UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Kahri Worthy Smith, 

Petitioner, 

v. 

Bonita Hoffner, 

Respondent. 

________________________________/

Case No. 15-11648 

Judith E. Levy 

United States District Judge 

Mag. Judge Anthony P. Patti 

ORDER TRANSFERRING MOTION FOR RELIEF 

FROM JUDGMENT [28, 29] TO THE SIXTH 

CIRCUIT COURT OF APPEALS 

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

28 U.S.C. § 2254 habeas corpus petition challenging his second-degree 

murder conviction and denied a certificate of appealability. (Dkt. 18.) The 

Court then transferred petitioner’s request to proceed in forma pauperis 

on appeal and for reconsideration of the Court’s denial of the certificate 

of appealability to the Sixth Circuit Court of Appeals. (Dkt. 25.) The Sixth 

Circuit denied both. (Dkt. 26.) Petitioner’s Motion for Relief from 

Judgment under Federal Rule of Civil Procedure 60(b) is before the 

Court. (Dkts. 28, 29.) 
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Rule 60(b) permits a court to “relieve a party . . . from a final 

judgment, order, or proceedings” under limited circumstances. Fed. R. 

Civ. Pro. 60(b). The Antiterrorism and Effective Death Penalty Act of 

1996 (“AEDPA”) does not “expressly circumscribe the operation of Rule 

60(b),” Gonzalez v. Crosby, 545 U.S. 524, 529 (2005), but its “operation” 

in § 2254 proceedings must be consistent with AEDPA. Franklin v. 

Jenkins, 839 F.3d 465, 476 (6th Cir. 2016). And under AEDPA, 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,” § 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. § 2244(b)(2). A Rule 60(b) motion filed in a § 2254 action may 

be a second or successive habeas petition. Gonzalez, 545 U.S. at 530–32. 

A Rule 60(b) 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, 839 F.3d at 473 (quoting Post v. 
3 

Bradshaw, 422 F.3d 419, 424 (6th Cir. 2005)). A petitioner may not use a 

Rule 60(b) motion to “amend 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, 545 U.S. at 

531–32). If the “motion does not attack a determination on the merits,” it 

is not a second or successive habeas application. Tyler v. Anderson, 749 

F.3d 499, 507 (6th Cir. 2014). In other words, “a petitioner does not seek 

to advance new claims ‘when [his] motion “merely asserts that a previous 

ruling which precluded a merits determination was in error—for 

example, a denial for such reasons as failure to exhaust, procedural 

default, or statute-of-limitations bar.”’” Franklin, 839 F.3d at 473 

(quoting Post, 422 F.3d at 424). 

 In his Rule 60 motion, petitioner is advancing new federal claims 

based on the Sixth and Fourteenth Amendments that attack the merits 

of his state court conviction. (Dkts. 28, 29.) First, he argues that the state 

court’s fact-finding procedures were deficient “to afford the petitioner 

with a full and fair hearing.” (Dkt. 28 at 1.) Then, he asserts that the 

state court’s conclusion that a home invasion occurred is an unreasonable 

determination of the facts in light of the evidence. (Id. at 2; Dkt. 29 at 2.) 
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Finally, he argues that the transcript shows witnesses committed 

perjury. (Dkt. 28 at 4–5.) The motion, therefore, is a successive habeas 

petition, and petitioner has not obtained appellate authorization to file a 

subsequent petition. § 2244(b)(3)(A). 

Accordingly, the Clerk of the Court shall TRANSFER the Motion 

for Relief from Judgment (Dkts. 28, 29) 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: March 1, 2019 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 March 1, 2019. 

s/Shawna Burns 

SHAWNA BURNS 

Case Manager