Mott v. MacLaren

Filing 6

ORDER Granting Petitioner's 5 Letter Request, Dismissing the 1 Habeas Petition, and Denying the 2 Motion for Appointment of Counsel. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Sylvester Mott,
Petitioner,
v.

Case No. 17-cv-11198
Judith E. Levy
United States District Judge

Duncan MacLaren,
Mag. Judge Elizabeth A. Stafford
Respondent.
________________________________/
ORDER GRANTING PETITIONER’S LETTER REQUEST [5],
DISMISSING THE HABEAS PETITION [1], AND
DENYING THE MOTION FOR APPOINTMENT OF COUNSEL [2]
This is a habeas corpus case brought by a Michigan prisoner
under 28 U.S.C. § 2254. Petitioner Sylvester Mott was convicted of
second-degree murder in 1983 and sentenced to 75 to 150 years in
prison. Petitioner’s pro se habeas petition raises a single claim: that
his sentence is excessive and cruel and unusual punishment under the
constitutions of Michigan and the United States.

The Court will

dismiss the petition at Petitioner’s request (see Dkt. 5), because he
seeks to obtain permission from the United States Court of Appeals for

the Sixth Circuit before proceeding with a second or successive petition
in this Court.
I. Background
Petitioner was charged with first-degree murder, MICH. COMP.
LAWS § 750.316, but following a trial in the former Recorder’s Court for
the City of Detroit, the jury found Petitioner guilty of the lesser offense
of second-degree murder, MICH. COMP. LAWS § 750.317. The conviction
arose from the fatal beating of a child. On October 27, 1983, the trial
court sentenced Petitioner to prison for 75 to 150 years. The Michigan
Court of Appeals affirmed Petitioner’s conviction, see People v. Mott, 140
Mich. App. 289 (1985), and on August 28, 1985, the Michigan Supreme
Court denied leave to appeal.
In 1989, Petitioner moved for a new trial and for re-sentencing.
The trial court denied his motion, and the State’s appellate courts
denied leave to appeal. In 1994, Petitioner filed a motion for relief from
judgment, which also was denied.
In 1997, Petitioner filed his first petition for the writ of habeas
corpus. He argued that (1) there was insufficient evidence to convict
him of second-degree murder, (2) the admission of photographs of the
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deceased child violated his right to due process, (3) the trial court’s
denial of his motion for a directed verdict of acquittal on the charge of
first-degree murder violated his right to due process, (4) his trial and
appellate attorneys were ineffective, (5) his sentence precluded him
from obtaining parole, (6) the jury instructions were so erroneous as to
deny him due process, and (7) the prosecutor’s conduct deprived him of
a fair trial.

United States District Judge John Corbett O’Meara

referred the case to a magistrate judge who recommended that the case
be dismissed because it was barred by the statute of limitations. Judge
O’Meara accepted the magistrate judge’s report and recommendation as
his findings and conclusions and dismissed the petition. See Mott v.
Robinson, Case No. 97-cv-73959 (E.D. Mich. May 22, 1998). Petitioner
appealed Judge O’Meara’s decision, but the United States Court of
Appeals for the Sixth Circuit declined to issue a certificate of
appealability, Mott v. Robinson, No. 98-1729 (6th Cir. Mar. 17, 1999),
and on October 4, 1999, the United States Supreme Court denied
Petitioner’s application for a writ of certiorari. Mott v. Robinson, 528
U.S. 878 (1999).

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In 2000, Petitioner sought permission from the Sixth Circuit to file
a second or successive petition. The Sixth Circuit denied Petitioner’s
request. In re Sylvester Mott, No. 00-2271 (6th Cir. Mar. 9, 2001).
In 2003, Petitioner filed another habeas corpus petition. Former
United States District Judge David W. McKeague transferred the case
to the Sixth Circuit as a second or successive petition. See Mott-Bey v.
Wayne Cty. 36th Dist. Court, Case No. 03-cv-00544 (W.D. Mich. Sept.
29, 2003). On November 14, 2003, the Sixth Circuit dismissed the case
for want of prosecution. In re Sylvester Mott-Bey, No. 03-2263 (6th Cir.
Nov. 14, 2003).

Between 2008 and 2015, Petitioner filed several

unsuccessful post-conviction motions in the state trial court.
On April 14, 2017, Petitioner filed this petition for the writ of
habeas corpus (Dkt. 1) and a motion for appointment of counsel. (Dkt.
2.)

On April 21, 2017, United States Magistrate Judge R. Steven

Whalen ordered Petitioner to submit the filing fee for his petition or an
application to proceed without prepayment of fees and costs within
twenty-one days of his order. (Dkt. 3.) Petitioner has not complied with
Magistrate Judge Whalen’s order. However, on May 1, 2017, Petitioner
wrote to the Clerk of the Court and asked to have his petition dismissed
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or transferred to the Sixth Circuit as a second or successive petition.
(Dkt. 5.)

II. Analysis and Conclusion
Among other things, the Antiterrorism and Effective Death
Penalty Act of 1996 “requires petitioners challenging state court
judgments to seek authorization in a federal appeals court before filing
a ‘second or successive application’ in district court.” In re Stansell, 828
F.3d 412, 414 (6th Cir. 2016) (citing 28 U.S.C. § 2244(b)(3)(A)). This is
Petitioner’s third habeas petition challenging the same conviction, and
he has not received permission from the Sixth Circuit to file a second or
successive petition.
When, as here, a habeas petitioner files a second or successive
petition for habeas corpus relief in the district court without prior
authorization from a Court of Appeals, the district court ordinarily
must transfer the document to the Court of Appeals pursuant to 28
U.S.C. § 1631.1 In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). However,

1

Section 1631 states that:
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the Court’s review of federal court records indicates that Petitioner
recently applied directly to the Sixth Circuit for permission to file a
second or successive petition. In re Sylvester Mott, No. 17-1607 (6th Cir.
May 24, 2017). The Court therefore finds it unnecessary to transfer
Petitioner’s habeas petition to the Sixth Circuit.

Because Petitioner

seeks, in the alternative, to voluntarily dismiss his petition, the Court
will grant his request.
Accordingly, for the reasons set forth above, it is hereby ordered
that:
Petitioner’s letter request to voluntarily dismiss his habeas
petition (Dkt. 5) is GRANTED;
The

habeas

petition

(Dkt.

1)

is

DISMISSED

WITHOUT

PREJUDICE pursuant to Fed. R. Civ. P. 41(a)(2); and
Petitioner’s motion for appointment of counsel (Dkt. 2) is DENIED
as moot.
[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 . . . , and the action . . . shall
proceed as if it had been filed in . . . the court to which it is
transferred on the date upon which it was actually filed in . .
. the court from which it was transferred.
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IT IS SO ORDERED.
Dated: June 28, 2017
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 June 28, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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