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

Case 1:07-cv-00724-SLR Document 14 Filed 06/04/2008 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WILLIAM GREGORY, )
Petitioner, g
v. g Civil Action No. 07-724-SLR
VINCE BIANCO, I g
Warden, and ATTORNEY GENERAL )
OF THE STATE OF DELAWARE, )
Respondents. g
O R D E R
At Vlhlmington this gt; day of = , 2008;
IT IS HEREBY ORDERED that:
1. Respondents’ motion for leave to file a motion to dismiss petitioner William
Gregory’s application for a writ of habeas corpus tiled pursuant to 28 U.S.C. § 2254 in
lieu of answer is GRANTED. (D.I. 12)
2. Respondents’ motion to dismiss petitioner’s application for a writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254 for being second or successive is GRANTED.
(D.I. 13)
The instant application is petitioner’s second habeas challenge to his 2000
conviction and sentence for attempted murder, possession of a firearm during the
commission of a felony, first degree conspiracy, second degree assault, and
possession of a deadly weapon during the commission of a felony. g Gregory v.

Case 1:07-cv-00724-SLR Document 14 Filed 06/04/2008 Page 2 of 2
, 2003 WL 22508091 (D. Del. Oct. 29, 2003). 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
application. g Benchoff v. Colleran, 404 F.3d 812, 817-18 (3d Cir. 2005). The
record reveals that petitioner tiled the instant application without first 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)(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 "substantiaI showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2)§ & 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.
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