Desmond v. State Of Delaware

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CHRISTOPHER R. DESMOND, : Petitioner, □ v. Civil Action No. 20-46-LPS STATE OF DELAWARE, Respondents. MEMORANDUM I. BACKGROUND In 1992, a Delaware Superior Court juty convicted Petitioner of multiple counts of first degree robbery, possession of a deadly weapon during the commission of a felony, second degree conspiracy, possession of a deadly weapon by a petson prohibited, theft, and third degree escape. His convictions were affirmed on direct appeal. See Desmond v. State, 654 A.2d 821 (Del. 1994). In 1996, Petitioner filed an application for a writ of habeas corpus, which the Honorable Gtegoty M. Sleet denied as meritless. See Desmond v. Snyder, 1999 WL 33220036 (D. Del. Nov. 16, 1999). Petitioner filed a second application for habeas relief, which the Honorable Joseph J. Farnan dismissed for lack of jurisdiction because it was second or successive. Desmond v. Carroll, Civ. A. No. 02-1501-JJF, Order (D. Del. Oct. 2, 2002). On August 12, 2003, the Third Circuit Court of Appeals denied Desmond’s application to file a second or successive habeas petition. Id. at D.I. 64. Thereafter, Petitioner filed a Rule 60(b) motion for reconsideration, arguing that claims one, five, six, and seven of his 1996 habeas application should not have been dismissed for being ptocedurally barred. The Honorable Gregoty M. Sleet denied the Rule 60(b) motion. Desmond ». Snyder, Civ. A. No. 96-327-GMS, Order (D. Del. Apr. 5, 2006). Petitioner then filed a Rule 59(e) motion for reargument, which the Honorable Gregory M. Sleet denied. The Third Circuit Court of Appeals denied Desmond’s motion for a certificate of appealability with respect to that decision. See Desmond v. Snyder, Civ. A. No. 06-2359, Order (3d Cir. Nov. 30, 2006). In 2011, Petitioner filed a petition for writ of mandamus essentially arguing that he was “actually innocent” of the first degree robbery convictions under two recent Delaware Supreme Court decisions. (See Desmond v. Phelps, Civ. A. No. 11-1102-LPS, at D.I. 3) The Court construed the mandamus request to be an unauthorized second ot successive habeas petition, and dismissed the case for lack of jurisdiction. (See id. at D.I. 17 & D.I. 18) Petitioner appealed, and the Third Circuit “summarily affirmed” the Court’s judgment, stating, cfjjutists of reason would not disagree with the District Court’s decision dismissing the second or successive habeas petition for lack of jurisdiction, given that he did not obtain the requisite permission prior to filing it.” (Id at D.I. 23) In 2014, Petitioner filed another petition for writ of mandamus which essentially challenged the validity of his 1992 conviction and sentence. (See Desmond v. Superior Court of De., Civ. A. No. 141365-LPS, at D.I. 2) The Court dismissed the petition after concluding that it constituted an unauthotized second ot successive habeas request. (See id. at D.I. 14 & D.L. 15) The Third Circuit denied Petitioner’s request for a cettificate of appealability, again stating that reasonable jutists would not find it debatable that the mandamus request constituted an unauthorized second or successive habeas request. (See zd. at D.I. 23) Presently pending before the Coutt is a document filed by Petitioner titled “Application for Writ of Audita Ouerala’, by which he purportedly seeks “to invalidate the State of Delaware’s sentencing scheme as applied in violation” of the Eighth Amendment 28 U.S.C. § 2254 , (D.I. 1) He also contends that the mandatory 78-year sentence that was imposed for his robbery conviction “is eteatly disproportionate because it is greater than the sentences prescribed for premeditated murder.” (DI. 1 at 5, 9) II. STANDARD OF REVIEW The writ of andita querela is available to federal courts under the All Writs Act. See United States v. Morgan, 346 U.S. 502, 506 (1954). “The common law writ of audita querela permit[s] a defendant to obtain telief against a judgment or execution because of some defense or discharge atising subsequent to the rendition of the judgment.” Massey ». United States, 581 F.3d 172 , 174 Gd Cir. 2009). Importantly, although the “writ is available in criminal cases to the extent that it fills in gaps in the curtent system of post-conviction telief,” it is generally limited to federal criminal cases! when a federal prisoner is unable to seek redress under § 2255. Id. The proper vehicle for a state prisoner to challenge the