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

Case 1:06-cv-00758-JJF Document 5 Filed O1/18/2007 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DONALD F. BASS, :
Petitioner, :
v. : Civil Action No. 06-758-JJF
THOMAS CARROLL, :
Warden, and ATTORNEY :
GENERAL OF THE STATE :
OF DELAWARE, :
Respondents. :
O R D E R
At Wilmington this 12; day of January, 2007:
IT IS HEREBY ORDERED that:
I. Petitioner Donald F. Bass' Motion for Leave to
Proceed In Forma Pauperis is GRANTED. (D.I. l.)
2. Petitioner Donald F. Bass' Application For A Writ
Of Habeas Corpus Filed Pursuant To 28 U.S.C. § 2254 is
DISMISSED and the writ is DENIED as second or successive.
(D.I. 2.) The instant Application is Petitioner’s second
habeas challenge to his 1998 conviction and sentence as an
habitual offender.} The Court denied Petitioner's first
[In 1998, Petitioner was convicted on multiple counts of
first degree burglary and weapons charges and sentenced to a
mandatory habitual offender sentence of eight life terms plus 78
mandatory years. One of the grounds asserted in Petitioner's
first habeas application was that the Delaware Superior Court
erroneously sentenced Petitioner as an habitual offender. In the

Case 1:06-cv-00758-JJF Document 5 Filed O1/18/2007 Page 2 of 3
habeas application as time—barred. See Bass v. Carroll,
Civ. A. No. 02—1557—JJF, Mem. Order (D. Del. July 18, 2003).
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)(l). Therefore, the Court
does not have the authority to review the Application.
Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.
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.C. § 1631.”).
2. Petitioner has failed to make a “substantial
showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), and a certificate of appealability is not
warranted. See United States v. Eyer, 113 F.3d 470 (3d Cir.
1997); 3rd Cir. LAR 22.2 (2002).
3. Pursuant to Rule 4, 28 U.S.C. foll. § 2254, the
instant Application, Petitioner contends that his 1984 conviction
for second degree escape is unconstitutional, and he asks the
Court to “vacate the incumbent sentence and remand the case for
re—sentencing that would not take into account the
unconstitutional conviction for violation of 11 Del. C. § 1252
[second degree escape].” (D.I. 2, at p. 15.) In essence,
Petitioner's pending Application attempts to invalidate one of
the predicate offenses that triggered Petitioner's conviction and
sentence as an habitual offender in 1998. Thus, the instant
Application constitutes a second or successive habeas
application.
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Case 1:06-cv-00758-JJF Document 5 Filed O1/18/2007 Page 3 of 3
Clerk shall forthwith serve a copy of the Application and
this Order upon: (l) the above—named Warden of the facility
in which Petitioner is housed; and (2) the Attorney General
for the State of Delaware.
4. The Clerk shall also send a copy of this Order to
the Petitioner at his address on record.
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