Opinion
Case No. 18-13115
10-30-2018
HARVEY FAIRLEY, Petitioner, v. CATHERINE BAUMAN, Respondent.
ORDER TRANSFERRING PETITION TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Michigan prisoner Harvey Fairley, ("Petitioner"), filed what purports to be a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is being held in custody at a Michigan correctional facility as a result of his 1999 Wayne County Circuit Court conviction for assault with intent to murder.
Petitioner previously filed a federal habeas petition challenging his conviction. Fairley v. Jamrog, No. 03-cv-72516 (E.D. Mich. June 9, 2004). That petition was denied on the merits. Petitioner also twice sought permission to file a second petition, but these requests were denied. In re Fairley, No. 10-1430 (6th Cir. Nov. 19, 2010); In re Fairley, No. 12-2514 (6th Cir. June 18, 2013).
Federal district courts lack jurisdiction to consider successive habeas petitions absent preauthorization from the court of appeals. Franklin v. Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (citing 28 U.S.C. § 2244(b)(3)); Felker v. Turpin, 518 U.S. 651, 664 (1996).
When a habeas petitioner files a second or successive petition for habeas corpus relief in the district court without preauthorization, the district court must transfer the case to the court of appeals. See 28 U.S.C. § 1631; Sims v. Terbush, 111 F.3d 45, 47 (6th Cir. 1997).
The instant case is at least Petitioner's fourth attempt to seek federal habeas relief. Accordingly, the Clerk of the Court shall transfer this case to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 for a determination of whether Petitioner may file a successive petition.
Petitioner also has a recently filed habeas case pending in the Western District of Michigan. See Fairley v. Bauman, W.D. Mich. No. 2:18-cv-00096. --------
SO ORDERED.
Dated: October 30, 2018
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically filed, and the parties and/or counsel of record were served on October 30, 2018.
s/A. Chubb
Case Manager