Bryant v. Attorney General of the State of Michigan

Filing 3

Opinion and ORDER Transferring Case to USCA for the Sixth Circuit. Signed by District Judge Gerald E. Rosen. (DTyl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TERENCE STEVEN BRYANT,
Case Number: 2:12-CV-15666

Petitioner,

HONORABLE GERALD E. ROSEN

v.
DEBRA SCUTT,
Respondent.
/

OPINION AND ORDER TRANSFERRING CASE TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Petitioner Terence Steven Bryant, presently confined at the G. Robert Cotton
Correctional Facility in Jackson, Michigan, has filed a petition for a writ of habeas
corpus. For the reasons stated, the Court determines that this is a successive habeas
corpus petition and, therefore, orders it transferred to the United States Court of Appeals
for the Sixth Circuit, pursuant to 28 U.S.C. § 2244(b)(3)(A).
In the petition, Bryant challenges his convictions for kidnapping and assault with
intent to do great bodily harm less than murder rendered in Oakland County Circuit
Court. Bryant challenged these convictions in a prior petition. That petition was denied
on the merits. See Bryant v. Jackson, No. 2:02-cv-75157 (E.D. Mich. Jan. 23, 2004).
Before a prisoner may file a habeas petition challenging a conviction already
challenged in a prior habeas petition, the prisoner must “move in the appropriate court of
appeals for an order authorizing the district court to consider the application.” 28 U.S.C.

§ 2244(b)(3)(A). Not all applications that are second in time to an earlier-filed petition
are considered second or successive. Panetti v. Quarterman, 551 U.S. 930, 944 (2007).
“In the usual case, a petition filed second in time, and not otherwise permitted by the
terms of § 2244 will not survive AEDPA's ‘second or successive’ bar.” Id. at 947. A
numerically second petition is not “second or successive” where it presents a claim that
was dismissed as unripe in an earlier petition, Steward v. Martinez–Villareal, 523 U.S.
637, 644–45 (1998), or raises a claim not previously presented that would have been
unripe at the time of the earlier petition. Panetti, 551 U.S. at 947. A numerically second
habeas corpus petition challenging a state court judgment is “second or successive” for
purposes of § 2244(b), when it raises a claim “that could have been raised in the first
petition but was not so raised, either due to deliberate abandonment or inexcusable
neglect.” In re Bowen, 436 F.3d 699, 704 (6th Cir.2006) (citing McCleskey v. Zant, 499
U.S. 467, 489 (1991)).
Bryant already challenged the specific convictions at issue here. The claims raised
in this petition are not newly ripe and could have been raised at the time he filed his initial
habeas petition. Thus, this petition is successive and Bryant must obtain authorization
from the Sixth Circuit Court of Appeals for the filing of a successive petition. The Sixth
Circuit Court of Appeals has held that when a second or successive petition for habeas
corpus relief is filed in the district court without prior authorization, the district court
must transfer the petition to the Court of Appeals pursuant to 28 U.S.C. § 1631. In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997).
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Accordingly, the Court ORDERS the Clerk of Court to transfer this case to the
United States Court of Appeals for the Sixth Circuit.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: January 14, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on January 14, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager

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