United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER TRANSFERRING THE MOTION FOR RELIEF
FROM JUDGMENT [DKT. # 7] TO THE COURT OF APPEALS PURSUANT TO
28 U.S.C. § 2244(B)(3)(A)
PAGE HOOD CHIEF JUDGE, UNITED STATES DISTRICT COURT.
the Court is petitioner's pro se motion for
relief from judgment brought pursuant to Fed. R. Civ. P
60(b)(6). Petitioner asks this Court to reopen his habeas
petition, in which he challenged his 1980 conviction for
first-degree felony murder, first-degree criminal sexual
conduct, unarmed robbery, and breaking and entering an
occupied dwelling with intent to commit a felony. For the
following reasons, the Court orders the Clerk of the Court to
transfer the motion for relief from judgment to the Court of
Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A).
filed a petition for writ of habeas corpus. Petitioner
claimed that the state trial judge violated his
constitutional rights by recharacterizing a motion to reissue
judgment that he brought under M.C.R. 6.428 as a
post-conviction motion for relief from judgment brought
pursuant to M.C.R. 6.500, et. Seq. This Court
summarily denied the petition, because petitioner's claim
that Michigan courts wrongfully denied him post-conviction
relief is non-cognizable on habeas review. Small v.
Harry, No. 2:17-CV-12803, 2017 WL 4883635, at * 2 (E.D.
Mich. Oct. 30, 2017).
argued that he was entitled to habeas relief based on
Castro v. United States, 540 U.S. 375 (2003), where
the Supreme Court held that a federal district court may not
re-characterize a pro se criminal defendant's
motion as the litigant's first motion to vacate sentence
under 28 U.S.C. § 2255 unless the court (1) informed the
litigant of its intent to recharacterize the motion, (2)
warned the litigant that the re-characterization will subject
subsequent § 2255 motions to the “second or
successive” restrictions of § 2255 ¶ 8, and
(3) provided the litigant with an opportunity to withdraw or
to amend the filing. Id. at 383.
Court ruled that petitioner was not entitled to habeas relief
on his claim, because Castro is applicable only to
federal courts' interpretation of federal prisoner's
pro se motions and did not apply to a state
court's interpretation or construction of a state
prisoner's post-conviction motions. Small v.
Harry, 2017 WL 4883635, at * 2. This Court noted that
“Castro was decided as a matter of the Supreme
Court's supervisory power over the lower federal courts
and is not binding authority on the state courts.”
Id. (Citing Ruelas v. Wolfenbarger, 580
F.3d 403, 407 (6th Cir. 2009)). This Court further concluded
that petitioner's claim might also be moot in light of
the fact that the Michigan Supreme Court ultimately agreed
with petitioner that his motion should not have been
characterized as a 6.500 motion for relief from judgment.
has now filed a motion for relief from judgment pursuant to
Fed.R.Civ.P. 60(b)(6). Petitioner argues that this Court
erred in concluding that the Supreme Court's holding in
Castro did not require the state trial court to give
him adequate notice before re-characterizing his motion as a
post-conviction motion for relief from judgment. Petitioner
further argues that his claim is not moot. Petitioner asks
this Court to reopen the petition and grant him habeas relief
on his claim.
individual seeking to file a second or successive habeas
petition must first ask the appropriate court of appeals for
an order authorizing 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). Under the
provisions of the Antiterrorism and Effective Death Penalty
Act (AEDPA), a federal district court lacks the jurisdiction
to adjudicate 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. See Ferrazza v. Tessmer, 36
F.Supp.2d 965, 971 (E.D. Mich. 1999). When a habeas
petitioner files a second or successive petition for habeas
corpus relief in the district court without preauthorization
from the court of appeals, the district court must transfer
the document to the court of appeals. See 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.”).
seeks relief from judgment pursuant to Fed.R.Civ.P. 60(b)(6).
A Rule 60(b) motion for relief from judgment which seeks to
advance one or more substantive claims following the denial
of a habeas petition, such as a motion seeking leave to
present a claim that was omitted from the habeas petition due
to mistake or excusable neglect, or seeking to present newly
discovered evidence not presented in the petition, or seeking
relief from judgment due to an alleged change in the
substantive law since the prior habeas petition was denied,
should be classified as a “second or successive habeas
petition, ” which requires authorization from the Court
of Appeals before filing, pursuant to the provisions of
§ 2244(b). See Gonzalez v. Crosby, 545 U.S.
524, 531 (2005). Therefore, a habeas petitioner's Rule
60(b) motion “that seeks to revisit the federal
court's denial on the merits of a claim for relief should
be treated as a successive habeas petition.”
Id. at 534.
motion for relief from judgment amounts to a second or
successive habeas petition, because the motion seeks to
advance a claim that this Court previously considered and
dismissed on substantive, constitutional grounds. See
Post v. Bradshaw, 422 F.3d 419, 424-25 (6th Cir. 2005).
Petitioner's Rule 60(b) motion is not merely an attempt
to rectify a defect in the habeas corpus proceedings, but
instead reasserts the substance of petitioner's claim and
therefore constitutes an impermissible attack on this
Court's previous resolution of the claim on the merits.
See Henderson v. Collins, 184 Fed.Appx.. 518, 523
(6th Cir. 2006). In other words, petitioner's Rule 60(b)
motion seeks the vindication of, or advances, his claim that
the state court erred in re-characterizing his motion as a
6.500 motion because petitioner is taking steps that lead
inexorably to a merits-based attack on the prior dismissal of
his habeas petition. Post, 422 F.3d at 424-25.
Petitioner's 60(b) motion challenges this Court's
prior resolution of a claim on the merits and thus
constitutes a second or successive habeas petition, which
must be transferred to the Sixth Circuit pursuant to 28
U.S.C. § 2244(b)(3)(A). See Tyler v. Anderson,
749 F.3d 499, 508 (6th Cir. 2014).
the Clerk of Court is ordered to transfer the motion for
relief from judgment 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).