Truitte v. Bauman

Filing 2

ORDER Transferring Case to USCA for the Sixth Circuit. Signed by District Judge Nancy G Edmunds. (CGre)

-RSW Truitte v. Bauman

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RODNEY D. TRUITTE, Petitioner, v. CATHERINE BAUMAN, Respondent, ______________________________/ ORDER TRANSFERRING CASE TO THE COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) I. Introduction Before the Court is petitioner's pro se habeas corpus petition filed under 28 U.S.C. § 2254. Petitioner has previously filed a petition for a writ of habeas corpus challenging his 1998 convictions from the Wayne County Circuit Court for second-degree murder, assault with intent to do great bodily harm less than murder, and felony-firearm. The petition was dismissed on the merits. Truitte v. Renico, U.S.D.C. No. 02-72486 (E.D. Mich. September 29, 2004)(Rosen, J.); appeal dism. U.S.C.A. No. 04-2338 (6th Cir. June 2, 2005); cert. den. 546 U.S. 1101 (2006). For the following reasons, the Court has concluded that it must transfer this case to the Court of Appeals. II. Discussion On April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996 was enacted ("AEDPA"). Among other things, the AEDPA amended 28 U.S.C. §§ 2244, 2253, and 2254, which govern habeas corpus proceedings in federal courts. These amendments 1 CASE NO. 2:10-CV-13491 HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE

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change the standards and procedures that federal courts must apply when faced with second or successive petitions for writs of habeas corpus. The provisions of the AEDPA apply because petitioner filed his successive habeas application after the effective date of the AEDPA. See Norris v. Konteh, 67 F. Supp. 2d 833, 835 (N.D. Ohio 1999). Before a second or successive habeas petition is filed in a federal district court, a habeas petitioner shall move in the appropriate court of appeals for an order authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); In re Wilson, 142 F. 3d 939, 940 (6th Cir. 1998); See also Hill v. Straub, 950 F. Supp. 807, 808 (E.D. Mich. 1997). Under the 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. Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich. 1999). 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 971; 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). In the present case, petitioner has previously filed a habeas petition with the federal courts, which was denied on the merits. 1 Although petitioner would not have been required

Although some of petitioner's claims in his first petition were dismissed for unexcused procedural default, this would be considered a ruling on the merits, for purposes of § 2244(b)(3)(A). In Re Cook, 215 F. 3d 606, 608 (6th Cir. 2000).

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to obtain a certificate of authorization following the dismissal of his petition if it had been dismissed without prejudice on exhaustion grounds, See Harris v. Stovall, 22 F. Supp. 2d 659, 664 (E.D. Mich. 1998), petitioner's first habeas petition was denied on the merits. Petitioner's current petition is therefore a successive petition. Although neither party raised the issue of this being a second or successive petition, it is appropriate for this Court to consider the issue sua sponte because subject matter jurisdiction goes to the power of the courts to render decisions under Article III of the Constitution. See Williams v. Stegall, 945 F. Supp. 145, 146 (E.D. Mich. 1996). Because this appears to be a second or successive habeas petition, it would be error for this Court to dismiss the petition as being time barred, rather than transfer it to the Sixth Circuit, because such a timeliness inquiry would be premature prior to any determination by the Sixth Circuit whether petitioner should be given authorization pursuant to 28 U.S.C. § 2244(b)(3)(A) to file a successive habeas petition. See In Re McDonald, 514 F. 3d 539, 543-44 (6th Cir. 2008). III. Conclusion Petitioner has not obtained the appellate authorization to file a subsequent petition as required by 28 U.S.C. § 2244(b)(3)(A). Accordingly, the Court ORDERS the Clerk of the Court to transfer this case to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 and In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997).

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s/Nancy G. Edmunds Nancy G. Edmunds United States District Judge Dated: September 13, 2010 I hereby certify that a copy of the foregoing document was served upon counsel of record on September 13, 2010, by electronic and/or ordinary mail. s/Carol A. Hemeyer Case Manager

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