UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARK JONES, #223008

Petitioner,

v. CIVIL CASE NO. 09-13610

 HONORABLE STEPHEN J. MURPHY, III

WARDEN DAVIS,

Respondent.

________________________________/

ORDER TRANSFERRING CASE TO THE COURT 

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

I. Introduction

Petitioner Mark Jones has filed a pro se habeas corpus petition, which challenges

the execution of Jones’ sentence for possession of a firearm during the commission of a

felony. Jones contends that he was sentenced to two years in prison on November 10,

1993, and finished serving his sentence on November 10, 1995. Although he also was

sentenced to imprisonment for fifteen to forty years as a habitual offender, he maintains

that the habitual offender sentence is void because there can be no separate conviction

and sentence as a habitual offender. 

Jones challenged the same conviction and sentence in a prior habeas corpus

petition. Former United States District Judge (now Circuit Judge) David W. McKeague

denied the petition because the claims were procedurally defaulted. See Jones v.

Hofbauer, No. 2:99-cv-158 (W.D. Mich. Feb. 4, 2002). Jones subsequently applied for

leave to file a second or successive habeas petition, but the United States Court of Appeals

for the Sixth Circuit denied his request. See In re Jones, No. 04-1768 (6th Cir. Dec. 2,

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 1 Section 1631 provides in pertinent part 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.

2

2004). Jones filed the pending habeas corpus petition on September 14, 2009. 

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. 28 U.S.C. § 2244(b)(3)(A); Stewart v. Martinez-Villareal, 523 U.S. 637, 641

(1998). Although Jones filed his habeas petition under 28 U.S.C. § 2241 rather than 28

U.S.C. § 2254, “section 2244(b) applies to any habeas corpus petition seeking relief from

custody pursuant to a state court judgment.” Rittenberry v. Morgan, 468 F.3d 331, 336 (6th

Cir. 2006), cert. denied, 549 U.S. 1353 (2007). When a habeas petitioner files a second

or successive petition for habeas corpus relief in the district court without preauthorization

from the Court of Appeals, the district court must transfer the case to the Court of Appeals

pursuant to 28 U.S.C. § 1631.1

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

Jones has not obtained permission from the Court of Appeals to file another habeas

corpus petition challenging the same conviction and sentence. Accordingly, the Clerk of

the Court is ORDERED to transfer this case to the Court of Appeals pursuant to Sims and

28 U.S.C. § 1631. 

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s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

United States District Judge

Dated: December 23, 2009

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on December 23, 2009, by electronic and/or ordinary mail.

s/Alissa Greer 

Case Manager

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