Carrier v. Hoffner

Filing 6

ORDER Transferring Habeas Petition to USCA for the Sixth Circuit. Signed by District Judge Mark A. Goldsmith. (NAhm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALEXANDER WALLACE CARRIER,
Petitioner,
Case No. 17-12087
v.
HON. MARK A. GOLDSMITH
BONITA HOFFNER,
Respondent.
____________________________________/
OPINION AND ORDER TRANSFERRING PETITIONER’S HABEAS PETITION
(Dkt. 1) TO THE COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
On June 22, 2017, Petitioner Alexander Wallace Carrier, a state prisoner at the Lakeland
Correctional Facility in Coldwater, Michigan, filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (Dkt. 1). The habeas petition challenges Petitioner’s state sentence
of nineteen to forty years in prison for second-degree home invasion, Mich. Comp. Laws §
750.110a(3). Because Petitioner challenged his sentence in a prior habeas petition that was denied
on the merits, the pending petition is a successive petition that must be transferred to the United
States Court of Appeals for the Sixth Circuit for a determination of whether this Court may
adjudicate Petitioner’s claim.
I. BACKGROUND
In 2007, Petitioner pleaded guilty in Oakland County Circuit Court to second-degree home
invasion, Mich. Comp. Laws § 750.110a(3). The trial court initially sentenced Petitioner to prison
for twenty to forty years. Petitioner applied for leave to appeal, but the Michigan Court of Appeals
denied his application. See People v. Carrier, No. 284119 (Mich. Ct. App. 28, 2008). The
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Michigan Supreme Court, however, vacated Petitioner’s sentence and remanded his case to the
trial court for re-sentencing. See People v. Carrier, 755 N.W.2d 657 (Mich. 2008). The trial court
subsequently re-sentenced Petitioner to prison for nineteen to forty years. Petitioner then moved
for re-sentencing, but the trial court’s successor denied the motion, and the Michigan Court of
Appeals denied leave to appeal. See People v. Carrier, No. 305630 (Mich. Ct. App. Sept. 27,
2011). On March 5, 2012, the Michigan Supreme Court likewise denied leave to appeal. See
People v. Carrier, 808 N.W.2d 779 (Mich. 2012), reconsideration denied, 815 N.W.2d 481 (Mich.
2012).
On June 17, 2013, the United States Supreme Court issued its decision in Alleyne v. United
States, 133 S. Ct. 2151 (2013), holding that “[f]acts that increase the mandatory minimum sentence
are . . . elements [of the charged offense] and must be submitted to the jury and found beyond a
reasonable doubt.” Id. at 2158. Petitioner subsequently filed a motion for relief from judgment,
arguing that his sentence was unconstitutional under Alleyne. At Petitioner’s request, the state
trial court held Petitioner’s motion in abeyance pending a decision by the Michigan Supreme Court
in People v. Lockridge, Docket No. 149073, 846 N.W.2d 925 (Mich. 2014).
While Petitioner’s motion for relief from judgment was pending in the state trial court,
Petitioner filed a federal habeas corpus petition based on the Supreme Court’s decision in Alleyne.
He also sought a stay of the federal proceeding while he exhausted state remedies for his claim.
This Court denied the petition and the request for a stay on the basis that Petitioner’s unexhausted
claim was plainly meritless. See Carrier v. Woods, No. 14-12344 (E.D. Mich. Oct. 30, 2014).
On July 29, 2015, the Michigan Supreme Court issued a dispositive opinion in Lockridge.
See People v. Lockridge, 870 N.W.2d 502 (Mich. 2015), cert. denied sub nom. Michigan v.
Lockridge, 136 S. Ct. 590 (2015). The state supreme court concluded in Lockridge “that the rule
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from Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), as
extended by Alleyne v. United States, 570 U.S. ___, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013),
applies to Michigan’s sentencing guidelines and renders them constitutionally deficient” to the
extent “the guidelines require judicial fact-finding beyond facts admitted by the defendant or found
by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines
minimum sentence range, i.e., the ‘mandatory minimum’ sentence under Alleyne.”

