Clark v. Burton

Filing 4

OPINION AND ORDER transferring case to USCA for the Sixth Circuit. Signed by District Judge Arthur J. Tarnow. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES CLARK,
Case Number: 2:16-cv-13086
HONORABLE ARTHUR J. TARNOW

Petitioner,
v.
DEWAYNE BURTON,
Respondent.
/

OPINION AND ORDER TRANSFERRING CASE TO
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Petitioner Charles Clark, a Michigan state prisoner, has filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, 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. § 16311 and 28 U.S.C. § 2244(b)(3)(A).
Clark challenges his 2003 convictions for first-degree home invasion, assault with
intent to do great bodily harm less than murder, and armed robbery. In 2006, Smith filed
a habeas corpus petition in the United States District Court for the Western District of

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28 U.S.C. § 1631 provides, in relevant part:
Whenever 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 or appeal to any
other such court in which the action or appeal could have
been brought at the time it was filed or noticed . . .

Michigan challenging the same convictions challenged in this petition. The petition was
denied on the merits and the court declined to issue a certificate of appealability. See
9/14/09 Opinion and Order, Clark v. Lafler, No. 4:06-cv-00032, ECF No. 43 (Bell, J.).
The Sixth Circuit Court of Appeals denied Clark’s application for a certificate of
appealability. Smith v. Withrow, No. 09-2383 (6th Cir. Aug. 23, 2010).
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). Clark’s prior habeas petition was dismissed on the merits. He has not
obtained from the Court of Appeals for the Sixth Circuit authorization to file a successive
petition in this court. 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).
Accordingly, the Court ORDERS the District Court Clerk to transfer this case to
the United States Court of Appeals for the Sixth Circuit.
SO ORDERED.
s/Arthur J. Tarnow
ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
Dated: September 14, 2016

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