United States District Court, D. Delaware
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.
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.
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. Judge Robinson dismissed the coram
nobis petition for lack of jurisdiction. See Evans
v. Pierce, 148 F.Supp.3d 333, 336 (D. Del. 2015).
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. 15-1726 (3d Cir. Apr. 9,
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 of Delaware, Civ. A. No. 17-1464-RGA, 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;
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.I. 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).
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).
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
of 28 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. 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
circumstances, the Court lacks jurisdiction to consider the
instant Petition. See Rule 4, 28 U.S.C. foil. §
2254; Robinson, 313 F.3d at 139.
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
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);