Smith v. McKee

Filing 59

ORDER transferring 58 Rule 60(b)(2) Motion to USCA for the Sixth Circuit. Signed by District Judge Bernard A. Friedman. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DERAY SMITH,
Petitioner,
vs.

Civil Action No. 09-CV-14876
HON. BERNARD A. FRIEDMAN

KENNETH MCKEE
Respondent.
___________________/
ORDER TRANSFERRING PETITIONER’S RULE 60(b)(2) MOTION
TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
This matter is presently before the Court on petitioner’s “motion for relief from judgment
pursuant to Rule 60(B)(2) newly discovered evidence . . .” [docket entry 58]. The Court dismissed
petitioner’s application for the writ in an opinion and order dated May 11, 2012 [docket entry 35] because
the application was untimely. Petitioner appealed, but the court of appeals denied his application for a
certificate of appealability and his motion to proceed on appeal in forma pauperis. In the interim petitioner
had filed a motion for relief from judgment [docket entry 39], as well as various other motions, which the
Court recently denied [docket entry 55]. Petitioner has appealed from that order [docket entry 56], and he
now has filed the instant motion for relief from judgment [docket entry 58]. The instant motion, in which
petitioner again challenges his state conviction and seeks release from prison, appears to be a second or
successive habeas petition, and it may not proceed without authorization from the court of appeals. See 28
U.S.C. § 2244(b)(3)(A). Accordingly,
IT IS ORDERED that petitioner’s motion for relief from judgment [docket entry 58] is
hereby transferred to the United States Court of Appeals for the Sixth Circuit pursuant to In re Sims, 111 F.3d
45, 47 (6th Cir.1997).

Dated: May 24, 2013
Detroit, Michigan

_s/ Bernard A. Friedman________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE