Evans v. Denn
Filing
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MEMORANDUM. Signed by Judge Richard G. Andrews on 12/28/2017. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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AUGUSTUS HEBREW EVANS, JR.,
Petitioner,
Civil Action No. 17-1495-RGA
V.
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ATTORNEY GENERAL OF THE
STATE OF DELAWARE,
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Respondent.
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MEMORANDUM
I.
BACKGROUND
In 2007, Petitioner Augustus Hebrew Evans, Jr. 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. 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 challenging his 2007 convictions. See Evans v. Phelps, 2012 WL 1134482 (D.
Del. Apr. 2, 2012). Judge Stark denied the petition as meritless. Id.
In March 2015, Petitioner filed in this Court a petition for a writ of error coram nobis
with respect to his 2007 convictions. See Evans v. Pierce, Civ. A. No. 15-270-SLR, D.I. 2.
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Judge 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. Evans v. Pierce, Civ.
A. No. 15-270-SLR, D.I. 9 at 3. 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).
On October 17, 2017, Petitioner filed a petition for writ of habeas corpus challenging his
2007 convictions, contending 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. See Evans v. Attorney General of the State ofDelaware, Civ. A. No. 17-1464RGA, D.I. 3. The Court dismissed the petition on December 8, 2017 for lack of jurisdiction after
concluding it was an unauthorized second or successive petition. See id. at D.I. 9; D.I. 10.
Presently pending before the Court is Petitioner's most recent Petition for Writ of Habeas
Corpus Filed Pursuant to 28 U.S.C. § 2254 (D.I. 3), along with a Motion for Leave to Proceed In
Forma Pauperis (D.l. 1). Petitioner contends that the amended version of Delaware Superior
Court Criminal Rule 61 is unconstitutional and that the application of amended Rule 61 to his
state collateral proceeding (which challenged his 2007 convictions) violated his due process
rights. (D.I. 3 at 8-21).
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II.
LEGAL STAND ARDS
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 Benchoff v. Colleran, 404 F.3d 812, 817 (3d Cir. 2005); In re Olabode, 325 F.3d 166, 169-73
(3d Cir. 2003).
III.
DISCUSSION
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 Petitioner has filed another 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 81718. In addition, the Court recently dismissed as second or successive a habeas petition filed by
Petitioner challenging the same 2007 convictions. See Evans, Civ. A. No. 17-1464-RGA, D.I. 9,
D.I. 10. 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
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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 in the interest of justice to transfer this
case to the Court of Appeals for the Third Circuit. The Third Circuit has already declined to
grant 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). In fact, to the extent Petitioner's instant argument is that
the Delaware state courts erroneously applied Rule 61 to his state collateral proceeding, he is
alleging an error of state law that is not cognizable on federal habeas review. See Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). Accordingly, the Petition will be dismissed for lack of
jurisdiction.
IV.
CONCLUSION
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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DISTRICT JUDGE
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