Lewis v. Haas
OPINION AND ORDER transferring case to USCA for the Sixth Circuit. Signed by District Judge Paul D. Borman. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 2:17-CV-10734
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER TRANSFERRING CASE TO THE COURT OF APPEALS
PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
Martin Lewis, (“petitioner”), confined at the Macomb Correctional Facility in New
Haven, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In
his pro se application, petitioner challenges his 2000 conviction out of the Kalamazoo County
Circuit Court for first-degree murder and being a fourth felony habitual offender. Petitioner
previously filed a petition for a writ of habeas corpus challenging this conviction, which was
denied. Lewis v. Vasbinder, No. 04-CV-71140-DT (E.D. Mich. Sep. 27, 2007); app. dism. No.
07-2265 (6th Cir. June 6, 2008). Petitioner has been denied permission to file a successive
habeas petition three times. In Re Lewis, No. 09-1670 (6th Cir. Nov. 24, 2009); In Re Lewis, No.
11-1658 (6th Cir. Sep. 12, 2011); In Re Lewis, No. 12-2446 (6th Cir. May 16, 2013).
For the following reasons, the Court transfers this case to the Court of Appeals.
Before a second or successive habeas petition is filed in a federal district court, a habeas
petitioner shall move in the appropriate court of appeals for an order authorizing the district
court to consider the petition. 28 U.S.C. § 2244(b)(3)(A);Stewart v. Martinez-Villareal, 523 U.S.
637, 641 (1998). Under the Antiterrorism and Effective Death Penalty Act (AEDPA), 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. Ferrazza v. Tessmer, 36 F. Supp.
2d 965, 971 (E.D. Mich. 1999). Unless the Sixth Circuit Court of Appeals has given its approval
for the filing of a second or successive petition, a district court in the Sixth Circuit must transfer
the petition or motion to the Sixth Circuit Court of Appeals no matter how meritorious the
district court believes the claim to be. Id. at 971; See also In Re Sims, 111 F.3d 45, 47 (6th Cir.
1997). This requirement transfers to the court of appeals a screening function which the district
court previously would have performed. Felker v. Turpin, 518 U.S. 651, 664 (1996).
Petitioner acknowledges that he previously filed a petition for writ of habeas corpus, but
argues that his current petition is not second or successive, within the meaning of §
2244(b)(3)(A), because the claims in his current petition were unexhausted at the time that he
filed his first petition. Petitioner attempted to raise these claims in his first petition, but agreed to
delete them to avoid the dismissal of his first petition on exhaustion grounds.
A habeas petitioner with a mixed habeas petition that contains unexhausted claims, who
chooses to proceed to an adjudication on the merits of only his exhausted claims, as petitioner
chose to do, may not later assert that a subsequent habeas petition is not second or successive
because the new claims were unexhausted at the time he filed the first petition. See Burton v.
Stewart, 549 U.S. 149, 154 (2007). The current habeas petition is a successive petition within
the meaning of § 2244(b)(3)(A). This Court lacks jurisdiction to entertain the petition in the
absence of authorization from the Sixth Circuit. Id.
Accordingly, the Clerk of Court is ordered to transfer the habeas petition to the United
States Court of Appeals for the Sixth Circuit pursuant to Sims and 28 U.S.C. § 1631. See Galka
v. Caruso, 599 F. Supp. 2d 854, 857 (E.D. Mich. 2009). Because this appears to be a second or
successive habeas petition, it would be error for this Court to dismiss the petition as being time
barred, rather than transfer it to the Sixth Circuit, because such a timeliness inquiry would be
premature prior to any determination by the Sixth Circuit whether petitioner should be given
authorization pursuant to 28 U.S.C. § 2244(b)(3)(A) to file a successive habeas petition. See In
Re McDonald, 514 F.3d 539, 543-44 (6th Cir. 2008).
IT IS ORDERED that the Clerk of the Court transfer this case to the United States Court
of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 and In Re Sims, 111 F.3d 45, 47
(6th Cir. 1997).
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: March 9, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on March 9, 2017.
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