Opinion

In Re John W. BYRD, Jr., Movant

  • 269 F.3d 544
  • 2001 U.S. App. LEXIS 20291
  • 2001 WL 1104777
Court
Court of Appeals for the Sixth Circuit
Filed
Sep 10, 2001
Status
Published
Author
Batchelder
On the bench
Jones, Suhrheinrich, Batchelder
Cited by
5 cases
Authority
More cited than 26.1%

The opinion

BATCHELDER, Circuit Judge,

concurring in part and dissenting in part.

I concur in the result reached in Judge Suhrheinrich’s opinion and in the reasoning therein. I specifically dissent from the granting of a stay of execution and a continuance.

Understanding the procedural posture of this matter is critical to an understanding of why there is no legal basis upon which a stay of execution and a continuation of this matter may be granted. Byrd concedes that the initial determination of whether the AEDPA applies to this case must be made by this court, and not the district court. The vehicle for obtaining that determination is a motion under 28 U.S.C. § 2244 (b)(3) for an order authorizing the filing of a successive petition. Had Byrd simply filed his petition in the district court, that court would have been required under our precedent to transfer the matter here for our determination of whether to authorize the filing. See In re Sims, 111 F.3d 45, 47 (6th Cir.1997). In short, all roads lead to the requirement that Byrd specifically move for authority to file a successive petition.

Having been constrained to treat Byrd’s motion as a motion under 28 U.S.C. § 2244 (b)(3)(A), a majority of this panel has concluded that the motion must be denied because the AEDPA does apply to Byrd’s attempt to obtain habeas relief, and that Byrd cannot satisfy the requirements imposed by the AEDPA on the filing of a successive habeas petition. See 28 U.S.C. § 2244 (b)(2) and (C). And that conclusion is neither appealable nor is it permitted to be the subject of a petition for rehearing or a petition for certiorari. See 28 U.S.C. § 2244 (E).

Because the conclusions of the majority of this panel are final and not appealable, there is simply no basis for granting a stay of execution or a continuance.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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