Smiles v. LaVigne

Filing 26

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

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
)
CHARLES SMILES,
)
Petitioner,
)
)
-v)
)
FABIAN LAVIGNE,
)
Respondent.
)
____________________________________)

No. 2:00-cv-160
HONORABLE PAUL L. MALONEY

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 Chippewa Correctional Facility. Petitioner previously filed a habeas corpus
petition in this case, which was dismissed on September 15, 2000, as being barred by the applicable
statute of limitations.
Petitioner has filed a motion for relief from judgment pursuant to Federal Rule 60(b)(6),
which seeks to advance substantive claims following the denial of habeas corpus relief. Such a
motion is properly construed as a request to file a second and / or successive habeas corpus petition.
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). 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. 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 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 was dismissed as time-barred, thus the instant petition is second or successive. 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.

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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.
IT IS FURTHER ORDERED that Petitioner’s pending motions for leave to proceed in
forma pauperis and for hearing (ECF Nos. 20 and 21) are DENIED as moot.

Date:

January 20, 2012

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

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