Hutton v. Mitchell

Filing 84

Memorandum of Opinion and Order. Petitioner's Motion for Relief from Judgment Pursuant To Rule 60(b)(6) of the Federal Rules of Civil Procedure (Related doc # 81 ) is denied as an attempt to file a second and successive petition and the Court will transfer the motion to the Sixth Circuit for a determination of whether it meets the requirements of 28 U.S.C. § 2244(b). Judge Christopher A. Boyko on 6/23/2016. (H,CM)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

PERCY HUTTON,
Petitioner,
vs.
BETTY MITCHELL, Warden,
Respondent.

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CASE NO. 1:05 CV 2391

JUDGE CHRISTOPHER A. BOYKO

MEMORANDUM OF OPINION
AND ORDER

Before the Court is Petitioner Percy Hutton’s (“Hutton” or “Petitioner”) Motion for
Relief from Judgment Pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. (ECF
No. 81.) He asks the Court to vacate its judgment of June 7, 2013, denying his Petition for Writ
of Habeas Corpus (ECF No. 68). Respondent Warden Betty Mitchell (“Respondent”) filed a
brief in opposition, to which Hutton replied. (ECF Nos. 82, 83.) For the following reasons,
Hutton’s Motion is denied.
I.

Relevant Background
Hutton was convicted of Aggravated Murder, Murder and Attempted Murder and

sentenced to death by a jury in January 1986 for the shooting of two men, one of whom died,
over an alleged theft of a sewing machine. Hutton's direct appeal and state post-conviction
proceedings were unsuccessful. Hutton filed a Petition for Writ of Habeas Corpus in this Court

on December 15, 2005. (ECF No. 10-1.) He amended his Petition on June 20, 2011, setting
forth thirteen grounds for relief. (ECF No. 60.) Two of his grounds alleged ineffective
assistance of trial counsel, asserting twelve separate claims of deficient performance. (See ECF
No. 67 at 30.)
One of Hutton’s complaints centered on counsel’s failure to investigate and present
sufficient mitigating evidence. (See ECF No. 66 at 27-30.) Hutton had raised that claim on
direct appeal to the Ohio Supreme Court, which adjudicated it on the merits. State v. Hutton, 53
Ohio St. 3d 36, 48-49, 559 N.E.2d 432, 446 (Ohio 1990). He raised it again in his first state
post-conviction Petition. (See ECF No. 67 at 32-33.) Hutton submitted affidavits with his
Petition supporting the claim, including information about Hutton’s treatment at a residential
facility for troubled children, Beech Brook. (See ECF No. 81 at 17-18; ECF No. 16-12 at 102.)
The state courts dismissed the claim on the ground of res judicata. (See ECF No. 67 at 32-33.)
This Court found Hutton’s mitigation ineffective-assistance claim preserved for federal
habeas review, explaining:
As a preliminary matter, this Court concludes that the ineffectiveassistance sub-claims Hutton raised to the Ohio Supreme Court are preserved for
habeas review even where he also raised them on post-conviction and the state
court declined to address them on the ground of res judicata. Those sub-claims
are: counsel’s failure to investigate and present mitigation evidence and
counsel's failure to object to the admission of the PSI. . . . “[W]hen a state court
declines to review the merits of a petitioner’s claim on the ground that it has done
so already, it creates no bar to federal habeas review.” Cone v. Bell, 556 U.S.
449, 466 (2009). See also Ylst, 501 U.S. at 804 n.3 (when a “state decision rests
upon a prohibition against further state review,” the decision “neither rests upon
procedural default nor lifts a pre-existing procedural default, [and] its effect upon
the availability of federal habeas is nil”). In those cases, habeas courts “look
through” the later decision to the prior reasoned state-court judgment. Id. at 805.
(Id. at 35.) The Court found Hutton’s remaining trial counsel ineffective-assistance sub-claims

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procedurally defaulted: some because the state post-conviction court found them barred by res
judicata, as they were not raised on direct appeal to the Ohio Supreme Court when they could
have been; and others because they were never raised in state court at all. (Id. at 36-41.)
The Court denied Hutton’s Petition on June 7, 2013. (ECF No. 68.) It found his
mitigation ineffective-assistance claim meritless (see ECF No. 67 at 59-70), but granted a
Certificate of Appealability (“COA”) on the claim (id. at 118).
On June 19, 2013, Hutton filed a motion pursuant to Federal Civil Rule 59(e), asking the
Court to alter or amend its judgment denying his Petition; appoint new counsel; allow his
current habeas counsel to withdraw; and allow new counsel sufficient time to review the record
and file an amended petition if necessary. (ECF No. 69 at 18.) Hutton based this request on the
United States Supreme Court decisions in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino
v. Thaler, 133 S. Ct. 1911 (2013). In Martinez, the Court held that the “[i]nadequate assistance
of counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315. In
Trevino, the Court expanded the scope of Martinez to apply to Texas’s procedural framework,
which by reason of its “design and operations,” made it “highly unlikely in a typical case that a
defendant [would] have a meaningful opportunity to raise a claim of ineffective assistance of
trial counsel on direct appeal . . . .” Trevino, 133 S. Ct. at 1921. The Sixth Circuit has yet to
decide whether Trevino applies to Ohio ineffective-assistance claims. See McGuire v. Warden,
Chillicothe Corr. Inst., 738 F.3d 741, 759 (6th Cir. 2013).
In Hutton’s Rule 59(e) motion, he argued that Martinez and Trevino constituted “an
intervening change of controlling law.” (See ECF No. 69 at 4.) He stated that one of his habeas

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counsel, David Doughten, had represented him during state post-conviction proceedings and had
failed to develop the record sufficiently to support Hutton’s post-conviction ineffectiveassistance-of-trial-counsel claims. He contended that under Martinez, he now could claim that
Doughten’s deficient post-conviction performance created an “inherent” conflict of interest
during habeas proceedings, as Doughten “could not” raise his own ineffectiveness as a cause for
the procedural bar to the habeas ineffective-assistance claims. (See id. at 3-4, 10.) The Court
denied the motion because Martinez and Trevino, having been decided before this Court issued
its decision denying Hutton’s Petition, were not “intervening.” (ECF No. 70, 4-5.)
Hutton filed his Notice of Appeal to the Sixth Circuit from this Court’s judgment on
August 20, 2013. (ECF No. 72.) On October 6, 2013, Hutton’s habeas attorneys, Doughten and
John Gibbons, filed a motion in the Court of Appeals to withdraw and appoint new counsel for
Hutton, based on Doughten’s conflict of interest due to Martinez and Trevino. (Case No. 133968, ECF No. 13.) On October 18, 2013, the Court granted the motion without “even
indirectly” ruling on its supporting legal contentions and appointed new counsel. (Case No. 133968, ECF Nos. 15, 19.)
On September 26, 2014, Hutton filed a Motion to Remand in the Sixth Circuit “for
briefing by recently appointed habeas counsel to determine whether claims previously
adjudicated to be procedurally defaulted should have the default forgiven based on Martinez v.
Ryan . . . .” (Case No. 13-3968, ECF No. 37 at 1.) Hutton repeated his argument that under
Martinez, Doughten’s deficient conduct in developing the post-conviction record created a
conflict of interest during habeas proceedings, as Doughten “could not be expected” to raise his
own ineffectiveness as a cause for the procedural bar to his habeas ineffective-assistance claims.

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(See id. at 4-5.)
The Sixth Circuit denied the Motion on April 23, 2015. (Case No. 13-3968, ECF No.
45-1.) It concluded,
Hutton has had opportunities, absent in Martinez and Trevino, to
adequately present these claims to the district court. For instance, Hutton had an
opportunity to raise this conflict-of-interest issue in his habeas proceedings
before the district court and failed to do so. Although Hutton argues that the
same attorney whose alleged ineffectiveness deprived him of a fully developed
record also represented him at the federal habeas stage – and could not be
expected to raise his own ineffectiveness – Hutton fails to address why that
attorney’s co-counsel (who was appointed only at the habeas stage) could not
have done so.
(Id. at 3.)
Now, Hutton is back in this Court, advancing the same argument under Martinez and
Trevino to support a request to dismiss the Court’s judgment denying his habeas petition and
reopen his case. (ECF No. 81.) But this time his Motion is made pursuant to Federal Civil Rule
60(b)(6), and he bases the request on “newly discovered evidence”related specifically to one of
his ineffective-assistance sub-claims. (Id. at 1.) Hutton states that he has obtained medical
records from Beech Brook, the residential facility where Hutton was placed from age nine to
eleven. He claims the records reveal “the horrendous circumstances” of Hutton’s childhood.
(Id. at 3.) Hutton also submits an evaluation from a psychologist opining that the records are
“highly significant.” (Id.) He maintains Doughten was ineffective in failing to uncover and
present this “powerful” mitigating information to support his post-conviction claim that his trial
counsel was ineffective for failing to investigate and present sufficient evidence at the mitigation
phase of his trial. (Id.) Again, he argues that under Martinez and Trevino, Doughten’s deficient
performance during post-conviction proceedings created a conflict of interest during his habeas

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representation of Hutton because Doughten was unable to raise his own ineffectiveness as cause
for the procedural default of Hutton’s mitigation ineffective-assistance claim. (Id. at 14.)
Through this Motion, he asks the Court to consider that argument now.
II.

Analysis
A.

Rule 60(b) and § 2244(b)

Federal Civil Rule 60(b) allows a party to seek relief from a final judgment, and request
reopening of the case, under a limited set of circumstances, including fraud, mistake, and newly
discovered evidence. Hutton bases his Motion on Rule 60(b)(6), a catchall provision that
provides relief for any “other reason that justifies relief.” (See ECF No. 81 at 4.) Subsection
(b)(6) is properly invoked only in “exceptional or extraordinary circumstances” not specifically
addressed by the first five numbered clauses of the Rule. Hopper v. Euclid Manor Nursing
Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989). Courts, therefore, must employ Rule 60(b)(6)
“only in ‘unusual and extreme situations where principles of equity mandate relief.’” Blue
Diamond Coal Co. v. Trustees of the UMWA Combined Benefit Fund, 249 F.3d 519, 524 (6th
Cir. 2001) (quoting Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990) (emphasis
original)). Rule 60(b)(6) is not to be used “as a substitute for an appeal, . . . or as a technique to
avoid the consequences of decisions deliberately made yet later revealed to be unwise.”
Hopper, 867 F.2d at 294.
Like all federal civil rules, Rule 60(b) applies in habeas corpus proceedings brought
under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) only “to the extent
that [it is] not inconsistent with” applicable federal statutes and rules. 28 U.S.C. § 2254 R.12.
One possible conflict that courts have examined is whether by filing a Rule 60(b) motion, a

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habeas petitioner is in fact filing a “second and successive” petition governed, and in most cases
barred from consideration, by AEPDA’s § 2244(b).
Under the gatekeeping provisions of 28 U.S.C. § 2244(b), a “claim presented in a second
or successive habeas application” that was “presented in a prior application” must be dismissed.
28 U.S.C. § 2244(b)(1). A claim that was not previously presented in a federal habeas petition
also must be dismissed unless it satisfies one of two narrow exceptions: it must rely either on a
new and retroactive rule of constitutional law or new facts showing a high probability of actual
innocence. 28 U.S.C. § 2244(b)(2). If a district court finds a petition to be “second or
successive,” the court lacks jurisdiction to consider the merits and must transfer it to the Sixth
Circuit for a determination of whether it should be authorized, rather than dismiss it outright. 28
U.S.C. § 2244(b)(3)(A) (a petitioner must “move in the appropriate court of appeals for an order
authorizing the district court to consider the application”). See also Moreland v. Robinson, 813
F.3d 315, 325 (6th Cir. 2016); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
The Supreme Court addressed the interplay of Rule 60(b) and § 2244(b) in Gonzalez v.
Crosby, 545 U.S. 524 (2005). The Court explained that “for purposes of § 2244(b) an
‘application’ for habeas relief is a filing that contains one or more ‘claims.’” Id. at 530. And a
“claim,” as contemplated by AEDPA, is “an asserted federal basis for relief from a state court’s
judgment of conviction.” Id. Rule 60(b) motions are appropriate “when no ‘claim’ is
presented” and “neither the motion itself nor the federal judgment from which it seeks relief
substantively addresses federal grounds for setting aside the movant’s state conviction . . . .”1

