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Bennerman v. Howes

April 19, 2010

MELVIN BENNERMAN, PETITIONER,
v.
CAROL HOWES, RESPONDENT.



The opinion of the court was delivered by: Arthur J. Tarnow United States District Judge

HONORABLE ARTHUR J. TARNOW

OPINION AND ORDER

(1) DENYING PETITIONER'S MOTION FOR RELIEF FROM JUDGMENT,

(2) GRANTING MOTION TO WITHDRAW AS COUNSEL,

(3) DENYING PETITIONER'S MOTION FOR STAY AND

(4) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL

Petitioner Melvin Bennerman filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his guilty-plea conviction for second-degree murder. The court dismissed the petition and granted a certificate of appealability.

See Dkt. No. 49 (3/9/10 Order). Now before the Court are several motions, which the Court has reviewed. For the reasons that follow, the court construes Petitioner's Motion for Relief from Judgment (Dkt. No. 51) as a second or successive petition for habeas relief and will TRANSFER the matter to the United States Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A), the Court will GRANT the Motion to Withdraw as Counsel (Dkt. No. 52), GRANT the Application to Proceed in forma pauperis on Appeal (Dkt. No. 55) and DENY Petitioner's Motion for Stay (Dkt. No. 56).

I. Motion for Relief From Judgment

Before a second or successive habeas petition is filed in a federal district court, a habeas petitioner shall move in the appropriate court of appeals for an order authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); In re Wilson, 142 F.3d 939, 940 (6th Cir.1998). 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. Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich. 1999). 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 or motion to the Sixth Circuit Court of Appeals regardless of how meritorious the claim appears to be. Id. at 971; 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 seeks relief from judgment pursuant to Fed. R. Civ. P. 60(b) on the grounds that trial counsel rendered constitutionally ineffective assistance by failing to investigate and uncover evidence that would have supported an insanity or diminished capacity defense. In Gonzalez v. Crosby, 545 U.S. 524, 530 (2005), the Supreme Court explained that a Rule 60(b) motion is distinguished from a second or successive petition under 28 U.S.C. § 2244(b) by the fact that the latter contains one or more "claims." A Rule 60(b) motion does not. Id. at 530-31. For purposes of § 2244(b), a "claim" is "an asserted federal basis for relief from a state court's judgment of conviction." Id. at 531. By contrast, a Rule 60(b) motion attacks "some defect in the integrity of the federal habeas proceedings."*fn1 Id. at 532. A habeas petitioner's Rule 60(b) motion "that seeks to revisit the federal court's denial on the merits of a claim for relief should be treated as a successive habeas petition ." Id. at 534.

Petitioner's motion reasserts the substance of Petitioner's ineffective assistance of counsel claim in his habeas petition and constitutes an impermissible attack on this court's previous resolution of the claim on the merits. This is not a proper ground for a Rule 60(b) motion. See Henderson v. Collins, 184 Fed. App'x 518, 523 (6th Cir. 2006). Petitioner's Rule 60(b) motion is a merits-based attack on the prior dismissal of his habeas petition.

Because Petitioner's Rule 60(b) motion qualifies as a second or successive habeas petition, Petitioner is required to obtain authorization from the Sixth Circuit before he can file a new habeas petition. Petitioner has not obtained the appellate authorization to file ...


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