Opinion
Civil No. 99-CV-76196-DT
10-20-2015
EUGENE SZYMANSKI, Petitioner, v. STATE OF MICHIGAN, Respondent
OPINION AND ORDER TRANSFERRING CASE TO THE COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
I. Introduction
Before the Court is petitioner's motion to reopen his habeas corpus petition filed under 28 U.S.C. § 2254. Petitioner previously filed a petition for a writ of habeas corpus challenging his 1996 convictions for carrying a concealed weapon, fleeing and eluding a police officer, and being a third felony habitual offender. The petition was denied with prejudice by this Court. Szymanski v. State of Michigan, U.S.D.C. No. 99-CV-76196 (E.D. Mich. May 28, 2002)(adopting Magistrate Judge's Report and Recommendation from August 14, 2001).
Petitioner has filed a petition to reopen his habeas corpus petition, claiming that he was denied the assistance of counsel because his trial attorney was laboring under a conflict of interest.
For the following reasons, the Court has concluded that it must transfer this case to the Court of Appeals.
II. Discussion
An individual seeking to file a second or successive habeas petition must first ask the appropriate court of appeals for an order authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A); Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a federal district court does not have jurisdiction to entertain a successive post-conviction motion or petition for writ of habeas corpus in the absence of an order from the court of appeals authorizing the filing of such a successive motion or petition. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 825-26 (E.D. Mich. 2004). Unless the Sixth Circuit Court of Appeals has given its approval for the filing of a second or successive petition, a district court in the Sixth Circuit must transfer the petition to the Sixth Circuit Court of Appeals no matter how meritorious the district court believes the claim to be. Id. at 826; See also In Re Sims, 111 F. 3d 45, 47 (6th Cir. 1997). This requirement transfers to the court of appeals a screening function which the district court previously would have performed. Felker v. Turpin, 518 U.S. 651, 664 (1996). Petitioner's motion to reopen or to reinstate his habeas petition is an attempt to file second or successive habeas petition because the motion seeks to re-litigate claims that he previously raised in his prior habeas petition. See In re Bowling, 422 F. 3d 434, 440 (6th Cir. 2005).
Petitioner previously filed a habeas petition challenging his conviction. Although petitioner would not have been required to obtain a certificate of authorization if his first habeas petition had been dismissed without prejudice on exhaustion grounds, See Harris v. Stovall, 22 F. Supp. 2d 659, 664 (E.D. Mich. 1998), petitioner's first petition was denied on the merits.
Petitioner's current request to reopen his habeas petition is a second or successive petition for a writ of habeas corpus and he is required to obtain a certificate of authorization. It is appropriate for this Court to consider the issue sua sponte because subject matter jurisdiction goes to the power of the courts to render decisions under Article III of the Constitution. See Williams v. Stegall, 945 F. Supp. 145, 146 (E.D. Mich. 1996). Because this appears to be a successive habeas petition, it would be error for this Court to dismiss the petition as being time barred, rather than transfer it to the Sixth Circuit, because such a timeliness inquiry would be premature prior to any determination by the Sixth Circuit whether petitioner should be given authorization pursuant to 28 U.S.C. § 2244(b)(3)(A) to file a successive habeas petition. In Re McDonald, 514 F. 3d 539, 543-44 (6th Cir. 2008).
III. Conclusion
Petitioner has not obtained the appellate authorization to file a subsequent petition as required by 28 U.S.C. § 2244(b)(3)(A). Accordingly, the Court ORDERS the Clerk of the Court to transfer the "Petition for Leave to Reopen Habeas Corpus Proceeding Pursuant to 28 U.S.C. § 2254 and To Grant Petitioner Habeas Corpus Relief" 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 45, 47 (6th Cir. 1997).
s/Arthur J. Tarnow
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
Dated: October 20, 2015