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The Gonzalez Court held that the Rule 60(b) motion at issue in that case was proper, since
it alleged that the federal courts misapplied the statute of limitations set out in Section 2244(d),
which was a defect in the proceeding rather than a claim. Gonzalez, 545 U.S. at 533.
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Id. at 533.
The Court clarified in Gonzalez that Rule 60(b) “has an unquestionably valid role to play
in habeas cases,” but only when used to attack “not the substance of the federal court’s
resolution of a claim on the merits, but some defect in the integrity of the federal habeas
proceedings.” Id. at 533-34. Thus, “[a] movant is not making a habeas claim when he seeks
only to lift the procedural bars that prevented adjudication of certain claims on the merits.”
Moreland, 813 F.3d at 322-23 (citing Gonzalez, 545 U.S. at 532 n.4). “But he is making a
habeas claim when he seeks to add a new ground for relief or seeks to present ‘new evidence in
support of a claim already litigated.’” Id. at 323 (quoting Gonzalez, 545 U.S. at 531-32)
(emphasis original). The Court specifically noted that a Rule 60(b) motion is in effect a
successor petition if it “seek[s] leave to present ‘newly discovered evidence’ . . . in support of a
claim previously denied,” id. at 2647 (internal citation omitted); and that “an attack based on the
movant’s own conduct, or his habeas counsel’s omissions, . . . ordinarily does not go to the
integrity of the proceedings, but in effect asks for a second chance to have the merits determined
favorably.” Id. at 2648 n.5 (internal citation omitted).
The Sixth Circuit recently observed that Rule 60(b)(6) “confers upon the district court a
broad equitable power to ‘do justice’” in habeas actions. Johnson v. Bell, 605 F.3d 333, 336
(6th Cir. 2010). It explained, “Particularly in light of the approach taken by [the] Supreme Court
in Gonzalez, Rule 60(b) represents the sole authority, short of a successive application approved
by this court, under which a district court may entertain a challenge to a prior denial of habeas
relief.” Id. Nevertheless, it stated, Rule 60(b) “continues to have limited viability in the habeas

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context.” Id. at 335. Indeed, relief under Rule 60(b) has always been “circumscribed by the
interests in finality and the termination of litigation.” Park West Galleries, Inc. v. Hochman,
692 F.3d 539, 545 (6th Cir. 2012) (citing Ford Motor Co. v. Mustangs Unlimited, 487 F.3d 465,
468 (6th Cir. 2007)).
Of note here, the Sixth Circuit has applied Gonzalez to habeas petitioners’ Rule 60(b)
motions based on the performance of habeas counsel and determined they were second or
successive petitions. In Post v. Bradshaw, 422 F.3d 419 (6th Cir. 2005), the petitioner asked for
partial relief from the district court’s judgment denying his habeas petition on the ground that
his habeas counsel had failed to pursue discovery. The court first found that the motion was
precluded under 28 U.S.C. § 2254(i), which mandates that “[t]he ineffectiveness or
incompetence of counsel during Federal or State collateral post-conviction proceedings shall not
be a ground for relief in a proceeding arising under section 2254.” Id. at 422-23 (citing 28
U.S.C. § 2254(i)). It further held that the motion was “clearly” a successive petition because it
“seeks to advance, through new discovery, claims that the district court previously considered
and dismissed on substantive, constitutional grounds: i.e., on the merits.” Id. at 424. The Post
court explained,
It makes no difference that the motion itself does not attack the district court’s
substantive analysis of those claims but, instead, purports to raise a defect in the
integrity of the habeas proceedings, namely his counsel’s failure– after obtaining
leave to pursue discovery–actually to undertake that discovery; all that matters is
that Post is ‘seek[ing] vindication of” or “advanc[ing]” a claim by taking steps
that lead inexorably to a merits-based attack on the prior dismissal of his habeas
petition.
Id. at 424-25 (citing Gonzalez, 545 U.S. at 531-32).
Even closer to this case is Brooks v. Bobby, 660 F.3d 959 (6th Cir. 2011). In Brooks, the

