United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker J.
ORDER OF TRANSFER TO SIXTH CIRCUIT COURT OF
KENT UNITED STATES MAGISTRATE JUDGE.
a habeas corpus action filed by a state prisoner under 28
U.S.C. § 2254. Petitioner John Aldon Corrion is
incarcerated with the Michigan Department of Corrections at
the Earnest C. Brooks Correctional Facility, (LRF) in
Muskegon Heights, Michigan. Petitioner is serving sentences
imposed in two Livingston County Circuit Court cases: No.
05-015154-FH and 06-016087-FC. In the first case, Petitioner
was convicted of assaulting his wife. In the second case,
Petitioner was convicted of soliciting her murder while he
was in jail. This is not Petitioner's first habeas corpus
action challenging these convictions and sentences. On
February 25, 2009, in Corrion v. McKee, No.
2:09-cv-10696 (E.D. Mich.), he filed a petition challenging
his conviction and sentence on the charge of soliciting
murder. That petition was dismissed with prejudice on the
merits on July 7, 2011. Petitioner filed a petition in
Corrion v. Lafler, No. 2:10-cv-10593 (E.D. Mich.),
on February 11, 2010, challenging his conviction and sentence
for assaulting his wife. That petition was dismissed with
prejudice on the merits on April 11, 2013.
has filed subsequent petitions in the United States District
Court for the Eastern District of Michigan challenging his
convictions and sentences. See Corrion v. MacLaren,
No. 14-cv-12579 (E.D. Mich.); Corrion v. Bergh, No.
2:17-cv-10062 (E.D. Mich.). Those petitions were transferred
to the Sixth Circuit Court of Appeals as second or
current petition is subject to the “second or
successive” provision of the Antiterrorism and
Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1214
(AEDPA). 28 U.S.C. § 2244(b); see also Cress v.
Palmer, 484 F.3d 844, 852 (6th Cir. 2007). 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 actions
were dismissed on the merits; thus, the instant petition is
second or successive.
a second or successive application may be 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).
Petitioner did not seek the approval of the Sixth Circuit
Court of Appeals before filing this petition. The appropriate
disposition is a transfer of the case to the Sixth Circuit
Court of Appeals pursuant to 28 U.S.C. § 1631. In re