Cooley #278337 v. Winn

Filing 2

ORDER TRANSFERRING HABEAS CASE to the Sixth Circuit Court of Appeals; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, cmc)

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

WILLIE JAMES COOLEY,
Petitioner,
v.

Case No. 1:15-cv-190
Honorable Paul L. Maloney

THOMAS WINN,
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 Saginaw Correctional Facility.
Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of firstdegree premeditated murder. He was sentenced to imprisonment for life without parole on January 7,
1999. Petitioner filed his first habeas petition in this Court in December 2003, raising four grounds for
relief. See Cooley v. LaVigne, 1:03-cv-883 (W.D. Mich.). On November 28, 2005, following a full
review of the record, the Court denied the petition on the merits.
Because Petitioner’s previous habeas action 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. McCleskey v. Zant, 499 U.S. 467,
470 (1991); see also Burger v. Zant, 984 F.2d 1129, 1132-33 (11th Cir. 1993) (distinguishing second
petitions and successive petitions).
A prior dismissal with prejudice has a preclusive effect under § 2244, though a prior
dismissal without prejudice does not. See Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998).
Both dismissals on the merits and certain types of decisions reached before a merits determination are
dismissals with prejudice that 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)). For example, a dismissal with
prejudice 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
1

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.

merits that renders future petitions under § 22254 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 was dismissed on the merits, 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). Therefore:
IT IS ORDERED that this application for habeas relief is transferred to the Sixth Circuit
Court of Appeals pursuant to 28 U.S.C. § 1631.

March 11, 2015
Date

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge