United States District Court, E.D. Michigan, Southern Division
ADAM D. FERGERSON, Petitioner,
CONNIE HORTON, Respondent.
OPINION AND ORDER TRANSFERRING THE CASE TO THE COURT
OF APPEALS PURSUANT TO 28 U.S.C. §
HONORABLE VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE
Fergerson, (“Petitioner”), confined at the
Chippewa Correctional Facility in Kincheloe, Michigan, filed
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his application, filed pro se,
Petitioner challenges his 1991 conviction for two counts of
assault with intent to do great bodily harm less than murder,
M.C.L.A. § 750.84, armed robbery, M.C.L.A. §
750.529, kidnapping, M.C.L.A. § 750.349, extortion,
M.C.L.A. § 750.213, conspiracy to assault with intent to
commit murder, M.C.L.A. § 705.157a, delivery of less
than fifty grams of cocaine M.C.L.A., §
333.7401(2)(a)(iv), possession with intent to deliver less
than fifty grams of cocaine, M.C.L.A. § 333. 7401
(2)(a)(iv), conspiracy to deliver less than fifty grams of
cocaine, M.C.L.A. § 750.157a, and possession of a
firearm during the commission of a felony, M.C.L.A. §
750.227b. Petitioner previously filed a habeas petition
challenging these convictions, which was denied on the
merits. Fergerson v. Abramajtys, No. 97-10318 (E.D.
Mich. Apr. 20, 1999)(ECF 19); aff'd No. 99-1553,
2000 WL 659040, 215 F.3d 1326 (6th Cir. May 11, 2000).
following reasons, the Court transfers this case to the Court
of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A).
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 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 a 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. 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)).
Unless the Sixth Circuit Court of Appeals gives its approval
for the filing of a second or successive petition, a district
court in the Sixth Circuit must transfer the petition to the
Sixth Circuit Court of Appeals no matter how meritorious the
district court believes the claim to be. Id. at
735-36; see also In Re Sims, 111 F.3d 45, 47 (6th
previously filed a habeas petition with the federal courts,
which was denied on the merits. Petitioner's current
habeas petition is a second or successive petition for a writ
of habeas corpus; Petitioner is therefore required to obtain
a certificate of authorization.
the Clerk of Court is ordered to transfer the habeas petition
to the United States Court of Appeals for the Sixth Circuit
pursuant to Sims and 28 U.S.C. § 1631. See
Galka v. Caruso, 599 F.Supp.2d 854, 857 (E.D. Mich.
2009). Although neither party raised the issue of this being
a second or successive petition, this Court raises the issue
sua sponte because subject matter jurisdiction goes
to the power of the courts to render decisions under Article
III of the Constitution. See Williams v. Stegall,
945 F.Supp. 145, 146 (E.D. Mich. 1996). The Court denies
Petitioner's motion for the appointment of counsel,
because this Court lacks jurisdiction over his successive
petition in the absence of authorization from the Sixth
Circuit pursuant to 28 U.S.C. 28 § 2244(b)(3)(A).
See e.g. U.S. v. Key, 205 F.3d 773, 774 (5th Cir.
2000)(district court lacked jurisdiction over
petitioner's motion for the appointment of counsel to
assist in his filing of a successive habeas corpus petition,
and, instead, the motion for the appointment of counsel
should have been brought in Court of Appeals as part of a
petition for authorization to file a successive habeas
did not obtain the appellate authorization to file a
subsequent petition as required by 28 U.S.C. §
2244(b)(3)(A). Accordingly, the Court ORDERS
the Clerk of the Court to transfer this case to the United
States Court of Appeals for the Sixth Circuit pursuant ...