Clayton v. Klee
OPINION AND ORDER granting 2 Motion for immediate consideration, denying 3 Motion for an evidentiary hearing and 4 Motion for stay, and transferring case to USCA for the Sixth Circuit. Signed by District Judge Victoria A. Roberts. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 16-13201
HONORABLE VICTORIA A. ROBERTS
OPINION AND ORDER
GRANTING PETITIONER’S MOTION FOR IMMEDIATE CONSIDERATION [2 ],
DENYING PETITIONER’S MOTIONS FOR
AN EVIDENTIARY HEARING  AND A STAY , AND
TRANSFERRING THE HABEAS PETITION  TO THE COURT OF APPEALS AS
A SECOND OR SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
Petitioner Derrick Clayton recently filed a pro se habeas corpus petition
challenging his conviction for voluntary manslaughter.
Besides his habeas petition,
Petitioner filed a motion for immediate consideration of his habeas petition, a motion for
an evidentiary hearing, and a motion to hold his habeas petition in abeyance while he
pursues state remedies. The Court grants the motion for immediate consideration, but
denies the motions for an evidentiary hearing and a stay.
And because Petitioner
challenged the same manslaughter conviction in a prior habeas petition that was denied
on the merits, the Court transfers the habeas petition to the Court of Appeals for a
determination of whether this Court may adjudicate Petitioner’s current claim.
procedural history and analysis follow.
I. Procedural History
Petitioner alleges that, following a jury trial in 2006, a Wayne County jury found
him guilty of voluntary manslaughter, and the trial court sentenced him to prison for
twelve to forty-five years.
The Michigan Court of Appeals affirmed Petitioner’s
convictions and sentence, see People v. Clayton, No. 273056, 2007 WL 4404442 (Mich.
Ct. App. Dec. 18, 2007), and on March 24, 2008, the Michigan Supreme Court denied
leave to appeal. See People v. Clayton, 480 Mich. 1138; 746 N.W.2d 70 (Mich. 2008)
In 2008, Petitioner challenged his manslaughter conviction in a pro se application
for the writ of habeas corpus.
United States District Judge Bernard A. Friedman
dismissed the petition because one of Petitioner’s claims was not cognizable on habeas
review and his only other claim lacked merit. See Clayton v. Lafler, No. 08-12986 (E.D.
Mich. Sept. 17, 2009). The United States Court of Appeals for the Sixth Circuit denied
Petitioner’s subsequent application for a certificate of appealability.
See Clayton v.
Lafler, No. 09-2219 (6th Cir. Mar. 28, 2010). Petitioner later filed ten motions for relief
from judgment in his District Court case. Judge Friedman transferred all the motions to
the Sixth Circuit Court of Appeals, which apparently denied or dismissed all of
Petitioner’s applications for leave to file a second or successive habeas petition.
In 2012, Petitioner filed another habeas corpus petition challenging his
Former United States District Judge Lawrence P. Zatkoff
transferred the petition to the Court of Appeals as a second or successive petition. See
Clayton v. Woods, No. 12-14927 (E.D. Mich. Nov. 19, 2012). The Sixth Circuit denied
Petitioner permission to file a second or successive habeas corpus petition. See In re
Derrick Clayton, No. 12-2541 (6th Cir. May 28, 2013).
Petitioner subsequently filed a motion for relief from judgment in state court. The
state trial court found no merit in Petitioner’s claims and also stated that Petitioner had
not shown “good cause” under Michigan Court Rule 6.508(D)(3) for not presenting his
claims on appeal. See People v. Clayton, No. 06-006411-01 (Wayne Cty Cir. Ct. July 6,
The Michigan Court of Appeals denied Petitioner’s application for leave to
appeal, citing Michigan Court Rule 6.508(D), see People v. Clayton, No. 329878 (Mich.
Ct. App. Dec. 21, 2015), and, on May 6, 2016, the Michigan Supreme Court likewise
denied leave to appeal under Rule 6.508(D). See People v. Clayton, 499 Mich. 920;
877 N.W.2d 908 (2016) (table).
Finally, on September 2, 2016, Petitioner filed his current habeas corpus petition.
The Court understands Petitioner’s ground for relief to be that the state magistrate
lacked authority to issue a warrant for Petitioner’s arrest because there was not a
substantial basis for concluding that the person who supplied information for the warrant
application spoke with personal knowledge of the facts. Petitioner argues that the state
magistrate lacked jurisdiction and, therefore, all subsequent proceedings were null and
As noted above, Petitioner filed three motions with his habeas petition. In his
motion for immediate consideration, Petitioner states that he has been incarcerated for
over ten years. He asks to have his liberty restored to him in an expeditious manner on
the basis that his sentence is unlawful.
In his second motion, Petitioner seeks an
evidentiary hearing on the issue of whether the state magistrate had sufficient credible
information to accept the felony complaint and to issue a warrant for Petitioner’s arrest.
In his third and final motion, Petitioner asks the Court to hold his habeas petition in
abeyance while he asks the Michigan Court of Appeals to consider his jurisdictional
This is Petitioner’s third habeas corpus petition, and the Sixth Circuit recently
pointed out that
[f]ederal law generally gives habeas petitioners one shot to pursue their
claims in federal court. For petitions filed after the first one—“second or
successive” petitions in the language of the statute—applicants must
overcome strict limits before federal courts will permit them to seek
habeas relief. 28 U.S.C. § 2244(b)(3)(A).
In re Stansell, 828 F.3d 412, __, 2016 WL 3606808, at *1 (6th Cir. July 1, 2016). The
Antiterrorism and Effective Death Penalty Act of 1996 “requires petitioners challenging
state court judgments to seek authorization in a federal appeals court before filing a
‘second or successive application’ in district court. 28 U.S.C. § 2244(b)(3)(A).” Id.,
2016 WL 3606808, at *2; see also Magwood v. Patterson, 561 U.S. 320, 330-31 (2010)
(stating that, “[i]f an application is ‘second or successive,’ the petitioner must obtain
leave from the Court of Appeals before filing it with the district court”). A habeas petition
is considered “second or successive” for purposes of 28 U.S.C. § 2244(b) if the
petitioner could have raised his claim in the prior petition, but failed to do so, In re
Bowen, 436 F.3d 699, 704-06 (6th Cir. 2006), and the prior petition was decided on the
merits, In re William Garner, 612 F.3d 533, 535 (6th Cir. 2010) (citing In re Cook, 215
F.3d 606, 607-08 (6th Cir. 2000)). Petitioner’s current claim is similar to the claim that
he presented in his first petition, which was denied on the merits. Consequently, the
current habeas corpus petition is a “second or successive” habeas petition within the
meaning of 28 U.S.C. § 2244(b). Furthermore, Petitioner has not acquired permission
from the Court of Appeals to file a second or successive habeas petition.
When, as here, 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). Accordingly, the
Court grants Petitioner’s motion for immediate consideration (ECF No. 2) and orders the
Clerk of the Court to transfer Petitioner’s habeas petition to the Court of Appeals for
consideration of whether this Court may adjudicate Petitioner’s claim. The Court denies
as moot Petitioner’s motion for an evidentiary hearing (ECF No. 3) and his motion to
hold the habeas petition in abeyance (ECF No. 4).
S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Section 1631 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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