Heximer v. Berghuis

Filing 155

OPINION AND ORDER reopening case to the Court's active docket, transferring 151 Bifurcated motion, 152 Motion to order production of unsigned warrant, and 153 Supporting documents to the U.S. Court of Appeals pursuant to 28 U.S.C. 2244(b)(3)(A). Signed by District Judge Arthur J. Tarnow. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT JAY HEXIMER,
Petitioner,
v.

Civil No. 2:08-CV-14170
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

JEFFREY WOODS,
Respondent.
__________________________________/
OPINION AND ORDER (1) REOPENING THE CASE TO THE COURT’S
ACTIVE DOCKET, AND (2) TRANSFERRING THE BIFURCATED MOTION
(Dkt. # 151), THE MOTION TO ORDER PRODUCTION OF UNSIGNED
WARRANT (Dkt. # 152), AND SUPPORTING DOCUMENTS (Dkt. # 153) TO
THE COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
Petitioner has filed a bifurcated motion, a motion to order production of the
unsigned warrant, and documents in support of these motions. Petitioner
basically asks this Court to grant him a writ of habeas corpus. For the reasons
that follow, the Court orders the Clerk of the Court to reopen the case to the
Court’s active docket. The Court also transfers the motions and the supporting
documents to the United States Court of Appeals pursuant to 28 U.S.C. §
2244(b)(3)(A) for authorization to file a second or successive habeas petition.
I. Background
Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction for solicitation to commit murder,
M.CL.A. 750.157b; first-degree home invasion, M.C.L.A. 750.110a(2); and
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Heximer v. Woods, 2:08-CV-14170
felonious assault, M.C.L.A. 750.82. This Court denied petitioner’s habeas
application, declined to issue a certificate of appealability, but granted petitioner
leave to appeal in forma pauperis. See Heximer v. Woods, No. 08-CV-14170,
2012 WL 899358 (E.D. Mich. March 16, 2012); appeal dism. No. 12-2567 (6th
Cir. May 23, 2013); cert. den. 135 S. Ct. 88 (2014); reh. den. 135 S. Ct. 1524
(2015).
This Court subsequently denied in part petitioner’s Rule 60(b) motion for
relief from judgment. The Court also transferred the Rule 60(b) motion for relief
from judgment and the motion to amend the complaint to the United States Court
of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A) for authorization to file a
second or successive habeas petition. The Court denied without prejudice the
motions to amend the caption, for release on bail, and for the appointment of
counsel. Heximer v. Woods, No. 2:08-CV-14170, 2016 WL 183629 (E.D. Mich.
Jan. 15, 2016). The United States Court of Appeals for the Sixth Circuit denied
petitioner permission to file a second or successive petition. In Re Heximer, No.
16-1050 (6th Cir. Aug. 24, 2016).
Petitioner has again been denied permission to file a successive habeas
petition by the Sixth Circuit. In Re Heximer, No. 16-2401 (6th Cir. Mar. 27, 2017).
Petitioner has filed a “bifurcated motion,” in which he asks this Court to
issue an immediate writ of habeas corpus and/or conduct an evidentiary hearing,
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Heximer v. Woods, 2:08-CV-14170
based on his claim that his current confinement is unconstitutional. In his related
motion to order production of an unsigned warrant, petitioner requests the
production of the felony warrant from the 53rd District Court in Livingston County,
Michigan, because he claims that the warrant was unsigned, thus, depriving the
state court of jurisdiction over his case. In his motions and in his related
supporting documents, petitioner alleges numerous constitutional violations which
he argues invalidates his criminal conviction.
II. Discussion
Petitioner seeks to reopen his case and vacate the original judgment. The
Court directs the Clerk of the Court to reopen the case to the Court’s active
docket in order to facilitate the adjudication of petitioner’s motions. See Heximer
v. Woods, No. 2:08-CV-14170, 2016 WL 183629, at * 1 (E.D. Mich. Jan. 15,
2016).
An 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). Under 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 writ of
habeas corpus in the absence of an order from the court of appeals authorizing
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Heximer v. Woods, 2:08-CV-14170
the filing of such a successive motion or petition. See Ward v. Wolfenbarger, 323
F. Supp. 2d 818, 825-26 (E.D. Mich. 2004). Unless the Sixth Circuit Court of
Appeals has given 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 826; See also In Re Sims, 111 F. 3d 45, 47 (6th Cir. 1997). This
requirement transfers to the court of appeals a screening function which the
district court previously would have performed. Felker v. Turpin, 518 U.S. 651,
664 (1996). Petitioner’s motion to reopen or to reinstate his habeas petition is an
attempt to file second or successive habeas petition because the motion seeks to
re-litigate claims that he previously raised in his prior habeas petition. See In re
Bowling, 422 F. 3d 434, 440 (6th Cir. 2005). To the extent that petitioner seeks to
raise new claims, his motions would also be the equivalent of a second or
successive habeas petition. See Brooks v. Bobby, 660 F.3d 959, 962 (6th Cir.
2011).
Accordingly, the Clerk of Court is ordered to transfer petitioner’s pleadings
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).

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Heximer v. Woods, 2:08-CV-14170
III. Conclusion
The Court ORDERS that:
(1) The Clerk of the Court reopen the case to the Court’s Active Docket.
(2) The Clerk of the Court is ORDERED to transfer the Bifurcated
Motion [Dkt. # 151], the Motion To Order Production of Unsigned
Warrant [Dkt. # 152] and the Documents [Dkt. # 153] to the United
States Court of Appeals for the Sixth Circuit for authorization to file a
subsequent petition as required by 28 U.S.C. § 2244(b)(3)(A) pursuant
to 28 U.S.C. § 1631.
s/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
Dated: July 24, 2017

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on July
24, 2017.

s/Deborah Tofil
Case Manager

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