United States District Court, D. Delaware
1976, a Delaware Superior Court jury convicted Petitioner
Amir Fatir ("Petitioner") and his three
co-defendants of first degree murder, first degree robbery,
second degree conspiracy; the jury also convicted Petitioner
of possession of a deadly weapon during the commission of a
felony ("PDWCF"). See Fatir v. Thomas, 106
F.Supp.2d 572, 575 (D. Del. 2000). Petitioner was sentenced
to death on his murder conviction under Delaware's former
mandatory death sentence statute. Id.; see also Hobbs v.
State, 538 A.2d 723 (Del. 1988). Petitioner appealed. In
1980, the Delaware Supreme Court affirmed Petitioner's
convictions, but noted that resentencing would be necessary
for the first degree murder conviction in accordance with the
decision in State v. Spence, 367 A.2d 983 (Del.
1976). Id. at 576. On remand, the Superior Court
vacated the death sentence and re-sentenced Petitioner to
life in prison without parole for his murder conviction.
See Hooks v. State, 429 A.2d 1312, 1313 (Del. 1981).
Petitioner appealed, and the Delaware Supreme Court affirmed
the Superior Court's decision. Id. at 1314.
appears that Petitioner filed his first § 2254 petition
in 1980. See Fatir, 106 F.Supp.2d at 576 n.4. The
Honorable Murray M. Schwartz denied the petition, rejecting
some claims as unexhausted and others as meritless. See
Abubake v. Redman, 521 F.Supp. 963 (D. Del. 1981),
vacated by Abubake a/k/a Golson v. Redman, 696 F.2d
980 (3d Cir. 1982). The Third Circuit Court of Appeals
vacated that judgment, ruling that the petition was a
"mixed petition" requiring dismissal without
prejudice under Rose v. Lundy, 455 U.S. 509 (1982).
See Fatir, 106 F.Supp.2d at 577; see also
Abubake, 696 F.2d 980. The case was remanded with
instructions to dismiss the petition to allow Petitioner to
either exhaust unexhausted claims or delete them. (D.I. 1 at
1983, Petitioner filed in the Delaware Superior Court a
motion for post-conviction relief pursuant to Delaware
Superior Court Criminal Rule 61. See Fatir, 106
F.Supp.2d at 577. The Superior Court denied the motion, and
the Delaware Supreme Court affirmed that judgment.
Id. Thereafter, Petitioner made several unsuccessful
attempts to have his sentence commuted. Id.
1997, Petitioner filed a federal habeas petition challenging
his 1976 convictions for first degree murder, first degree
robbery, conspiracy in the second degree, and possession of a
deadly weapon during the commission of a felony. See
Fatir, 106 F.Supp.2d 572. The 1997 petition asserted
a total of seven claims, which the Honorable Gregory M. Sleet
denied as meritless Id. at 578-89
filed another habeas petition in September 2008 asserting
fourteen claims challenging his 1976 convictions. See
Fatir v. Phelps, Civ. A. No. 8-567-GMS (D. Del. 2008).
Judge Sleet dismissed the petition for lack of jurisdiction
because it constituted an unauthorized second or successive
habeas petition. See Id. at D.I. 5. Petitioner
appealed, and the Third Circuit terminated the appeal after
denying his motion for a certificate of appealabilty. See
Id. at D.I. 9.
his 1997 habeas petition, Petitioner has filed numerous
motions challenging his sentences in the Delaware state
courts. In 2015, he succeeded in getting his thirty-year
sentence for PDWCF vacated. See Fatir v. State, 123
A.3d 940 (Table), 2015 WL 5168266 (Del. Sept. 2, 2015).
December 2018, Petitioner filed in his closed 1980 habeas
corpus proceeding a Motion for Leave to Re-File Vacated
Initial Habeas Corpus Petition or Leave to File Amended
Habeas Petition ("Motion"). (D.I. 2) He asserts
that he was never notified that the Third Circuit vacated
Judge Schwartz's dismissal of his very first habeas
petition, or that the petition was thereafter dismissed
without prejudice. (D.I. 2 at 1) He contends that he was
"therefore effectively prevented from having his initial
habeas corpus petition filed and litigated."
Id. The instant Motion seeks to re-assert the
"issues raised in the original petition - not the one
scaled down to one issue by petitioner's court-appointed
attorney," as well as an additional nineteen claims.
(D.I. 2 at 2-3)
Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") "created a statutory
'gatekeeping mechanism' for second or successive
habeas petitions." In re Hoffner, 870 F.3d 301,
306 (3d Cir. 2017). Pursuant 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."
Benchoffv. 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. 2002).
attempt to circumvent the AEDPA's limitation on second or
successive § 2254 petitions by labelling his Motion as a
motion to refile and/or amend his previously dismissed 1980
habeas petition is unsuccessful. As aptly stated by the
[p]risoners cannot avoid the AEDPA's rules by inventive
captioning . . . [c]all it a motion for a new trial, arrest
of judgment, mandamus, prohibition, coram nobis, coram vobis,
audita querela, certiorari, capias, habeas corpus, ejectment,
quare impedit, bill of review, writ of error, or an
application for a Get-Out-of-Jail Card; the name makes no
difference. It is substance that controls.
Melton v. United States,
359 F.3d 855, 857 (7th
Cir.2004). The instant Motion asserts more than nineteen
claims challenging Petitioner's 1976 convictions and
sentences, and his 1980 life sentence. These claims either
were or could have been asserted in the habeas petition
Petitioner filed in 1997 that challenged the same convictions
and sentences. Judge Sleet's denial of the 1997 petition
constitutes an adjudication on the merits. Therefore, the