Travis v. Pierce et al

Filing 7

MEMORANDUM. Signed by Judge Sue L. Robinson on 12/15/14. (etg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOE LEWIS TRAVIS,
Petitioner,

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) Civ. No. 14-772-SLR
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v.

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

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MEMORANDUM
1. Background. Petitioner filed the instant application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (D.I. 1) The application challenges his 1992
conviction in the Delaware Superior Court for first degree murder. See Travis v. State,
69 A.3d 373 (Table), 2013 WL 3326797, at *1 (Del. June 26, 2013). Specifically,
petitioner alleges that the attorney who represented him during his trial, direct appeal,
and his first Rule 61 proceeding provided constitutionally ineffective assistance. (D.I. 1
at 5-9)
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. Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005); In re
O/abode, 325 F.3d 166, 169-73 (3d Cir. 2003).

3. Discussion. Petitioner has already requested, and has been denied,
habeas relief with respect to the same 1992 conviction on four prior occasions. See
Travis v. Phelps, Civ. A. No. 08-781-SLR, Order (D. Del. Nov. 18, 2008); Travis v.
Phelps, Civ. A. No. 08-399-SLR, Order (D. Del. Aug. 8, 2008); Travis v. Snyder, Civ. A.

No. 95-309-RMM, Order (D. Del. Jan. 31, 1997); Travis v. Snyder, Civ. A. No. 99-345RMM, Order (D. Del. Sept. 20, 1999). The Honorable Roderick M. McKelvie denied
petitioner's first application on the merits, and then denied his second application as
second or successive. Id. This court denied petitioner's third and fourth applications as
second or successive. Id. These dispositions constitute an adjudication on the merits
for the purposes of the gate-keeping rules on second or successive applications.
Therefore, the court concludes that the instant application constitutes a second or
successive habeas application. See Benchoff, 404 F.3d at 817-18.
4. Petitioner attempts to avoid the second or successive bar by asserting that
the holding announced in Martinez v. Ryan, 132 S.Ct. 1309 (2012) 1 should apply to his
case because it constitutes a "new rule of constitutional law" under§ 2244(b)(2)(A)
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In Martinez, the Supreme Court held for the first time that inadequate assistance
of counsel during an initial-review state collateral proceeding may establish cause for a
petitioner's procedural default of a claim of ineffective assistance of trial counsel.
Martinez, 132 S.Ct. at 1320. In order to obtain relief under Martinez, a petitioner must
demonstrate that the state post-conviction attorney in his first state collateral
proceeding was ineffective under the standards established in Strickland, that the
underlying ineffective assistance of trial counsel claim is substantial, and that petitioner
was prejudiced. Id. at 1316, 1320.

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purposes. However, Martinez did not alter the applicable rules regarding second or
successive habeas applications. Thus, 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.
5. 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 will dismiss the instant application for lack of
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.").
6. 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." 28 U.S.C. § 2253(c)(2); see United States v. Eyer, 113 F.3d 470 (3d Cir. 1997);
3d Cir. L.A.R. 22.2 (2011).
7. Conclusion. For the above reasons, the court will dismiss the instant
application as second or successive. A separate order shall issue. See Fed. R. Civ. P.
58(a)("every judgment must be set out in a separate document").

Dated: December

15 , 2014
UNITED STATSDiSTRICT JUDGE

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