Free Order - District Court of Delaware - Delaware

Case 1:06-cv—00715-SLR Document 20 Filed 07/19/2007 Page1 of 2
IN THE LINITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
EDWARD J. KELLY, )
Petitioner, g
v. g Civ. No. 06-715-SLR
THOMAS CARROLL, Warden, g
and ATTORNEY GENERAL )
OF THE STATE OF )
DELAWARE, )
Respondents. g
O R D E R
At Wilmington this l‘I—i+· day of July, 2007;
IT IS HEREBY ORDERED that:
1. Respondents motion to dismiss petitioner Edward J. Kelly’s application for a
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (D.l. 2) as second or
successive is GRANTED.‘ (D.l. 16) The instant application is petitioner's fourth
habeas challenge to his 1983 conviction and life sentence as an habitual offender, and
petitioner's first three federal habeas applications were denied on the merits. g Kejy
v. Redman, Civ. A. No. 85-562-JLL (D. Del. Feb. 4, 1986); Kelly v. Redman, Civ. A. No.
87-83-JJF (D. Del. Sept. 23, 1987); Karim v. Taylor, Civ. A. No. 91-677-LON (D. Del.
June 24, 1993). The record reveals that petitioner filed the instant application without
first obtaining permission from the Court of Appeals for the Third Circuit. ge 28 U.S.C.
'This matter was originally assigned to the Vacant Judgeship, but was re-
assigned to the undersigned on July 17, 2007.

Case 1:06-cv-00715-SLR Document 20 Filed 07/19/2007 Page 2 of 2
§ 2244(b)(1). 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. § 1831 .").
2. Petitioner has failed to make a "substantiaI showing of the denial of a
constitutional right," 28 U.S.C. § 2253(c)(2), and a certificate of appealability is not
warranted. ge United States v. Eyer, 113 F.3d 470 (3d Cir. 1997); 3rd Cir. LAR 22.2
(2002).
3. Petitioner’s motion for a three judge court is denied as MOOT. (D.l. 13)
4. Petitioner’s motion for representation by counsel is denied as MOOT. (D.l.
14)
5. Respondent’s motion for leave to file a motion to dismiss is GRANTED. (D.l.
15)
6. Pursuant to Rule 4, 28 U.S.C. foll. § 2254, the clerk shall forthwith serve a
copy of this order upon: (1) the above—named Warden of the facility in which petitioner
is housed; and (2) the Attorney General for the State of Delaware.
7. The clerk shall also send a copy of this order to the petitioner at his address
on record.
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