Opinion
24-11730
07-10-2024
HARVEY LEE PRESTON, Plaintiff, v. DALE BONN, Defendants.
ORDER TRANSFERRING CASE TO THE UNITED STATES COURT OF APPEALS
F. KAY BEHM UNITED STATES DISTRICT JUDGE.
Harvey Preston has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1.) Preston challenges his convictions following a jury trial in Oakland County Circuit Court for carjacking, first-degree home invasion, unarmed robbery, and second-degree criminal sexual conduct. These convictions were affirmed on appeal. See People v. Preston, No. 298796, 2012 WL 5853223 (Mich. Ct. App. Oct. 30, 2012), leave denied, 829 N.W.2d 225 (Mich. 2013).
Preston previously filed a federal habeas petition challenging the same convictions at issue in this case. The petition was denied on the merits and dismissed with prejudice. Preston v. Gidley, No. 2:14-cv-10606, 2017 WL 4572336, at *1 (E.D. Mich. Oct. 12, 2017). The Sixth Circuit Court of Appeals denied Preston's application for a certificate of appealability. Preston v. Smith, No. 17-2389, 2018 WL 2222599 (6th Cir. Apr. 25, 2018).
Before filing a habeas petition challenging a conviction previously 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). 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)). When a petitioner files a second or successive habeas petition 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). Preston has not obtained appellate authorization to file a successive habeas petition as required under 28 U.S.C. § 2244(b)(3)(A).
Accordingly, IT IS ORDERED that 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.
SO ORDERED.