United States District Court, E.D. Michigan, Southern Division
CARL E. JOHNS, Petitioner,
SHERMAN CAMPBELL, Respondent.
OPINION AND ORDER TRANSFERRING PETITION  TO COURT
OF APPEALS AS A SECOND OR SUCCESSIVE PETITION
J. MICHELSON U.S. DISTRICT JUDGE
May evening in 1994, an elderly couple was assaulted in
Muskegon County, Michigan. The wife died the next day and the
husband about a month later. The State of Michigan charged
Carl Johns with their deaths. The prosecution's theory
was that Johns was a drug addict and went to the couple's
home to steal drug money. Johns' theory was that he had
confronted the couple about their failure to pay him for yard
work and things became heated, he had a compromised mental
state, and he lost it and assaulted the couple. Johns cited a
history of mental-health problems. A jury convicted Johns of
first-degree felony murder and Johns was sentenced to life in
prison without the possibility of parole.
asks this federal court to grant him a writ of habeas corpus.
But this is not the first time Johns has asked a federal
court for such a writ. See Johns v. Elo, No.
99-76330 (E.D. Mich. filed June 23, 1999). So the Court must
decide whether to transfer Johns' current petition to the
United States Court of Appeals for the Sixth Circuit for the
appellate court to authorize Johns' current filing.
See 28 U.S.C. § 2244(b)(3)(A); see also
Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998).
The Court believes the answer is “yes.”
initial matter, Johns' petition is subject to §
2244(b)'s bar on second-or-successive habeas corpus
petitions. Although he filed his petition under 28 U.S.C.
§ 2241 (R. 1, PID 1), he challenges the validity of his
state court conviction and “section 2244(b) applies to
any habeas corpus petition seeking relief from custody
pursuant to a state court judgment.” Rittenberry v.
Morgan, 468 F.3d 331, 337-38 (6th Cir. 2006).
it appears that Johns has not obtained authorization from the
Sixth Circuit to file his petition.
then, is to decide whether Johns' petition is
“second or successive” within the meaning of
§ 2244(b). AEDPA itself does not define the term.
See In re Tibbetts, 869 F.3d 403, 405 (6th Cir.
2017). But “courts defining ‘second or
successive' generally apply abuse of the writ decisions,
including those decisions that predated AEDPA.” In
re Bowen, 436 F.3d 699, 704 (6th Cir. 2006). And
“[u]nder the abuse of the writ doctrine, a numerically
second petition is ‘second' when it raises a claim
that could have been raised in the first petition but was not
so raised, either due to deliberate abandonment or
inexcusable neglect.” Id.; cf.
Tibbetts, 869 F.3d at 406 (“[A] petition is not
second or successive when it raises a claim that was unripe
for review when the first habeas petition was filed.”).
the claims Johns raises in his current petition were ripe at
the time he filed his first petition. Although the current
petition is not a model of clarity, it appears that Johns now
seeks habeas corpus relief on the grounds that (1) he was
charged with first-degree premeditated murder but was instead
tried for first-degree felony murder in violation of the
Fifth, Sixth, and Fourteenth Amendments (R. 1, PID 16-17,
41-43); (2) malice-apart from the malice associated with the
felony-was a required element of his convictions (R. 1, PID
25-26, 29-30) and the trial court failed to instruct the jury
accordingly (R. 1, PID 31, 37, 38, 40); (3) the prosecution
did not prove malice beyond a reasonable doubt (R. 1, PID 29,
33); and (4) the questions on the verdict form prevented
jurors from finding him not guilty of second-degree murder
and armed robbery (R. 1, PID 32). As none of these claims
require facts or law unknown at the time of Johns' first
petition, they “could have been raised in the first
petition, ” Bowen, 436 F.3d at 704.
Court acknowledges that even if Johns' current claims
could have been brought previously, the current petition
would not be “second or successive” within the
meaning of § 2244(b) if his first petition was dismissed
for lack of jurisdiction, as unexhausted, or for like
reasons. See Brian R. Means, Federal Habeas Manual
§§ 11:54-11:61 (2017); Carlson v. Pitcher,
137 F.3d 416, 420 (6th Cir. 1998). But Johns' prior
petition was dismissed because the claims lacked merit or
were procedurally defaulted. See Johns v. Elo, No.
99-76330, slip op. at 1 (E.D. Mich. Sept. 21, 2000) (report
and recommendation); Johns v. Elo, No. 99-76330,
slip op. at 11 (E.D. Mich. Dec. 8, 2000) (order adopting in
part report and recommendation). Thus, the prior petition
counts toward the second-or-successive limitation.
See Means, supra at §§ 11:48,
11:50; In re Garner, 612 F.3d 533, 535 (6th Cir.
2010) (“Because Garner's initial habeas petition
was decided ‘on the merits, ' his recent filings in
our court are properly deemed a ‘second or
successive' petition.”); Carter v. United
States, 150 F.3d 202, 205 (2d Cir. 1998) (“Our
sister circuits have held that the denial of a first §
2254 petition for procedural default, which default is not
overcome by a showing of cause and prejudice, must be
regarded as a determination on the merits in examining
whether a subsequent petition is successive.” (internal
quotation mark omitted)).
then, Johns' petition is subject to the
second-or-successive bar, his petition is second or
successive under § 2244(b), and he did not seek
authorization from the Sixth Circuit before filing his
petition. Thus, the Court ORDERS the Clerk of the Court to
transfer Johns' petition to the Court of Appeals for the
Sixth Circuit pursuant to 28 U.S.C. § 1631 and 28 U.S.C.
§ 2244(b)(3)(A) for a determination ...