United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING RESPONDENT'S MOTION
TO DISMISS WITHOUT PREJUDICE (DOC. 7)AND TRANSFERRING
PETITION TO THE COURT OF APPEALS FOR THE SIXTH
COHN UNITED STATES DISTRICT JUDGE
a habeas case under 28 U.S.C. § 2254. Petitioner Jose
Torres (Petitioner) filed a petition for a writ of habeas
corpus challenging his convictions for three counts of
first-degree criminal sexual conduct, M.C.L. §
750.520b(1)(a). Respondent, through the Attorney
General's office, filed a motion to dismiss, arguing that
the petition is untimely. The Court, however, finds that the
petition is an unauthorized second or successive petition,
which means that this court lacks subject-matter
jurisdiction. Accordingly, Respondent's motion will be
denied without prejudice and that petition will be
transferred to the Court of Appeals for the Sixth Circuit.
convictions arise from the sexual assault of then eight-year
old T.M. Petitioner was convicted by a jury in state court
and sentenced to concurrent terms of twenty to fifty years in
prison. His convictions were affirmed on direct appeal.
People v. Torres, No. 240738, 2003 WL 22138279
(Sept. 16, 2003), lv. den. 494 Mich. 1003 (Mich. Jan. 27,
2005, Petitioner filed a habeas petition in this district,
challenging the same convictions challenged in the pending
petition. Respondent filed a motion in opposition arguing
that Petitioner's claims were unexhausted, not
cognizable, and without merit. In response, Petitioner
admitted that his claims were unexhausted, moved to dismiss
his unexhausted claims without prejudice, and to amend his
petition to include claims already exhausted in state court.
The Court denied Petitioner's motion and dismissed the
petition with prejudice because Petitioner's proposed new
claims were barred by the statute of limitations and his
pending claims were procedurally defaulted. See
6/1/2006 Op. & Ord., Torres v. Davis, No.
05-cv-73917. The Court denied a certificate of appealability.
Torres v. Davis, 2006 WL 1943877 (E.D. Mich. July
11, 2006). The Sixth Circuit also denied a certificate of
appealability. See Torres v. Davis, No. 06-1952 (6th
Cir. Feb. 9, 2007).
filed the pending habeas petition on February 14, 2018.
“requires petitioners challenging state court judgments
to seek authorization in a federal appeals court before
filing a ‘second or successive application' in
district court. 28 U.S.C. § 2244(b)(3)(A).” In
re Stansell, 828 F.3d 412, 414 (6th Cir. 2016), see
also Magwood v. Patterson, 561 U.S. 320, 330-31 (2010)
(“If an application is ‘second or
successive,' the petitioner must obtain leave from the
Court of Appeals before filing it with the district
court”). A habeas petition is “second or
successive” for purposes of 28 U.S.C. § 2244(b) if
the prior petition was decided on the merits. In re
William Garner, 612 F.3d 533, 535 (6th Cir. 2010),
citing In re Cook, 215 F.3d 606, 607-08 (6th Cir.
first habeas corpus petition was denied on the merits.
See In re Cook, 215 F.3d 606, 608 (6th Cir. 2000) (a
dismissal with prejudice based on a procedural default is a
decision “on the merits” for purposes of §
2244(b)(3)); McNabb v. Yates, 576 F.3d 1028, 1030
(9th Cir. 2009) (dismissal of a habeas petition for failure
to comply with the statute of limitations is a decision
“on the merits”). Therefore, the present petition
is a successive petition requiring prior authorization from
the Sixth Circuit Court of Appeals. When a successive
petition for habeas corpus relief is filed in the district
court without prior authorization, the district court must
transfer the petition to the Court of Appeals pursuant to 28
U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th
neither party raised the issue of this being a second or
successive petition, the Court considers the issue sua
sponte because subject-matter jurisdiction goes to the
power of the courts to render decisions under Article III of
the Constitution. Section § 2244(b)(3) allocates
subject-matter jurisdiction over second or successive
petitions to the court of appeals rather than the district
court. See Keith v. Bobby, 618 F.3d 594, 599-600
(6th Cir. 2010). Thus, “the determination of whether a
petition is ‘second or successive' is actually a
determination as to whether [the court of appeals] has
original subject-matter jurisdiction over the
petition.” Id. Because Petitioner has filed a
second or successive habeas petition, the Court lacks
jurisdiction to adjudicate the timeliness issue unless and
until the Sixth Circuit authorizes Petitioner to file a
successive habeas petition. See In Re McDonald, 514
F.3d 539, 543-44 (6th Cir. 2008).
the Clerk shall TRANSFER this case to the Sixth Circuit.
Respondent's motion to dismiss is DENIED WITHOUT
PREJUDICE. If the Sixth Circuit authorizes the filing of a
successive petition, ...