Smith v. Hoffner

Filing 3

OPINION AND ORDER transferring case to USCA for the Sixth Circuit. Signed by District Judge Linda V. Parker. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KENNETH SMITH,
Case Number: 4:15-cv-11746
Hon. Linda V. Parker

Petitioner,
v.
BONITA HOFFNER,
Respondent.
/

OPINION AND ORDER TRANSFERRING CASE TO
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Petitioner Kenneth Smith (“Petitioner” or “Smith”), a Michigan state
prisoner, has filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. For the reasons set forth below, the Court determines that this is a
successive habeas corpus petition and, therefore, orders it transferred to the United
States Court of Appeals for the Sixth Circuit, pursuant to 28 U.S.C. § 16311 and 28
U.S.C. § 2244(b)(3)(A).

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28 U.S.C. § 1631 provides, in relevant part:
Whenever 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
or appeal to any other such court in which the action or
appeal could have been brought at the time it was filed or
noticed . . .

Smith challenges his 1990 convictions for first-degree murder, Mich. Comp.
Laws § 750.316, two counts of assault with intent to do great bodily harm less than
murder, Mich. Comp. Laws § 750.84, one count of armed robbery, Mich. Comp.
Laws § 750.529, and three counts of possession of a firearm during the
commission of a felony, Mich. Comp. Laws § 750.227b. In 1996, Smith filed a
habeas corpus petition in the United States District Court for the Western District
of Michigan challenging the same convictions challenged in this petition. The
petition was denied on the merits. See 11/26/97 Opinion and Order, Smith v.
Withrow, No. 4:96-cv-00184, dkt. # 36 (Enslen, J.). The Court certified for appeal
Smith’s ineffective assistance of counsel claim. See id. The Sixth Circuit Court of
Appeals, after certifying four additional claims for appellate review, affirmed the
district court’s denial of Smith’s habeas corpus petition. Smith v. Withrow, No. 972319, 1999 WL 503473 (6th Cir. July 6, 1999).
Before a prisoner may file a habeas petition challenging a conviction already
challenged in a prior habeas petition, the prisoner must “move in the appropriate
court of appeals for an order authorizing the district court to consider the
application.” 28 U.S.C. § 2244(b)(3)(A). Smith’s prior habeas petition was
dismissed on the merits. Smith has not obtained from the Court of Appeals for the
Sixth Circuit authorization to file a successive petition in this court. When a

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second or successive petition for habeas corpus relief is filed in the district court
without prior authorization, the district court must transfer the petition to the Court
of Appeals pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir.
1997).
Accordingly, the Court ORDERS the District Court Clerk to transfer this
case to the United States Court of Appeals for the Sixth Circuit.
SO ORDERED.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 12, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record and/or
pro se parties on this date, July 12, 2016, by electronic and/or U.S. First Class mail.
S/ Kelly Winslow for Richard Loury
Case Manager

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