Crear v. Campbell

          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. § 2244(b)(3)(A)

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. Background

         In 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.

         Petitioner 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) (table).

         In 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.

         In 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).

         Petitioner 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).

         On 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 counsel.

         II. Discussion

         A. Clearly Established Federal Law

         As 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).

         B. Application

         Petitioner 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 ...