Opinion
Case Number: 2:18-CV-11013
04-03-2018
CHARLES HOLBROOK, Petitioner, v. ERICK BALCARCEL, Respondent.
OPINION AND ORDER TRANSFERRING CASE TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Petitioner Charles Holbrook has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is presently confined at the St. Louis Correctional Facility in St. Louis, Michigan. He previously filed a § 2254 petition in the United States District Court for the Western District of Michigan, which was denied. The Court determines that this is a successive petition which must be transferred to the Sixth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A).
Petitioner was convicted by a jury in Kent County Circuit Court of two counts of producing child sexually abusive material, Mich. Comp. Laws § 750.145c(2), two counts of allowing a child to engage in child sexually abusive activity, Mich. Comp. Laws § 750.145c(2), two counts of possessing child sexual abusive material, Mich. Comp. Laws § 750.145c(4), accosting a child for immoral purposes, Mich. Comp. Laws § 750.145a, and felon in possession of a firearm, Mich. Comp. Laws § 750.224f. He was sentenced as a third-offense habitual offender to 15 to 40 years imprisonment for the producing child sexually abusive materials and allowing a child to engage in sexually abusive material convictions, 2 years, ten months to 8 years imprisonment for the possessing child sexual abusive material and accosting a child for immoral purposes convictions, and 2 years 10 months to 10 years for the felon in possession convictions. The Michigan Court of Appeals and Michigan Supreme Court affirmed Petitioner's convictions and sentences on direct appeal. People v. Holbrook, No. 298869, 2011 WL 5064266 (Mich. Ct. App. Oct. 25, 2011); People v. Holbrook, 492 Mich. 853 (Mich. July 24, 2012).
In 2015, Petitioner filed a federal habeas corpus petition under 28 U.S.C. § 2254 in the United States District Court for the Western District of Michigan. The district court denied the petition because it was not timely filed and denied a certificate of appealability. Holbrook v. Bauman, 2016 WL 80215 (W.D. Mich. Jan. 6, 2016). The Sixth Circuit Court of Appeals dismissed Petitioner's notice of appeal because it was not timely filed. Holbrook v. Place, No. 16-2648 (6th Cir. Jan. 11, 2017).
Before a prisoner may file a habeas petition challenging a conviction already challenged in a prior habeas petition, the prisoner must "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). When a second or successive petition for habeas corpus relief is filed in the district court without prior authorization, the district court must transfer the petition to the Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Petitioner has not obtained from the Court of Appeals for the Sixth Circuit authorization to file a successive petition. Accordingly, the Court ORDERS the District Court Clerk to transfer this case to the United States Court of Appeals for the Sixth Circuit.
SO ORDERED.
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE Dated: April 3, 2018