Holbrook v. Rivard

Filing 3

OPINION AND ORDER transferring case to USCA for the Sixth Circuit. Signed by District Judge George Caram Steeh. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES HOLBROOK, No. 767925,
Petitioner,

Case No. 2:17-cv-12548
Hon. George Caram Steeh

v.
STEVE RIVARD,
Respondent.
______________________________/
OPINION AND ORDER TRANSFERRING CASE TO THE COURT
OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
Petitioner Charles Holbrook, (“Petitioner”), incarcerated at the St. Louis
Correctional Facility in St. Louis, Michigan, has filed yet another petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.1 Petitioner was convicted
of two counts of producing child sexually abusive material, Mich. Comp. Laws
§ 750.145c(2), two counts of allowing a child to engage in child sexually
abusive activity, Mich. Comp. Laws § 750.145c(2), two counts of possessing
child sexual abusive material, Mich. Comp. Laws § 750.145c(4), accosting a

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This is at least Holbrook’s sixth federal habeas petition filed in 2017 in this District. See
E.D. Mich. Case Nos. 17-12251, 17-11477, 17-11232, 17-11068, and 17-11606. He has filed
approximately a dozen other habeas petitions attacking his convictions and sentences since
2013. See E.D. Mich. Case Nos. 13-13137, 16-10684, 16-10881, and 16-11901; W.D. Mich.
Case Nos. 16-00142, 16-00140, 16-00062, 17-00390, 16-00171, 13-00663, 15-00056, and 1500131.

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child for immoral purposes, Mich. Comp. Laws § 750.145a, and felon in
possession of a firearm, Mich. Comp. Laws § 750.224f, following a jury trial
in the Kent County Circuit Court. The current petition asserts: “I am held in this
state prison without due process. ‘Prosecution of citizen who is unaware of
any wrongdoing for wholly passive conduct violates due process.’ United
States v. Layne, 43 F.3d 127 [(5th Cir. 1995)].” Dkt. 1, at 1.
Petitioner has filed at least one prior petition for a writ of habeas corpus
challenging the convictions at issue in the present case that was denied on
the merits. See Holbrook v. Rapelje, No. 2:13-cv-13137 (E.D. Mich. April 1,
2016). Before a second or successive habeas petition is filed in a federal
district court, a habeas petitioner must 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). A federal district court does not have jurisdiction to entertain a
successive petition for writ of habeas corpus in the absence of an order of
authorization from the court of appeals. 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

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Circuit Court of Appeals. Id. at 971; See also In Re Sims, 111 F.3d 45, 47 (6th
Cir. 1997).
The current habeas petition is a successive petition within the meaning
of § 2244(b)(3)(A). This Court therefore lacks jurisdiction to entertain the
petition in the absence of authorization from the Sixth Circuit. § 2244(b)(3)(A).
If Petitioner wishes to seek habeas relief with respect to his state court
conviction, he must start by filing a motion to authorize a successive petition
in the Sixth Circuit. As Petitioner has been repeatedly informed, this Court
does not have jurisdiction to consider his habeas petitions absent the order
of authorization.
IT IS THEREFORE 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).
Dated: August 16, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
August 16, 2017, by electronic and/or ordinary mail and also
on Charles Holbrook #767925, St. Louis Correctional Facility,
8585 N. Croswell Road, St. Louis, MI 48880.
s/Barbara Radke
Deputy Clerk

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