Weissert 632314 v. Morrison

• Court: District Court, W.D. Michigan
• Decided: January 12, 2021
• Docket: 1:20-cv-01225
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

DOUGLAS WEISSERT,

Petitioner, Case No. 1:20-cv-1225

v. Honorable Hala Y. Jarbou

BRYAN MORRISON,

Respondent. ____________________ _______/ OPINION

This is a habeas corpus action filed by a state prisoner under 28 U.S.C. § 2254. Petitioner Douglas Weissert is incarcerated with the Michigan Department of Corrections at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. This is not Petitioner’s first habeas corpus action challenging his convictions and sentences. On August 23, 2010, Petitioner filed a petition in this Court. The petition was dismissed on September 25, 2015, for failure to raise a meritorious federal claim. Petitioner’s current petition is subject to the “second or successive” provision of the Antiterrorism and Effective Death Penalty Act, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). 28 U.S.C. § 2244(b); see also Cress v. Palmer, 484 F.3d 844, 852 (6th Cir. 2007). A successive petition raises grounds identical to those raised and rejected in a prior petition. Kuhlmann v. Wilson, 477 U.S. 436, 444 n.6 (1986) (plurality) (citing Sanders v. United States, 373 U.S. 1, 15- 17 (1963)); Lonberger v. Marshall, 808 F.2d 1169, 1173 (6th Cir. 1987). A second petition is one which alleges new and different grounds for relief after a first petition was denied. McCleskey v. Zant, 499 U.S. 467, 470 (1991); see also Burger v. Zant, 984 F.2d 1129, 1132-33 (11th Cir. 1993) (distinguishing second petitions and successive petitions). A prior dismissal with prejudice has a preclusive effect under § 2244, though a prior dismissal without prejudice does not. See Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998). Both dismissals on the merits and certain types of decisions reached before a merits

determination are dismissals with prejudice that have a preclusive effect. Carlson v. Pitcher, 137 F.3d 416, 419 (6th Cir. 1997) (citing Benton v. Washington, 106 F.3d 162, 164 (7th Cir. 1996)). For example, a dismissal with prejudice based on procedural default is “on the merits” and, thus, a subsequent habeas application would be second or successive. In re Cook, 215 F.3d 606, 608 (6th Cir. 2000). Similarly, a dismissal on the basis of the statute of limitations is a decision on the merits, rendering a subsequent application second or successive. See Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (“We hold that dismissal of a § 2254 petition for failure to comply with the one-year statute of limitations constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction ‘second or successive’ petitions under § 2244(b).”).

Petitioner’s previous habeas action was dismissed on the merits; thus, the instant petition is second or successive. Before a second or successive application may be filed in the district court, the applicant must move in the court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A); see also Tyler v. Cain, 533 U.S. 656, 661 n.3 (2001) (circuit court may authorize the petition upon a prima facie showing that the claim satisfies § 2244(b)(2); to survive dismissal in the district court, the application must actually show the statutory standard). Typically, the petitioner does not seek the approval of the Sixth Circuit Court of Appeals before filing his or her petition. The appropriate disposition of such a petition is a transfer of the case to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Petitioner, however, has sought the approval of the Sixth Circuit Court of Appeals to file a second or successive petition—three times this year. See In re: Douglas Weissert, No. 20- 1203 (6th Cir.); In re: Douglas Weissert, No. 20-1138 (6th Cir.); In re: Douglas Weissert, No. 20-

1874 (6th Cir.). The Sixth Circuit has denied the first two such requests, Weissert v. Palmer, No. 1:10-cv-851 (May 29, 2020 Order, ECF No. 95; July 22, 2020 Order, ECF No. 96); the third remains pending. Under these circumstances, there is no point in transferring this petition to the Sixth Circuit as a request for authorization of a second or successive petition. Accordingly, under 28 U.S.C. § 2244(b)(3), the petition is properly dismissed without prejudice. Under 28 U.S.C. § 2253(c)(2), the Court must also determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of

appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001) (per curiam). Rather, the district court must “engage in a reasoned assessment of each claim” to determine whether a certificate is warranted. Id. I have concluded that Petitioner’s application is properly denied as second or successive and without authorization from the Sixth Circuit Court of Appeals as required by 28 U.S.C. § 2244(b)(3). Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only “when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Both showings must be made to warrant the grant of a certificate. Id. I find that reasonable jurists could not find it debatable whether Petitioner’s application should be dismissed as an unauthorized second or successive petition. Therefore, a certificate of appealability will be denied. Moreover, for the same reasons, the Court concludes

that any issue Petitioner might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Conclusion The Court will enter an order and judgment dismissing the petition without prejudice as an unauthorized second or successive petition.

Dated: January 12, 2021 /s/ Hala Y. Jarbou HALA Y. JARBOU UNITED STATES DISTRICT JUDGE