United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER TRANSFERRING SUCCESSIVE PETITION
FOR WRIT OF HABEAS CORPUS TO UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
J. TARNOW UNITED STATES DISTRICT JUDGE
Donzell Kelly, (“petitioner”), confined at the
Muskegon Correctional Facility in Muskegon, Michigan, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, Petitioner
challenges his 1992 conviction out of the Wayne County
Circuit Court for first-degree felony murder, Mich. Comp.
Laws § 750.316. Because the Court concludes that the
present petition constitutes a “second or successive
petition” within the meaning of 28 U.S.C. §
2244(b)(3), the Court will transfer the matter to the Court
of Appeals so that the petitioner may seek permission to
was convicted of first-degree felony murder in the Wayne
County Circuit Court in 1992 and was sentenced to life in
previously filed a petition for writ of habeas corpus, in
which he challenged his first-degree murder conviction. The
petition was dismissed as being time-barred under the
Antiterrorism and Effective Death Penalty Act’s (AEDPA)
one year statute of limitations contained in 28 U.S.C. §
2244(b)(3)(A). Kelly v. Bergh, No. 2:07-CV-13259,
2008 WL 4853574 (E.D. Mich. Nov. 10, 2008)(Adopting Report
and Recommendation of Magistrate Judge from August 28, 2008).
Petitioner has since been denied permission by the United
States Court of Appeals for the Sixth Circuit to file a
successive habeas petition. In Re Kelly, No. 18-1662
(6th Cir. Oct. 30, 2018).
again seeks habeas relief from his incarceration.
already filed a prior petition for a writ of habeas corpus
challenging his judgment of sentence and incarceration.
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). When a
habeas petitioner files a second or successive petition for
habeas corpus relief in the district court without
preauthorization from the court of appeals, the district
court must transfer the document to the court of appeals.
See 28 U.S.C. § 1631 (directing that
“[w]henever a civil action is filed in a court ... and
that court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer
such action ... to any other such court in which the action
... could have been brought at the time it was filed”);
In re Sims, 111 F.3d 45, 47 (6th Cir.1997)(holding
that “when a prisoner has sought § 2244(b)(3)
permission from the district court, or when a second or
successive petition for habeas corpus relief or § 2255
motion is filed in the district court without §
2244(b)(3) authorization from this court, the district court
shall transfer the document to this court pursuant to 28
U.S.C. § 1631.”); See also Ward v.
Wolfenbarger, 323 F.Supp.2d 818, 825-26 (E.D. Mich.
dismissal of petitioner’s 2007 habeas petition based on
his failure to comply with the AEDPA’s one-year statute
of limitations is considered an adjudication on the merits
that renders the current petition “second or
successive” for the purpose of § 2244(b), with
respect to this judgment. See In re Rains, 659 F.3d
1274, 1275 (10th Cir. 2011); In re Flowers, 595 F.3d
204, 205 (5th Cir. 2009)(per curiam); McNabb v.
Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Murray
v. Greiner, 394 F.3d 78, 81 (2nd Cir. 2005); Altman
v. Benik, 337 F.3d 764, 765 (7th Cir. 2003)(per curiam);
Cf. In Re Cook, 215 F.3d 606, 607-08 (6th Cir.
2000)(when petitioner’s first habeas application was
dismissed for procedural default arising from failure to
exhaust state remedies where the statute of limitations had
run on those remedies, the dismissal was “on the
merits, ” and the petitioner’s later habeas
application was “second or successive, ” for
purposes of § 2244(b)).
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.
it is ORDERED that the Clerk shall transfer
the petition to the United States Court of Appeals for the