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United States v. Kerr

United States District Court, Eastern District of Michigan, Southern Division

January 28, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN KERR (D-1), Defendant.

ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT WITHOUT PREJUDICE AND ORDER DIRECTING THE CLERK TO TRANSFER THE MOTION TO THE SIXTH CIRCUIT COURT OF APPEALS

Denise Page Hood, United States District Judge

Before the Court is another motion filed by Kevin Kerr, a Motion for Relief from Judgment (Doc. No. 528). For the reasons set forth below, the Court once again transfers the motion to the Sixth Circuit Court of Appeals.[1]

Kerr was convicted by a jury on November 30, 1999 on seven counts involving conspiracy to distribute and possession with intent to distribute controlled substances, money laundering, possession of a firearm by a convicted felon. Kerr was sentenced to serve life imprisonment without parole on one of the counts, which was affirmed by the Sixth Circuit Court of Appeals. See United States v. Kevin Kerr, 2002 WL 31475010 (6th Cir. Oct. 31, 2002).

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et. seq., amended 28 U.S.C. §§ 2244, 2253, and 2254, governs habeas corpus proceedings in federal courts. Pursuant to those amendments, an individual seeking to file a “second or successive” habeas petition must ask the appropriate court of appeals for an order directing 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); In re Wilson, 142 F.3d 939, 940 (6th Cir. 1998). This requirement transfers to the court of appeals a screening function which the district court previously performed. Felker v. Turpin, 518 U.S. 651, 664 (1996). The Sixth Circuit requires a successive § 2255 motion to be transferred to the Sixth Circuit Court of Appeals. In re Nailor, 487 F.3d 1018, 1022-23 (6th Cir. 2007). Any Rule 60(b) motion is considered a second or successive § 2255 motion which must be transferred to the Sixth Circuit Court of Appeals for certification. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); Gonzales v. Crosby, 545 U.S. 524, 531 (2005).

Accordingly,

IT IS ORDERED that Kevin Kerr’s Motion for Relief from Judgment (Doc. No. 528) is DENIED without prejudice.

IT IS FURTHER ORDERED that the Clerk of the Court TRANSFER to the Sixth Circuit Court of Appeals the Motion for Relief from Judgment and the related documents (Doc. Nos. 528-30).


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