United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER TRANSFERRING PETITIONER'S
HABEAS PETITION (DKT. 1) TO THE COURT OF APPEALS PURSUANT TO
28 U.S.C. § 2244(B)(3)(A)
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
22, 2017, Petitioner Alexander Wallace Carrier, a state
prisoner at the Lakeland Correctional Facility in Coldwater,
Michigan, filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). The habeas
petition challenges Petitioner's state sentence of
nineteen to forty years in prison for second-degree home
invasion, Mich. Comp. Laws § 750.110a(3). Because
Petitioner challenged his sentence in a prior habeas petition
that was denied on the merits, the pending petition is a
successive petition that must be transferred to the United
States Court of Appeals for the Sixth Circuit for a
determination of whether this Court may adjudicate
2007, Petitioner pleaded guilty in Oakland County Circuit
Court to second-degree home invasion, Mich. Comp. Laws §
750.110a(3). The trial court initially sentenced Petitioner
to prison for twenty to forty years. Petitioner applied for
leave to appeal, but the Michigan Court of Appeals denied his
application. See People v. Carrier, No. 284119
(Mich. Ct. App. 28, 2008). The Michigan Supreme Court,
however, vacated Petitioner's sentence and remanded his
case to the trial court for re-sentencing. See People v.
Carrier, 755 N.W.2d 657 (Mich. 2008). The trial court
subsequently re-sentenced Petitioner to prison for nineteen
to forty years. Petitioner then moved for re-sentencing, but
the trial court's successor denied the motion, and the
Michigan Court of Appeals denied leave to appeal. See
People v. Carrier, No. 305630 (Mich. Ct. App. Sept. 27,
2011). On March 5, 2012, the Michigan Supreme Court likewise
denied leave to appeal. See People v. Carrier, 808
N.W.2d 779 (Mich. 2012), reconsideration denied, 815
N.W.2d 481 (Mich. 2012).
17, 2013, the United States Supreme Court issued its decision
in Alleyne v. United States, 133 S.Ct. 2151 (2013),
holding that “[f]acts that increase the mandatory
minimum sentence are . . . elements [of the charged offense]
and must be submitted to the jury and found beyond a
reasonable doubt.” Id. at 2158. Petitioner
subsequently filed a motion for relief from judgment, arguing
that his sentence was unconstitutional under
Alleyne. At Petitioner's request, the state
trial court held Petitioner's motion in abeyance pending
a decision by the Michigan Supreme Court in People v.
Lockridge, Docket No. 149073, 846 N.W.2d 925 (Mich.
Petitioner's motion for relief from judgment was pending
in the state trial court, Petitioner filed a federal habeas
corpus petition based on the Supreme Court's decision in
Alleyne. He also sought a stay of the federal
proceeding while he exhausted state remedies for his claim.
This Court denied the petition and the request for a stay on
the basis that Petitioner's unexhausted claim was plainly
meritless. See Carrier v. Woods, No. 14-12344 (E.D.
Mich. Oct. 30, 2014).
29, 2015, the Michigan Supreme Court issued a dispositive
opinion in Lockridge. See People v.
Lockridge, 870 N.W.2d 502 (Mich. 2015), cert. denied
sub nom. Michigan v. Lockridge, 136 S.Ct. 590 (2015).
The state supreme court concluded in Lockridge
“that the rule from Apprendi v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), as
extended by Alleyne v. United States, 570 U.S., 133
S.Ct. 2151, 186 L.Ed.2d 314 (2013), applies to Michigan's
sentencing guidelines and renders them constitutionally
deficient” to the extent “the guidelines
require judicial fact-finding beyond facts admitted
by the defendant or found by the jury to score offense
variables (OVs) that mandatorily increase the floor
of the guidelines minimum sentence range, i.e., the
‘mandatory minimum' sentence under
Alleyne.” Id. at 506 (emphasis in
trial court subsequently denied Petitioner's motion for
relief from judgment, see People v. Carrier, No.
07-216860-FH (Oakland Cty. Cir. Ct. Nov. 10, 2015), and the
Michigan Court of Appeals denied leave to appeal on the basis
that Lockridge was not retroactive on collateral
review, see People v. Lockridge, No. 332880 (Mich.
Ct. App. June 15, 2016). On January 5, 2017, the Michigan
Supreme Court denied leave to appeal because Petitioner had
failed to meet his burden of establishing entitlement to
relief under Michigan Court Rule 6.508(D). See People v.
Carrier, 888 N.W.2d 103 (Mich. 2017),
reconsideration denied, 891 N.W.2d 492 (Mich. 2017).
on June 12, 2017, Petitioner filed the habeas corpus petition
that is currently pending before the Court. He asserts that
his sentence is invalid and unconstitutional because the
trial court erroneously scored fifty points for offense
variable 7 of the Michigan sentencing guidelines.
Court begins its analysis by noting that “[f]ederal law
generally gives habeas petitioners one shot to pursue their
claims in federal court. For petitions filed after the first
one- ‘second or successive' petitions in the
language of the statute-applicants must overcome strict
limits before federal courts will permit them to seek habeas
relief.” In re Stansell, 828 F.3d 412, 413
(6th Cir. 2016). Pursuant to 28 U.S.C. § 2244(b)(3)(A)
and Magwood v. Patterson, 561 U.S. 320, 330-31
(2010), a habeas petitioner must seek authorization from the
appropriate court of appeals before he or she may file a
second or successive application for the writ of habeas
corpus in the district court. This requirement transfers to
the court of appeals a screening function that the district
court previously would have performed. Felker v.
Turpin, 518 U.S. 651, 664 (1996).
all second-in-time petitions are ‘second or
successive.'” In re Coley, 871 F.3d 455,
457 (6th Cir. 2017). As the Sixth Circuit explained,
this not-second-or-successive exception is generally
restricted to two scenarios. The first is where ripeness
prevented, or would have prevented, a court from adjudicating
the claim in an earlier petition. See Stewart v.
Martinez-Villareal, 523 U.S. 637, 645, 118 S.Ct. 1618,
140 L.Ed.2d 849 (1998) (noting that “in [such]
situations, the habeas petitioner does not receive an
adjudication of his claim”). The second is where a
federal court dismissed an earlier petition because it
contained exhausted and unexhausted claims and in doing so
never passed on the merits. See Slack v. McDaniel,
529 U.S. 473, 485-86, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
Id. “What the exception cannot mean
is . . . that a petition is not second or successive whenever
it relies on a rule that did not exist when the petitioner
filed his first petition.” Id. (citing In
re Tibbetts, 869 F.3d ...