Porter v. Haas

Filing 6

ORDER transferring case to USCA for the Sixth Circuit. Signed by District Judge Gerald E. Rosen. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN PORTER,
Petitioner,
Case No. 15-11076
Honorable Gerald E. Rosen

v.
SHAWN BREWER,
Respondent.
______________________________/

ORDER TRANSFERRING CASE TO THE COURT
OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
I. Introduction
This matter has come before the Court on petitioner John Porter’s pro se
habeas corpus petition under 28 U.S.C. § 2254. The petition and supporting
affidavit allege that Petitioner initially was charged in Wayne County, Michigan
with first-degree murder. He states that, following a bench trial in 1978, he was
convicted of second-degree murder, assault with intent to do great bodily harm less
than murder, and felony firearm. Petitioner claims that the trial court sentenced
him to life imprisonment for the murder, six to ten years in prison for the assault,
and a consecutive term of two years in prison for the firearm offense. Petitioner
apparently appealed his convictions without success on the ground that he was

denied effective assistance of counsel.

Petitioner filed his habeas corpus

petition in this Court on March 20, 2015. His sole ground for relief reads: “I have
did my time on second degree murder, where they say life mean[s] life.” Pet. at
page 5. The supporting facts read:
Jurisdictional defect, being punish[ed] for the same offense twice.
Jurisdictional defects require correction regardless of whether error
raised in lower court.
Id.
Petitioner explains in an affidavit attached to his habeas petition that, before
trial, the prosecutor offered to dismiss the assault charge if Petitioner pleaded
guilty to second-degree murder and felony firearm with a sentence of ten to twenty
years in prison for the murder conviction and two additional years in prison for the
firearm conviction. Petitioner claims that he rejected the offer on the basis of his
attorney’s advice. He contends that his attorney led him to believe that the
attorney could “beat the case” and convince the trial judge to find Petitioner not
guilty by reason of temporary insanity due to his intoxication at the time of the
crime. Petitioner states that he would have accepted the prosecutor’s plea offer if
he had known that his attorney was misleading him about the probable outcome of
his case.
II. Discussion
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A review of federal court records indicates that this is Petitioner’s fourth
habeas corpus petition. His first petition, filed in 1985, was denied on the merits.
See Porter v. Foltz, No. 85-cv-60510 (E.D. Mich. Oct. 8, 1986). In 1991,
Petitioner filed a second habeas petition, which was dismissed as an abuse of the
writ. See Porter v. Grayson, No. 91-cv-75759 (E.D. Mich. Sept. 14, 1993). And,
in 2004, Petitioner filed a third petition, which was transferred to the United States
Court of Appeals for the Sixth Circuit as a second or successive petition. See
Porter v. Jackson, No. 04-cv-71211 (E.D. Mich. Oct. 28, 2004). The Sixth Circuit
denied leave to file a second or successive petition. See in re: Porter, No. 042351(6th Cir. Mar. 22, 2005).
Because Petitioner’s initial petition was denied on the merits, the current
petition is considered a “second or successive” petition for purposes of 28 U.S. C.
§ 2244(b). In re Garner, 612 F.3d 533, 535 (6th Cir. 2010) (citing In re Cook, 215
F.3d 606, 607-08 (6th Cir. 2000)).
A person who wishes to file a second or successive habeas corpus petition under §
2254 must first ask “the appropriate court of appeals for an order authorizing the
district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A); see also
Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998) (explaining that the
Antiterrorism and Effective Death Penalty Act of 1996 “established a
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‘gatekeeping’ mechanism for the consideration of ‘second or successive habeas
corpus applications’ in the federal courts” and that “[a]n individual seeking to file a
‘second or successive’ application must move in the appropriate court of appeals
for an order directing the district court to consider his application”). “[T]his
requirement simply transfers from the district court to the court of appeals a
screening function which would previously have been performed by the district
court . . . .” Felker v. Turpin, 518 U.S. 651, 664 (1996). When a habeas petitioner
files a second or successive petition for habeas corpus relief in the district court
without prior authorization from the Court of Appeals, the district court must
transfer the document to the Court of Appeals pursuant to 28 U.S.C. § 1631.1 In re
Sims, 111 F.3d 45, 47 (6th Cir. 1997).
Petitioner has applied for permission from the Court of Appeals for the Sixth
Circuit to file a successive habeas corpus petition. See In re: John Porter, No. 142451 (6th Cir. Nov. 13, 2014). To date, however, the Sixth Circuit has not ruled on
Petitioner’s application.

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Accordingly, IT IS ORDERED that the Clerk of

Section 1631 of Title 28, United States Code, states that,

[w]henever a civil action is filed in a court . . . and that court finds that there is a
want of jurisdiction, the court shall, if it is in the interest of justice, transfer such
action . . . to any other such court in which the action . . . could have been brought
at the time it was filed . . . , and the action . . . shall proceed as if it had been filed
in . . . the court to which it is transferred on the date upon which it was actually
filed in . . . the court from which it was transferred.
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the Court shall transfer the habeas petition to the Sixth Circuit Court of Appeals for
a determination of whether this Court may consider Petitioner’s claims.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: April 22, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on April 22, 2015, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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