Machette v. Pierce et al

Filing 3

MEMORANDUM - Signed by Judge Leonard P. Stark on 8/21/15. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

RICHARD D. MACHETTE,

Petitioner,
v.

C.A. No. 14-582-LPS

DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Respondents.

MEMORANDUM

I.

BACKGROUND
In 2007, a Delaware Superior Court jury convicted Petitioner Richard D. Machette of

aggravated menacing and possession of a deadly weapon during the commission of a felony. See

Machette v. State, 977 A.2d 898 (Table), 2009 WL 2426202, at *1 (Del. Aug. 10,2009). The
Superior Court sentenced Petitioner as a habitual offender to a total thirty years of Level V
incarceration. Petitioner filed a timely notice of appeal which he later moved to voluntarily
dismiss, and the Delaware Supreme Court granted that motion. See Machette v. Phelps, 2011
WL 2119334, at *1 (D. Del. May 27,2011).
In 2009, Petitioner filed in this Court a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 challenging his 2007 convictions. The Court denied the petition because the
claims were procedurally barred. See Machette, 2011 WL 2119334, at *4.
Presently pending before the Court is Petitioner's new petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 ("Petition"). The instant Petition challenges Petitioner's 2007
convictions on the basis that testimony and out-of-court statements were erroneously entered into

evidence during his trial. (D.I. 1 at 16-19)

II.

LEGAL STANDARDS
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 pennission 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 Benchoff 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 dismissal of Petitioner's first § 2254 petition as procedurally barred constitutes an

adjudication on the merits. See Hernandez v. Diguglielmo, 2005 WL 331734, at *2 (E.D. Pa.
Feb. 10,2005) (holding court's denial of petitioner's first habeas application as procedurally
barred constitutes adjudication on merits for second or successive purposes) (collecting cases).
Petitioner could have asserted the instant "petjured testimony" and "peIjured out-of-court
statement" claims in his first habeas petition. As a result, the Court concludes that the instant
Petition constitutes a second or successive habeas petition within the meaning of28 U.S.C.

§ 2244.
To the extent Petitioner's assertion that he has "newly discovered evidence" that his bail
was set on August 2006 at 1: 15 a.m. is an attempt to fit within § 2244(b)(2)(B)(i), s exception to

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the second or successive bar,l it is unavailing. (D.L 1 at 20) Pursuant to 28 U.S.C. § 2244(b)(3),
the Court of Appeals for the Third Circuit, and not this Court, must determine if "newly
discovered" evidence triggers the § 2244(b)(2)(B)(i) exception to the second or successive
limitation when considering whether to authorize the filing of a second or successive habeas
petition. Notably, Petitioner does not allege, and there is nothing in the record to indicate, that
the Third Circuit authorized the filing of the pending Petition. Accordingly, the Court will
dismiss the Petition for lack ofjurisdiction. 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)(1).

IV.

CONCLUSION
For the reason set forth above, the Court will summarily dismiss the instant Petition for

lack ofjurisdiction. 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 right." See
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). A separate Order will be entered.

Dated: August 21, 2015
Wilmington, Delaware

HON. LEONARDP. ST
UNITED STATES DISTRICT JUDGE

ISection 2244(b)(1)(B)(i) provides that a "claim presented in a second or successive
habeas corpus application under section 2254 that was not presented in a prior application shall
be dismissed unless the factual predicate for the claim could not have been discovered previously
through the exercise of reasonable diligence." 28 U.S.C. § 2244(b)(1)(B)(i).
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