United States District Court, E.D. Michigan, Southern Division
Judge Elizabeth A. Stafford
ORDER GRANTING PETITIONER'S LETTER REQUEST ,
DISMISSING THE HABEAS PETITION , AND DENYING THE MOTION
FOR APPOINTMENT OF COUNSEL 
E. LEVY United States District Judge
a habeas corpus case brought by a Michigan prisoner under 28
U.S.C. § 2254. Petitioner Sylvester Mott was convicted
of second-degree murder in 1983 and sentenced to 75 to 150
years in prison. Petitioner's pro se habeas
petition raises a single claim: that his sentence is
excessive and cruel and unusual punishment under the
constitutions of Michigan and the United States. The Court
will dismiss the petition at Petitioner's request
(see Dkt. 5), because he seeks to obtain permission
from the United States Court of Appeals for the Sixth Circuit
before proceeding with a second or successive petition in
was charged with first-degree murder, Mich. Comp. Laws §
750.316, but following a trial in the former Recorder's
Court for the City of Detroit, the jury found Petitioner
guilty of the lesser offense of second-degree murder, Mich.
Comp. Laws § 750.317. The conviction arose from the
fatal beating of a child. On October 27, 1983, the trial
court sentenced Petitioner to prison for 75 to 150 years. The
Michigan Court of Appeals affirmed Petitioner's
conviction, see People v. Mott, 140 Mich.App. 289
(1985), and on August 28, 1985, the Michigan Supreme Court
denied leave to appeal.
1989, Petitioner moved for a new trial and for re-sentencing.
The trial court denied his motion, and the State's
appellate courts denied leave to appeal. In 1994, Petitioner
filed a motion for relief from judgment, which also was
1997, Petitioner filed his first petition for the writ of
habeas corpus. He argued that (1) there was insufficient
evidence to convict him of second-degree murder, (2) the
admission of photographs of the deceased child violated his
right to due process, (3) the trial court's denial of his
motion for a directed verdict of acquittal on the charge of
first-degree murder violated his right to due process, (4)
his trial and appellate attorneys were ineffective, (5) his
sentence precluded him from obtaining parole, (6) the jury
instructions were so erroneous as to deny him due process,
and (7) the prosecutor's conduct deprived him of a fair
trial. United States District Judge John Corbett O'Meara
referred the case to a magistrate judge who recommended that
the case be dismissed because it was barred by the statute of
limitations. Judge O'Meara accepted the magistrate
judge's report and recommendation as his findings and
conclusions and dismissed the petition. See Mott v.
Robinson, Case No. 97-cv-73959 (E.D. Mich. May 22,
1998). Petitioner appealed Judge O'Meara's decision,
but the United States Court of Appeals for the Sixth Circuit
declined to issue a certificate of appealability, Mott v.
Robinson, No. 98-1729 (6th Cir. Mar. 17, 1999), and on
October 4, 1999, the United States Supreme Court denied
Petitioner's application for a writ of certiorari.
Mott v. Robinson, 528 U.S. 878 (1999).
2000, Petitioner sought permission from the Sixth Circuit to
file a second or successive petition. The Sixth Circuit
denied Petitioner's request. In re Sylvester
Mott, No. 00-2271 (6th Cir. Mar. 9, 2001).
2003, Petitioner filed another habeas corpus petition. Former
United States District Judge David W. McKeague transferred
the case to the Sixth Circuit as a second or successive
petition. See Mott-Bey v. Wayne Cty. 36th Dist.
Court, Case No. 03-cv-00544 (W.D. Mich. Sept. 29, 2003).
On November 14, 2003, the Sixth Circuit dismissed the case
for want of prosecution. In re Sylvester Mott-Bey,
No. 03-2263 (6th Cir. Nov. 14, 2003). Between 2008 and 2015,
Petitioner filed several unsuccessful post-conviction motions
in the state trial court.
April 14, 2017, Petitioner filed this petition for the writ
of habeas corpus (Dkt. 1) and a motion for appointment of
counsel. (Dkt. 2.) On April 21, 2017, United States
Magistrate Judge R. Steven Whalen ordered Petitioner to
submit the filing fee for his petition or an application to
proceed without prepayment of fees and costs within
twenty-one days of his order. (Dkt. 3.) Petitioner has not
complied with Magistrate Judge Whalen's order. However,
on May 1, 2017, Petitioner wrote to the Clerk of the Court
and asked to have his petition dismissed or transferred to
the Sixth Circuit as a second or successive petition. (Dkt.
Analysis and Conclusion
other things, the Antiterrorism and Effective Death Penalty
Act of 1996 “requires petitioners challenging state
court judgments to seek authorization in a federal appeals
court before filing a ‘second or successive
application' in district court.” In re
Stansell, 828 F.3d 412, 414 (6th Cir. 2016) (citing 28
U.S.C. § 2244(b)(3)(A)). This is Petitioner's third
habeas petition challenging the same conviction, and he has
not received permission from the Sixth Circuit to file a
second or successive petition.
as here, a habeas petitioner files a second or successive
petition for habeas corpus relief in the district court
without prior authorization from a Court of Appeals, the
district court ordinarily 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). However, the Court's review of federal court
records indicates that Petitioner recently applied directly
to the Sixth Circuit for permission to file a second or
successive petition. In re Sylvester Mott, No.
17-1607 (6th Cir. May 24, 2017). The Court therefore finds it
unnecessary to transfer ...