Shelley v. Wharton

Filing 8

MEMORANDUM. Signed by Judge Gregory M. Sleet on 11/4/2015. (klc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELA WARE

LEROY SHELLEY,
aka Tyron Davis,
Petitioner,
v.
FERRIS W. WHARTON,
Delaware Superior Court Judge,
Respondent.

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Civil Action No. 15-503-GMS

MEMORANDUM
I.

BACKGROUND
In April 1998, while he was incarcerated in Pennsylvania, petitioner Leroy Shelley

("Shelley") was indicted in Delaware on charges of robbery and related charges. See Shelley v.

Filino, 2013 WL 6092806, at *1 (D. Del. Nov. 18,2013). On November 7,2007, a Delaware
Superior Court jury convicted Shelley, inter alia, of two counts of first degree robbery and two
counts of possession of a firearm during the commission of a felony. The Delaware Superior
Court sentenced him to a total of twenty-four and one-half years at Level V, to be suspended after
serving eighteen and one-half years for decreasing levels of supervision. Shelley did not file a
direct appeal. Id.
In February 2012, this court denied as time-barred Shelley's first petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See Shelley v. Ally Gen. o/Del., 2012 WL 379907,
at *5 (D. Del. Jan. 31,2012). Thereafter, in October 2012, Shelley filed another petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, which the court dismissed for lack of
jurisdiction because it constituted an unauthorized second or successive habeas petition. See

Shelley, 2013 WL 6092806 at *2.
Presently pending before the court is a document Shelley filed on a form used for prisoner
complaints requesting relief under 42 U.S.C. § 1983 (D.L 3) and a document titled "motion for
preliminary injunction and restraining order" (D.L 4). In both documents, Shelley challenges his
2007 conviction on the basis that his 1998 indictment and his 2007 re-indictment were defective.
He also contends that the Delaware Superior Court erred in denying his most recent Rule 61
motion as time-barred in State v. Shelley, 2014 WL 5713236 (Del. Super. Ct. Oct. 27, 2014).
Shelley asks the court to reinstate his "appeal" rights. (D.L 3 at 9; D.L 4 at 1).
II.

DISCUSSION
Federal courts are required to liberally construe pro se pleadings, and must "look behind

the label of a motion filed by a pro se inmate and determine whether the motion is, in effect,
cognizable under a different remedial statutory framework." See United States v. Miller, 197
F.3d 644,648 (3d Cir. 1999).
A. Claims Erroneously Asserted Under 42 U.S.C. § 1983
Suits challenging state administrative procedures or conditions of confinement are
properly brought pursuant to 42 U.S.C. § 1983. See generally id.; see also Muhammad v. Close,
540 U.S. 749, 750 (2004)("requests for relieftuming on circumstances of confinement may be
presented in a § 1983 action"). In contrast, suits challenging "the judgment of a State court [] on
the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of
the United States," where the petitioner seeks either immediate release or speedier release, are
properly brought pursuant to 28 U.S.C. § 2254(a). See Preiser v. Rodriguez, 411 U.S. 475, 500
(1973).

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Here, although Shelley has presented his challenge to the legality of his 2007 conviction
on a § 1983 complaint form, his argument is more properly asserted and considered under
§ 2254. I Therefore, the court will construe the complaint to be a § 2254 petition.
B. Second or Successive Habeas Claims

The court's act of construing the instant proceeding as though filed pursuant to § 2254,
however, does not aid Shelley in his quest for relief. To the extent Shelley complains about the
Delaware Superior Court's "erroneous" application of Rule 61 IS requirements when it denied his
Rule 61 motion in 2014, the issue asserts an error of state law that is not cognizable on federal
habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
To the extent Shelley contends that his 2007 conviction is unconstitutional because of
some invalidity with his 1998 and 2007 indictments, the contention constitutes his third request
for habeas relief in this court. Considering that the court's denial of Shelley'S first federal habeas
petition as time-barred constitutes an adjudication on the merits when the court denied it as time­
barred,2 the instant petition constitutes a second or successive habeas petition within the meaning
of 28 U.S.C. § 2244. See Benchoffv. Colleran, 404 F.3d 812, 817 (3d Cir. 2005); In re Olabode,

ITo support his filing of the instant argument pursuant to § 1983, Shelley asserts that
Skinner v. Switzer, 562 U.S. 521 (2011) "is the controlling case in this matter." (D'!.3 at 9) In
Skinner, the Supreme Court held that a convicted state prisoner properly sought DNA testing of
the crime scene evidence based on due process in a § 1983 action, rather than in a § 2254
proceeding, because success in such a suit would not necessarily imply that the state's custody
was illegal. Id. at 535-36. Here, however, Shelley is not seeking DNA testing or challenging any
discovery procedures, and he does not base his right to relief on any post-conviction right created
under state law. Rather, his argument regarding the alleged defective indictments is an attempt to
relitigate the criminal proceedings that resulted in his conviction and challenges the legality of his
current custody. Therefore, the Skinner holding is inapplicable to Shelley'S case, and the court
concludes that his argument is more properly construed as asserting a claim for habeas relief.

