United States District Court, E.D. Kentucky, Southern Division, London
DANNY C. REEVES, District Judge.
This matter is pending for consideration of Defendant Miranda Creech's motion for leave to file a second or successive petition under 28 U.S.C. § 2255. [Record No. 153] Creech is currently serving a life-term of imprisonment. [Record No. 96] After exhausting his direct appeals, Creech filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on April 17, 2008. [Record No. 110] On November 29, 2010, that motion was denied. [Record Nos. 145, 146] Creech appealed this Court's determination. However, on September 2, 2011, the United States Court of Appeals for the Sixth Circuit rejected all of Creech's arguments and denied his request for a Certificate of Appealability. [Record no. 151]
Title 28 of the United States Code, Section 2244(a)(3)(A), provides that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Creech is not asserting a defect in the integrity of the federal habeas proceedings. Instead, he is seeking to directly challenge the substance of this Court's - and the Sixth Circuit's - resolution of his claim on the merits. Because this Court has previously denied habeas relief to Creech under § 2255, his current motion constitutes a second or successive motion. See 28 U.S.C. § 2244(a). Creech does not challenge this point.
The statute provides that no district court,
shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
28 U.S.C. § 2255(a); see 28 U.S.C. § 2255(h) (providing standard for certification of second or successive motion). Therefore, the motion is procedurally barred unless the Sixth Circuit determines that Creech has presented new factual evidence or demonstrated a new rule of constitutional law. Wooten v. Cauley, 677 F.3d 303, 307 (6th Cir. 2012); see 28 U.S.C. § 2255(h) ("A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain - (1) newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."). Albo v. United States, 498 F.App'x 490 (6th Cir. 2012); West v. Bell, 550 F.3d 542 (6th Cir. 2008); Williams v. United States, No. 2:03-CV-887, 2005 WL 2211184 (S.D. Ohio Sept. 9, 2005). While it does not appear that Creech fits within either of these exceptions, that determination must be made by the Sixth Circuit.
Based on the foregoing analysis, this Court lacks jurisdiction to entertain the present motion. The matter will be transferred to the United States Court of Appeals for the Sixth Circuit so it may determined whether Creech's present claim may be presented. Accordingly, it is hereby
ORDERED as follows:
1. The Clerk of the Court is DIRECTED to transfer Defendant Miranda Creech's current motion [Record No. 153] to the United States Court of Appeals for the Sixth Circuit as a second or successive petition seeking relief under 28 U.S.C. § 2255 in accordance with 28 U.S.C. § 2244 and Rule 9 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
2. To the extent that Creech seeks relief from this Court [Record No. 153], that request is DENIED in ...