Free Order Dismissing Petition for Writ of Habeas Corpus - District Court of Delaware - Delaware

Case 1:08-cv-00385-SLR

Document 4

Filed 07/22/2008

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DANIEL PASKINS, Petitioner, )
) ) ) ) ) ) )
)
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v.
PERRY PHELPS, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.

Civil Action No. 08-385-SLR

ORDER
At Wilmington this

,gjf. day of July, 2008;

IT IS HEREBY ORDERED that: 1. Petitioner's application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is DENIED as second or successive. (0.1. 1) Petitioner has filed at least four prior second or successive applications for habeas corpus relief in this court. See Paskins v. Carroll, C.A. No. 05-161-SLR, Order (D. Del. April 5, 2005); Paskins v. Carroll, C.A. No. 03-36-SLR, Order (D. Del. Jan. 15, 2003); Paskins v. Carroll, 2002 2003 WL 21844234 (D. Del. July 25,2003); Paskins v. Carroll, 2002 WL 1268048 (D. Del. May 8, 2002). The instant application constitutes a second or successive habeas petition for the purposes of 28 U.S.C. § 2244 because it does not challenge conduct that occurred subsequent to the filing of petitioner's earlier applications. See Benchoff v. Colleran, 404 F.3d 812, 817-18 (3d Cir. 2005). The record reveals that petitioner filed the instant application without first obtaining permission from the Court of Appeals for the Third Circuit. See 28 U.S.C. § 2244(b)(1). Therefore, the court does not have

Case 1:08-cv-00385-SLR

Document 4

Filed 07/22/2008

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the authority to review the application. Robinson v. Johnson, 313 F.3d 128, 139 (3d Gir. 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.G. § 1631."). 2. The court declines to issue a certificate of appealability because petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.G. § 2253(c)(2); see United States v. Eyer, 113 F.3d 470 (3d Gir. 1997); 3rd Gir. LAR 22.2. 3. The clerk is directed to close the case.

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