Heximer v. Berghuis

Filing 165

OPINION AND ORDER transferring 158 MOTION to correct the record to USCA for the Sixth Circuit and denying without prejudice 159 Motion for remedial transfer, 163 Motion for appointment of counsel, and 164 Motion for a temporary restraining order. 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) TRANSFERRING THE MOTION TO CORRECT THE
RECORD (Dkt. # 158) TO THE COURT OF APPEALS PURSUANT TO 28
U.S.C. § 2244(b)(3)(A), AND (2) DENYING WITHOUT PREJUDICE THE
MOTION FOR REMEDIAL TRANSFER (Dkt. # 159), THE MOTION FOR
APPOINTMENT OF COUNSEL (Dkt. # 163), AND THE MOTION FOR A
TEMPORARY RESTRAINING ORDER (Dkt. # 164)
Petitioner has filed a motion to correct the record, in which he seeks to
relitigate the claims that he raised in his initial habeas petition. Petitioner asks
this Court to grant him a writ of habeas corpus. Petitioner also filed a motion for
remedial transfer, claiming he is being denied access to the courts, that he is
being denied medical care, and that he was the victim of a retaliatory transfer.
Petitioner also filed motions for the appointment of counsel and for a temporary
restraining order. For the reasons that follow, the Court transfers the motion to
correct the record 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 denies the motions for remedial transfer and for a temporary

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restraining order without prejudice because petitioner's access to court, denial of
medical care, and retaliatory transfer claims would be more properly brought
under 42 U.S.C. § 1983. The motion for the appointment of counsel is denied
without prejudice.
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, firstdegree home invasion, and felonious assault. The petition was denied. 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). Petitioner was denied permission to file a second or successive
petition. In Re Heximer, No. 16-1050 (6th Cir. Aug. 24, 2016).
Petitioner was again denied permission to file a successive habeas petition
by the Sixth Circuit. In Re Heximer, No. 16-2401 (6th Cir. Mar. 27, 2017).
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Petitioner filed a “bifurcated motion,” which this Court treated as a
successive habeas petition and transferred to the Sixth Circuit for authorization to
file a successive habeas petition. Heximer v. Woods, No. 2:08-CV-14170, 2017
WL 3141049 (E.D. Mich. July 24, 2017). Petitioner was again denied permission
to file a successive habeas petition. In Re Heximer, No. 17-1855 (6th Cir. Dec. 4,
2017).
Petitioner filed a motion to correct the record, in which he again seeks to
raise anew the same claims that he raised in his earlier habeas petition.
Petitioner may also be seeking to raise new claims. Petitioner also filed a motion
for remedial transfer, claiming that he is being denied access to the courts, being
denied medical care, and was the victim of a retaliatory transfer. In his related
motion for a temporary restraining order, petitioner seeks injunctive relief for
these claims. Petitioner separately moved for the appointment of counsel.
II. Discussion
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
the filing of such a successive motion or petition. See Ward v. Wolfenbarger, 323
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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 is required to transfer the petition to the Sixth
Circuit Court of Appeals. Id. at 826; See also In Re Sims, 111 F. 3d 45, 47 (6th
Cir. 1997). Petitioner’s motion to correct the record 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
motion is also 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 motion to
correct the record (Dkt. # 158) 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).
Petitioner in his motions for remedial transfer and for a temporary
restraining order claims he is being denied access to the courts, is being denied
medical care, and was transferred to his current place of incarceration in
retaliation for exercising his rights.
Where a prisoner is challenging the very fact or duration of his or her
physical imprisonment and the relief that he or she seeks is a determination that
he or she is entitled to immediate release or a speedier release from that
imprisonment, his or her sole federal remedy is a petition for writ of habeas
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corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). By contrast, habeas
corpus is not an available remedy to prisoners who are complaining only of
mistreatment during their legal incarceration. See Lutz v. Hemingway, 476 F.
Supp. 2d 715, 718 (E.D. Mich. 2007). Complaints like the ones raised by
petitioner in his motion for remedial transfer which involve conditions of
confinement “do not relate to the legality of the petitioner’s confinement, nor do
they relate to the legal sufficiency of the criminal court proceedings which
resulted in the incarceration of the petitioner.” Id. (quoting Maddux v. Rose, 483
F. Supp. 661, 672 (E.D. Tenn. 1980)). Inmates should therefore bring a claim
which challenges the conditions of confinement under 42 U.S.C.§ 1983. Id.
Petitioner’s claim that he is being denied access to the courts or access to legal
materials is a challenge to the conditions of confinement which cannot be
maintained as a habeas action. See Allen v. Lamanna, 13 F. App’x. 308, 311 (6th
Cir. 2001). A petition for writ of habeas corpus is not the proper vehicle for a
prisoner’s claim that prison officials have been deliberately indifferent to his
medical needs, because release from custody is not an available remedy for a
deliberate indifference claim. See In re Owens, 525 F. App’x. 287, 290 (6th Cir.
2013). Petitioner's claim that he was wrongfully transferred to his current place of
incarceration also involves a challenge to the conditions of confinement. See also
Turnboe v. Gundy, 27 F. App’x. 339, 340 (6th Cir. 2001)(state prisoner’s claims
should have been brought under § 1983, and not by a habeas corpus petition,
where he alleged that he was transferred to another facility in violation of his First
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Amendment right of access to the courts and his right to due process).
The proper course for a district court after it determines that the substance
of a state prisoner’s pro se habeas petition is a subject more appropriately
reached under 42 U.S.C. § 1983 is to dismiss the petition without prejudice to
allow petitioner to raise his potential civil rights claims properly as a § 1983
action. See Martin v. Overton, 391 F. 3d 710, 714 (6th Cir. 2004). The Court will
dismiss any challenges brought by petitioner against his conditions of
confinement without prejudice to his ability to raise them in a separate action filed
pursuant to 42 U.S.C. § 1983.
Finally, petitioner has filed a motion for the appointment of counsel. The
Court will deny the motion without prejudice at this time.
III. Conclusion
The Court ORDERS that:
(1) The Clerk of the Court is ORDERED to transfer the Motion to
Correct the Record (Dkt. # 158) 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.
(2) The motion for remedial transfer and the motion for a temporary
restraining order (Dkt.## 159, 164) are DENIED WITHOUT
PREJUDICE to petitioner filing a civil rights complaint under 42 U.S.C.
§ 1983.
(3). The motion for the appointment of counsel (Dkt. # 163) is DENIED
WITHOUT PREJUDICE.
s/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
Dated: March 8, 2018
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