McMillion v. Pierce et al

Filing 3

MEMORANDUM Signed by Judge Leonard P. Stark on 3/14/2016.(aah)

IN THE UNITED STA TES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARVIN MCMILLION,
Petitioner,
v.

C.A. No. 14-1195-LPS

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

MEMORANDUM
I.

BACKGROUND
In 1994, a Delaware Superior Court jury convicted Petitioner Marvin McMillion

("Petitioner") of attempted first degree unlawful sexual intercourse, first degree robbery, second
degree burglary, third degree unlawful sexual penetration, and criminal mischief. See McMillion v.

Sl!Jder, 2001WL34368398, at *1 (D. Del. Feb. 20, 2001). He was sentenced to forty-one years of
incarceration. Id. The Delaware Supreme Court affirmed Petitioner's convictions and sentence. Id.
In 1999, Petitioner filed in this Court a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his 1994 convictions. The Honorable Joseph J. Farnan, Jr, denied the
petition as time-barred. See McMillion, 2001 WL 34368398, at *2.
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 1994
convictions and asserts the following three claims: (1) counsel should have been appointed to
represent him during his first Rule 61 proceeding in the Delaware Superior Court; (2) the trial
court's refusal to allow an expert in voice recognition to testify for the defense violated Petitioner's
right to due process; and (3) he was denied equal protection of the law with respect to the denial of

one of his post-conviction appeals. (D.I. 1 at 6-9)

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 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 Bencheff 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 time-barred constitutes an adjudication

on the merits. See Murrqy v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (holding that dismissal of§ 2254
petition as time barred constitutes adjudication on merits for successive purposes); Altman v. Benik,
337 F.3d 764, 766 (7th Cir. 2003) (holding that "a statute of limitations bar is not a curable technical
or procedural deficiency but rather operates as an irremediable defect barring consideration of the
petitioner's substantive claims"). Petitioner could have asserted Claims One and Two in his first
petition. Claim Three is undecipherable and, therefore, does not assert a proper basis for habeas
relief. Thus, the Court concludes that the instant Petition constitutes a second or successive habeas
petition within the meaning of 28 U.S.C. § 2244.
Petitioner does not allege, and nothing in the record indicates, that the Third Circuit Court
of Appeals authorized the filing of the pending Petition. Accordingly, the Court will dismiss the
Petition for lack of jurisdiction. See Rule 4 of the Rules Governing Section 2254 Cases in the United

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States District Court, 28 U .S.C. foll. § 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

of jurisdiction. 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: March 16, 2016
Wilmington, Delaware

.-·
HONORABL LEONARD P. STARK
UNITED STATES DISTRICT JUDGE

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