United States District Court, E.D. Michigan, Southern Division
BENJAMIN P. FOREMAN, Petitioner,
J.A. TERRIS, Respondent.
ORDER TRANSFERRING SECOND OR SUCCESSIVE MOTION TO
VACATE SENTENCE TO THE UNITED STATES COURT OF
M. LAWSON United States District Judge
matter is before the Court on the petitioner's motion to
vacate his sentence filed under the authority of 28 U.S.C.
§ 2241 and 2255. The petitioner has filed several prior
motions under both section 2241 and section 2255, all of
which have been summarily denied. Moreover, the Sixth Circuit
previously has denied authorization for the petitioner to
file a second or subsequent motion under section 2255.
Because the present motion is no less than the fourth such
attempt by the petitioner to mount a collateral attack on his
sentence via 28 U.S.C. § 2255, the Court must transfer
the case to the court of appeals for a determination whether
the petitioner may file a successive motion. 28 U.S.C.
§§ 2255(h), 2244(b)(3)(A).
not the first post-conviction challenge the petitioner has
mounted against his convictions and sentences. His journey
began when he pleaded guilty in the Western District of
Michigan to possession with intent to distribute cocaine
base, possession with intent to distribute cocaine, and
possessing a firearm in furtherance of a drug trafficking
crime under a plea agreement. He was sentenced to concurrent
prison terms totaling 240 months on the drug convictions and
a consecutive term of 60 months for the firearm offense. His
appeal to the Sixth Circuit was dismissed because his plea
agreement contained a waiver of his appeal rights. United
States v. Foreman, No. 06-2192 (6th Cir. Sept. 6, 2007).
2008, the petitioner filed a motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255, and
that motion was denied by the district court. Foreman v.
United States, No. 08-01115 (W.D. Mich. July 19, 2010).
The Sixth Circuit denied a certificate of appealability
Foreman v. United States, No. 10-2415 (6th Cir. June
2010, the petitioner moved to withdraw his guilty plea on the
firearm count. The trial court construed the motion as a
second or successive motion to vacate and transferred the
matter to the Sixth Circuit. United States v.
Foreman, No. 06-00030 (W.D. Mich. Aug. 19, 2010). The
petitioner appealed, but the Sixth Circuit dismissed his
appeal for want of prosecution. In re Foreman, No.
10-2077 (6th Cir. Oct. 13, 2010).
petitioner also filed a motion pursuant to Federal Rule of
Civil Procedure 59(e) to alter or amend the trial court's
decision denying his motion to vacate sentence, which was
denied in part and transferred to the Sixth Circuit as a
second or successive motion to vacate sentence. Foreman
v. United States, No. 08-01115 (W.D. Mich. Oct. 18,
2010). The Sixth Circuit remanded the case for consideration
of all of Petitioner's claims. In re Foreman,
No. 10-2370 (6th Cir. Nov. 1, 2011). On remand, the trial
court denied relief on the remaining claims. Foreman v.
United States, No. 08-01115 (W.D. Mich. Aug. 14, 2012).
The Sixth Circuit thereafter denied a certificate of
appealability. Foreman v. United States, No. 12-2202
(6th Cir. March 13, 2013).
petitioner subsequently filed five more habeas petitions in
federal court, all of which were summarily dismissed.
Foreman v. Terris, No. 15-13764 (E.D. Mich. Oct. 29,
2015), Foreman v. Terris, No. 14-14925 (E.D. Mich.
April 27, 2015); Foreman v. Terris, No. 14-13336
(E.D. Mich. Sept. 17, 2014); Foreman v. Terris, No.
13-12154 (E.D. Mich. July 12, 2013); Foreman v.
Terris, No. 13-10734 (E.D. Mich. March 20, 2013). The
Sixth Circuit has denied authorization for the petitioner to
proceed on a second or successive motion to vacate sentence
under § 2255. In re Foreman, No. 14-1478 (6th
Cir. Oct. 27, 2014).
individual seeking to file a second or successive motion
under section 2255 must first ask the court of appeals for an
order authorizing the district court to consider the
petition. See 28 U.S.C. §§ 2255(h),
2244(b)(3)(A); Stewart v. Martinez-Villareal, 523
U.S. 637, 641 (1998). Congress has vested in the court of
appeals a screening function that the district court would
have performed otherwise. Felker v. Turpin, 518 U.S.
651, 664 (1996). When a defendant files a second or
successive motion to vacate his sentence in the district
court without preauthorization from the court of appeals, the
district court must transfer the motion papers to the court
of appeals. See 28 U.S.C. § 1631 (directing
that “[w]henever 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”); In re Sims, 111 F.3d 45, 47 (6th Cir.
1997) (holding that “when a prisoner has sought §
2244(b)(3) permission from the district court, or when a
second or successive petition for habeas corpus relief or
§ 2255 motion is filed in the district court without
§ 2244(b)(3) authorization from this court, the district
court shall transfer the document to this court pursuant to
28 U.S.C. § 1631.”).
petitioner cannot proceed with his present motion without
first obtaining permission to file a second or successive
motion to vacate or correct sentence from the court of
appeals. Therefore, the Clerk of Court is ordered to transfer
the motion papers to the court of appeals pursuant to In
re Sims and 28 U.S.C. § 1631.
it is ORDERED that the Clerk of Court shall
TRANSFER the petitioner's motion to
vacate his sentence [dkt. #1] to the United States Court of
Appeals for the Sixth Circuit pursuant to 28 U.S.C. §
further ORDERED that the petitioner's
motion for release on bail [dkt. #8] and motion to file
excess pages in his reply brief [dkt. #11] are
DENIED without prejudice to ...