Johnson v. Pitcher

Filing 67

OPINION AND ORDER reopening case and transferring 66 Motion to amend the petition for writ of habeas corpus to the USCA for the Sixth Circuit pursuant to 28 U.S.C. 2244(b)(3)(A). Signed by District Judge John Corbett O'Meara. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH JOHNSON,
Petitioner,
v.

CASE NO. 95-CV-76196
HONORABLE JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE

TERRY PITCHER,

Respondent,
_____________________________/
OPINION AND ORDER (1) REOPENING THE CASE TO THE COURT’S
ACTIVE DOCKET, AND (2) TRANSFERRING THE MOTION TO AMEND THE
PETITION FOR WRIT OF HABEAS CORPUS [DKT. # 66] TO THE COURT OF
APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
I. Introduction
Before the Court is petitioner’s pro se motion to amend the petition for writ of
habeas corpus, in which seeks to add a claim to his 1995 habeas petition, which
challenged his 1985 conviction for second-degree murder. For the following reasons, the
Court orders the Clerk of the Court to reopen the case to the Court’s active docket. The
Court further orders that the motion to amend the petition for writ of habeas corpus be
transferred to the Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A).
II. Background
Petitioner previously filed two petitions for writ of habeas corpus, in which he
challenged his 1985 conviction for second-degree murder. In 1990, petitioner filed his
first habeas corpus petition, alleging that the prosecutor withheld a key prosecution
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witness’s criminal record and that the state trial court refused to hold an evidentiary
hearing on whether the witness committed perjury at petitioner’s trial. This Court’s
predecessor, Judge Horace W. Gilmore, denied the petition on the ground that the alleged
error was harmless. See Johnson v. Prelesnik, No. 90-cv-71484 (E.D. Mich. Dec. 10,
1990).
In 1995, petitioner filed the current petition, alleging the denial of the effective
assistance of trial and appellate counsel. Judge Gilmore dismissed the petition as a
second or successive petition and as an abuse of the writ. See Johnson v. Pitcher, No.
95-76196 (E.D. Mich. Feb. 25, 1997); appeal dism. No. 97-1402 (6th Cir. Nov. 4, 1997).
Petitioner has also been denied permission five times by the Sixth Circuit Court of
Appeals to file a successive habeas petition. In Re Johnson, No. 98-167 (6th Cir. Feb. 9,
1999); In Re Johnson, No. 99-2212 (6th Cir. Mar. 21, 2000); In Re Johnson, No. 14-1421
(6th Cir. Sep. 5, 2014); In Re Johnson, No. 14-2348 (6th Cir. Mar. 23, 2015); In Re
Johnson, No. 15-1477 (6th Cir. Oct. 22, 2015).
Petitioner most recently attempted to file another habeas petition, which was
denied on the ground that it was a successive habeas petition. Johnson v. Mackie, No. 1514233 (E.D. Mich. Jan. 14, 2016)(Tarnow, J.).
Petitioner has now filed a motion to amend his 1995 habeas petition to add a claim
that he has newly discovered evidence of a transcript from his co-defendant’s jury trial
which shows that the prosecutor’s key witness testified that it was the co-defendant, and
not petitioner, who removed the murder victim’s pants and emptied his pockets.
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Petitioner claims that this evidence relates back to his claim that trial counsel was
ineffective for failing to impeach the victim with her false testimony and also shows that
this witness committed perjury at petitioner’s bench trial.
III. Discussion
Petitioner seeks to reopen his case and reinstate his original habeas petition. The
Court directs the Clerk of the Court to reopen the case to the Court’s active docket in
order to facilitate the adjudication of petitioner’s motion. See Heximer v. Woods, No.
2:08-CV-14170, 2016 WL 183629, at * 1 (E.D. Mich. Jan. 15, 2016).
Petitioner has filed an application to amend and supplement his 1995 habeas
petition. Because petitioner’s proposed amended habeas petition is a successive
challenge to this conviction, the Court must transfer this case to the Court of Appeals
pursuant to 28 U.S.C. § 2244(b(3)(A) for a determination of whether petitioner should be
permitted to file a successive habeas petition.
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). Congress has vested in the court of appeals a screening function that the district
court would have performed otherwise. Felker v. Turpin, 518 U.S. 651, 664 (1996).
Under the provisions of 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
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appeals authorizing the filing of such a successive motion or petition. See Hervey v.
United States, 105 F. Supp. 2d 731, 735 (E.D. Mich. 2000)(citing 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 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 § 2244(b)(3) authorization from this court, the
district court shall transfer the document to this court pursuant to 28 U.S.C. § 1631.”).
When a habeas petitioner files what purports to be a motion to amend to a habeas
petition, a federal court “must determine if it really is such a motion or if it is instead a
second or successive application for habeas relief in disguise.” Moreland v. Robinson,
813 F.3d 315, 322 (6th Cir. 2016). Petitioner is seeking in his motion to amend the
habeas petition to supplement already litigated claims with new evidence and possibly to
raise new claims. All of these claims are second or successive claims for habeas relief
that this Court lacks jurisdiction to review in the absence of authorization from the Sixth
Circuit. Id. at 323. “A post-judgment motion to amend or Rule 60(b) motion that raises
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habeas claims is a second or successive petition when that motion is filed after the
‘petitioner has lost on the merits and exhausted her appellate remedies.’” Id. (quoting
Clark v. United States, 764 F. 3d 653, 658 (6th Cir. 2014)). Petitioner already was denied
relief on his claims and has exhausted his appellate remedies with respect to this petition.
Petitioner’s motion is a second or successive petition for a writ of habeas corpus and he is
therefore required to obtain a certificate of authorization.
Moreover, to the extent that the petitioner is contending that the Sixth Circuit erred
in declining to grant him permission to file a second or successive habeas petition, this
Court would be without power to grant petitioner relief. A district court lacks the
authority to reinstate a habeas petitioner’s second or successive petition for writ of habeas
corpus after the Court of Appeals declines to grant petitioner leave to file such a petition.
See White v. Carter, 27 Fed. Appx. 312, 313-14 (6th Cir. 2001).
Accordingly, the Clerk of Court is ordered to transfer the motion to amend the
petition for writ of habeas corpus 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). 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).
IV. Conclusion
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The Court ORDERS that:
(1) The Clerk of the Court reopen the case to the Court’s Active Docket.
(2) The Clerk of the Court is ORDERED to transfer the motion to amend the
petition for writ of habeas corpus [Dkt. # 66] 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/John Corbett O’Meara
United States District Judge
Date: May 18, 2016

I hereby certify that a copy of the foregoing document was served upon the parties of
record on this date, May 18, 2016, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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