Preston v. Burgess ( 2023 )

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION HARVEY PRESTON, Petitioner, Case No. 4:22-cv-12852 Hon. Shalina D. Kumar v. MIKE BURGESS, Respondent. ________________________________/ ORDER TRANSFERRING SUCCESSIVE HABEAS PETITION TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT I. Before the court is Michigan inmate Harvey Preston’s petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. This is at least Preston’s eighth habeas petition challenging his state court convictions. Petitioner is informed again that he requires authorization from the court of appeals before filing a successive habeas petition. See 28 U.S.C. § 2244(b)(3). The case will therefore be transferred to the Sixth Circuit. See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). II. Petitioner is serving a lengthy prison sentence as a result of his 2010 Oakland Circuit Court convictions for carjacking, first-degree home invasion, unarmed robbery, and second-degree criminal sexual conduct. The convictions were affirmed on appeal. See People v. Preston, No. 298796, 2012 WL 5853223 (Mich. Ct. App. Oct. 30, 2012), leave denied, 829 N.W.2d 225 (Mich. 2013). Petitioner has filed at least seven prior federal habeas cases challenging his convictions. See Preston v. Gidley, No. 14-10606, 2017 WL 4572336 (E.D. Mich. Oct. 12, 2017) (habeas relief denied on merits); Preston v. Parish, No. 20-11670, 2020 U.S. Dist. LEXIS 120741 (E.D. Mich. July 8, 2020) (successive petition transferred to Sixth Circuit); Preston v. Davids, No. 20-13398, 2021 WL 640919 (E.D. Mich. Jan. 14, 2021) (same); Preston v. Burgess, No. 22-11242, 2022 U.S. Dist. LEXIS 138275 (E.D. Mich., Aug. 3, 2022); Preston v. Burgess, 2022 U.S. Dist. LEXIS 146514, 2022 WL 3370771 (E.D. Mich. Aug. 16, 2022) (same); Preston v. Burgess, No. 22-12451 (E.D. Mich. Oct. 25, 2022) (same); Preston v. Burgess, No. 21-12196, 2022 U.S. Dist. LEXIS 202375 (E.D. Mich. Nov. 7, 2022) (same). Additionally, the Sixth Circuit denied Preston permission to file successive § 2254 petitions numerous times. See In re Preston, No. 18- 1847, 2018 U.S. App. LEXIS 33214 (6th Cir. Nov. 26, 2018); In re Preston, No. 20-1641, 2020 U.S. App. LEXIS 38258 (6th Cir. Dec. 8, 2020); In re Preston, No. 21-1071, 2021 U.S. App. LEXIS 14091 (6th Cir. May 12, 2021); In re Preston, No. 21-2620, 2021 U.S. App. LEXIS 28973 (6th Cir. Sept. 23, 2021). III. The Court does not have jurisdiction to entertain a successive habeas petition absent authorization from the Court of Appeals. See Franklin v. Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (citing 28 U.S.C. § 2244(b)(3)). An individual seeking to file a successive habeas petition must first ask the appropriate court of appeals for an order of authorization to file a successive petition. See 28 U.S.C. § 2244(b)(3)(A); see also Felker v. Turpin, 518 U.S. 651, 664 (1996). When a habeas petitioner files a successive petition for habeas corpus relief directly in the district court without first obtaining authorization under § 2244(b)(3)(A), the district court must transfer the case to the court of appeals. See Sims, 111 F.3d at 47; 28 U.S.C. § 1631. IV. Accordingly, it is ORDERED that the Clerk shall transfer the petition to the United States Court of Appeals for the Sixth Circuit. s/Shalina D. Kumar Shalina D. Kumar United States District Judge Date: February 21, 2023