United States District Court, E.D. Michigan, Southern Division
TERRY W. WILLIAMS, Petitioner,
LLOYD W. RAPELJE, Respondent.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART RESPONDENT'S MOTION TO DISMISS  AND TRANSFERRING
HABEAS CORPUS PETITION TO COURT OF APPEALS
STEPHEN J. MURPHY, III, JUDGE
Terry Williams filed a pro se petition for writ of habeas
corpus challenging convictions rendered in Wayne County
Circuit Court in 1994 and 2007. Now before the Court is
Respondent's Motion to Dismiss the present case. The
Court has reviewed the briefs, and finds that a hearing is
unnecessary. For the reasons set forth below, the Court will
grant Respondent's motion in part and transfer the
remaining claims to the United States Court of Appeals for
the Sixth Circuit.
bench trial in Wayne County Circuit, Petitioner was convicted
of assault with intent to murder, Mich. Comp. Laws §
750.83, and possession of a firearm during the commission of
a felony, Mich. Comp. Laws § 750.227b (collectively the
"1994 Convictions"). After a period of
imprisonment, he was discharged in June 2004.
a jury trial in Wayne County Circuit Court in 2007,
Petitioner was convicted of first-degree home invasion, Mich.
Comp. Laws § 750.110a, being a felon in possession of a
firearm, Mich. Comp. Laws § 750.224f, felonious assault,
Mich. Comp. Laws § 750.82, killing an animal, Mich.
Comp. Laws § 750.50b, and possession of a firearm during
the commission of a felony, Mich. Comp. Laws § 750.227b
(collectively the "2007 Convictions").
has since filed three habeas petitions. The first was filed
in 2010. ECF 1. After filing the first petition, Petitioner
moved to stay the case while he completed his state court
appeal. ECF 2. The Court granted the motion and
administratively closed the case. ECF 3. In July 2012,
Petitioner moved to lift the stay and filed an amended
petition. ECF 8; ECF 9. The Court then lifted the stay and
required a responsive pleading. ECF 13. In January 2015,
Petitioner moved for a second stay so he could exhaust a
claim in state court based upon newly discovered evidence.
ECF 25. The Court granted the motion and again stayed the
case. ECF 26.
March 2017, Petitioner filed his second habeas petition.
Williams v. Horton, Case No. 17-10785. The petition
raised several claims related to the sentences imposed for
the 2007 Convictions, which the Court denied on the merits.
Id., ECF 14.
2017, Petitioner filed his third habeas petition.
Williams v. Horton, Case No. 17-11547. The third
petition was ultimately consolidated with the first petition,
so the Court reopened the docket for the previously stayed
first petition. ECF 32. The consolidated action is presently
before the Court, and Respondent has filed a motion to
seeks a dismissal of the habeas petition because (1) the
petition is time-barred and (2) Petitioner is not in custody
pursuant to the conviction being challenged. Respondent's
argument is based on the position that the petition
challenges Petitioner's 1994 Convictions. Petitioner
contends that the petition challenges his 2007 Convictions as
enhanced by the 1994 Convictions. Under either theory, the
petition may not proceed.
federal court to have jurisdiction over a petition for a writ
of habeas corpus under § 2254, the petitioner "must
be 'in custody' under the conviction or sentence
under attack at the time his petition is filed."
Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing
Carafas v. LaVallee, 391 U.S. 234, 238
(1968)). Courts determine whether a person is
"in custody" at the time the petition is filed.
Carafas, 391 U.S. at 238. Petitioner's sentence
for the 1994 Convictions expired in 2004, therefore all of
the petitions here were filed after Petitioner was no longer
in custody. Consequently, Petitioner's direct challenges
to the 1994 Convictions will be dismissed.
remainder of Petitioner's claims must be transferred.
Although Petitioner may challenge the 2007 Convictions as
enhanced by the allegedly unlawful 1994 Convictions, see
Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394,
401-02 (2001) (citing Maleng, 490 U.S. 488 at
489-494), Petitioner's second habeas petition already
unsuccessfully challenged the 2007 Convictions. See
Williams, Case No. 17-10785, ECF 14. Consequently, the
Court must decide whether the consolidated first and third
petitions are successive to the second petition. Because the
consolidation did not "merge the suits into a single
action, " Petitioner does not automatically benefit from
the filing date of the first petition. Twaddle v.
Diem, 200 Fed.Appx. 435, 438 n.4 (6th Cir. 2006);
United States v. Cordes, Case Nos. 15-10040,
15-14101, 15-13604, 2016 WL 1719467, *2 n.1 (E.D. Mich. March
3, 2016). The third petition is therefore successive to the
second. And although the first petition was originally filed
before the second petition, Petitioner chose to file the
second petition before he moved to reopen the first. Despite
the original filing dates, the first petition is therefore
successive to the second petition. To hold otherwise would
allow Petitioner to elude AEDPA's restrictions on
successive petitions and to twice challenge the 2007
Convictions. See Workman v. Bell, 227 F.3d 331, 337
n.4 (6th Cir. 2000) (holding that "[H]abeas petitioners
should not be able to make an end-run around the requirements
of AEDPA" by creatively styling their pleadings.).
a second or successive application . . . is filed in the
district court, the applicant [must] move in the appropriate
court of appeals for an order authorizing the district court
to consider the application." 28 U.S.C. §
2244(b)(3)(A). Because Petitioner has not complied with the
statutory requirement, the Court must transfer the petition
to the Court of Appeals. In re Sims, 111 F.3d 45, 47
(6th Cir. 1997).
it is hereby ORDERED that Respondent's
Motion for Dismissal  is GRANTED IN PART AND
DENIED IN PART. Petitioner's claims directly
challenging the 1994 Convictions are DENIED.
The Court directs the Clerk to TRANSFER the
remaining claims to the ...