UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WARDELL FORD,

Petitioner, Civil No. 5:15-CV-11366

HONORABLE JOHN CORBETT O’MEARA

v. UNITED STATES DISTRICT JUDGE

RANDALL HAAS,

Respondent,

/

OPINION AND ORDER TRANSFERRING CASE TO THE COURT OF

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

I. Introduction

Wardell Ford, (“petitioner”), presently confined at the Macomb Correctional

Facility in New Haven, Michigan, 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 1991 conviction for first degree murder, M.C.L.A. 750.316; armed robbery,

M.C.L.A. 750.529; and felony-firearm, M.C.L.A. 750.227b. Petitioner has

previously filed a petition for a writ of habeas corpus challenging this conviction. 

The petition was denied on the merits. Ford v. Curtis, U.S.D.C. 98-CV-75037-DT

(E.D. Mich. December 15, 1999)(Cleland, J.); aff’d. 277 F. 3d 806 (6th Cir. 2002);

cert. den. 537 U.S. 846 (2002). For the following reasons, the Court transfers this

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case to the Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A).

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 post-conviction 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. Hervey v.

United States, 105 F. Supp. 2d 731, 735 (E.D. Mich. 2000)(citing Ferrazza v.

Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich. 1999)). 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 735-36; See also In Re Sims, 111 F. 3d 45, 47 (6th Cir. 1997). 

Petitioner previously filed a habeas petition with the federal courts. 

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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. 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.

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). Because this appears to be a second or successive habeas petition, it

would be error for this Court to dismiss the petition as being time barred, rather

than transfer it to the Sixth Circuit, because such a timeliness inquiry would be

premature prior to any determination by the Sixth Circuit whether petitioner should

be given authorization pursuant to 28 U.S.C. § 2244(b)(3)(A) to file a successive

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habeas petition. See In Re McDonald, 514 F. 3d 539, 543-44 (6th Cir. 2008).

III. 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/John Corbett O’Meara 

United States District Judge

Date: April 17, 2015

I hereby certify that a copy of the foregoing document was served upon the

parties of record on this date, April 17, 2015, using the ECF system and/or

ordinary mail.

s/William Barkholz 

Case Manager

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