United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING THE STATE'S MOTION TO TRANSFER THE
PETITION TO THE COURT OF APPEALS (ECF NO. 8) AND TRANSFERRING
THE PETITION TO THE COURT OF APPEALS AS A SECOND OR
SUCCESSIVE PETITION UNDER 28 U.S.C. §
D. BORMAN UNITED STATES DISTRICT JUDGE
George Crear, III, filed a pro se habeas corpus
petition challenging his 1997 state convictions for five
counts of criminal sexual conduct (CSC). Petitioner
challenged the same convictions in prior habeas petition,
which this Court denied on the merits in 2009. Although the
state trial court subsequently amended the judgment of
sentence, the State maintains that the current petition is a
second or successive petition which the Court has no
jurisdiction to entertain. The Court agrees. Accordingly, the
Court will grant the State's motion and transfer the
habeas petition to the Court of Appeals for a determination
of whether this Court may consider Petitioner's claims.
1997, Petitioner was convicted of two counts of second-degree
CSC, Mich. Comp. Laws § 750.520c(1)(b), and three counts
of first-degree CSC, Mich. Comp. Laws § 750.520b(1)(b).
On December 16, 1997, the trial court orally sentenced
Petitioner as follows: eight to fifteen years in prison for
the first count of second-degree CSC; ten to fifteen years in
prison for the other count of second-degree CSC; life
imprisonment for one count of first-degree CSC; forty to
seventy-five years in prison for an additional count of
first-degree CSC conviction; and twenty-five to forty years
in prison for a third count of first-degree CSC. The trial
court stated at Petitioner's sentencing hearing that
Petitioner would receive 936 days of credit for the time that
he had been in custody. See 12/16/97 Sentencing Tr.
at 22. The written judgment of sentence stated that all the
sentences would run concurrently, but it indicated that the
936 days of jail credit applied only to the first count of
second-degree CSC. See Resp.t's Mot. for an
Order to Transfer Pet., App. A.
appealed his convictions as of right. The Michigan Court of
Appeals affirmed his convictions in a published decision,
see People v. Crear, 242 Mich.App. 158 (2000), and
on April 30, 2001, the Michigan Supreme Court denied leave to
appeal. See People v. Crear, 463 Mich. 1010 (2001)
2002, Petitioner filed a motion for relief from judgment,
which the trial court denied. The Michigan Court of Appeals
and the Michigan Supreme Court denied leave to appeal.
2005, Petitioner filed his first habeas corpus petition in
this district. He raised several claims regarding his trial
and appellate attorneys, alleged delay in bringing the
charges against him, the alleged denial of his right to
travel due to the tolling provision of the Michigan statute
on sex offenses, a juror's statement during voir
dire, and the alleged denial of his right of
confrontation due to a key witness's refusal to sign a
release for counseling records. Following an evidentiary
hearing, a magistrate judge recommended that the petition be
denied. This Court adopted the magistrate judge's report
and recommendation and denied the petition on the merits.
See Crear v. Harry, No. 05-cv-74191, 2009 WL 1211238
(E.D. Mich. Apr. 30, 2009).
appealed the Court's decision on his first petition, but
the United States Court of Appeals for the Sixth Circuit
denied his application for a writ of appealability. See
Crear v. Harry, No. 09-1603 (6th Cir. Feb. 26, 2010)
(unpublished). The United States Supreme Court declined to
issue a writ of certiorari. See Crear v. Harry, 562
U.S. 863 (2010).
October 19, 2016, the state trial court sua sponte
entered a new judgment of sentence in Petitioner's state
criminal case. The amended judgment showed that the 936 days
of jail credit applied to all five counts of CSC.
See Resp't's Mot. for an Order to Transfer,
App. B. Petitioner then filed a motion to set aside the
judgment. The trial court denied the motion on the basis that
it was a second or successive motion for relief from judgment
under Michigan Court Rule 6.502(G). See People v.
Crear, No. 97-000415-FC (Genesee Cty. Cir. Ct. May 24,
2018). Petitioner did not appeal the trial court's
decision. Instead, he commenced this action on June 19, 2018.
He claims that he was denied his Sixth Amendment rights to a
speedy trial and effective assistance of trial and appellate
Clearly Established Federal Law
noted above, this is Petitioner's second federal habeas
corpus action. Habeas 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). Among
other things, a habeas petitioner seeking to file a second or
successive application must “move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.” 28 U.S.C. §
2244(b)(3)(A); see also Magwood v. Patterson, 561
U.S. 320, 330-31 (2010); In re Stansell, 828 F.3d at
414. When a petitioner files a second or successive habeas
petition in the district court without prior authorization
from the Court of Appeals, the district court must transfer
the petition to the Court of Appeals for a determination of
whether the district court may entertain the petition. In
re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
asserts that his current petition is not a “second or
successive” petition because it follows a new
state-court judgment. See Compl. for Writ of Habeas
Corpus at 11-12. This argument is based on Magwood,
in which the Supreme Court held that a habeas petition that
follows a re-sentencing and the entry of a new ...