Almond v. Barrett

Filing 4

OPINION AND ORDER transferring habeas petition to USCA for the Sixth Circuit. Signed by District Judge Sean F. Cox. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PIERRE CLESHAY ALMOND,
Petitioner,

CASE NO. 2:18-CV-10076
HONORABLE SEAN F. COX
UNITED STATES DISTRICT JUDGE

v.
JOSEPH BARRETT,
Respondent,
______________________________________/

OPINION AND ORDER TRANSFERRING CASE TO THE
COURT OF APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
Pierre Cleshay Almond, (“petitioner”), confined at the Cooper Street Correctional Facility
in Jackson, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner previously filed a petition for a writ of habeas corpus challenging his 2003 conviction out
of the Wayne County Circuit Court for two counts of assault with intent to commit murder, Mich.
Comp. Laws § 750.83, and one count of felony-firearm. Mich. Comp. Laws § 750.227b. The
petition was dismissed on the ground it was barred by the one year statute of limitations contained
in 28 U.S.C. § 2244(d)(1). Almond v. Prelesnik, No. 107-CV-485, 2007 WL 1774381 (W.D. Mich.
June 18, 2007)(Adopting Report and Recommendation of Magistrate Judge); appeal dism. No. 071908 (6th Cir. Jan. 9, 2008).
For the reasons stated below, the Court transfers petitioner’s new habeas case to the Court
of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A).
I. DISCUSSION
Before a second or successive habeas petition is filed in a federal district court, a habeas

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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 shall 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 previously filed a habeas petition with the federal courts, which was dismissed on
the ground that it was barred by the one year statute of limitations contained in 28 U.S.C. §
2244(d(1). The dismissal of petitioner’s first habeas petition based on his failure to comply with the
AEDPA’s one-year statute of limitations is an adjudication on the merits, so that the current petition
is “second or successive” for the purpose of § 2244(b). See In re Rains, 659 F.3d 1274, 1275 (10th
Cir. 2011); In re Flowers, 595 F.3d 204, 205 (5th Cir. 2009)(per curiam); McNabb v. Yates, 576 F.3d
1028, 1029 (9th Cir. 2009); Murray v. Greiner, 394 F.3d 78, 81 (2nd Cir. 2005); Altman v. Benik,
337 F.3d 764, 765 (7th Cir. 2003)(per curiam); Cf. In Re Cook, 215 F.3d 606, 607-08 (6th Cir.
2000)(when petitioner’s first habeas application was dismissed for procedural default arising from
failure to exhaust state remedies where the statute of limitations had run on those remedies, the

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dismissal was “on the merits,” and the petitioner’s later habeas application was “second or
successive,” for purposes of § 2244(b)).
Petitioner’s current habeas petition amounts to a successive habeas challenge to his 2003
convictions. Although neither party raised the issue of this being a second or successive petition,
it is appropriate for this Court to consider the issue sua sponte because subject matter jurisdiction
goes to the power of the courts to render decisions under Article III of the Constitution. See Williams
v. Stegall, 945 F. Supp. 145, 146 (E.D. Mich. 1996). 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).
II. CONCLUSION
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.
SO ORDERED.

Dated: January 30, 2018

s/Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on January 30, 2018, the foregoing document was served on counsel of record
via electronic means and upon Pierre C. Almond via First Class mail at the address below:
Pierre C Almond 458653
COOPER STREET CORRECTIONAL FACILITY
3100 COOPER STREET
JACKSON, MI 49201
s/J. McCoy
Case Manager

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