United States District Court, D. Delaware
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.
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. Att'y Gen. of
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.
2015, Shelley filed documents challenging his 2007 conviction
on the basis that his 1998 indictment and his 2007
re-indictment were defective. See Shelley v.
Wharton, 2015 WL 6871402, at *1 (D. Del. Nov. 4, 2015).
He also contended 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). Id. Construing the documents to be
requests for habeas relief, the court denied after
determining that they constituted an unauthorized second or
successive habeas petition. Id. at *l-*2.
August 2017, Shelley filed in this court a document titled
"Writ of Prohibition -Petition for Extraordinary Writ,
" asserting that the Delaware Superior Court lacked
jurisdiction to convict him because (1) the statute of
limitations had expired, and (2) the 2007 re-indictment was
defective on its face. (D.I. 1 at 2)
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). Notably, a
habeas petition is not considered second or successive simply
because it follows a prior petition. See Panetti v.
Quarterman, 551 U.S. 930, 944 (2007). 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). In turn, 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).
court construes the instant petition to be his fourth request
for habeas relief with respect to his 2007 convictions and
sentences. Shelley's first federal habeas petition was
denied as time-barred, which constitutes an adjudication on
the merits. See Murray v. Greiner, 394 F.3d 78, 80
(2d Cir. 2005). In addition, Shelley could have asserted his
instant two arguments in that first petition. For these
reasons, the court concludes that the pending petition
constitutes a second or successive habeas petition within the
meaning of § 2244.
record reveals that Shelley did not obtain permission 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
of jurisdiction. See 28 U.S.C. § 2244(b)(1);
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.
2002)(holding that when a second or successive habeas
petition is erroneously filed "in a district court
without the permission of the 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.
court will also decline 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.
aforementioned reasons, the court will deny Shelley's
§ 2254 petition for lack of jurisdiction. The court also
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); Unit ...