United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER TRANSFERRING THE NOTICE OF APPEAL
(Dkt. 35), THE APPLICATION FOR CERTIFICATE OF APPEALABILITY
(Dkt. 36), AND THE EXHIBIT IN SUPPORT OF THE CERTIFICATE OF
APPELABILITY (Dkt. 38) TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
A. Goldsmith, United States District
the Court is Petitioner's Notice of Appeal, Application
for a Certificate of Appealability, and Exhibit in Support of
the Certificate of Appealability. Petitioner again appears to
be challenging his 1980 conviction for first-degree murder
and conspiracy to commit first-degree murder. For the
following reasons, the Clerk of the Court is ordered to
transfer these pleadings to the United States Court of
Appeals for the Sixth Circuit for a determination of whether
petitioner should be permitted to file a successive petition
for writ of habeas corpus.
previously filed a habeas petition challenging his 1980
convictions out of the Genesee County Circuit Court for
first-degree murder and conspiracy to commit first-degree
murder. The petition was dismissed without prejudice because
the claims were unexhausted. See Hurt v. Trippett,
No. 90-cv-71448 (E.D. Mich. Jan. 3, 1991) (adopting
Magistrate Judge's 11/30/1990 Report and Recommendation).
the exhaustion of state court remedies, Petitioner filed a
second habeas petition with the United States District Court
for the Western District of Michigan, which was denied with
prejudice in part because some of the claims were
procedurally defaulted and in part because the remaining
claims were meritless. See Hurt v. Kapture, No.
2:02-CV-137 (W.D. Mich. Jan. 25, 2005) (adopting Magistrate
Judge's 10/20/2004 Report and Recommendation); app.
den. No. 05-1184 (6th Cir. Feb. 9, 2007); reh.
den. No. 05-1184 (6th Cir. June 6, 2007).
subsequently filed several pleadings, in which he sought to
amend the 1990 habeas petition with newly-discovered evidence
in support of his ineffective assistance of counsel claims
that he raised in his first petition and also sought to raise
new claims. Judge John Corbett O'Meara, the
undersigned's predecessor on this case, ordered that
these pleadings be transferred to the United States Court of
Appeals for the Sixth Circuit pursuant to 28 U.S.C.§
2244(b)(3)(A). The Sixth Circuit denied petitioner permission
to file a successive petition for writ of habeas corpus.
In re Hurt, No. 17-1358 (6th Cir. Aug. 23, 2017).
has now filed a notice of appeal from an order by the
Michigan Supreme Court denying his application for leave to
appeal, in which he again challenged his conviction.
Petitioner also requests a certificate of appealability and
has filed an exhibit in support of the application.
filed a prior petition for a writ of habeas corpus
challenging his 1980 convictions for first-degree murder and
conspiracy to commit murder, which was denied on the merits.
Petitioner has been denied permission by the Sixth Circuit to
file a successive habeas petition. Petitioner again appears
to seek to challenge his conviction.
individual seeking to file a second or successive habeas
petition must first ask the appropriate court of appeals for
an order authorizing the district court to consider the
petition. See 28 U.S.C. § 2244(b)(3)(A);
Stewart v. Martinez-Villareal, 523 U.S. 637, 641
(1998). Congress has vested in the court of appeals a
screening function that the district court would have
performed otherwise. Felker v. Turpin, 518 U.S. 651,
664 (1996). Under the provisions of the Antiterrorism and
Effective Death Penalty Act (AEDPA), a federal district court
does not have jurisdiction to entertain a successive
post-conviction motion or petition for writ of habeas corpus
in the absence of an order from the court of appeals
authorizing the filing of such a successive motion or
petition. See Hervey v. United States, 105 F.Supp.2d
731, 735 (E.D. Mich. 2000) (citing Ferrazza v.
Tessmer, 36 F.Supp.2d 965, 971 (E.D. Mich. 1999)).
Notice of Appeal seeks to raise new claims for relief and
should thus be treated as a motion for an authorization to
file a second or successive habeas petition. See Campbell
v. Myers, No. 17-6335, 2018 WL 2221883, at *1 (6th Cir.
Apr. 9, 2018). This Court lacks jurisdiction to grant a
certificate of appealability on the merits of
petitioner's habeas claims, because Petitioner has yet to
obtain permission from the Sixth Circuit to file a successive
habeas petition. See Williams v. Chatman, 510 F.3d
1290, 1295 (11th Cir. 2007).
current pleadings amount to a successive petition for a writ
of habeas corpus and he is thus required to obtain a
certificate of authorization. Accordingly, the Clerk of Court
is ordered to transfer the Notice of Appeal, the Application
for a Certificate of Appealability, and the Exhibit in
Support of the Application for a Certificate of Appealability
to the United States Court of Appeals for the Sixth Circuit
pursuant to In re ...