UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES SIMPSON,

Petitioner, 

v.

BLAINE LAFLER,

Respondent. 

/

Case Number: 2:09-CV-11998

HON. GEORGE CARAM STEEH

OPINION AND ORDER TRANSFERRING 

SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS

TO UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Petitioner James Simpson, a state prisoner currently incarcerated at the Carson City

Correctional Facility in Carson City, Michigan, has filed a pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions for second-degree

murder, assault with intent to commit murder, and felony firearm. Petitioner previously has filed

a habeas corpus petition challenging these convictions. The Court finds that the pending petition

constitutes a successive petition over which the Court lacks jurisdiction. Therefore, the Court

transfers the matter to the Court of Appeals so that Petitioner may seek permission to file a

successive petition.

On August 13, 2001, Petitioner filed a habeas corpus petition in this district, challenging

the same convictions challenged in the pending petition. That matter was assigned to the

Honorable David M. Lawson. The District Court dismissed the petition with prejudice because

the petition was time-barred. See Simpson v. Howes, No. 01-cv-10307 (E.D. Mich. June 10,

2002) (Lawson, J.). The Sixth Circuit Court of Appeals has held that when a habeas corpus

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petition is dismissed based on a procedural bar, such a dismissal is a dismissal “on the merits.” 

In re Cook, 215 F. 3d 606, 607 (6th Cir. 2000). Accord Villanueva v. United States, 346 F.3d 55,

61 (2d Cir. 2003) (holding that a dismissal of a suit as untimely is a dismissal on the merits). 

Therefore, Petitioner’s prior habeas petition, which was dismissed as untimely, was a dismissal

on the merits. 

Before a prisoner may file a habeas petition challenging a conviction already challenged

in a prior habeas petition, the prisoner must “move in the appropriate court of appeals for an order

authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Petitioner

has not obtained from the Court of Appeals for the Sixth Circuit authorization to file a second or

successive petition in this Court. The Sixth Circuit has held that “when a second or successive

petition for habeas corpus relief or § 2255 motion is filed in the district court without §

2244(b)(3) authorization from this court, the district court shall transfer the document to this court

pursuant to 28 U.S.C. § 1631.” In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).

Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus be

TRANSFERRED to the United States Court of Appeals for the Sixth Circuit. 

Dated: June 4, 2009

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

June 4, 2009, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk

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