United States District Court, E.D. Kentucky, Central Division Lexington
DAVID L. BUNNING, District Judge.
This matter is before the Court upon the Recommended Disposition (Doc. # 6) of United States Magistrate Judge Robert E. Wier, wherein he recommends that the Court transfer this habeas petition to the United States Court of Appeals for the Sixth Circuit for possible certification pursuant to 28 U.S.C. § 1631. No Objections having been filed, and the time to do so having expired, this Recommended Disposition is now ripe for the Court's review. For reasons stated herein, the Court concurs with the Magistrate Judge's Recommended Disposition and will adopt it in full.
If a petitioner wishes to file a second or successive habeas petition, he or she "shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. 2244(b)(3)(A); Rule 9, Rules Governing Section 2254 Cases. Section 2244 essentially "allocates subject matter jurisdiction to the court of appeals, rather than the district court, in the first instance, over a second or successive habeas petition." Smith v. Anderson, 402 F.3d 718, 723 (6th Cir. 2005).
It is important to note that a 2254 petition does not qualify as a "second" or "successive" petition simply because it is literally the second motion filed. Lang v. United States, 474 F.3d 348, 351 (6th Cir. 2007). A petition will only be treated as such "when it attacks the state court's judgment of conviction or brings a new claim, such as a new ground for relief or an attack on the federal court's previous resolution of the claim on the merits." Thompkins v. Berghuis, 509 F.App'x 517, 519 (6th Cir. 2013)( citing Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)). Petitions that attack defects in the integrity of the federal habeas proceedings, rather than the substance of the federal court's prior resolution of the claim, will not be classified as "second" or "successive" petitions. Gonzalez, 545 U.S. at 532-33.
In his Recommended Disposition, the Magistrate Judge first points out that Petitioner filed a prior federal habeas petition attacking the same 1992 conviction in this case. See Morgan v. Webb, Civ. A. No. 00-243-HRW (finding that the petition was barred by the applicable statute of limitations); Morgan v. Chandler, Case No. 5:07-cv-257-JMH (refusing to reopen that petition). The Magistrate Judge further noted that Petitioner's "current and previous habeas petitions relate to the same 1992 conviction, and he filed both after the 1994 resentencing." (Doc. # 6 at 3). Because Petitioner sets forth a new theory, which existed at the time of re-sentencing, to attack his conviction, the Magistrate Judge concluded that this matter qualified as a "second" or "successive" habeas petition. Therefore, this Court is without jurisdiction to consider the petition unless and until Petitioner obtains authorization from the United States Court of Appeals for the Sixth Circuit.
Having reviewed the Magistrate Judge's Recommended Disposition, the Court concurs with his recommendation that this matter must be transferred to the Sixth Circuit "for consideration of certification pursuant to 28 U.S.C. § 1631." Accordingly,
IT IS ORDERED as follows:
(1) The Magistrate Judge's Recommended Disposition (Doc. # 6) is hereby adopted as the findings of fact and conclusions of law of the Court; and
(2) Petitioner's Pro Se Petition for Writ of Habeas Corpus (Doc. #1) is hereby transferred to the United States Court of Appeals for the Sixth Circuit for possible ...