United States District Court, D. Delaware
DAMONE E. FLOWERS, Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
April 2000, a Delaware grand jury indicted Flowers for first
degree murder, possession of a firearm during the commission
of a felony, and possession of a firearm by a person
prohibited. The charges stemmed from an August 1, 1998
shooting. Following the severance of the person prohibited
charge, a Superior Court jury found Flowers guilty of first
degree murder and possession of a firearm during the
commission of a felony in October 2002. Flowers moved for a
new trial, but the Superior Court denied the motion in
February 2003. The Superior Court sentenced Flowers to life
in prison without the possibility of probation or parole for
the murder and ten years for the weapon offense, and the
Delaware Supreme Court affirmed Flowers' convictions and
sentences on direct appeal. See Flowers v. State,
858 A.2d 328 (Del. 2004).
September 2008, the court dismissed Flowers' first
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 after determining that the petition was
time-barred. See Flowers v.. Phelps, 2008
WL 4377704 (D. Del. Sept. 22, 2008). Flowers appealed, and
the Third Circuit Court of Appeals declined to issue a
certificate of appealabilty. See Flowers v. Phelps,
C.A. No. 08-4157, Order (3d Cir. April 15, 2009).
October 2017, Flowers filed the habeas petition presently
pending before the court. (D.I. 3) The petition challenges
his 2002 convictions.
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).
reviewing the record, the court concludes that Flowers has
filed a second or successive habeas petition under 28 U.S.C.
§ 2244. The denial of Flower'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
2002 convictions and asserts claims that could have been
asserted in his first petition. See Murray v.
Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (holding that
the dismissal of a § 2254 petition as time barred
constitutes an adjudication on the merits for successive
purposes); Altman v. Benik, 337 F.3d 764, 766
(7th Cir. 2003) (holding that "a statute of
limitations bar is not a curable technical or procedural
deficiency but rather operates as an irremediable defect
barring consideration of the petitioner's substantive
claims"); Benchoff, 404 F.3d at 817-18.
record reveals that Flowers did not obtain permission from
the Third Circuit Court of Appeals before filing his pending
habeas request. In addition, since 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), the court concludes that it would
not be in the interest of justice to transfer this case to
the Court of Appeals for the Third Circuit. 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. § 1631.").
court will grant Flowers' motion for leave to proceed
in forma pauperis (D.I. 1) solely for the purpose of
issuing the instant memorandum and order. Additionally,
having determined that it must dismiss the instant petition
for lack of jurisdiction, the court will deny as moot
Flowers' motion to stay and abey the instant petition
aforementioned reasons, the court will deny Flowers'
§ 2254 petition for lack of jurisdiction. The court also
declines to issue a certificate of appealability because
Flowers 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); Unite ...