2See Murray v. Greiner, 394 F.3d 78,80 (2d Cir. 2005).
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325 F.3d 166, 169-73 (3d Cir. 2003). 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). The record reveals that Shelley did not obtain pennission from the Third Circuit Court of
Appeals before filing his pending habeas request. Accordingly, the court will dismiss the instant
unauthorized second or successive petition for lack ofjurisdiction. See 28 U.S.C. § 2244(b)(1);

Robinson, 313 F.3d at139.
C. Injunctive and/or Mandamus Relief
Finally, in his document titled "motion for a preliminary injunction," Shelley contends
that the Delaware Superior Court should have "exempted" him from the time limitations
contained in Rule 61 because he was originally prosecuted outside the "five years in which a
prosecution can commence pursuant to an indictment." (D.L 4 at 1-2) He asks the court to
compel the Delaware state courts to "reinstate his appeal rights" which, when viewed in context
with the record, appears to be a request for this court to compel the Delaware Superior Court to
reinstate his Rule 61 motion and consider it timely filed.
Whether Shelley's request is construed as a request for mandamus relief or as a request
for a preliminary injunction, such extraordinary relief is difficult to obtain. For instance, to
obtain a writ of mandamus, Shelley must satisty the following three conditions: (1) he must
demonstrate that he has "no other adequate means to attain the reliefhe desires"; (2) he must
carry the burden of showing that "his right to the issuance of the writ is clear and indisputable";
and (3) "the issuing court ... must be satisfied that the writ is appropriate under the
circumstances." Cheney v. United States Dist. Court, 542 U.S. 367, 380-81 (2004). Notably,
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mandamus is not a substitute for an appeal. See Madden v. Myers, 102 F.3d 74, 77 (3d Cir.
1996).
In order to obtain a preliminary injunction, Shelley must demonstrate that: (1) he is likely
to succeed on the merits; (2) denial will result in his irreparable injury; (3) granting the injunction
will not irreparably harm the nonmoving party; and (4) granting the injunction is in the public
interest. See Kos Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004); Maldonado v.

Houslon, 157 F.3d 179, 184 (3d Cir. 1997). All four factors must be established in order to
obtain injunctive relief. See Nulrasweet Co. v. ViI-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir.
1999).
The relief sought by Shelley, namely, reinstating his Rule 61 motion before the Delaware
Superior Court and preventing that state court from denying said Rule 61 motion as time-barred,
is not available by way of mandamus or injunction. First, this court does not have the authority to
issue a writ of mandamus directing the state court to vacate its orders regarding the dismissal of
Shelley's Rule 61 motion. See In re Campbell, 264 F.3d 730, 731 (7 th Cir. 2001)("[W]e cannot ..
. use our power to issue mandamus to a state judicial officer to control or interfere with state
court litigation, thus exceeding our jurisdiction."); In re Wolenski, 324

2d 309 (3d Cir. 1963)(a

district court has no jurisdiction to issue a writ of mandamus compelling action by a state
official). Second, the court cannot issue a preliminary injunction because Shelley has failed to
satisfY any of the four elements required to obtain injunctive relief. In sum, Shelley's recourse
regarding his assertion that the state courts misapplied Rule 61, if any, lies with the Delaware
state courts, not the federal courts. Accordingly, the court will deny Shelley's motion for a
preliminary injunction and/or mandamus relief.

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IV.

CONCLUSION
For the aforementioned reasons, the court will deny Shelley's § 2254 petition for lack of

jurisdiction. The court will also deny Shelley's motion for a preliminary injunction and/or
mandamus relief. Given this disposition, the court will deny as moot Shelley's motion for leave
to proceed in forma pauperis. Additionally, the court declines to issue a certificate of
appealability because Shelley has failed to make a "substantial showing of the denial of a
constitutional right." 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.

R\)ov. '1, kl 5
DATE

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