Free Order (AEDPA)IFP Granted - District Court of Delaware - Delaware

Case 1:08—cv—00197-JJF Document 6 Filed 05/14/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GUANGO F. CORREA, :
Petitioner, :
v. : Civil Action No. 08-197-JJF
ATTORNEY GENERAL OF THE STATE :
OF DELAWARE, :
Respondent. :
O R D E R
1. Petitioner Guango F. Correa’s Motion For Leave To
Proceed In Forma Pauperis (D.I. 1.) is GRANTED for the limited
purpose of this Order.
2. The Court construes the instant Application For A
Writ Of Habeas Corpus Filed Pursuant To 28 U.S.C. § 2254 (D.I.
2.) to be a Motion to Amend Petitioner’s prior Application for
Habeas Relief (“Application III”). See Correa v. Carroll, Civ.
Act. No. 07—151—JJF. For the purposes of this Order, the Court
will refer to the instant Application as “Application IV/Motion
to Amend.”1
1Application IV/Motion to Amend constitutes a motion to
amend rather than a second or successive habeas petition within
the meaning of 28 U.S.C. § 2244(b) because Petitioner filed
Application IV/Motion to Amend on April 7, 2008 while Application
III was still pending before the Court. See, e.g., Ching v.
U.S., 298 F.3d 174, 177-78 (2d Cir. 2002)(“when a § 2255 motion
is filed before adjudication an initial 2255 motion is complete,
the district court should construe the second 2255 motion as a

Case 1:08—cv—00197-JJF Document 6 Filed 05/14/2008 Page 2 of 4
3. Petitioner's Application IV/Motion To Amend
(D.I. 2.) is DENIED as futile. After amending once or after an
answer has been filed, a litigant may amend only with leave of
the court or the written consent of the opposing party, but
‘leave shall be freely given when justice so requires.'" Shane
v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000) (quoting Fed. R. Civ.
P. 15(a)). Leave to amend should be granted absent a showing of
“undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of the allowance of the amendment, futility of amendment,
etc." Foman v. Davis, 371 U.S. 178, 182 (1962); See also Qran
v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). An amendment is
futile if it merely restates the same facts as the original
complaint in different terms, fails to state a claim upon which
relief can be granted, or could not withstand a motion to
dismiss. See In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1434 (3d Cir. 1997).
In a Memorandum Opinion dated May 9, 2008, the Court denied
Petitioner's claim that the allegedly improper inclusion of the
alias David E. Jones in his Delaware criminal records warranted
habeas relief. See (D.I. 20 in Correa v. Carroll, Civ. Act. No.
07—151—JJF). First, the Court concluded that it lacked
motion to amend the pending § 2255 motion.").
2

Case 1:08—cv—00197-JJF Document 6 Filed 05/14/2008 Page 3 of 4
jurisdiction to consider the claim because Application III
constituted second or successive habeas petition. Second, the
Court alternatively held that it was barred from reviewing the
merits of the claim because Petitioner procedurally defaulted the
claim in the Delaware State Courts, and he failed to overcome
that default with a showing of cause and prejudice. Id;
Here, Petitioner’s Application IV/Motion to Amend asserts
the same “improper alias" claim previously considered, and
denied, by the Court in the Memorandum Opinion denying
Application III. Therefore, the Court concludes that permitting
the amendment of Application III to include Petitioner’s improper
alias claim would be futile.
4. 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. Local Appellate Rule 22.2.
5. Pursuant to Rule 4, 28 U.S.C. foll. § 2254, the
Clerk shall forthwith serve a copy of Application IV/Motion to
Amend (D.I. 2.) and this Order upon: (1) the above—named Warden
of the facility in which Petitioner is housed; and (2) the
Attorney General of the State of Delaware.
3

Case 1:08—cv—00197-JJF D0cument6 Filed 05/14/2008 Page40f4
6. The Clerk shell also send a copy of this Order to
the Petitioner at his address on record.
DA Un d sc ce iscricc @ =
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