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petitioner based a Rule 60(b) motion on habeas counsel’s failure to present all possible claims
and counsel’s conflict of interest because his father was a state court judge who had denied some
of the petitioner’s claims on state collateral review. Id. at 961. The court found the petitioner’s
“claims, as presented, [did] not undermine the ‘integrity’ of the first federal habeas
proceedings.” Id. at 963. It considered the petitioner’s first theory a “general ineffective
assistance of habeas counsel,” which was “a plain-vanilla successive petition designed to do
nothing more than attack his earlier counsel’s omissions.” Id. It characterized the petitioner’s
second basis as “a conflict of interest [that] led to the ineffective assistance of one of his habeas
counsel,” and rejected it as well. It explained that a habeas counsel’s conflict of interest
could under sufficiently egregious conditions haunt the integrity of a first federal
habeas proceedings. But that is not so here. There were two counsel, not one,
and both counsel challenged the relevant state court rulings. Perhaps more
importantly, the issue came to light during the appeal from the first proceedings,
making it difficult to say that a second habeas proceedings is needed to correct
the integrity of the first proceeding.
Id. The court also stressed § 2254(i)’s bar on Rule 60(b) motions based on the ineffective
assistance of habeas counsel. Id. at 963-64 (citing Post, 422 F.3d at 423).
B.

District Courts’ Jurisdiction over Rule 60(b) Motions and Successive Habeas
Petitions

The filing of a notice of appeal transfers jurisdiction of the case to the court of appeals,
and the district court no longer has jurisdiction “except to act in aid of the appeal.” First
National Bank of Salem, Ohio v. Hirsch, 535 F.2d 343, 345 n.1 (6th Cir. 1976). Once
jurisdiction has transferred to the appellate court, if the district judge is disposed to grant a Rule
60(b) motion that has been filed with the district court, the judge may enter an order so
certifying. The moving party may then file a motion to remand with the court of appeals. Id. at

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346. Absent a remand by the appellate court, a district court may not decide a Rule 60(b)
motion to vacate judgment after notice of appeal has been filed. S. & E. Shipping Corp. v.
Chesapeake & Ohio RRy. Co., 678 F.2d 636, 641 n.10 (6th Cir. 1982).
In Moreland v. Robinson, 813 F.3d 315 (6th Cir. 2016), the Sixth Circuit considered a
Rule 60(b) motion filed by a habeas petitioner while the appeal of the district court’s denial of
his original petition was pending. The petitioner filed the Rule 60(b) motion, along with a
motion to amend, to raise new claims and to supplement with new evidence previously litigated
claims, one of which was based on the failure of trial counsel to obtain an expert. Id. at 320.
The petitioner claimed that under Martinez, he could now raise these claims even though they
previously would have been found defaulted. Id. The court held that the petitioner was “using
his Rule 60(b) motion to try to raise new habeas claims and to supplement already litigated
claims with new evidence”; the motions, therefore, were second or successive petitions for
habeas relief that the district court lacked jurisdiction to review. Id. at 323. It announced, “[A]
Rule 60(b) motion . . . that seeks to raise habeas claims is a second or successive habeas petition
when that motion is filed after the petitioner has appealed the district court’s denial of his
original habeas petition or after the time for the petitioner to do so has expired.” Id. at 324. “In
other words,” the court explained, “if the district court has not lost jurisdiction of the original
habeas petition to the court of appeals, and there is still time to appeal, a post-judgment motion
is not a second or successive habeas petition.” Id.

C.

Hutton’s Rule 60(b) Motion

Respondent argues that under Moreland v. Robinson, Hutton’s Rule 60(b) Motion is in

