UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Marcus Washington, 

 Plaintiff, 

 Case No. 14-cv-13782 

v. Hon. Judith E. Levy 

 

Anthony Stewart, 

 Defendant. 

________________________________/ 

ORDER TRANSFERRING CASE TO THE COURT OF APPEALS 

PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)

I. Introduction 

 Marcus Washington, (“petitioner”), confined at the Ryan 

Correctional Facility in Detroit, Michigan, has filed a petition for a writ 

of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed 

pro se, petitioner challenges his 1993 conviction out of the Detroit 

Recorder’s Court for first-degree murder, M.C.L. § 750.316, and 

possession of a firearm in the commission of a felony, M.C.L. § 

750.227b. Petitioner previously filed a petition for a writ of habeas 

corpus challenging this conviction. The petition was denied on the 

merits. Washington v. Robinson, U.S.D.C. No. 96-CV-74719-DT (E.D. 

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Mich. October 23, 1998) (Friedman, J.); app. dism. U.S.C.A. No. 98-2319 

(6th Cir. March 24, 1999). For the following reasons, the Court will 

transfer this case to the Court of Appeals. 

II. Discussion 

 An individual seeking to file a second or successive habeas 

petition must first ask the appropriate court of appeals for an order 

authorizing the district court to consider the petition. See 28 U.S.C. § 

2244(b)(3)(A); Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). 

Congress has vested in the court of appeals a screening function that 

the district court would have performed otherwise. Felker v. Turpin, 

518 U.S. 651, 664 (1996). Under the provisions of the Antiterrorism 

and Effective Death Penalty Act (AEDPA), a federal district court “does 

not have jurisdiction to entertain a successive postconviction motion or 

petition for writ of habeas corpus in the absence of an order from the 

court of appeals authorizing the filing of such a successive motion or 

petition.” Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich. 

1999). When a habeas petitioner files a second or successive petition for 

habeas corpus relief in the district court without preauthorization from 

the court of appeals, the district court must transfer the document to 

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the court of appeals “no matter how meritorious the district court 

believes the petitioner’s claim to be.” Id. at 971 (citing In Re Sims, 111 

F. 3d 45, 47 (6th Cir. 1997)); see also 28 U.S.C. § 1631. Petitioner, in 

fact, has filed a motion under 28 U.S.C. § 2244 for permission to file a 

successive petition, although he filed it with this Court and not with the 

Court of Appeals. 

 Petitioner previously filed a habeas petition with the federal 

courts. Although petitioner would not have been required to obtain a 

certificate of authorization following the dismissal of his first petition if 

it had been dismissed without prejudice on exhaustion grounds, see 

Harris v. Stovall, 22 F. Supp. 2d 659, 664 (E.D. Mich. 1998) (citing 

Carlson v. Pitcher, 137 F.3d 416 (6th Cir. 1998)), petitioner’s first 

habeas petition was dismissed on the merits. Moreover, although some 

of petitioner’s claims were dismissed for unexcused procedural default, 

the Sixth Circuit has held that such a dismissal would be considered a 

ruling on the merits for purposes of § 2244(b)(3)(A). See In Re Cook, 215 

F. 3d 606, 608 (6th Cir. 2000). Petitioner’s current habeas petition is a 

second or successive petition for a writ of habeas corpus, and he is, 

therefore, required to obtain a certificate of authorization. 

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 Accordingly, the Clerk of Court is ordered to transfer the habeas 

petition to the United States Court of Appeals for the Sixth Circuit 

pursuant to Sims and 28 U.S.C. § 1631. 

III. Order 

 Petitioner has not obtained the appellate authorization to file a 

subsequent petition as required by 28 U.S.C. § 2244(b)(3)(A). 

Accordingly, the Court ORDERS the Clerk of the Court to 

TRANSFER this case to the United States Court of Appeals for the 

Sixth Circuit pursuant to 28 U.S.C. § 1631 and In Re Sims, 111 F.3d 45, 

47 (6th Cir. 1997). 

Dated: October 15, 2014 s/Judith E. Levy___________ 

Ann Arbor, Michigan JUDITH E. LEVY 

 United States District Judge 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on October 15, 2014. 

 s/Felicia M. Moses__________ 

 FELICIA M. MOSES 

 Case Manager 

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