Johnson #146093 v. Prelesnik

Filing 4

ORDER TRANSFERRING HABEAS CASE to the Sixth Circuit Court of Appeals with dismissal of challenge (claim) regarding 1976 armed-robbery conviction; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ARTIS JOHNSON,
Petitioner,
v.

Case No. 1:11-cv-1188
Honorable Janet T. Neff

JOHN PRELESNIK,
Respondent.
____________________________________/
ORDER OF TRANSFER
TO SIXTH CIRCUIT COURT OF APPEALS
This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C.
§ 2254. Petitioner is confined at the Ionia Maximum Correctional Facility. He currently is serving
a term of life imprisonment on a 1976 conviction for armed robbery. In 1980, while he was serving
his sentence, he was convicted of assault with intent to do great bodily harm. He was sentenced on
the 1980 offense to a consecutive prison term of five to ten years.
In 1987, Petitioner filed a habeas petition challenging his 1976 conviction. See
Johnson v. Brown, No. 1:87-cv-741 (W.D. Mich.). That petition was denied on the merits on
September 7, 1993. Id. (docket #126). Petitioner filed a second habeas action in 1989. See Johnson
v. Hawley, No. 2:89-cv-363 (W.D. Mich.). The case has long since been closed, and it is not
apparent from the docket sheet which conviction Petitioner challenged, though the denial apparently
was on the merits and involved a full review of the trial court record. Id. (docket #23). In 2003,
Petitioner filed a second habeas petition challenging his 1976 armed-robbery conviction. See
Johnson v. Burt, No. 2:03-cv-71656 (E.D. Mich.). The case was transferred to the Sixth Circuit on

the grounds that it was second or successive to this Court’s denial of the petition in Johnson v.
Brown, No. 1:87-cv-741 (W.D. Mich. Sept. 7, 1993). See Johnson v. Burt, No. 1:03-cv-71656 (E.D.
Mich. Dec. 16, 2003). Thereafter, in 2008, Petitioner filed a habeas petition challenging his 1980
conviction, which was denied as time-barred. See Johnson v. Wolfenbarger, No. 08-cv-10511 (E.D.
Mich. Nov. 21, 2008). In his current habeas application, Petitioner contends that he should be
released from confinement on both of his convictions because the prison unconstitutionally took a
DNA sample against his will.
Because Petitioner’s previous habeas action on his 1980 conviction was filed after
the enactment of the Antiterrorism and Effective Death Penalty Act, PUB. L. 104-132, 110 STAT.
1214 (AEDPA), his current petition is subject to the “second or successive” provision set forth in
28 U.S.C. § 2244(b). See Cress v. Palmer, 484 F.3d 844, 852 (6th Cir. 2007). Before a second or
successive application is filed in the district court, the applicant must move in the court of appeals
for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A);
see also Tyler v. Cain, 533 U.S. 656, 661 n.3 (2001) (circuit court may authorize the petition upon
a prima facie showing that the claim satisfies § 2244(b)(2); to survive dismissal in the district court,
the application must actually show the statutory standard).1 A successive petition raises grounds
identical to those raised and rejected in a prior petition. Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6
(1986) (plurality) (citing Sanders v. United States, 373 U.S. 1, 15-17 (1963)); Lonberger v.
Marshall, 808 F.2d 1169, 1173 (6th Cir. 1987). A second petition is one which alleges new and
different grounds for relief after a first petition was denied. McClesky v. Zant, 499 U.S. 467, 470

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When the initial petition is filed before the enactment of the AEDPA on April 24, 1996, the district court must
analyze whether the second or successive habeas petition would have survived under the pre-AEDPA abuse of the writ
standard. Cress, 484 F.3d at 852. That standard does not require authorization from the court of appeals. Id.

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(1991); see also Burger v. Zant, 984 F.2d 1129, 1132-33 (11th Cir. 1993) (distinguishing second
petitions and successive petitions).
A prior dismissal on the merits has a preclusive effect under § 2244, and moreover,
certain types of decisions reached before a merits determination also have a preclusive effect.
Carlson v. Pitcher, 137 F.3d 416, 419 (6th Cir. 1997) (citing Benton v. Washington, 106 F.3d 162,
164 (7th Cir. 1996)). A dismissal based on procedural default is “on the merits” and thus, a
subsequent habeas application would be second or successive. In re Cook, 215 F.3d 606, 608 (6th
Cir. 2000). Similarly, a dismissal on the basis of the statute of limitations is a decision on the merits,
rendering a subsequent application second or successive. See Murray v. Greiner, 394 F.3d 78, 81
(2d Cir. 2005) (“We hold that dismissal of a § 2254 petition for failure to comply with the one-year
statute of limitations constitutes an adjudication on the merits that renders future petitions under
§ 2254 challenging the same conviction ‘second or successive’ petitions under § 2244(b).”); Altman
v. Benik, 337 F.3d 764 (7th Cir. 2003) (prior untimely federal habeas corpus petition counts as “prior
application” for purposes of limitations on second or successive petitions). Petitioner’s previous
habeas action challenging his 1980 conviction was dismissed as time-barred, thus the instant petition
is second or successive. The appropriate disposition is a transfer of the case to the Sixth Circuit
Court of Appeals pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
As to Petitioner’s challenge to his 1976 conviction, the second or successive
provision does not apply, because Petitioner’s prior habeas action was filed before the 1996
enactment of the AEDPA. See Cress v. Palmer, 484 F.3d 844, 852 (6th Cir. 2007). Rather, this
Court must assess whether the second or successive petition would have survived under the preAEDPA “abuse of the writ” standard. Id. That standard “allow[ed] a second motion containing a

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new claim where the inmate can ‘show cause for failing to raise [the issue in the first motion] and
prejudice therefrom.’” In re Hanserd, 123 F.3d 922, 929 (6th Cir. 1997) (quoting McCleskey v.
Zant, 499 U.S. 467, 494 (1991)), cited in Cress, 484 F.3d at 852. With respect to the cause
determination, the habeas court must decide “whether petitioner possessed, or by reasonable means
could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter
through the habeas process.” McCleskey, 499 U.S. at 498. To show cause, a petitioner must
demonstrate that, at the time he filed his first habeas petition, he conducted “a reasonable and
diligent investigation aimed at including all relevant claims and grounds for relief . . . .” Id. In order
to show prejudice, a petitioner must demonstrate that the alleged constitutional error had a
“‘substantial and injurious effect or influence in determining the jury’s verdict.’” Tolliver v. Sheets,
594 F.3d 900, 924 (6th Cir. 2010) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).
Petitioner cannot demonstrate the necessary prejudice. His present petition provides
no basis for habeas corpus relief. Even if the Respondent improperly took a DNA sample from
Petitioner in 2011, that action would not constitute a basis for granting habeas relief from his 1976
judgment of conviction. His present challenge to his 1976 conviction therefore constitutes an abuse
of the writ. Accordingly,
IT IS ORDERED that, to the extent Petitioner intends to challenge his 1976 armedrobbery conviction, his habeas petition constitutes an abuse of the writ and is hereby DISMISSED.

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IT IS FURTHER ORDERED that, to the extent Petitioner intends to challenge his
1980 assault conviction, the application for habeas relief is TRANSFERRED to the Sixth Circuit
Court of Appeals pursuant to 28 U.S.C. § 1631.

November 23, 2011
Date

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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