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fact a second and successive petition, over which this Court lacks jurisdiction. (Doc. 82 at 6-8.)
Hutton replies that Moreland does not apply, as he is not raising a new “habeas claim.” (Doc.
83 at 2.) He argues that, instead, his Motion seeks to lift the procedural bar this Court imposed
on his mitigation ineffective-assistance claim, a permissible use of a Rule 60(b) motion under
Gonzalez. He will do that, he explains, by demonstrating “cause” and “prejudice” for the default
based on the ineffective assistance of post-conviction counsel pursuant to Martinez and Trevino.
(Id.)
Hutton’s Motion fails on numerous fronts. First, the very premise of the Motion is
incorrect. As explained above, this Court did not find Hutton’s ineffective-assistance claim
based on counsel’s failure to investigate and present mitigation evidence procedurally defaulted.
(See ECF No. 67 at 35.) Hutton, therefore, does not need to establish “cause” for the claim’s
default by proving the ineffectiveness of post-conviction counsel and Martinez does not apply.
Without the Martinez issue, Hutton is left with nothing more than a motion to “present ‘newly
discovered evidence’ . . . in support of a claim previously denied.” Gonzalez, 545 U.S. at 531.
This is precisely the type of Rule 60(b) request, filed while an appeal of the denial of the
original habeas petition is pending, that the Sixth Circuit found in Moreland to be a second and
successive petition and this Court may not review it. See Moreland, 813 F.3d at 322 (citing
Gonzalez, 545 U.S. at 531-32) (“Rule 60(b) motions . . . may not be used as vehicles to
circumvent the limitations that Congress has placed upon the presentation of claims in a second
or successive application for habeas relief.”).
Second, even if Martinez could apply here, Hutton’s Motion still would be a successive
petition. As explained above, in denying Hutton’s Motion to Remand, the Sixth Circuit

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expressly rejected Hutton’s conflict-of-interest argument. It reasoned that, as in Brooks, Hutton
had a second habeas attorney who could have discovered his co-counsel’s allegedly deficient
post-conviction conduct and resulting conflict of interest and raised the Martinez issue to this
Court before it ruled on his Petition. The Beech Brook records Hutton submits to support his
Motion are not “newly discovered evidence.” Doughten was aware of Hutton’s commitment to
Beech Brook during post-conviction proceedings, as it is referenced in the affidavits he attached
to Hutton’s Post-Conviction Petition. Hutton’s medical records from the facility, therefore,
presumably were available to Hutton and his attorneys throughout his state and federal
proceedings, including Doughten’s habeas co-counsel. See Navarro v. Fuji Heavy Indus., Ltd.,
117 F.3d 1027, 1032 (7th Cir. 1997)) (“If district judges were required to consider evidence
newly presented but not newly discovered after judgment, there would be two rounds of
evidence in a great many cases.”).
Moreover, again like Brooks, the basis for Hutton’s Motion is in essence “a conflict of
interest [that] led to the ineffective assistance of one of his habeas counsel.” Brooks, 660 F.3d at
963. Hutton argues that Doughten’s conflict of interest, caused by his failure to present the
Beech Brook records on post-conviction, resulted in his failure to raise the Martinez argument to
this Court. But “an attack based on . . . habeas counsel’s omissions” is precluded by § 2254(i).
Post, 422 F.3d at 423. Gonzalez advises that this type of claim “ordinarily does not go to the
integrity of the proceedings, but in effect asks for a second chance to have the merits determined
favorably.” Gonzalez, 545 U.S. at 532 n.5. And the Sixth Circuit already has indicated in
denying Hutton’s Motion to Remand that Hutton’s habeas counsel’s conflict of interest, as in
Brooks, is not “sufficiently egregious” such that it would “haunt the integrity of a first federal

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habeas proceedings.” Brooks, 660 F.3d at 963. Stripped of a compelling excuse for not
presenting the Martinez argument before this Court ruled on his original Petition, Hutton’s
Motion again becomes just a vehicle to supplement a previously litigated claim with new
evidence – a clear successive petition.
Finally, even if Martinez did apply and Hutton’s Motion were a true Rule 60(b) motion,
the Court would not review it. This Court lacks jurisdiction over this case, so even if it were to
find the Motion meritorious, Hutton would have to seek a remand from the Sixth Circuit before
the Court could rule on it. See Hirsh, 535 F.2d at 345 n.1. The Sixth Circuit, however, already
has denied Hutton’s request to remand his case to this Court so he could litigate his Martinez
argument. Given this ruling, the Court finds it difficult to see how the entire exercise would not
be futile.
III.

Conclusion
Accordingly, Petitioner’s Motion for Relief from Judgment Pursuant to Rule 60(b) of the

Federal Rules of Civil Procedure (ECF No. 81) is denied as an attempt to file a second and
successive petition and the Court will transfer the motion to the Sixth Circuit for a determination
of whether it meets the requirements of 28 U.S.C. § 2244(b).
IT IS SO ORDERED.
s/ Christopher A. Boyko
CHRISTOPHER A. BOYKO
UNITED STATES DISTRICT JUDGE
DATED: June 23, 2016

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