Opinion
Case No. 3:14-cv-124
04-25-2014
MARK D. MUSSELAMN, Petitioner, v. NORM ROBINSON, WARDEN, Chillicothe Correctional Institution, Respondent.
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
TRANSFER ORDER
Petitioner Mark Musselman brings this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his conviction in the Montgomery County Common Pleas Court and consequent sentence to Respondent's custody.
On October 27, 2009, then assisted by counsel, Musselman filed a Petition for Writ of Habeas Corpus in this Court, challenging the same conviction. Musselman v. Warden, Case No. 3:09-cv-407. The Court entered final judgment dismissing the Petition in that case with prejudice on March 30, 2010 (Doc. No. 7). That decision was affirmed on appeal by the Sixth Circuit January 13, 2012. Musselman v. Warden, 456 Fed. Appx. 520 (6 Cir. 2012).
28 U.S.C. § 2244(b) provides in relevant part:
(2) A claim presented in a second or successive habeas corpus application under section 2254 [28 USCS § 2254] that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)
(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
A district court lacks jurisdiction to consider a second or successive petition without approval by the circuit court. Burton v. Stewart, 549 U.S. 147 (2007). Upon the filing of a habeas petition by a person who has previously filed such a petition, the District Court must decide in the first instance whether the petition is second or successive. In re: Sheppard, 2012 U.S. App. LEXIS 13709 (6 Cir. May 25, 2012); In re: Kenneth W. Smith, 690 F.3d 8089 (6Cir. 2012).
Musselman's prior habeas petition attacked the same conviction which is at issue in this case and it was decided on the merits. Therefore the instant Petition is "second or successive" within the meaning of § 2244(b). Under those circumstances, this case must be transferred to the Sixth Circuit Court of Appeals and Musselman must apply to that Court for permission before this case can proceed. In re Sims, 111 F.3d 45 (6 Cir. 1997).
Accordingly, pursuant to 28 U.S.C. § 1631, this case is TRANSFERRED to the United States Court of Appeals pending that Court's decision on whether Musselman may proceed with the instant Petition.
Michael R. Merz
United States Magistrate Judge