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

Case 1 :08-cv-00240-SLR Document 7 Filed 06/04/2008 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KEVIN EPPERSON, )
Petitioner, g
v. g Civil Action No. 08-240-SLR
PERRY PHELPS, Warden, and g
ATTORNEY GENERAL OF THE )
STATE OF DELAWARE, )
Respondents. g
O R D E R
At Wilmington this tgt; day of % , 2008;
IT IS HEREBY ORDERED that:
1. Petitioner’s motion for leave to proceed in forma pauperis is GRANTED for
the limited purpose of this order. (D.l. 1)
2. Petitioner’s application for a writ of habeas corpus tiled pursuant to 28 U.S.C.
§ 2254 is DENIED as second or successive. (D.l. 2) The instant application is
petitioner’s fourth habeas challenge to his 1996 conviction and sentence as an habitual
offender for first degree kidnaping and second degree unlawful sexual conduct. E
Epperson v. Carroll, 2004 WL 1588290 (D. Del. July 14, 2004). This application
constitutes a second or successive habeas petition for the purposes of 28 U.S.C. §
2244 because it does not challenge conduct that occurred subsequent to the filing of
petitioner’s earlier applications. ge Benchoff v. Colleran, 404 F .3d 812, 817-18 (3d

Case 1:08-cv-00240-SLR Document 7 Filed 06/04/2008 Page 2 of 2
Cir. 2005). The record reveals that petitioner filed the instant application without tirst
obtaining permission from the Court of Appeals for the Third Circuit. E 28 U.S.C. §
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. § 1631 .").
3. The court declines to issue a certificate of appealability because petitioner
has failed to make a "substantiaI showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2); ge 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.
2

Case 1:08-cv-00240-SLR

Document 7

Filed 06/04/2008

Page 1 of 2

Case 1:08-cv-00240-SLR

Document 7

Filed 06/04/2008

Page 2 of 2