Robinson v. Burton
Filing
3
OPINION AND ORDER transferring successive habeas petition to the USCA for the Sixth Circuit. Signed by District Judge Victoria A. Roberts. (DPer)
Case 2:20-cv-11370-VAR-DRG ECF No. 3 filed 07/16/20
PageID.19
Page 1 of 4
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARRYL ROBINSON,
Petitioner,
v.
Case Number 2:20-CV-11370
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
DUANE BURTON,
Respondent.
___________________________________/
OPINION AND ORDER TRANSFERRING THE SUCCESSIVE PETITION
FOR A WRIT OF HABEAS CORPUS TO THE UNITED STATES COURT
OF APPEALS FOR THE SIXTH CIRCUIT
Darryl Robinson, (“Petitioner”) confined at the Richard A. Handlon
Correctional Facility in Ionia, Michigan. He filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1983 conviction in
the Muskegon County Circuit Court for second-degree murder.
This petition constitutes a “second or successive petition” within the
meaning of 28 U.S.C. § 2244(b)(3); the case is transferred to the Court of Appeals
so that Petitioner may obtain permission to file a successive petition for a writ.
I. Background
The Court dismissed Petitioner’s original petition for a writ of habeas corpus
challenging this conviction, because it was time-barred under the Antiterrorism and
Effective Death Penalty Act’s (AEDPA) one year statute of limitations contained
1
Case 2:20-cv-11370-VAR-DRG ECF No. 3 filed 07/16/20
PageID.20
Page 2 of 4
in 28 U.S.C. § 2244(b)(3)(A). See Robinson v. Luoma, No. 2:05-CV-196 (W.D.
Mich. Jan. 4, 2006). The United States Court of Appeals for the Sixth Circuit
denied Petitioner permission to file a successive habeas petition. See In Re
Robinson, No. 08-2520 (6th Cir. Aug. 19, 2009); In Re Robinson, No. 09-1769, 091942, 09-2463 (6th Cir. July 8, 2010); In Re Robinson, No. 13-2023 (6th Cir. Feb.
18, 2014); In Re Robinson, No. 16-1335 (6th Cir. Sep. 23, 2016); In Re Robinson,
No. 19-1307 (6th Cir. Sep. 5, 2019).
II. Discussion
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. MartinezVillareal, 523 U.S. 637, 641 (1998). Without this preauthorization from the court
of appeals, the district court must transfer the document to the court of appeals. See
28 U.S.C. § 1631 (directing that “[w]henever a civil action is filed in a court ... and
that court finds that there is a want of jurisdiction, the court shall, if it is in the
interest of justice, transfer such action ... to any other such court in which the
action ... could have been brought at the time it was filed”); 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 §
2
Case 2:20-cv-11370-VAR-DRG ECF No. 3 filed 07/16/20
PageID.21
Page 3 of 4
2244(b)(3) authorization from this court, the district court shall transfer the
document to this court pursuant to 28 U.S.C. § 1631.”).
The dismissal of Petitioner’s prior habeas petition based on his failure to
comply with the AEDPA’s one-year statute of limitations is considered an
adjudication on the merits that renders the current petition “second or successive”
for the purpose of § 2244(b), with respect to this judgment. 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 dismissal was “on the merits,” and the
petitioner’s later habeas application was “second or successive,” for purposes of §
2244(b)).
Accordingly, the Court orders the Clerk of Court to transfer this 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).
III. ORDER
3
Case 2:20-cv-11370-VAR-DRG ECF No. 3 filed 07/16/20
PageID.22
Page 4 of 4
The Clerk must transfer this petition to the United States Court of Appeals for
the Sixth Circuit pursuant to 28 U.S.C. § 1631.
s/ Victoria A. Roberts
HON. VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
DATED: 7/16/2020
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?