United States District Court, W.D. Michigan, Southern Division
ORDER OF TRANSFER TO SIXTH CIRCUIT COURT OF
Kent United States Magistrate Judge.
instant action is titled a petition for writ of error coram
nobis. Writs of coram nobis were abolished in civil actions
such as this one by Fed.R.Civ.P. 60(e). See United States
v. Beggerly, 524 U.S. 38, 45 (1998) (citing Fed.R.Civ.P.
60(e)). Where a prisoner is challenging the very fact or
duration of his physical imprisonment and the relief that he
seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his
sole federal remedy is a petition for writ of habeas corpus.
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). The
Court therefore construes Petitioner's action as one
seeking a writ habeas corpus under 28 U.S.C. § 2254.
Pietro Terrell presently is incarcerated with the Michigan
Department of Corrections at the Lakeland Correctional
Facility (LCF) in Coldwater, Branch County, Michigan.
Following a jury trial in the Kent County Circuit Court,
Petitioner was convicted of first-degree felony murder, Mich.
Comp. Laws § 750.316b. On July 2, 2002, the court
sentenced Petitioner to life imprisonment.
not Petitioner's first attempt to seek habeas relief from
the conviction and sentence described above. See Terrell
v. Howes, No. 1:08-cv-179 (W.D. Mich.). On August 24,
2016, the district court adopted the report and
recommendation of the magistrate judge and dismissed the
petition for failure to raise a meritorious federal claim,
with the exception of Ground III of the petition, which was
dismissed without prejudice as unexhausted. (No. 1:08-cv-179,
ECF Nos. 91-92, PageID.1666-1669.) The Court also denied a
certificate of appealability. (Id.)
appealed to the Sixth Circuit. On March 24, 2017, the court
of appeals denied Petitioner a certificate of appealability.
(No. 1:08-cv-179, ECF No. 98, PageID.1721-1723.) Petitioner
sought rehearing and rehearing en banc, which the Sixth
Circuit denied on June 30, 2017. Petitioner then filed a
petition for writ of certiorari to the United State Supreme
Court. The Supreme Court denied the petition on December 14,
2017. (No. 1:08-cv-179, ECF No. 100, PageID.1726.) Petitioner
filed the instant habeas petition on April 20, 2018.
Petitioner's previous habeas action was filed after the
enactment of the Antiterrorism and Effective Death Penalty
Act, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), his current
petition is subject to the “second or successive”
provision set forth in 28 U.S.C. § 2244(b). See
Cress v. Palmer, 484 F.3d 844, 852 (6th Cir. 2007).
Before a second or successive application is filed in the
district court, the applicant must move in the court of
appeals for an order authorizing the district court to
consider the application. 28 U.S.C. § 2244(b)(3)(A);
see also Tyler v. Cain, 533 U.S. 656, 661 n.3 (2001)
(circuit court may authorize the petition upon a prima
facie showing that the claim satisfies §
2244(b)(2); to survive dismissal in the district court, the
application must actually show the statutory standard). A
successive petition raises grounds identical to those raised
and rejected in a prior petition. Kuhlmann v.
Wilson, 477 U.S. 436, 444 n.6 (1986) (plurality) (citing
Sanders v. United States, 373 U.S. 1, 15-17 (1963));
Lonberger v. Marshall, 808 F.2d 1169, 1173 (6th Cir.
1987). A second petition is one which alleges new and
different grounds for relief after a first petition was
denied. McCleskey v. Zant, 499 U.S. 467, 470 (1991);
see also Burger v. Zant, 984 F.2d 1129, 1132-33
(11th Cir. 1993) (distinguishing second petitions and
dismissal with prejudice has a preclusive effect under §
2244, though a prior dismissal without prejudice does not.
See Stewart v. Martinez-Villareal, 523 U.S. 637,
643-46 (1998). Both dismissals on the merits and certain
types of decisions reached before a merits determination are
dismissals with prejudice that have a preclusive effect.
Carlson v. Pitcher, 137 F.3d 416, 419 (6th Cir.
1997) (citing Benton v. Washington, 106 F.3d 162,
164 (7th Cir. 1996)). For example, a dismissal with prejudice
based on procedural default is “on the merits”
and, thus, a subsequent habeas application would be second or
successive. In re Cook, 215 F.3d 606, 608 (6th Cir.
2000). Similarly, a dismissal on the basis of the statute of
limitations is a decision on the merits, rendering a
subsequent application second or successive. See Murray
v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (“We
hold that dismissal of a § 2254 petition for failure to
comply with the one-year statute of limitations constitutes
an adjudication on the merits that renders future petitions
under § 2254 challenging the same conviction
‘second or successive' petitions under §
2244(b).”). Petitioner's previous habeas action was
dismissed on the merits; thus, the instant petition is second