United States District Court, D. Delaware
FREDDY L. FLONNORY, Petitioner,
DAVID PIERCE, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
1998, a Delaware Superior Court jury convicted Petitioner
Freddy L. Flonnory of two counts of first degree murder,
three counts of possession of a firearm during the commission
of a crime, attempted first degree murder, first degree
conspiracy, and possession of a deadly weapon by a person
prohibited. See Flonnory v. Phelps, 2010 WL 3023657,
at *2 (D. Del. July 30, 2010). The Superior Court sentenced
him to death for each of the murder convictions. Id.
On direct appeal, the Delaware Supreme Court reversed
Petitioner's convictions and sentences. See Flonnory
v. State, 778 A.2d 1044 (Del. 2001). Following a new
jury trial in February 2004, Petitioner was convicted on all
charges. See Flonnory, 2010 WL 3023657, at *2. At
sentencing, the Superior Court judge found that the
mitigating factors outweighed the aggravating factors and
sentenced Petitioner to life in prison for both of the first
degree murder convictions; a third term of life imprisonment
for the attempted murder conviction; and a total of sixty
years incarceration for the remaining convictions.
Id. The Delaware Supreme Court affirmed
Petitioner's convictions and sentences on direct appeal.
See Flonnory v. State, 893 A.2d 507 (Del. 2006).
2008, Petitioner filed in this Court a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his 2004 convictions. The Honorable Joseph J. Farnan, Jr.,
denied the Petition in July 2010 after determining that two
claims were not cognizable on federal habeas review and the
other seven claims lacked merit. See Flonnory, 2010
WL 3023657, at *4-15.
pending before the Court is Petitioner's new Petition for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
("Petition") challenging his 2004 convictions.
(D.I. 1) The Petition asserts the following grounds for
relief: (1) ineffective assistance of counsel; (2)
the trial court abused its discretion and violated 11 Del.
Code. Ann. § 3507 by admitting the hearsay statements of
Joy Watson and Akhee Flonnory; and (3) Petitioner's
sentence is illegal. (D.I. 1)
to 28 U.S.C. § 2244(b), 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).
first § 2254 Petition, which challenged the same 2004
convictions challenged in the instant Petition, was denied on
the merits. All three Claims in the instant Petition had also
been in his first Petition. To the extent Petitioner asserts
that he has newly developed facts concerning the statements
provided by Joy Watson and Akhee Flonnory during his trial
(D.I. 1 at 8), the Third Circuit must determine if such
evidence warrants authorizing Petitioner to file a second
habeas petition. Notably, Petitioner does not allege, and
nothing in the record indicates, that the Third Circuit Court
of Appeals authorized the filing of the pending Petition.
Accordingly, the Court will dismiss the Petition for lack of
jurisdiction. See Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Court, 28
U.S.C. foil. § 2254 (authorizing summary dismissal of
§ 2254 petitions); 28 U.S.C. § 2244(b)(1).
reason set forth above, the Court will summarily dismiss the
instant Petition for lack of jurisdiction. Given this
determination, the Court will dismiss as moot
Petitioner's Motion to Stay (D.I. 3) and his Motions to
Amend (D.I. 4; D.I. 5). 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
 Although the form Petition actually
sets out four separate claims, the claim identified as
"Claim Three" asserts that Petitioner has newly
discovered evidence supporting the § 3507 argument in
Claim Two, and asks the Court to stay the proceeding to
enable him to present the evidence to the Superior Court.
(D.I. 1 at 8) Given the repetitive nature of the substantive
assertions contained in Claims Two and Three, the Court views