Small v. Harry

Filing 8

OPINION AND ORDER transferring 7 Motion for relief from judgment to the USCA for the Sixth Circuit pursuant to 28 U.S.C. 2244(b)(3)(A). Signed by District Judge Denise Page Hood. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FLETCHER DARNELL SMALL,
Petitioner,
v.

Civil No. 2:17-CV-12803
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

SHIRLEE HARRY,
Respondent,
___________________________/

OPINION AND ORDER TRANSFERRING THE MOTION FOR RELIEF
FROM JUDGMENT [DKT. # 7] TO THE COURT OF APPEALS
PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)

Before the Court is petitioner’s pro se motion for relief from judgment
brought pursuant to Fed. R. Civ. P 60(b)(6). Petitioner asks this Court to
reopen his habeas petition, in which he challenged his 1980 conviction for
first-degree felony murder, first-degree criminal sexual conduct, unarmed
robbery, and breaking and entering an occupied dwelling with intent to
commit a felony. For the following reasons, the Court orders the Clerk of
the Court to transfer the motion for relief from judgment to the Court of
Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A).

1

I. Background
Petitioner filed a petition for writ of habeas corpus. Petitioner claimed
that the state trial judge violated his constitutional rights by recharacterizing a motion to reissue judgment that he brought under M.C.R.
6.428 as a post-conviction motion for relief from judgment brought pursuant
to M.C.R. 6.500, et. Seq. This Court summarily denied the petition,
because petitioner’s claim that Michigan courts wrongfully denied him postconviction relief is non-cognizable on habeas review. Small v. Harry, No.
2:17-CV-12803, 2017 WL 4883635, at * 2 (E.D. Mich. Oct. 30, 2017).
Petitioner argued that he was entitled to habeas relief based on
Castro v. United States, 540 U.S. 375 (2003), where the Supreme Court
held that a federal district court may not re-characterize a pro se criminal
defendant’s motion as the litigant’s first motion to vacate sentence under
28 U.S.C. § 2255 unless the court (1) informed the litigant of its intent to recharacterize the motion, (2) warned the litigant that the re-characterization
will subject subsequent § 2255 motions to the “second or successive”
restrictions of § 2255 ¶ 8, and (3) provided the litigant with an opportunity
to withdraw or to amend the filing. Id. at 383.
This Court ruled that petitioner was not entitled to habeas relief on his

2

claim, because Castro is applicable only to federal courts’ interpretation of
federal prisoner’s pro se motions and did not apply to a state court’s
interpretation or construction of a state prisoner’s post-conviction motions.
Small v. Harry, 2017 WL 4883635, at * 2. This Court noted that “Castro
was decided as a matter of the Supreme Court’s supervisory power over
the lower federal courts and is not binding authority on the state courts.” Id.
(Citing Ruelas v. Wolfenbarger, 580 F.3d 403, 407 (6th Cir. 2009)). This
Court further concluded that petitioner’s claim might also be moot in light of
the fact that the Michigan Supreme Court ultimately agreed with petitioner
that his motion should not have been characterized as a 6.500 motion for
relief from judgment. Id.
Petitioner has now filed a motion for relief from judgment pursuant to
Fed. R. Civ. P. 60(b)(6). Petitioner argues that this Court erred in
concluding that the Supreme Court’s holding in Castro did not require the
state trial court to give him adequate notice before re-characterizing his
motion as a post-conviction motion for relief from judgment. Petitioner
further argues that his claim is not moot. Petitioner asks this Court to
reopen the petition and grant him habeas relief on his claim.
II. Discussion

3

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). Under the
provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA), a
federal district court lacks the jurisdiction to adjudicate a successive postconviction 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). When a habeas petitioner files a second or successive
petition for habeas corpus relief in the district court without preauthorization
from the court of appeals, the district court must transfer the document to
the court of appeals. See In re Sims, 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 or § 2255 motion 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.”).
Petitioner seeks relief from judgment pursuant to Fed. R. Civ. P.

4

60(b)(6). A Rule 60(b) motion for relief from judgment which seeks to
advance one or more substantive claims following the denial of a habeas
petition, such as a motion seeking leave to present a claim that was
omitted from the habeas petition due to mistake or excusable neglect, or
seeking to present newly discovered evidence not presented in the petition,
or seeking relief from judgment due to an alleged change in the substantive
law since the prior habeas petition was denied, should be classified as a
“second or successive habeas petition,” which requires authorization from
the Court of Appeals before filing, pursuant to the provisions of § 2244(b).
See Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). Therefore, a habeas
petitioner’s Rule 60(b) motion “that seeks to revisit the federal court’s
denial on the merits of a claim for relief should be treated as a successive
habeas petition.” Id. at 534.
Petitioner’s motion for relief from judgment amounts to a second or
successive habeas petition, because the motion seeks to advance a claim
that this Court previously considered and dismissed on substantive,
constitutional grounds. See Post v. Bradshaw, 422 F. 3d 419, 424-25 (6th
Cir. 2005). Petitioner’s Rule 60(b) motion is not merely an attempt to
rectify a defect in the habeas corpus proceedings, but instead reasserts the

5

substance of petitioner’s claim and therefore constitutes an impermissible
attack on this Court’s previous resolution of the claim on the merits. See
Henderson v. Collins, 184 F. App’x. 518, 523 (6th Cir. 2006). In other
words, petitioner’s Rule 60(b) motion seeks the vindication of, or advances,
his claim that the state court erred in re-characterizing his motion as a
6.500 motion because petitioner is taking steps that lead inexorably to a
merits-based attack on the prior dismissal of his habeas petition. Post, 422
F. 3d at 424-25. Petitioner's 60(b) motion challenges this Court’s prior
resolution of a claim on the merits and thus constitutes a second or
successive habeas petition, which must be transferred to the Sixth Circuit
pursuant to 28 U.S.C. § 2244(b)(3)(A). See Tyler v. Anderson, 749 F.3d
499, 508 (6th Cir. 2014).
Accordingly, the Clerk of Court is ordered to transfer the motion for
relief from judgment 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).
III. ORDER
The Court ORDERS that:
(1) The Motion for Relief from Judgment [Dkt. #7] is DENIED without
prejudice.
6

(2) The Clerk of the Court TRANSFERS the motion for relief from
judgment [Dkt. # 7] to the United States Court of Appeals for the Sixth
Circuit for authorization to file a subsequent petition as required by 28
U.S.C. § 2244(b)(3)(A) pursuant to 28 U.S.C. § 1631.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: February 28, 2018
I hereby certify that a copy of the foregoing document was served upon
counsel of record on February 28, 2018, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

7