Robinson #172898 v. Burton

Filing 2

ORDER TRANSFERRING HABEAS CASE to the Sixth Circuit Court of Appeals as second/successive; 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

DARRYL A. ROBINSON,
Petitioner,
v.

Case No. 1:16-cv-225
Honorable Paul L. Maloney

DeWAYNE BURTON,
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 Richard A. Handlon Correctional Facility. Petitioner pleaded guilty in the
Muskegon County Circuit Court to second-degree murder. On July 1, 1983, the trial court sentenced
Petitioner to life imprisonment.1
Petitioner filed a previous habeas corpus petition in this Court challenging his 1983
conviction, which was dismissed with prejudice because it was barred by the one-year statute of limitations.
See Robinson v. Luoma, No. 2:05-cv-196 (W.D. Mich. Jan. 4, 2006).2 Because Petitioner’s previous

1

See Michigan Department of Corrections Offender Tracking
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=172898.
2

Information

System

at

Petitioner has, in fact, filed numerous other petitions for writ of habeas corpus, many of which were transferred
to the Sixth Circuit. See, e.g. Robinson v. Royster, No. 1:13-cv-753 (W.D. Mich. July 24, 2013); Robinson v. Royster, 1:13cv-495 (W.D. Mich. May 21, 2013); Robinson v. Romanowski, 2:12-cv-304 (W.D. Mich. Aug. 29, 2012); Robinson v.
Romanski, No. 1:11-cv-491 (W.D. Mich. June 1, 2011); Robinson v. Wolfenbarger, No. 1:11-cv-112 (W.D. Mich. Feb. 9,
2011); Robinson v. Wolfenbarger, No. 1:09-cv-560 (W.D. Mich. June 25, 2009).

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).3 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 (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

3

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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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 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). 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 21, 2016
Date

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

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