UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Kahri Smith, 

Petitioner, 

v. 

Bonita Hoffner, 

Respondent. 

________________________________/

Case No. 15-cv-11648 

Judith E. Levy 

United States District Judge 

Mag. Judge Anthony P. Patti 

ORDER TRANSFERRING PETITIONER’S LETTER-MOTION 

[34] TO THE SIXTH CIRCUIT COURT OF APPEALS 

 On November 28, 2017, the Court denied Petitioner Kahri Smith’s 

habeas corpus petition and denied a certificate of appealability. (ECF No. 

18) The Sixth Circuit Court of Appeals also denied a certificate of 

appealability. Smith v. Hoffner, No. 18-1035 (6th Cir. May 25, 2018) (ECF 

No. 26). Petitioner then filed a motion for relief from judgment, which the 

Court transferred to the Court of Appeals because it was an unauthorized 

successive habeas petition. (ECF Nos. 28, 29, 31.) The Court of Appeals 

denied authorization to file a successive petition. (ECF No. 33.) Now 

before the Court is Petitioner’s letter-motion raising new challenges to 

his state court conviction. (ECF No. 34.) 

Case 5:15-cv-11648-JEL-APP ECF No. 35 filed 08/17/20 PageID.1223 Page 1 of 3
2 

 A district court does not have jurisdiction to consider a petitioner’s 

“second or successive” habeas petition unless the petitioner first obtains 

authorization from the Court of Appeals. 28 U.S.C. § 2244(b)(3)(A). A 

second or successive habeas application is one that that presents a claim 

already “presented in a prior application,” Id. at § 2244(b)(1), or any new 

claim unless a constitutional law is newly retroactive, the factual 

predicate could not have been discovered earlier, or the petitioner can 

show that he is innocent. Id. at § 2244(b)(2). A motion is a “second or 

successive” habeas application if it “‘advances’ one or more [federal] 

‘claims’” attacking the merits of a state court conviction. Franklin v. 

Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (quoting Post v. Bradshaw, 422 

F.3d 419, 424 (6th Cir. 2005)). Following denial of a habeas petition by a 

district court, a petitioner may not use a motion “to try to raise new 

habeas claims [or] supplement already litigated claims with new 

evidence.” Moreland v. Robinson, 813 F.3d 315, 323 (6th Cir. 2016) (citing 

Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005)). 

 Petitioner’s letter-motion raises a new federal claim—the denial of 

his Sixth Amendment right to the effective assistance of counsel. (Id. at 

PageID.1201-03.) The motion, therefore, is a successive habeas petition. 

Case 5:15-cv-11648-JEL-APP ECF No. 35 filed 08/17/20 PageID.1224 Page 2 of 3
3 

Petitioner has not obtained appellate authorization to file a subsequent 

petition. 28 U.S.C. § 2244(b)(3)(A). 

 Accordingly, the Clerk of the Court shall TRANSFER the LetterMotion (ECF No. 34) to the Court of Appeals for the Sixth Circuit. 28 

U.S.C. § 1631; see also Moreland, 813 F.3d at 325 (citing In Re Sims, 111 

F.3d 45, 47 (6th Cir. 1997)). 

 IT IS SO ORDERED. 

Dated: August 17, 2020 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 August 17, 2020. 

s/William Barkholz 

WILLIAM BARKHOLZ 

Case Manager 

Case 5:15-cv-11648-JEL-APP ECF No. 35 filed 08/17/20 PageID.1225 Page 3 of 3