Opinion
CASE NO. 2:03-CV-1065 CRIM. NO. 00-CR-00024-1
07-01-2014
MYRON T. CLARK, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
JUDGE JAMES L. GRAHAM
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
This matter is before the Court on Petitioner's August 13 and October 9, 2012, motions for reconsideration of the October 7, 2004, final judgment of dismissal of Petitioner's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Doc. Nos. 145, 146. For the reasons that follow, the Court hereby TRANSFERS Petitioner's motions for reconsideration, Doc. Nos. 145. 146, to the United States Court of Appeals as successive habeas corpus petitions.
On October 7, 2004, this Court dismissed the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Doc. No. 113. On September 29, 2006, the Sixth Circuit Court of Appeals affirmed that decision. See Doc. No. 126. Petitioner now seeks reconsideration of the final judgment of dismissal of his § 2255 motion, alleging that the District Court failed to acknowledge that the Indictment was fatally defective, resulting in a manifest miscarriage of justice. Petitioner's motion(s) therefore constitute a successive habeas corpus petition subject to authorization for filing by the United States Court of Appeals for the Sixth Circuit. Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005)(a motion for reconsideration raising a new claim for relief constitutes a second or successive petition).
On April 1, 2014, the United States Court of Appeals for the Sixth Circuit denied authorization for the filing of a successive petition. See Doc. No. 158.
28 U.S.C. § 2244(b)(3)(A) states that before a second or successive petition for a writ of habeas corpus can be filed in the district court, the applicant shall move in the appropriate circuit court of appeals for an order authorizing the district court to consider the application.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court does not have jurisdiction to entertain a successive post-conviction motion or petition for writ of habeas corpus in the absence of an order from the court of appeals authorizing the filing of such successive motion or petition. Nelson v. United States, 115 F.3d 136 (2d Cir. 1997); Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997). Unless the court of appeals has given approval for the filing of a second or successive petition, a district court in the Sixth Circuit must transfer the petition to the United States Court of Appeals for the Sixth Circuit. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curia). Under § 2244(b)(3)(A), only a circuit court of appeals has the power to authorize the filing of a successive petition for writ of habeas corpus. Nunez v. United States, 96 F.3d 990 (7th Cir. 1996).
That being the case, this Court is without jurisdiction to entertain a second or successive § 2254 petition unless authorized by the Court of Appeals for the Sixth Circuit. The Sixth Circuit, in turn, will issue this certification only if Petitioner succeeds in making a prima facie showing either that the claim sought to be asserted relies on a new rule of constitutional law made retroactive by the United States Supreme Court to cases on collateral review; or that the factual predicate for the claim could not have been discovered previously through the exercise of diligence, and these facts, if proven, would establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty. 28 U.S.C. § 2244(b)(2).
The Sixth Circuit described the proper procedure for addressing a second or successive petition filed in the district court without § 2244(b)(3)(A) authorization in In re Sims, supra.
[W]hen a prisoner has sought § 2244(b)(3)(A) permission from the district court, or when a second or successive petition for habeas corpus relief or § 2255 motion is filed in the district court without § 2244(b)(3) authorization from this court, the district court shall transfer the document to this court pursuant to 28 U.S.C. § 1631.Id. at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam).
Petitioner's motions for reconsideration, Doc. Nos. 145, 146, therefore are hereby TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as successive petitions.
IT IS SO ORDERED.
__________
JAMES L. GRAHAM
United States District Judge