United States District Court, D. Delaware
1996, Petitioner Kevin Epperson ("Petitioner") was
convicted of first degree kidnapping and sexual assault.
See Epperson v. Carroll, 2004 WL 1588290 (D. Del.
July 14, 2004). He was sentenced as a habitual offender to
fifty-two years of incarceration followed by a period of
probation. Id. The Delaware Supreme Court affirmed
Petitioner's convictions and sentences on direct appeal.
applied for federal habeas corpus relief in May 1999, March
2001, May 2004, and April 2008. All of those petitions
challenged his 1996 convictions and sentence.
Petitioner's first petition was denied on the merits, and
his subsequent petitions were denied as second or successive.
See Epperson v. Snyder, Civ. A. No. 99-313-RRM (D.
Del. Aug. 11, 2000); Epperson v, Snyder, Civ. A. No.
01-210-RRM (D. Del. Apr. 2, 2001); Epperson v.
Carroll, Civ. A. No. 04-332-KAJ (D. Del. July 14, 2004);
Epperson v. Phelps, Civ. A. No. 08-240-SLR (D. Del.
June 2, 2008).
2016, Petitioner filed in Civ. A. No.
99-313-SLR a Rule 60(b) motion asking the Court to
reconsider the 2000 dismissal of his first petition for a
writ of habeas corpus. The Honorable Sue L. Robinson
dismissed the Rule 60(b) for lack of jurisdiction after
determining that it constituted an unauthorized second or
successive habeas petition. See Epperson v. Pierce,
2016 WL 6821064 (D. Del. Nov. 17, 2016).
November 2017, Petitioner filed an application in the Court
of Appeals for the Third Circuit requesting authorization to
file a second or successive habeas application. See In
re: Kevin Epperson, C.A. No. 17-3470 (3d Cir. Nov. 11,
2017). The Third Circuit denied the application because
Petitioner failed to satisfy the requirements for obtaining
such authorization. See In re Kevin Epperson, C.A.
No. 17-3470 (3d Cir. Mar. 2, 2018).
pending before the Court is Petitioner's new Petition for
habeas corpus relief. (D.I. 1) Petitioner contends that the
Delaware state courts have violated his constitutional right
to access to the courts by "classifying" him as a
"frivolous filer" and refusing to review his
filings. (D.I. 3 at 2-7) He asks this Court to instruct the
Delaware state court to "relieve him from the confines
of the injunction of their frivolous classification."
(D.I. 3 at 7)
federal district court may summarily dismiss a habeas
petition "if it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner
is not entitled to relief." Rule 4, 28 U.S.C. foll.
§ 2254. A district court can entertain a habeas petition
"in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States," and only if the relief sought is
either immediate release or speedier release. See Preiser
v. Rodriguez, 411 U.S. 475, 500 (1973).
turn, pursuant 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).
contends that the Delaware state courts have denied him
access to the courts by "designating all [of his]
filings to be frivolous" and refusing to file his
"motions claiming denial of [a] fair trial based upon
the error committed by the trial judge during ... [his]
criminal trial proceedings." (D.I. 3 at 1) To the extent
Petitioner is alleging he has been denied access to the
courts, he has improperly presented the argument in the
instant habeas proceeding. Instead, he must present the claim
in a civil rights complaint filed pursuant 42 U.S.C. §
1983. See, e.g., Bounds v. Smith, 430 U.S. 817, 818,
821 (1977)(a §1983 case reiterating that prisoners have
a constitutional right of access to the courts); Ross v.
Clerk of Courts of Common Pleas of Philadelphia,
Pennsylvania, 726 Fed.Appx. 864, 865 (3d Cir.
2018)(holding prisoner failed to state a denial of access to
the courts claim under § 1983).
extent Petitioner's argument should be construed as
challenging the fairness of his criminal proceeding and/or
the legality of his 1996 conviction, it constitutes a request
for habeas relief. Notably, Petitioner himself asserts that
his "challenge has always been focused upon the
fundamental fairness of the trial process by which the result
was procured." (D.I 3 at 7) Petitioner already has, or
could have, challenged the fundamental fairness of his
criminal proceeding and/or legality of his conviction in the
first § 2254 petition he filed in this Court. As such,
the Court concludes that the instant Petition constitutes a
second or successive habeas petition within the meaning of 28
U.S.C. § 2244.
does not allege that the Third Circuit authorized the filing
of the pending Petition. Given these circumstances, the Court
lacks jurisdiction to consider the instant Petition.
See Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Court, 28 U.S.C. foll. §
2254 (authorizing summary dismissal of § 2254
petitions); 28 U.S.C. § 2244(b)(1).
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
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 ...