United States District Court, D. Delaware
Bernard Moses Taylor. Pro se Petitioner.
Scott Goodwin, Deputy Attorney General of the Delaware Department of Justice, Wilmington, Delaware, Attorney for Respondents.
RICHARD G. ANDREWS, District Judge.
Petitioner Bernard Moses Taylor ("Petitioner") was incarcerated at the Howard R. Young Correctional Institution in Wilmington, Delaware when he filed the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Petition") presently pending before the Court. (D.I. 2) The State filed an Answer in opposition, contending that the Petition should be denied in its entirety as second or successive. Alternatively, the State contends that the Petition should be denied because one claim is not cognizable on habeas review, one claim is procedurally barred, and two claims are second or successive. (D.I. 13) For the reasons discussed, the Court will dismiss the Petition for lack of jurisdiction because it is an unauthorized second or successive petition for habeas relief.
In 1986, Petitioner was convicted of first degree robbery, second degree burglary (as a lesser included offense of first degree burglary), possession of a deadly weapon during the commission of a felony ("PDWDF"), first degree kidnapping, and first degree conspiracy. (D.I. 13 at 2) In post-trial proceedings, the Superior Court reduced Petitioner's kidnapping and conspiracy convictions to the second degree level. See State v. Taylor, 1988 WL 77766 (Del. Super. Ct. June 21, 1988). On July 1, 1988, the Superior Court sentenced Petitioner to a total of thirty years of incarceration consecutive to the sentence he was serving in Maryland. (D.I. 15, State v. Moses, ID No. 84001657(R-3), Letter Order, J. Graves (Del. Super. Ct. May 16, 2013)) The Delaware Supreme Court affirmed Petitioner's conviction on appeal. See Taylor v. State, 567 A.2d 424 (Table), 1989 WL 149570, at *1 (Del. Nov. 16, 1989).
Petitioner filed his first motion for post-conviction relief pursuant to Delaware Superior Court Criminal Rule 61 ("Rule 61 motion") in August 1988; that motion was held in abeyance pending disposition of his direct appeal. See State v. Taylor, 1991 WL 35788 (Del. Super. Ct. Feb. 26, 1991). Petitioner filed his second Rule 61 motion in February 1990. Id. The Superior Court consolidated the Rule 61 motions and considered them together. (D.I. 15, State v. Taylor, ID No. 84001657(R-3), Letter Order, J. Graves, at 3 n.5 (Del. Super. Ct. May 16, 2013)). In February 1991, the Superior Court granted the consolidated Rule 61 motion in part, vacating Petitioner's PDWDCF conviction and ordering resentencing on the first degree robbery conviction. See Taylor, 1991 WL 35788 at *2. The Superior Court resentenced Petitioner to twenty-eight years of incarceration on March 12, 1991, and the Delaware Supreme Court affirmed that decision. See Taylor v. State, 599 A.2d 414 (Table), 1991 WL 165552 (Del. Aug. 12, 1991). Petitioner filed a third Rule 61 motion in February 1992, which the Superior Court denied. (D.I. 15, Del. Super. Ct. Crim. Dkt. Entry Nos. 113, 114, 125). The Delaware Supreme Court affirmed that decision. See Taylor v. State, 620 A.2d 859 (Table), 1992 WL 404268 (Del. Dec. 17, 1992).
On August 11, 1995, Petitioner filed a petition for federal habeas relief. See Taylor v. Watson, Civ. A. No. 95-645-RRM. The Honorable Roderick R. McKelvie denied the Petition, and the Third Circuit Court of Appeals affirmed that decision. See Taylor, Civ. A. No. 95-645-RRM, Mem. Op. & Order (D. Del. Feb. 4, 1998); Taylor v. Watson, 216 F.3d 1077 (Table) (3d Cir. May 19, 2000). The Third Circuit denied Petitioner's petition for rehearing en bane. See Taylor v. Watson, No.98-7186, Order, C.J. Becker (3d Cir. July 19, 2000). The United States Supreme Court denied Petitioner's petition for a writ of certiorari on November 27, 2000. See Taylor v. Watson, 531 U.S. 1023 (2000).
Petitioner was conditionally released on June 17, 2005. (D.I. 13, Ex. B) On March 28, 2013, the Delaware Board of Parole issued a warrant to retake Petitioner for violating the terms of his release. Id. Petitioner filed a Rule 61 motion on May 13, 2013, which the Superior Court dismissed as procedurally barred on May 16, 2013. (D.!. 15, State v. Taylor, ID No. 84001657(R-3), Letter Order, J. Graves (Del. Super. Ct. May 16, 2013))
Petitioner filed the instant Petition on June 6, 2013. (D.I. 2) On June 18, 2013, the Board of Parole found Petitioner guilty of violating the terms of his conditional release and restored the balance of his sentence. (D.I 13, Ex. C) However, after due consideration, the Board of Parole decided to re-release Petitioner to "Level III supervision through the interstate compact to Maryland." Id. Petitioner appealed, and the Delaware Supreme Court dismissed his appeal on August 28, 2013 for failure to prosecute. See Taylor v. State, 74 A.3d 655 (Table), 2013 WL 4613869 (Del. Aug. 28, 2013).
Petitioner was released from the Howard R. Young Correctional Institution sometime during the initial four months of this proceeding. (D.I. 10) He is currently residing in Baltimore, Maryland, and is being monitored by the Delaware Board of Parole until March 2016. Id.
II. SECOND OR SUCCESSIVE GATEKEEPING DOCTRINE
As a general rule, petitioners must bring their claims in one habeas action. Pursuant to 28 U.S.c. § 2244(b)(1), if a habeas petitioner 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).
The term "second or successive" is a "term of art, " and does not simply refer to all § 2254 applications filed second or successively in time. See Panetti v. Quarterman, 551 U.S. 930, 944 (2007); Slack v. McDaniel, 529 U.S. 473, 486 (2000). Rather, 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). The second or successive determination is typically made with respect to the judgment being challenged in a habeas petition, and not with respect to the individual claims in the petition. See Magwood v. Patterson, 561 U.S. 320, 334-35 (2010). However, there are narrow circumstances where a claim that was not presented in a prior petition may be presented in a second-in-time petition without prior authorization from a court of appeals, namely, where the claim was not ripe when the petitioner presented his first petition. See Panetti, 551 U.S. at ...