United States District Court, E.D. Michigan, Southern Division
DUYONN A. VINCENT, Petitioner,
G. SKIPPER, Respondent.
ORDER TRANSFERRING THE PETITION TO THE COURT OF
APPEALS AS A SECOND OR SUCCESSIVE PETITION UNDER 28 U.S.C.
COHN UNITED STATES DISTRICT JUDGE
a habeas case under 28 U.S.C. § 2241. Petitioner Duyonn
A. Vincent has filed a pro se habeas petition
challenging his state convictions for first-degree murder,
M.C.L. § 750.316, and possession of a firearm during the
commission of a felony, M.C.L. § 750.227b. As will be
explained, this is Petitioner's second petition, and he
has not acquired permission from the Court of Appeals for the
Sixth Circuit to file a second or successive petition.
Therefore, the case will be transferred to the Sixth Circuit
for a determination of whether Petitioner may pursue the
was charged with open murder and felony firearm in Genesee
County, Michigan. At trial, he moved for a directed verdict
of acquittal on the first-degree murder charge. The trial
court initially stated that, at best, the prosecution had
proved second-degree murder because there was no showing of
premeditation. The trial court subsequently reconsidered its
ruling and allowed the jury to consider whether Petitioner
was guilty of first-degree murder. The jury subsequently
found Petitioner guilty of first-degree murder and felony
firearm. The trial court sentenced Petitioner to two years in
prison for the firearm conviction and to a consecutive term
of life imprisonment for the murder conviction.
direct appeal, Petitioner argued that his double jeopardy
rights were violated when the trial court reconsidered its
decision on his motion for a directed verdict of acquittal
and allowed the jury to consider the first-degree murder
charge. The Michigan Court of Appeals agreed with Petitioner,
reversed his first-degree murder conviction, and remanded the
case for entry of a conviction of second-degree murder and
for resentencing. See People v. Vincent, 546 N.W.2d
662 (Mich. Ct. App. 1996). The Michigan Supreme Court
reversed the Michigan Court of Appeals on the basis that the
trial court did not direct a verdict of acquittal on the
first-degree murder charge and that Petitioner's double
jeopardy rights were not violated. See People v.
Vincent, 565 N.W.2d 629 (Mich. 1997). The Supreme Court
denied certiorari. See Vincent v. Michigan, 522 U.S.
1998, Petitioner filed a habeas petition challenging his
convictions. The district court granted the petition on the
double-jeopardy issue and ordered the state court to enter a
conviction of second-degree murder and resentence Petitioner.
See Vincent v. Jones, No. 98-40007 (E.D. Mich. Nov.
3, 2000). The Sixth Circuit affirmed. See Vincent v.
Jones, 292 F.3d 506 (6th Cir. 2002). The Supreme Court
reversed the Sixth Circuit's decision, see Price v.
Vincent, 538 U.S. 634 (2003), and on remand the district
court denied the petition. See Vincent v. Jones, No.
98-40007 (E.D. Mich. July 15, 2003).
then recently returned to state court and filed a petition
for collateral review. The trial court denied relief on the
basis that Petitioner's challenge to the legality of his
conviction was without merit and beyond the court's
authority to overturn in light of the United States Supreme
Court's decision. See People v. Vincent, No.
91-45890-FC (Genesee Cty. Cir. Ct. Apr. 3, 2018).
filed this action on May 1, 2018. He alleges that he was
never arraigned or bound over to state circuit court on a
charge of first-degree murder and, therefore, the state trial
court lacked subject matter jurisdiction.
petitioners generally have only “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). Thus, a habeas petitioner must seek
authorization from the appropriate court of appeals before
filing a second or successive petition. 28 U.S.C. §
2244(b)(3)(A); Magwood v. Patterson, 561 U.S. 320,
330-31 (2010); Stansell, 828 F.3d at 414.
has not acquired permission from the court of appeals to file
a second or successive petition. His current claim was ripe
for review when he filed the prior petition, and the fact
that he filed the current petition under 28 U.S.C. §
2241 (the general habeas statute), rather than 28 U.S.C.
§ 2254 (the more specific statute for prisoners in
custody under a state judgment) does not excuse his failure
to seek prior authorization from the Federal Court of
Appeals. “[S]ection 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, 336 (6th Cir. 2006).
as here, a habeas petitioner files a second or successive
petition for habeas corpus relief in the district court
without prior authorization from the Court of Appeals, the
district court must transfer the document to the Court of
Appeals pursuant to 28 U.S.C. § 1631. In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997).
the Clerk of the Court shall TRANSFER this case to the United
States Court of Appeals for the Sixth Circuit under 28 U.S.C.