United States District Court, E.D. Michigan, Southern Division
RODRICK L. JONES, Petitioner,
PEOPLE OF THE STATE OF MICHIGAN, Respondent.
OPINION AND ORDER TRANSFERRING CASE TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT PURSUANT TO 28
U.S.C. § 2244(B)(3)(A)
A. GOLDSMITH United States District Judge.
Rodrick L. Jones, confined at the Clinton County Jail in St.
Johns, Michigan while on parole supervision to the Michigan
Department of Corrections, filed a pro se petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1).
Petitioner was convicted in the Isabella County Circuit Court
in case number 07-1926-FH of delivery of less than 50 grams
of cocaine, Mich. Comp. Laws § 333.7401(2)(a)(iv), for
an offense which took place on September 2, 2007. Petitioner
was convicted in the Isabella County Circuit Court in Case of
first-degree home invasion, Mich. Comp. Laws § 750.110a;
bribing, intimidating, or interfering with a witness, Mich.
Comp. Laws § 750.122; and being a third habitual
offender, Mich. Comp. Laws § 769.11, for an offense
which took place on September 1, 2007. Petitioner's
habeas petition is a successive challenge to both
convictions. Therefore, the Court transfers this case to the
United States Court of Appeals for the Sixth Circuit pursuant
to 28 U.S.C. § 2244(b(3)(A) for a determination of
whether Petitioner should be permitted to file a successive
previously filed a petition for writ of habeas corpus, in
which he challenged his 2007 conviction for delivery of less
than 50 grams of cocaine, which was denied on the merits.
Jones v. McKee, No. 2:10-CV-11675 (E.D. Mich. July
26, 2011) (Cohn, J.). Petitioner also previously filed a
habeas petition challenging his conviction for first-degree
home invasion, bribing, intimidating, or interfering with a
witness, and being a third habitual offender. The petition
was dismissed on the ground it was barred by the one-year
statute of limitations contained in 28 U.S.C. §
2244(d)(1). Jones v. Curtin, No. 2:13-CV-11778 (E.D.
Mich. Dec. 30, 2013) (Friedman, J.).
current habeas petition is rambling and difficult to
understand, but he references both convictions in his habeas
petition. It is unclear whether Petitioner seeks relief on
one or both convictions, but he appears to raise claims
involving both convictions.
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); Stewart v. Martinez-Villareal, 523
U.S. 637, 641 (1998); In re Wilson, 142 F.3d 939,
940 (6th Cir. 1998). Under the provisions of 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. 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, no matter how meritorious the
district court believes the claim to be. Id.;
see also In Re Sims, 111 F.3d 45, 47 (6th
Cir. 1997). This requirement transfers to the court of
appeals a screening function that the district court
previously would have performed. Felker v. Turpin,
518 U.S. 651, 664 (1996).
previously filed a habeas petition with the federal courts
challenging both convictions. Petitioner's prior habeas
petition challenging his delivery of cocaine conviction was
denied on the merits. Petitioner's prior habeas petition
challenging his home invasion, bribing, intimidating, or
interfering with a witness, and habitual offender convictions
was dismissed on the ground that it was barred by the
one-year statute of limitations contained in 28 U.S.C. §
2244(d(1). The dismissal of the petition by Judge Friedman
for Petitioner's failure to comply with the AEDPA's
one-year statute of limitations is considered an adjudication
on the merits that renders the current petition “second
or successive” for the purpose of § 2244(b), with
respect to this conviction. See In re Rains, 659
F.3d 1274, 1275 (10th Cir. 2011); In re Flowers, 595
F.3d 204, 205 (5th Cir. 2009) (per curiam); McNabb v.
Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Murray
v. Greiner, 394 F.3d 78, 81 (2nd Cir. 2005); Altman
v. Benik, 337 F.3d 764, 765 (7th Cir. 2003) (per
curiam); cf. In re Cook, 215 F.3d 606, 607-608 (6th
Cir. 2000) (when petitioner's first habeas application
was dismissed for procedural default arising from failure to
exhaust state remedies where the statute of limitations had
run on those remedies, the dismissal was “on the
merits, ” and the petitioner's later habeas
application was “second or successive, ” for
purposes of § 2244(b)). Petitioner's current habeas
petition is successive, regardless of whether he challenges
one or both of these convictions.
the Clerk of Court is ordered to transfer the habeas petition
to the United States Court of Appeals for the Sixth Circuit
pursuant to Sims and 28 U.S.C. § 1631. See
Galka v. Caruso, 599 F.Supp.2d 854, 857 (E.D. Mich.
2009). Although neither party raised the issue of this being
a second or successive petition, 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. See In Re McDonald, 514 F.3d 539, 543-44
(6th Cir. 2008).
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 this ...