UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT LEE BOLES, Jr., 

Petitioner,

v. CASE NO. 2:15-CV-10908

HONORABLE ARTHUR J. TARNOW

BONITA HOFFNER, UNITED STATES DISTRICT JUDGE

Respondent,

_____________________________/

OPINION AND ORDER TRANSFERRING CASE TO THE COURT OF

APPEALS PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)

I. Introduction

Robert Lee Boles, Jr., confined at the Lakeland Correctional Facility in

Coldwater, Michigan, filed a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254. In his pro se application, petitioner challenges his 1978 conviction

out of the Saginaw County Circuirt Court for first-degree murder. Because the

Court concludes that the present petition constitutes a “second or successive

petition” within the meaning of 28 U.S.C. § 2244(b)(3), the Court will transfer the

matter to the Court of Appeals so that petitioner may seek permission to proceed.

II. Background

Petitioner was convicted of first-degree murder following a jury trial in the

Saginaw County Circuit Court.

Petitioner previously filed a petition for writ of habeas corpus challenging

1

2:15-cv-10908-AJT-MJH Doc # 3 Filed 03/19/15 Pg 1 of 5 Pg ID 141
Boles v. Hoffner, U.S.D.C. No. 2:15-CV-10908

his 1978 conviction for first-degree murder, which was denied on the merits. See

Boles v. Foltz, No. 82-CV-72544 (E.D. Mich. May 14, 1985); aff’d 816 F. 2d 1132

(6th Cir. 1987); cert. den. 484 U.S. 857 (1987).

Petitioner filed a second petition for writ of habeas corpus, which was

transferred to the Sixth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A) for

authorization to file a second habeas petition. Boles v. Elo, No. 96-CV-75791

(E.D. Mich. December 20, 1996). The Sixth Circuit subsequently dismissed the

case without prejudice for want of prosecution. Boles v. Elo, No. 97-105 (6th Cir.

January 8, 1997).

Petitioner has subsequently been denied permission twice by the United

States Court of Appeals for the Sixth Circuit to file a successive habeas petition.

In Re Boles, No. 02-1729 (6th Cir. October 21, 2002); In Re Boles, No. 08-1351

(6th Cir. September 25, 2008).

Petitioner has now filed a petition for writ of habeas corpus, in which he

claims that the cumulative effect of the various constitutional errors in his case

had a substantial and injurious effect or influence on the jury verdict and denied

him due process and a fair trial. Petitioner further argues that he is entitled to

relief from the gatekeeping provisions of the AEDPA because the claims raised in

his current petition would not have been barred under pre-AEDPA law. Petitioner

seeks habeas relief on his 1978 first-degree murder conviction.

2

2:15-cv-10908-AJT-MJH Doc # 3 Filed 03/19/15 Pg 2 of 5 Pg ID 142
Boles v. Hoffner, U.S.D.C. No. 2:15-CV-10908

III. Discussion

On April 24, 1996, President Clinton signed into law the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). Among other things, the AEDPA

amended 28 U.S.C. §§ 2244, 2253, and 2254, which govern habeas corpus

proceedings in federal courts. These amendments change the standards and

procedures that federal courts must apply when faced with second or successive

petitions for writs of habeas corpus. The provisions of the AEDPA apply because

petitioner filed his successive habeas application after the effective date of the

AEDPA. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Norris v. Konteh, 67 F.

Supp. 2d 833, 835 (N.D. Ohio 1999).

 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 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. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 825-26 (E.D. Mich.

3

2:15-cv-10908-AJT-MJH Doc # 3 Filed 03/19/15 Pg 3 of 5 Pg ID 143
Boles v. Hoffner, U.S.D.C. No. 2:15-CV-10908

2004). Unless the Sixth Circuit Court of Appeals has given its approval for the

filing of a second or successive petition, a district court in the Sixth Circuit must

transfer the petition to the Sixth Circuit Court of Appeals no matter how

meritorious the district court believes the claim to be. Id. at 826; See also In Re

Sims, 111 F. 3d 45, 47 (6th Cir. 1997).

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 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), petitioner’s first habeas petition was dismissed on the

merits.

Moreover, to the extent that petitioner is contending that the Sixth Circuit

erred in declining to grant him permission to file a second or successive habeas

petition regarding the claims raised in his current petition, this Court would be

without power to grant petitioner relief. A district court lacks the authority to

reinstate a habeas petitioner’s second or successive petition for writ of habeas

corpus after the Court of Appeals declines to grant petitioner leave to file such a

petition. See White v. Carter, 27 Fed. Appx. 312, 313-14 (6th Cir. 2001).

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

4

2:15-cv-10908-AJT-MJH Doc # 3 Filed 03/19/15 Pg 4 of 5 Pg ID 144
Boles v. Hoffner, U.S.D.C. No. 2:15-CV-10908

authorization. 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. See Galka v. Caruso, 599 F. Supp. 2d 854, 857

(E.D. Mich. 2009). Although neither party raised the issue of this being a second

or successive petition, it is appropriate for this Court to consider the issue sua

sponte because subject matter jurisdiction goes to the power of the courts to

render decisions under Article III of the Constitution. See Williams v. Stegall, 945

F. Supp. 145, 146 (E.D. Mich. 1996). 

IV. Conclusion

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).

 s/Arthur J. Tarnow

HONORABLE ARTHUR J. TARNOW

Dated: March 19, 2015 UNITED STATES DISTRICT JUDGE

5

2:15-cv-10908-AJT-MJH Doc # 3 Filed 03/19/15 Pg 5 of 5 Pg ID 145