Free Order - District Court of Delaware - Delaware

Case 1:06-cv—O0O84-SLR Document 3 Filed O3/O2/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL A. BENSON, )
Petitioner, g
v. g Civ. No. 06-84-SLR
THOMAS CARROLL, ;
Warden, and CARL C. )
DANBERG, Attorney )
General of the State )
of Delaware, )
Respondents. g
O R D E R
At Wilmington this Ejgb day of February, 2006:
IT IS HEREBY ORDERED that:
1. Petitioner Michael A. Benson’s application for a
writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 is
DISMISSED and the writ is DENIED. (D.I. 1.) The instant
application is petitioner’s second habeas challenge to his
1998 conviction and sentence. The court denied petitioner's
first § 2254 application as time—barred, Benson v. Carroll,
2004 WL 1151547 (D. Del. May 18, 2004), which constitutes an
adjudication on the merits for the purpose of determining if
a habeas petition is second or successive under 28 U.S.C. §
2244. See Murray v. Greiner, 394 F.3d 78, 81 (2d Cir.
2005)(ho1ding that the dismissal of a § 2254 petition as
time barred constitutes an adjudication on the merits for

Case 1:06-cv—O0O84-SLR Document 3 Filed O3/O2/2006 Page 2 of 3
successive purposes). The record reveals that petitioner
did not obtain permission from the Court of Appeals for the
Third Circuit to file a second or successive habeas
application. See 28 U.S.C. § 2244(b)(l). Therefore, the
court does not have the authority to review the instant
application. See 28 U.S.C. § 2244(b)(l); 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. § l63l.”).
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
clerk shall forthwith serve a copy of the petition 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.
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Case 1:06-cv-00084-SLR Document 3 Filed O3/O2/2006 Page 3 of 3
4. The clerk shall also send a copy of this order to
petitioner at his address on record.
United Statés District Court
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