Harvey Lee Preston v. Chester Dums

• Court: District Court, E.D. Michigan
• Decided: November 18, 2025
• Docket: 5:25-cv-13454
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Harvey Lee Preston,

Petitioner, Case No. 25-cv-13454

v. Judith E. Levy United States District Judge Chester Dums, Mag. Judge Patricia T. Morris Respondent.

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ORDER TRANSFERRING SUCCESSIVE HABEAS PETITION TO THE SIXTH CIRCUIT COURT OF APPEALS

Harvey Lee Preston has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. (ECF No. 1.) Preston challenges his convictions 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, 493 Mich. 969 (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 petitioner 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). 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; In re Sims, 111

F.3d 45, 47 (6th Cir. 1997). Here, 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 for a determination of whether Petitioner may file a successive petition. IT IS SO ORDERED.

Dated: November 18, 2025 s/Judith E. Levy Ann Arbor, Michigan JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or first-class U.S. mail addresses disclosed on the Notice of Electronic Filing on November 18, 2025. s/William Barkholz WILLIAM BARKHOLZ Case Manager