UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARL EMMETT NEAL, 185182,

Petitioner,

v. CASE NO. 08-13935

HONORABLE VICTORIA A. ROBERTS

WILLIE O. SMITH,

Respondent.

________________________________/

ORDER 

(1) TRANSFERRING THE HABEAS PETITION TO THE COURT OF APPEALS

AS A SECOND OR SUCCESSIVE PETITION AND 

(2) DENYING AS MOOT PETITIONER’S MOTIONS FOR

FOR APPOINTMENT OF COUNSEL AND FOR RELEASE ON BOND

Petitioner Carl Emmett Neal has filed a pro se habeas corpus petition pursuant to

28 U.S.C. § 2254. He claims that (1) he is actually innocent of the crimes for which he

stands convicted and (2) his trial attorney was ineffective due to the attorney’s addiction

to cocaine. Respondent Willie O. Smith argues in an answer to the petition filed through

counsel that the petition constitutes an unauthorized second or successive petition

under 28 U.S.C. § 2244(b). The Court agrees. Consequently, the petition will be

transferred to the Court of Appeals for a determination of whether the Court may

adjudicate the substantive merits of Petitioner’s claims.

I. Background

In 1991, Petitioner was convicted of two counts of second-degree murder, one

count of first-degree criminal sexual conduct (CSC), and two counts of felony firearm. 
2

The trial court sentenced Petitioner to life imprisonment for each murder conviction,

forty to eighty years for the CSC conviction, and two years for each felony firearm

conviction. The Michigan Court of Appeals affirmed Petitioner’s convictions, and the

Michigan Supreme Court denied leave to appeal on May 27, 1994. Petitioner pursued

post-conviction remedies in state court without success. 

On February 2, 2001, Petitioner filed his first habeas corpus petition. United

States Magistrate Judge Paul J. Komives recommended that the petition be dismissed

because it was barred by the one-year statute of limitations, 28 U.S.C. § 2244(d). 

Former United States District Judge Paul V. Gadola adopted Magistrate Judge

Komives’ Report and Recommendation as his opinion and dismissed the petition. See

Neal v. Crowley, No. 00-40443 (E.D. Mich. Aug. 28, 2001) (unpublished). The United

States Court of Appeals for the Sixth Circuit subsequently denied a certificate of

appealability as to all issues. See Neal v. Crowley, No. 01-2658 (6th Cir. Sept. 18,

2002) (unpublished). Petitioner filed the pending petition on September 11, 2008. 

II. Discussion

 Petitioner is challenging the same murder, CSC, and felony firearm convictions

that he attacked in his first petition, which was dismissed as time-barred. “[D]ismissal of

a section 2254 habeas petition for failure to comply with the statute of limitations

renders subsequent petitions second or successive for purposes of . . . 28 U.S.C. §

2244(b).” McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Therefore, the

pending petition is a second or successive petition.

“If an application is ‘second or successive,’ the petitioner must obtain leave from

the Court of Appeals before filing it with the district court.” Magwood v. Patterson, __
 1 Section 1631 provides that,

[w]henever a civil action is filed in a court . . . and that court finds that there

is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer

such action . . . to any other such court in which the action . . . could have

been brought at the time it was filed . . . , and the action . . . shall proceed as

if it had been filed in . . . the court to which it is transferred on the date upon

which it was actually filed in . . . the court from which it was transferred.

3

U.S. __, __, 130 S. Ct. 2788, 2796 (2010); see also 28 U.S.C. § 2244(b)(3)(A) (stating

that, “[b]efore a second or successive application permitted by this section is filed in the

district court, the applicant shall move in the appropriate court of appeals for an order

authorizing the district court to consider the application.”). When a habeas petitioner

files a second or successive petition for habeas corpus relief in the district court without

prior authorization from the Court of Appeals, the district court must transfer the petition

to the Court of Appeals pursuant to 28 U.S.C. § 1631.1

 In re Sims, 111 F.3d 45, 47 (6th

Cir. 1997). 

Petitioner has not obtained permission from the Court of Appeals to file a second

or successive habeas petition. The Court therefore ORDERS the Clerk of the Court to

transfer the habeas petition to the Court of Appeals for a determination of whether this

Court may adjudicate the substantive merits of Petitioner’s claims. Petitioner’s motion

for appointment of counsel [Dkt. #15] and his motion for release on bond [Dkt. #16] are

DENIED as moot. 

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: August 27, 2010
The undersigned certifies that a copy of this

document was served on the attorneys of

record and Carl Neal by electronic means or

U.S. Mail on August 27, 2010.

s/Carol A. Pinegar 

Deputy Clerk