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

Case 1:08-cv-00399-SLR Document 4 Filed 08/11/2008 Page1 of2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOE L. TRAVIS, )
Petitioner, ;
v. g Civil Action No. 08-399-SLR
PERRY PHELPS, Warden, and g
ATTORNEY GENERAL OF THE )
STATE OF DELAWARE, )
Respondents. g
O R D E R
At Wilmington this ji; day of August, 2008;
IT IS HEREBY ORDERED that:
1. Petltloner’s application for a writ of habeas corpus tiled pursuant to 28
U.S.C. § 2254 is DENIED as second or successive. (D.|. 2)
The instant application is petitioner’s third habeas challenge to his 1992
conviction and sentence for first degree murder. E Travis v. Snyder, Civ. A. No. 95-
309-RMM, Order (D. Del. Jan. 31, 1997); Travis v. Snyder, Civ. A. No. 99—345—RMM,
Order (D. Del. Sept. 20, 1999). The Honorable Roderick M. McKelvie denied
petitioner’s first application on the merits, and then denied his second application as
second or successive. Q The record in this case reveals that petitioner tiled the
instant application without first obtaining permission from the Court of Appeals for the
Third Circuit} g 28 U.S.C. § 2244(b)(3). Therefore, the court does not have the
‘In claim one, petitioner contends that his conviction should be vacated due to
the Delaware Supreme Court’s decision in Chao v. State, 931 A.2d 1000 (Del. 2007).
In , the Delaware Supreme Court held that its reinterpretation of DeIaware’s felony
murder statute pursuant to Williams v. State, 818 A.2d 906 (Del. 2003) applies

Case 1:08-cv-00399-SLR Document 4 Filed 08/11/2008 Page 2 of 2
authority to review the application. Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir.
2002)(hoIding 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.").
3. 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.C. § 2253(c)(2); g United States v. Eyer, 113 F.3d 470 (3d Cir. 1997); 3rd Cir.
LAR 22.2.
4. The clerk is directed to close the case.
retroactively. Whether or not this claim fits within one of the exceptions to the second
or successive doctrine is a question to be determined by the Third Circuit to determine,
not this court. g 28 U.S.C. § 2244(b)(3).
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Case 1:08-cv-00399-SLR

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