Free Order - District Court of Delaware - Delaware

Case 1:06-cv-00337-JJF Document 15 Filed 10/17/2006 Page 1 014
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARK A. SPRUANCE, ;
Petitioner, E
v. E Civ. Action No. 06-337-JJF
THOMAS L. CARROLL, Warden, E
and CARL C. DANBERG, ;
Attorney General of the ;
State of Delaware, :
Respondents. 2
MEMORANDUM ORDER
Pending before this Court is Respondents’ Motion To Dismiss
Petitioner’s petition for a writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254 for lack of subject matter jurisdiction.
(D.I. I3). For the reasons discussed, the Court will grant the
motion.
I. BACKGROUND
In 1995, Petitioner Mark A. Spruance filed his first
petition for a writ of habeas corpus in this Court pursuant to 28
U.S C. § 2254 challenging his I992 conviction for Attempted First
Degree Robbery and Unlawful Sexual Intercourse. The petition
asserted that the trial court admitted improper testimony because
the interpreter mistranslated the victim’s testimony and that the
prosecutor made improper comments in his closing arguments at
trial. On January 22, I996, the Court denied the petition.
On May 22, 2006, Petitioner filed the present habeas
petition asserting the following three claims: l) that he was

Case 1:06-cv-00337-JJF Document 15 Filed 10/17/2006 Page 2 014
denied a separate interpreter in violation of the Confrontation
Clause; 2) that the prosecution amended the indictment from
Unlawful Sexual Intercourse to Attempted Unlawful Intercourse
without returning to the grand jury in violation of the Fifth and
Sixth Amendments; and 3) that the state court violated the Fifth
Amendment by not following its rules regarding amendment of an
indictment. (D.I. 2).
On September 20, 2006, Respondents filed this Motion To
Dismiss for lack of subject matter jurisdiction. (D.I. 13).
Specifically, Respondents contend the Court has no jurisdiction
because the instant habeas petition is a “second or successive"
petition and Petitioner has not obtained leave from the
appropriate court of appeals before filing.
II. DISCUSSION
Pursuant to the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA"), a defendant filing a second or successive
habeas petition in the district court must first obtain
authorization from the appropriate court of appeals. 28 U.S.C. §
2244(b)(3)(A). A habeas petition is “second or successive" if it
asserts claims that could have been raised in the first petition
and there is no legitimate excuse for failing to raise the claims
in the first petition. Benchoff v. Colleran, 404 F.3d 812, 817-
18 (3d. Cir. 2005). This AEDPA requirement applies even if the
first petition was filed before AEDPA's enactment. Id.
2

Case 1:06-cv-00337-JJF Document 15 Filed 10/17/2006 Page 3 of 4
Both Petitioner’s original and instant habeas petitions
challenge conduct by the court and prosecution surrounding the
circumstances of Petitioner’s conviction. The instant petition
does not challenge conduct that occurred subsequent to the filing
of Petitioner’s original habeas petition. The Court concludes
the claims asserted in the instant petition could have been
raised in the original and, therefore, the instant petition is a
second or successive petition. The record is clear that
Petitioner has not obtained leave from the Court of Appeals for
the Third Circuit to file the instant petition. Thus, the Court
finds that pursuant to 28 U.S.C. § 2244(b)(3), it does not have
jurisdiction to review Petitioner’s habeas petition.
Accordingly, the Court will grant Respondents’ Motion To Dismiss
(D.1. 13).
_ ORDER
NOW THEREFORE TT IS HEREBY ORDERED that;
p1. Respondents’ Motion To Dismiss (D.1. 13) is GRANTED.
2. Petitioner’s Motion For Leave To File Motion To Compel
(D.1. 14) is DENIED as moot.
3. A certificate of appealability is not warranted because
Petitioner has failed to make a “substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2); see United States v. Eyer, 113 F.3d 470 (3d.
cir. 1997).
3

Case 1:06-cv-00337-JJF Document 15 Filed 10/17/2006 Page 4 0f 4
4. Pursuant to Rule 4, 28 U.S.C. § 2254, the Clerk shall
forthwith serve a copy of 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.
5. The Clerk shall send a copy of this Order to Petitioner.
October gi , 2006 I 6T" {kflj LLu»ee.i i
,IT D S TES’DISTRICT %D$GE
`. ./I
4