Id. at 506

(emphasis in original).
The trial court subsequently denied Petitioner’s motion for relief from judgment, see
People v. Carrier, No. 07-216860-FH (Oakland Cty. Cir. Ct. Nov. 10, 2015), and the Michigan
Court of Appeals denied leave to appeal on the basis that Lockridge was not retroactive on
collateral review, see People v. Lockridge, No. 332880 (Mich. Ct. App. June 15, 2016). On
January 5, 2017, the Michigan Supreme Court denied leave to appeal because Petitioner had failed
to meet his burden of establishing entitlement to relief under Michigan Court Rule 6.508(D). See
People v. Carrier, 888 N.W.2d 103 (Mich. 2017), reconsideration denied, 891 N.W.2d 492 (Mich.
2017).
Finally, on June 12, 2017, Petitioner filed the habeas corpus petition that is currently
pending before the Court. He asserts that his sentence is invalid and unconstitutional because the
trial court erroneously scored fifty points for offense variable 7 of the Michigan sentencing
guidelines.
II. ANALYSIS
The Court begins its analysis by noting 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
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limits before federal courts will permit them to seek habeas relief.” In re Stansell, 828 F.3d 412,
413 (6th Cir. 2016). Pursuant to 28 U.S.C. § 2244(b)(3)(A) and Magwood v. Patterson, 561 U.S.
320, 330-31 (2010), a habeas petitioner must seek authorization from the appropriate court of
appeals before he or she may file a second or successive application for the writ of habeas corpus
in the district court. This requirement transfers to the court of appeals a screening function that
the district court previously would have performed. Felker v. Turpin, 518 U.S. 651, 664 (1996).
“[N]ot all second-in-time petitions are ‘second or successive.’” In re Coley, 871 F.3d 455,
457 (6th Cir. 2017). As the Sixth Circuit explained,
this not-second-or-successive exception is generally restricted to two scenarios.
The first is where ripeness prevented, or would have prevented, a court from
adjudicating the claim in an earlier petition. See Stewart v. Martinez-Villareal,
523 U.S. 637, 645, 118 S. Ct. 1618, 140 L. Ed. 2d 849 (1998) (noting that “in [such]
situations, the habeas petitioner does not receive an adjudication of his claim”).
The second is where a federal court dismissed an earlier petition because it
contained exhausted and unexhausted claims and in doing so never passed on the
merits. See Slack v. McDaniel, 529 U.S. 473, 485–86, 120 S.Ct. 1595, 146 L. Ed.
2d 542 (2000).
Id. “What the exception cannot mean is . . . that a petition is not second or successive whenever it
relies on a rule that did not exist when the petitioner filed his first petition.” Id. (citing In re
Tibbetts, 869 F.3d 403 (6th Cir. 2017)) (emphasis in original).
As noted above, in 2014, Petitioner challenged his sentence in a prior federal habeas corpus
petition. This Court denied the petition because the state court’s sentencing decision was not
contrary to clearly established federal law at the time and because Alleyne did not apply
retroactively to cases on collateral review. That was a decision on the merits, and even though the
Michigan Supreme Court had not yet decided Lockridge when Petitioner filed his first petition,
the United States Supreme Court had decided Alleyne, on which Petitioner now relies. The current
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petition is second or successive despite the new rules set forth in Lockridge. See In re Coley, 871
F.3d at 457. The Court, therefore, lacks jurisdiction to adjudicate Petitioner’s claim unless, and
until, the Sixth Circuit Court of Appeals authorizes the Court to do so.
Accordingly, the Court orders the Clerk of the Court to transfer Petitioner’s habeas petition
to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 and Sims
v. Terbush, 111 F.3d 45, 47 (6th Cir. 1997) (holding that, “when a prisoner has sought § 2244(b)(3)
permission from the district court, or when a second or successive petition for habeas corpus relief
. . . is filed in the district court without § 2244(b)(3) authorization from this court, the district court
shall transfer the document to this court pursuant to 28 U.S.C. § 1631”).
SO ORDERED.
Dated: May 31, 2018
Detroit, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on May 31, 2018.
s/Karri Sandusky
Case Manager

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