Smith v. Hoffner

Filing 35

ORDER transferring 34 Letter - motion to the USCA for the Sixth Circuit. Signed by District Judge Judith E. Levy. (DPer)

Case 5:15-cv-11648-JEL-APP ECF No. 35 filed 08/17/20

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Kahri Smith,
Petitioner,
v.
Bonita Hoffner,
Respondent.
________________________________/

Case No. 15-cv-11648
Judith E. Levy
United States District Judge
Mag. Judge Anthony P. Patti

ORDER TRANSFERRING PETITIONER’S LETTER-MOTION
[34] TO THE SIXTH CIRCUIT COURT OF APPEALS
On November 28, 2017, the Court denied Petitioner Kahri Smith’s
habeas corpus petition and denied a certificate of appealability. (ECF No.
18) The Sixth Circuit Court of Appeals also denied a certificate of
appealability. Smith v. Hoffner, No. 18-1035 (6th Cir. May 25, 2018) (ECF
No. 26). Petitioner then filed a motion for relief from judgment, which the
Court transferred to the Court of Appeals because it was an unauthorized
successive habeas petition. (ECF Nos. 28, 29, 31.) The Court of Appeals
denied authorization to file a successive petition. (ECF No. 33.) Now
before the Court is Petitioner’s letter-motion raising new challenges to
his state court conviction. (ECF No. 34.)

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A district court does not have jurisdiction to consider a petitioner’s
“second or successive” habeas petition unless the petitioner first obtains
authorization from the Court of Appeals. 28 U.S.C. § 2244(b)(3)(A). A
second or successive habeas application is one that that presents a claim
already “presented in a prior application,” Id. at § 2244(b)(1), or any new
claim unless a constitutional law is newly retroactive, the factual
predicate could not have been discovered earlier, or the petitioner can
show that he is innocent. Id. at § 2244(b)(2). A motion is a “second or
successive” habeas application if it “‘advances’ one or more [federal]
‘claims’” attacking the merits of a state court conviction. Franklin v.
Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (quoting Post v. Bradshaw, 422
F.3d 419, 424 (6th Cir. 2005)). Following denial of a habeas petition by a
district court, a petitioner may not use a motion “to try to raise new
habeas claims [or] supplement already litigated claims with new
evidence.” Moreland v. Robinson, 813 F.3d 315, 323 (6th Cir. 2016) (citing
Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005)).
Petitioner’s letter-motion raises a new federal claim—the denial of
his Sixth Amendment right to the effective assistance of counsel. (Id. at
PageID.1201-03.) The motion, therefore, is a successive habeas petition.
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Petitioner has not obtained appellate authorization to file a subsequent
petition. 28 U.S.C. § 2244(b)(3)(A).
Accordingly, the Clerk of the Court shall TRANSFER the LetterMotion (ECF No. 34) to the Court of Appeals for the Sixth Circuit. 28
U.S.C. § 1631; see also Moreland, 813 F.3d at 325 (citing In Re Sims, 111
F.3d 45, 47 (6th Cir. 1997)).
IT IS SO ORDERED.
Dated: August 17, 2020
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 17, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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