Opinion
No.: 2:21-CV-32-DCLC-CRW
02-17-2021
TIMOTHY DENTON, Petitioner, v. WARDEN BOYD, Respondent.
MEMORANDUM AND ORDER
Petitioner Timothy Denton is an inmate proceeding pro se on a federal habeas petition filed pursuant to 28 U.S.C. § 2254, in which he seeks to challenge the legality of his confinement under a 2006 Sullivan County, Tennessee judgment of conviction for first-degree murder [Doc. 1].
Petitioner has already filed one unsuccessful § 2254 petition challenging the judgment he seeks to challenge in the instant petition. See Timothy Lynn Denton v. Randy Lee, 2:13-cv-27-TRM-SKL (E.D. Tenn. Mar. 17, 2016); No. 16-6093 (6th Cir. Apr. 14, 2017). The Antiterrorism and Effective Death Penalty Act requires that an applicant seeking to file a second or successive petition first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). The Court has not received an order from the Sixth Circuit authorizing the Court to consider the pending petition.
Accordingly, the Court finds that the § 2254 petition filed in this case is a second or successive petition subject to § 2244(b)(3). Rather than dismissing a habeas petition on the basis that it is successive, a district court is to transfer the file to the court of appeals, which will construe the petition as a request for authorization under § 2244(b)(3). See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Therefore, the Clerk is DIRECTED to transfer this action to the United States Court of Appeals for the Sixth Circuit, pursuant to 28 U.S.C. § 1631 and In re Sims, 111 F.3d at 47.
SO ORDERED.
ENTER:
s/ Clifton L. Corker
United States District Judge