Evans v. Denn
MEMORANDUM re 3 Petition for Habeas Corpus. Signed by Judge Richard G. Andrews on 12/8/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
AUGUSTUS HEBREW EVANS, JR.,
Civil Action No. 17-1464-RGA
ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
In 2007, Petitioner Augustus Hebrew Evans, Jr. ("Petitioner") was convicted of second
degree assault, aggravated menacing, resisting arrest, and two counts of possession of a deadly
weapon during the commission of a felony ("PDWDCF"). See Evans v. State, 968 A.2d 491
(Table), 2009 WL 367728, at *2-3 (Del. Mar. 16, 2009). The Delaware Superior Court
sentenced him as a habitual offender to seventy-nine years of incarceration at Level V,
suspended after seventy-two years for a period of probation. Id. The Delaware Supreme Court
affirmed Petitioner's convictions and sentences on direct appeal. Id.
In 2010, Petitioner filed in this Court a Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 ("petition") challenging his 2007 convictions. See Evans v. Phelps, 2012 WL
1134482 (D. Del. Apr. 2, 2012). The Honorable Leonard P. Stark denied the petition as
In March 2015, Petitioner filed in this Court a petition for a writ of error coram nobis
("coram nobis petition") with respect to his 2007 convictions. (D.1. 2 in Evans v. Pierce, Civ. A.
No. 15-270-SLR) The Honorable Sue L. Robinson dismissed the coram nobis petition for lack of
jurisdiction. See Evans v. Pierce, 148 F. Supp. 3d 333, 336 (D. Del. 2015).
In April 2015, Petitioner filed an application in the Court of Appeals for the Third Circuit
requesting authorization to file a second or successive habeas application. (D .I. 9 at 3 in Evans v.
Pierce, Civ. A. No. 15-270-SLR) The Third Circuit denied the application because petitioner
failed to satisfy the requirements for obtaining such authorization. See In re Evans, C.A. No. 151726 (3d Cir. Apr. 9, 2015).
Presently pending before the Court is Petitioner's new Petition for Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 ("Petition") (D.I. 3), along with a Motion for Leave to Proceed In
Forma Pauperis (D.I. 1). Petitioner contends that: (1) the Superior Court erroneously sentenced
him as a habitual offender for his 2007 convictions; (2) his sentence exceeds statutory limits and
was the result of an abuse of discretion; and (3) Delaware's habitual offender statutes are
unconstitutional. (D .I. 3 at 6-17)
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 Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005); In re Olabode, 325 F.3d 166, 169-73
(3d Cir. 2003).
Based on the representations in Petitioner's trust fund account statement, the Court will
grant his Motion for Leave to Proceed In Forma Pauperis. (D.I. 1) However, after reviewing
the record, the Court concludes that the instant Petition is a second or successive habeas petition
under 28 U.S.C. § 2244. The denial of Petitioner's first petition was an adjudication on the
merits for the purposes of28 U.S.C. § 2244(b), and the instant Petition challenges the same 2007
convictions and 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 817-18.
Notably, 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). Given these
circumstances, the Court lacks jurisdiction to consider the instant Petition. See Rule 4, 28 U.S.C.
foll.§ 2254; Robinson, 313 F.3d at 139.
The Court further concludes that it would not be interest of justice to transfer this case to
the Court of Appeals for the Third Circuit. The Third Circuit has already declined Petitioner
leave to proceed with an earlier successive petition, and nothing in the instant Petition comes
close to satisfying the substantive requirements for a second or successive petition under 28
U.S.C. § 2244(b)(2). Accordingly, the Petition will be dismissed for lack of jurisdiction.
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.
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