McMillan v. Klee

Filing 9

ORDER OF DISMISSAL Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

SHERWIN SCOTT MCMILLAN,
Petitioner,
v.

Case No. 16--14408

PAUL KLEE,

HONORABLE AVERN COHN

Respondent.
_________________________________/
ORDER OF DISMISSAL
I.
This is habeas case under 28 U.S.C. § 2254. Petitioner Sherwin Scott McMillan
(“Petitioner”) is a state prisoner serving a life sentence for his 1989 conviction on two
counts of first-degree criminal sexual conduct. As will be explained, this is Petitioner’s
second petition and the Court of Appeals for the Sixth Circuit recently denied
Petitioner’s application for permission to file a second or successive petition seeking to
raise the same claims presented in the instant petition. Accordingly, the petition will be
denied.
II.
In 2011, following unsuccessful direct and collateral appeals, Petitioner filed a
petition under § 2254 which was assigned to the undersigned. McMillan v. Woods, 1110390. The Court dismissed the petition as untimely. See Doc. 16 in case no. 11-

1

10390. The Court of Appeals declined to issue a certificate of appealability. See
McMillan v. Woods, No. 12-1114 (6th Cir. May 7, 2012).
In 2016, Petitioner applied to the Sixth Circuit for permission to file a second or
successive petition, arguing that his sentence is unconstitutional and that he was denied
equal protection of the law at his sentencing hearing. While that application was
pending in the Sixth Circuit, Petitioner filed the instant petition, seeking to raise the
same sentencing claims presented in his application to the Sixth Circuit. In a letter and
a notice addressed to the Clerk of the Court, Petitioner also asked the Court to hold this
petition in abeyance until the Sixth Circuit issued a decision on his application.
On January 25, 2017, the Sixth Circuit denied Petitioner’s application to file a
second or successive habeas petition. See In re: Sherwin Scott McMillan, No. 16-1853
(6th Cir. Jan. 25, 2017).
III.
An individual seeking to file a second or successive habeas petition must first ask
the appropriate court of appeals for an order authorizing the district court to consider the
petition. See 28 U.S.C. § 2244(b)(3)(A); Stewart v. Martinez-Villareal, 523 U.S. 637,
641 (1998). 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.
See Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich. 1999).
This petition is clearly a second petition for which Petitioner must get permission
to file. The Sixth Circuit has recently denied him permission to raise the issues

2

presented in the petition. Under these circumstances, the present petition must be
dismissed.
III.
Accordingly, for the reasons stated above, Petitioner’s habeas corpus petition is
DISMISSED. His requests to hold the petition in abeyance pending a decision from the
Sixth Circuit (Docs. 2, 6) is DENIED AS MOOT. Petitioner’s request to proceed without
prepaying fees or costs (Doc. 7) is DENIED AS MOOT because Petitioner paid the filing
fee. Finally, because reasonable jurists would not debate this decision, a certificate of
appealability is DENIED. See 28 U.S.C. § 2253(c)(2), Slack v. McDaniel, 529 U.S. 473,
484 (2000).
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: March 6, 2017
Detroit, Michigan

3