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


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Date: May 13, 2008
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Case 1 :08-cv—00227-GIVIS Document 4 Filed 05/13/2008 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHNNY LOPEZ, )
Petitioner, )
v. g Civil Action No. 08-227-GMS
PERRY PHELPS, ) )
Warden, and ATTORNEY GENERAL )
OF THE STATE OF DELAWARE, )
Respondents. )
0 R D E R
M
At Wilmington this L day of Q Z ? , 2008;
IT IS HEREBY ORDERED that:
l. Petitioner Johnny Lopez’s motion to proceed informa pauperis is GRANTED for the
limited purpose of issuing the instant order. (D.l. l.)
2. Petitioner Johnny Lopez’s petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2254 is DISMISSED and the writ is DENIED as second or successive. (D.I. 2.)
Although Lopez challenges the Delaware Supreme Court’s decision affirming the denial of his
Rule 6l motion, the instant petition actually constitutes Lopez’s second habeas challenge to his
2003 conviction on drug charges. The court denied Lopez’s first § 2254 petition after
determining that his Fourth Amendment claim was barred from habeas review under Stone v.
Powell, 428 U.S. 465 (1976), and that his claim asserting improper jury selection was
procedurally barred from habeas review due to his procedural default of the claim at the state

Case 1:08-cv—00227-G|\/IS Document 4 Filed 05/13/2008 Page 2 of 2
court level. See Lopez v. Carol], 2006 WL 2246208 (D. Del. Aug. 4, 2006).
The record reveals that Lopez filed the instant petition without first obtaining permission
from the Court of Appeals for the Third Circuit. Therefore, the court does not have the authority
to review the petition. See 28 U.S.C. § 2244(b)(1); 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. Lopez 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).
4. Pursuant to Rule 4, 28 U.S.C. foll. § 2254, the clerk shall forthwith serve a copy of the
petition and this order upon: (1) the above-named warden of the facility in which Lopez is
housed; and (2) the Attomey General for the State of Delaware.
5. The clerk shall also send a copy of this order to Lopez at his address on record.
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