validity of his conviction and/ot sentence is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 . The Antiterrorism and Effective Death Penalty Act of 1996 (‘AEDPA”) “cteated a statutory ‘gatekeeping mechanism’ for second ot successive habeas petitions.” In re Hoffuer, 870 F.3d 301, 306 (3d Cir. 2017). Pursuant to 28 U.S.C. § 2244 (b)(3)(A), a petitioner must seek authorization from the appropriate court of appeals before filing a second ot successive habeas petition in a district court. See Burton v. Stewart, 549 U.S. 147, 152 (2007); Rule 9, 28 U.S.C. foll. § 2254. Notably, a petition for habeas relief is not considered to be “second or successive simply because it follows an earlier federal petition.” Benchoff Colleran, 404 F.3d 812, 817 (3d Cir. 2005). Rather, a habeas petition is classified as second ot successive within the meaning of 28 U.S.C. § 2244 if a prior petition has been decided on the merits, the prior and new petitions challenge the same conviction, and the new petition asserts a claim that ‘See Ouintana v. Nickolopoulos, 768 F. Supp. 118, 120 (D.N,J. 1991). was, ot could have been, taised in a prior habeas petition. See Benchoff, 404 F.3d at 817 ; In re Olabode, 325 F.3d 166, 169-73 (3d Cir. 2003). If a habeas petitioner etroneously files a second or successive habeas petition “in a district court without the permission of a coutt of appeals, the district court's only option is to dismiss the petition ot transfer it to the court of appeals pursuant to 28 U.S.C. § 1631 .” Robinson v. Johnson, 313 F.3d 128, 139 (ad Cir. 2002). lI. DISCUSSION Petitioner is in custody pursuant to a state court judgment, and he challenges the legality of his 1992 Delaware conviction and sentence for robbery. Consequently, he cannot obtain relief via the writ of avdita querela. See Dukes v. Coleman, 2016 WL 6638884 , at *2 (W.D. Pa. Oct. 17, 2016) (explaining that the “writ of audita querela is extremely limited and does not grant subject matter jurisdiction to federal courts to review state court convictions.”). Petitioner is a frequent filer in this Court who has unsuccessfully pursued habeas relief on several occasions. His attempt to seek relief via a writ of audita querela appeats to be a creative attempt to avoid AEDPA’s gatekeeping bat on second or successive habeas petitions. Nevertheless, as aptly stated by the Seventh Circuit, [p]tisoners cannot avoid the AEDPA's rules by inventive captioning ... [cjall it a motion for a new trial, arrest of judgment, mandamus, ptohibition, coram nobis, cotam vobis, audita querela, certiorari, capias, habeas corpus, ejectment, quate impedit, bill of review, writ of etrot, or an application for a Get-Out-of-Jail Card; the name makes no difference. It is substance that controls. Melton v. United States, 359 F.3d 855, 857 (7th Cir.2004). ‘A teview of Petitioner’s instant filing reveals that it is a second or successive habeas petition within the meaning of 28 U.S.C. § 2244 because: (1) it challenges the same 1992 conviction that was challenged in his first habeas petition; (2) the Court’s dismissal of Petitioner’s first petition was on the merits; and (3) Petitionet’s instant Eighth Amendment argument could have been asserted in his first petition. Since Petitioner filed the instant petition without first obtaining permission from the Third Circuit, the Court lacks jurisdiction to consider this unauthorized successive habeas request. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court, 28 U.S.C. foll. § 2254; Robinson, 313 F.3d at 139 . The Coutt also concludes that it would not be in the interest of justice to transfer this case to the Third Circuit, because nothing in the petition comes close to satisfying the substantive requirements for a second ot successive petition under 28 U.S.C. § 2244 (b)(2). Accordingly, the Court will dismiss the instant unauthorized second ot successive habeas petition for lack of jurisdiction. Sve Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court, 28 U.S.C. foll. § 2254 (authorizing summary dismissal of § 2254 petitions); 28 U.S.C. § 2244 (b)(1). IV. CONCLUSION For the reasons set forth above, the Court will summarily dismiss the instant petition. (D.I. 1) The Court will also decline 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 (¢)@); 3d Cir. L.A.R. 22.2 (2011); United States v. Eyer, 113 F.3d 470 3d Cit. 1997). A separate Order follows. Dated: February \4 , 2022 rw f /L. UNITED STATES DISTRICT JUDGE