Opinion
Case No. 06-cr-20365
06-29-2017
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. DAMON L. STEPHENS, Defendant-Petitioner.
ORDER TRANSFERRING PETITIONER'S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 TO THE COURT OF APPEALS AS A SECOND OR SUCCESSIVE HABEAS CORPUS PETITION
On October 3, 2011, Petitioner Stephens filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. ECF No. 75. That motion was denied on February 24, 2012. On June 21, 2017, Stephens filed another motion to vacate his sentence. ECF No. 104.
Under § 2255(h):
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
28 U.S.C. § 2255(h). In turn, § 2244(3)(A) provides that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(3)(A). When a habeas petitioner files a second or successive petition for habeas corpus relief in the district court without prior authorization from the Court of Appeals, the district court must transfer the document to the Court of Appeals pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
This statute reads:
Whenever a civil action is filed in a court . . . and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other such court in which the action . . . could have been brought at the time it was filed . . . , and the action . . . shall proceed as if it had been filed in . . . the court to which it is transferred on the date upon which it was actually filed in . . . the court from which it was transferred.
Accordingly, only the Court of Appeals has jurisdiction to review Stephens's claims. His motion will be transferred to the Sixth Circuit.
Accordingly, it is ORDERED that the Clerk of the Court shall TRANSFER Petitioner Damon Stephens's Motion to Vacate Sentence, ECF No. 104, to the Sixth Circuit Court of Appeals.
Dated: June 29, 2017
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on June 29, 2017.
s/Kelly Winslow
KELLY WINSLOW, Case Manager