show reason to believe that
petitioner may, if facts are fully developed, be able to demonstrate he is confined
illegally and is therefore entitled to relief." (D.1. 1 at 1)
2. 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 application is
classified as second or successive within the meaning of § 2244 if the 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 could have been raised in a
prior habeas application. See Benchoffv. Colleran, 404 F.3d 812, 817 (3d Cir. 2005);
In re O/abode, 325 F.3d 166, 169-73 (3d Cir. 2003).
3. Discussion. In his petition, petitioner asks this court to issue a special writ
under § 1651 "to aid in its jurisdiction in reviewing the issues as a whole" or, in other
words, to develop the facts more fully. (D.1. 1 at 8) Petitioner asserts several "errors"
that occurred with respect to his state convictions and, citing § 1651, appears to ask the
court to conduct a further factual inquiry into the legality of the Delaware Family Court's
criminal contempt order.
4. The All Writs Act provides that the "Supreme Court and all courts established
by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. §
1651 (a). In Harris v. Nelson, the Supreme Court held that a district court could fashion
such discovery procedures under the All Writs Act as it deems necessary to ensure
meaningful adjudication of claims when that court is exercising its habeas jurisdiction.
Harris v. Nelson, 394 U.S. 286, 300 (1969)("lt has been recognized that the courts may
rely upon this statute [28 U.S.C. § 1651] in issuing orders appropriate to assist them in
conducting factual inquiries.").
5. Here, the court's habeas jurisdiction ended when it denied petitioner's first
habeas application. Therefore, petitioner's reliance on the All Writs Act is unavailing,
because invoking the Act to fashion a discovery procedure would not be in furtherance
of already existing habeas jurisdiction. Id.; ct In re Hill, 437 F.3d 1080, 1083 (11 th Cir.
2006)(explaining that the All Writs Act does not make a request for a stay an
independent civil action under 28 U.S.C. §1331).
6. In addition, although the instant filing is couched in terms of § 1651, petitioner
is really challenging the legality of his state convictions. As such, the instant § 1651
petition is, in essence, a new application for habeas relief under § 2254. While this
construction of petitioner's § 1651 filing as a § 2254 application may seem to solve the
lack of existing habeas jurisdiction mentioned above, it does not. Rather, because
petitioner's instant request constitutes an application for habeas relief filed after the
denial of a prior habeas application, the court will only have jurisdiction to review the
instant habeas request if it does not constitute a second or successive habeas
application for § 2244 purposes. See Benchoffv. Colleran, 404 F.3d 812, 817-18 (3d
7. To begin, petitioner has already requested, and has been denied, habeas
relief with respect to the same September 2008 convictions on two prior occasions.
See Buchanan v. Johnson, 723 F. Supp. 2d 727 (D. Del. 2010); Buchanan v. Johnson,
2011 WL 4344347 (D. Del. Sept. 15, 2011 )(denial of petitioner's motion for
reargument); Buchanan v. Johnson, Civ. No. 11-938, Mem. Order (D. Del. Dec. 9,
2011)(denial of second habeas application). Additionally, the claims raised in the
instant application were either raised, or could have been raised, in petitioner's first
application, and the court's denial of petitioner's first application constituted an
adjudication on the merits. 1 For these reasons, the court concludes that the instant
application does constitute a second or successive application under § 2244.
8. In turn, the record reveals that petitioner has not obtained authorization from
the Third Circuit Court of Appeals to file this successive habeas request. See 28
U.S.C. § 2244(b)(1). Accordingly, the court dismisses the instant application for lack of
1The claims in petitioner's first application were denied as procedurally barred
due to petitioner's procedural default of the claims in the state courts. In accord with
other circuits, the Third Circuit views a dismissal for a procedural default as an
adjudication on the merits for the purpose of determining whether a subsequent habeas
application is successive or second. See Hernandez v. Diguglielmo, 2005 WL 331734,
at *2 (E.D. Pa. Feb. 10, 2005)(collecting 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.")
jurisdiction. 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.").
9. The court declines to issue a certificate of appealability because petitioner
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.AR. 22.2 (2011).
IT IS FURTHER ORDERED that the clerk of the court shall close the case and
mail a copy of this memorandum order to petitioner at his address of record. The clerk
shall also mail a copy of the application and this memorandum order to respondents.
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