UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION Harvey Lee Preston, Petitioner, Case Number: 23-cv-12974 Honorable Sean F. Cox Vv. John Davids, Respondent. ORDER TRANSFERRING CASE TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Harvey Preston has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1.) Preston challenges his convictions following a jury trial in Oakland County Circuit Court for carjacking, first-degree home invasion, unarmed robbery, and second-degree criminal sexual conduct. These 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). Preston previously filed a federal habeas petition challenging the same convictions at issue in this case. The petition was denied on the merits and dismissed with prejudice. Preston v. Gidley, No. 2:14-cv-10606, 2017 WL 4572336, at *1 (E.D. Mich. Oct. 12, 2017). The Sixth Circuit Court of Appeals denied Preston’s application for a certificate of appealability. Preston v. Smith, No. 17-2389, 2018 WL 2222599 (6th Cir. Apr. 25, 2018). Before filing a habeas petition challenging a conviction previously 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). Preston filed the present petition under 28 U.S.C. § 2241, rather than § 2254. However, labeling the petition as filed under § 2241 does not render inapplicable the restrictions on successive petitions. Section “2254 [is] the exclusive vehicle for prisoners in custody pursuant to a state court judgment who wish to challenge anything affecting that custody, because it makes clear that bringing an action under § 2241 will not permit the prisoner to evade the requirements of § 2254.” Greene v. Tennessee Dep’t of Corrections, 265 F.3d 369, 371 (6th Cir. 2001) (internal quotation omitted). See also Rittenberry v. Morgan, 468 F.3d 331, 336-37 (6th Cir. 2006) (finding that where a petitioner challenges the fact that he is in custody pursuant to the judgment of a state court, his § 2241 petition is subject to the procedural requirements of § 2254); Long v. Commonwealth of Kentucky, 80 Fed. App’x 410, 414 (6th Cir. 2003) (holding that the restrictions on successive petitions in 28 U.S.C. § 2244(b) apply to habeas petitions filed by a state prisoner under 28 U.S.C. § 2241, the general habeas statute); Byrd v. Bagley, 37 Fed. App’x 94, 95 (6th Cir.2002) (same). If a petitioner could circumvent the restrictions on successive petitions simply by labeling a petition a § 2241 petition, “then § 2254 would serve no function at all. It would be a complete dead letter, because no state prisoner would choose to run the gauntlet of § 2254 restrictions when he could avoid those limitations simply by writing ‘§ 2241’ on his petition for federal post-conviction relief.” Medberry v. Crosby, 351 F.3d 1049, 1060-61 (11th Cir. 2003). Federal district courts lack jurisdiction to consider successive habeas petitions absent preauthorization from the court of appeals. Franklin v. Jenkins, 839 F.3d 465, 473 (6th Cir. 2016) (citing 28 U.S.C. § 2244(b)(3)). When a petitioner files a second or successive habeas petition in the district court without preauthorization, the district court must transfer the case to the court of appeals. See 28 U.S.C. § 1631; Sims v. Terbush, 111 F.3d 45, 47 (6th Cir. 1997). Preston has not obtained appellate authorization to file a successive habeas petition as required under 28 U.S.C. § 2244(b)(3)(A). Accordingly, IT IS ORDERED that the Clerk of the Court shall transfer this case to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 fora determination of whether Petitioner may file a successive petition. SO ORDERED. Dated: January 5, 2024 s/Sean F. Cox Sean F. Cox U. S. District Judge