Tiggart v. Howes

Filing 12

ORDER transferring 11 Complaint for constitutional challange to USCA for the Sixth Circuit. Signed by District Judge Marianne O. Battani. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MACK TIGGART,
Petitioner,

Case No. 2:10-CV-13816
HONORABLE MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

v.
JEFFERY WOODS,

Respondent,
____________________________________/
ORDER TRANSFERRING THE COMPLAINT FOR CONSTITUTIONAL
CHALLENGE TO A STATE STATUTE MCL 750.316 [Dkt. # 11] TO THE
COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
I. Introduction
Before the Court is petitioner’s “Complaint for Constitutional Challenge to A
State Statute MCL 750.316.” Because petitioner is challenging the
constitutionality of his criminal conviction, this Court construes this complaint as a
petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. 1 For the
reasons that follow, the Court orders the Clerk of the Court to transfer the
complaint to the Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A).

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28 U.S.C. § 2254 is “the exclusive vehicle” for prisoners who are in custody pursuant to a state
court judgment who wish to challenge anything affecting the legality of that custody. See Greene v.
Tennessee Dep't of Corr., 265 F. 3d 369, 371 (6th Cir. 2001). Because petitioner is requesting immediate
release from his conviction, this Court should construe his action as a petition for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254. See e.g. Simpson v. Caruso, 355 Fed. Appx. 927, 930 (6th Cir.
2009).

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II. Background
Petitioner filed a petition for a writ of habeas corpus challenging his 1990
conviction out of the Wayne County Circuit Court for first-degree felony murder
and felony-firearm. The petition was denied on the merits. See Tiggart v.
Robinson, U.S.D.C. No. 99-CV-40307 (E.D. Mich. September 25, 2000)(Gadola,
J.); aff’d 36 Fed. Appx. 750 (6th Cir. 2002); cert. den. 537 U.S. 849 (2002).
Petitioner was subsequently denied permission to file a second or
successive petition for writ of habeas corpus by the Sixth Circuit. See In Re
Tiggart, U.S.C.A. No. 09-2321 (6th Cir. September 14, 2010).
In 2010, petitioner filed a second petition for writ of habeas corpus, which
this Court transferred to the Sixth Circuit Court of Appeals for authorization to file
a successive petition. Tiggart v. Howes, 2:10-CV-13816 (E.D. Mich. October 6,
2010). The Sixth Circuit denied petitioner permission to file a second petition.
See In Re Tiggart, No. 10-2314 (6th Cir. August 11, 2011).
In 2014, petitioner filed a motion for relief from judgment pursuant to Fed.
R. Civ. P. 60(b). On May 28, 2014, the Court denied the motion in part and
transferred the motion to the Sixth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A)
for a determination of whether petitioner should be permitted to file a successive
habeas petition. The Sixth Circuit denied petitioner permission to file a
successive petition. See In Re Tiggart, No. 14-1686 (6th Cir. November 3, 2014).

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III. Discussion
28 U.S.C. § 2244(b)(3)(A) prohibits a habeas petitioner from filing a second
or successive habeas petition in a federal district court, in the absence of an
order from the appropriate court of appeals authorizing the district court to
consider the successive petition. 28 U.S.C. § 2244(b)(3)(A); In re Wilson, 142 F.
3d 939, 940 (6th Cir. 1998). 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 or motion to the Sixth Circuit Court of
Appeals no matter how meritorious the district court believes the claim to be. See
In Re Sims, 111 F. 3d 45, 47 (6th Cir. 1997).
Petitioner has previously filed a habeas petition with the federal courts.
Although petitioner would not have been required to obtain a certificate of
authorization following the dismissal of his petition if the entire petition 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
adjudicated on the merits. The current complaint constitutes a successive
petition for which petitioner is required to obtain a certificate of authorization from
the Sixth Circuit.
Accordingly, the Clerk of Court is ordered to transfer the complaint 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.
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2009). 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).
IV. Conclusion
The Court ORDERS the Clerk of the Court to transfer the “Complaint for
Constitutional Challenge to A State Statute MCL 750.316"[Dkt. # 11] 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
and In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
Date: April 22, 2015

s/Marianne O. Battani
MARIANNE O. BATTANI
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their
respective email addresses or First Class U.S. mail to the non-ECF participants on April 22, 2015.
s/ Kay Doaks
Case Manager

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