Cook v. Romanowski

Filing 26

ORDER transferring motion for relief from judgment to the USCA for the Sixth Circuit. Signed by District Judge Sean F. Cox. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTONIO COOK,
Case Number: 2:12-10383
HONORABLE SEAN F. COX

Petitioner,
v.
KEN ROMANOWSKI,
Respondent.
/

ORDER TRANSFERRING MOTION FOR RELIEF FROM JUDGMENT
TO THE SIXTH CIRCUIT COURT OF APPEALS
Petitioner Antonio Cook filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254, challenging his convictions for five counts of armed robbery. The Court
denied the petition and denied a certificate of appealability. (ECF No. 11). Cook then
filed a notice of appeal. The Sixth Circuit Court of Appeals denied a certificate of
appealability. Cook v. Romanowski, No. 14-1431 (6th Cir. Oct. 3, 2014) (ECF No. 19-1).
Cook has now filed a “Motion Pursuant to Fed. R. Civ. P. Rule 60(b)(4)”. (ECF No. 25).
The motion attacks the same state court convictions challenged in the habeas petition and
is a second attempt to obtain relief under 28 U.S.C. § 2254. The Court transfers the
motion to the court of appeals so Cook may seek permission to file a second or successive
habeas corpus petition under 28 U.S.C. § 2244(b)(3).
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); Franklin v. Jenkins,
839 F.3d 465, 473 (6th Cir. 2016). 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. Id. at 473-74. 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
regardless of how meritorious the claim appears to be. King v. Morgan, 807 F.3d 154,
158 (6th Cir. 2015), citing In Re Sims, 111 F.3d 45, 47 (6th Cir.1997).
Here, Cook seeks relief from judgment pursuant to Fed. R. Civ. P. 60(b)(4). In
Gonzalez v. Crosby, 125 S. Ct. 2641, 2647 (2005), the Supreme Court explained that a
Rule 60(b) motion is distinguished from a second or successive petition under 28 U.S.C.
§ 2244(b) by the fact that the latter contains one or more “claims.” A Rule 60(b) motion
does not. Id. at 530-31. For purposes of § 2244(b), a “claim” is “an asserted federal basis
for relief from a state court’s judgment of conviction.” Id. at 530. By contrast, a Rule
60(b) motion attacks “some defect in the integrity of the federal habeas proceedings.” Id.
at 532.
Cook’s motion raises a claim that the state court lacked jurisdiction over his
criminal proceedings. That claim was not raised in his habeas petition. The motion thus
raises a new claim for relief, rather than attacking a defect in the habeas proceeding. As
such, it is a successive habeas petition, and Cook must obtain authorization from the Sixth
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Circuit before he can before he may proceed with this claim. He has not obtained the
appellate authorization to file a subsequent petition as required by 28 U.S.C. §
2244(b)(3)(A).
Accordingly, IT IS ORDERED the Clerk of the Court shall TRANSFER this case
to the Court of Appeals for the Sixth Circuit under to 28 U.S.C. § 1631 and In Re Sims,
111 F.3d 45, 47 (6th Cir. 1997).

Dated: January 24, 2017

S/ Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on January 24, 2017, the foregoing document was served on counsel
of record via electronic means and upon Antonio Cook via First Class mail at the address
below:
ANTONIO COOK 181461
G. ROBERT COTTON CORRECTIONAL FACILITY
3500 N. ELM ROAD
JACKSON, MI 49201
S/ J. McCoy
Case Manager

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