Ramsey #366023 v. Hoffner

Filing 9

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

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

ROBERT RAMSEY,
Petitioner,
v.

Case No. 1:15-cv-641
Honorable Paul L. Maloney

BONITA HOFFNER,
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. § 2254.1
Petitioner is confined at Lakeland Correctional Facility.
Following a jury trial in the Wayne County Circuit Court, Petitioner was convicted of firstdegree premeditated murder, MICH. COMP. LAWS § 750.316(1)(a), and possession of a firearm during
the commission of a felony, MICH. COMP. LAWS § 750.227b. On September 1, 2004, Petitioner was
sentenced to a prison term of two years for the felony-firearm conviction and to a consecutive life term for
the murder. After appealing to both the Michigan Court of Appeals and the Michigan Supreme Court,

1

Petitioner contends that he seeks relief under 28 U.S.C. § 2241, not § 2254. A state prisoner seeking postconviction relief from a federal court has but one remedy: an application for a writ of habeas corpus. See Rittenberry
v. Morgan, 468 F.3d 331, 336-37 (6th Cir. 2006). All such applications for writs of habeas corpus are governed by § 2241,
which generally authorizes federal courts to grant the writ – to both federal and state prisoners. Id. Most state prisoners’
applications for writs of habeas corpus are subject also to the additional restrictions of § 2254. That is, if a state prisoner
is “in custody pursuant to the judgment of a State court,” his petition is subject to the procedural requirements of § 2254.
Id.; see also Thomas v. Crosby, 371 F.3d 782, 803 (11th Cir. 2004); Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000).
Petitioner brings this action seeking relief from custody from a state court judgment. His action, therefore, is governed
by § 2254.

Petitioner filed his first habeas petition in the Eastern District of Michigan. See Ramsey v. Berghuis, No.
2:07-13563 (E.D. Mich.). After a full review of the review of the record, the court issued an opinion and
judgment denying the petition on the merits. Id. (Op. & J. Sept. 30, 2009). Petitioner subsequently filed
two additional habeas actions, both of which were transferred to the Sixth Circuit as second or successive.
See Ramsey v. Haas, No. 2:14-cv-12759 (E.D. Mich. Jul. 24, 2014); Ramsey v. Hoffner, No. 2:15-cv11083 (E.D. Mich. Apr. 20, 2015).
Petitioner now has filed his fourth habeas action. Because Petitioner’s first 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).2 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, 113233 (11th Cir. 1993) (distinguishing second petitions and successive petitions).
2

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.

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
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 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.

September 3, 2015
Date

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