Harvey Lee Preston v. Terry Wilkins

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION HARVEY LEE PRESTON, Petitioner, Case No. 4:25-cv-14066 Hon. Shalina D. Kumar v. TERRY WILKINS, Respondent. _____________________________/ ORDER TRANSFERRING SUCCESSIVE HABEAS PETITION TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Harvey Lee Preston (“Preston”) filed this pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. Preston challenges his Michigan convictions for carjacking, first-degree home invasion, unarmed robbery, and second-degree criminal sexual conduct. Preston’s convictions were affirmed on direct 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 his state convictions. The petition was denied on the merits and dismissed with prejudice. Preston v. Gidley, 2017 WL 4572336, at *1 (E.D. Mich. Oct. 12, 2017). The Sixth Case Circuit Court of Appeals denied Preston’s application for a certificate of appealability. Preston v. Smith, 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, the Clerk is DIRECTED to transfer the petition to the United States Court of Appeals for the Sixth Circuit as required by Sims.

s/Shalina D. Kumar Shalina D. Kumar United States District Judge Dated: January 6, 2026