United States District Court, D. Delaware
R. UNDERHILL UNITED STATES DISTRICT JUDGE
April 1998, while he was incarcerated in Pennsylvania,
Petitioner Leroy Shelley ("Petitioner") 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 Petitioner, 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. Petitioner did not file a direct
February 2012, the Honorable Gregory M. Sleet denied as
time-barred Petitioner'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,
Petitioner 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 petition. See
Shelley, 2013 WL 6092806 at *2.
2015, Petitioner 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 the requests
after determining that they constituted an unauthorized
second or successive habeas petition. Id. at *l-*2.
August 2017, Petitioner filed 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. (See D.I. 1 in Shelley v.
Wharton, Civ. A. No. 17-1245-GMS) After determining that
the document constituted an unauthorized second or successive
habeas petition, the court dismissed it for lack of
jurisdiction. (See D.I. 3 and D.I. 4 1 in
Shelley v. Wharton, Civ. A. No. 17-1245-GMS)
pending before the Court is Petitioner's most recent
Petition for a Writ of Habeas Corpus ("Petition").
(D.I. 1) Petitioner contends that he is entitled to habeas
relief because (1) his re-indictment in 2007 violated
Delaware law and deprived the Delaware Superior Court of
jurisdiction over his proceeding; (2) the State violated the
Interstate Agreement on Detainers; and (3) the mandatory
portion of his sentences for PFDCF are illegal because he
committed the crimes in 1997 before the Delaware General
Assembly enacted the statute making a PFDCF sentence
mandatory in 2001. (D.I. 1 at 1-5)
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).
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 his first
petition. See Murray v. Greiner, 394 F.3d 78, 80 (2d
Cir. 2005); Benchoff, 404 F.3d at 817-18. 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. 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).
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. Given this
holding, the Court will dismiss as moot Petitioner's
request for bail pending the Court's resolution of the
instant proceeding. (D.I. 1 at 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." S ...