Wilmer v. Pierce et al
MEMORANDUM re 3 Petition for Writ of Habeas Corpus. Signed by Judge Richard G. Andrews on 1/19/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civil Action No. 16-372-RGA
DAVID PIERCE, Warden, and
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
Petitioner Gerald Wilmer has filed a Petition for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 ("Petition") challenging his 1997 conviction for first degree unlawful sexual
intercourse. (D.I. 3 at 1) The District Court of Delaware has already denied habeas relief for this
same conviction on one prior occasion, namely, when the Honorable Kent A. Jordan denied his
first petition as time-barred in Wilmer v. Carroll, Civ. A. No. 03-1148-KAJ, Mem. Op. (D. Del.
Dec. 8, 2005).
Pursuant to 28 U.S.C. § 2244(b)(l), 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 Benchoffv. Colleran, 404 F.3d 812, 817 (3d Cir. 2005); In re Olabode, 325 F.3d 166, 169-73
(3d Cir. 2003).
After reviewing the record, the Court concludes that he instant Petition is a second or
successive habeas petition under 28 U.S.C. § 2244. The denial of Petitioner's first petition as
time-barred constitutes an adjudication on the merits for the purposes of 28 U.S.C. § 2244(b),
and the instant Petition asserts claims that either were or could have been asserted in Petitioner's
first petition. See Murray v. Greiner, 394 F.3d 78, 80 (2d Cir. 2005); Benchoff, 404 F.3d at 81718. In addition, 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)(2)(B) & (3). Therefore,
the Court will dismiss the Petition for lack of jurisdiction. See Rule 4, 28 U .S.C. foll. § 2254;
Robinson, 313 F.3d at 139.
Petitioner also filed the following Motions: (1) Motion for Leave to Proceed In Forma
Pauperis (D.I. 1); (2) Motion to Amend Petition (D.1. 6); (3) Motion to Appoint Counsel (D.1. 7);
and (4) Motion for Evidentiary Hearing (D.1. 8). The Court will grant the Motion for Leave to
Proceed In Forma Pauperis for the limited purpose of issuing this Memorandum and Order (D.I.
1). However, having concluded that it lacks jurisdiction over Petitioner's unauthorized second or
successive petition, the Court will dismiss as moot Petitioner's other three Motions (D.1. 6; D.I.
7; D.I. 8).
For the reasons 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: January \ ~ , 2017
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