United States District Court, D. Delaware
1990, a Delaware Superior Court jury convicted Petitioner
James Hugh Henson, Jr. ("Petitioner") of second
degree attempted unlawful sexual intercourse and second
degree unlawful intercourse. See Henson v. State,
608 A.2d 727 (Table), 1992 WL 21120, at *1 (Del. Jan. 15,
1992); (D.I. 7 at 82) The Delaware Superior Court sentenced
him to two consecutive life sentences with parole
eligibility. (D.I. 3 at 1) The Delaware Supreme Court
affirmed Petitioner's convictions and sentences on direct
appeal. See Henson, 1992 WL 21120, at *3.
1992, Petitioner filed in this Court a Petition for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254
("petition") challenging his 1990 convictions.
See Henson v. Snyder, Civ. A. No. 92-099-SLR. The
Honorable Sue L. Robinson denied the petition as meritless.
(D.I. 7 at 82-85)
February 2019, Petitioner filed a Petition for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging
his 1990 convictions, contending that: (1) the trial court
violated Delaware Superior Court Criminal Rules by permitting
twenty-two separate and unrecorded sidebar conferences; (2)
defense counsel provided ineffective assistance during all
stages of investigatory, trial, and appeal processes; and (3)
Petitioner's right to confront his accuser was violated
when the State offered the testimony of a FBI special agent
who provided unsubstantiated testimony regarding a
statistical analysis. (D.I. 3) Petitioner has also filed a
Motion for Leave to Proceed In Forma Pauperis (D.I.
1) and a Motion to Appoint Counsel (D.I. 8)
to 28 U.S.C. § 2244(b)(3)(A), a petitioner must seek
authorization from the appropriate court of appeals before
filing a second or successive habeas petition in a district
court. See Burton v. Stewart, 549 U.S. 147, 152
(2007); Rule 9, 28 U.S.C. foil. §2254. Notably, a
petition for habeas relief is not considered to be
"second or successive simply because it follows an
earlier federal petition." Benchoff v.
Colleran, 404 F.3d 812, 817 (3d Cir. 2005) 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, 404 F.3d at 817; In re
Olabode, 325 F.3d 166, 169-73 (3d Cir. 2003). 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.
record in this case reveals that Petitioner's first
petition was adjudicated on the merits, the instant Petition
challenges the same 1990 convictions that were challenged in
his first petition, and the instant Petition also asserts
claims that 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. Therefore, the
Court concludes that the instant Petition constitutes a
second or successive habeas petition under 28 U.S.C. §
Petitioner did not obtain the requisite authorization from
the Court of Appeals to file this successive habeas request,
Court lacks jurisdiction to consider the Petition.
See Rule 4, 28 U.S.C. foil. § 2254;
Robinson, 313 F.3d at 139. In addition, the Court
concludes that it would not be in the interest of justice to
transfer this case to the Third Circuit, because 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). Given all of these
circumstances, the Court will dismiss the Petition for lack
of jurisdiction, and will dismiss the two pending Motions as
reasons set forth above, the Court will summarily dismiss the
instant Petition for lack of jurisdiction and the pending
Motions as moot. 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
See 28 U.S.C. §§
2244(b)(3); Rule 9, 28 U.S.C. foil. ...