In re: Kenneth Smith v., 2012 U.S. App. LEXIS 17926

Smith filed a numerically second petition for a writ of habeas corpus in district court arguing the claims were newly ripe and not second or successive under § 2244(b).
The district court was uncertain whether the petition was second or successive and transferred it to us for jurisdictional decision in the first instance.
Supreme Court and Sixth Circuit law permit district courts to decide newly ripe claims without authorization when a petition is not second or successive.
Sims instructs district courts to transfer only petitions that are truly 'successive' to the court of appeals, not to use a transfer for advisory jurisdiction on uncertain questions.
The district court’s transfer order was found premature because it did not conclusively determine whether the petition was second or successive.
The appellate court vacated the transfer and remanded to determine, in the first instance, whether Smith’s claims are successive under § 2244(b).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Smith's petition is second or successive under § 2244(b)	Smith's claims are newly ripe and thus not second or successive.	The district court must determine jurisdiction; if second or successive, authorization is required.	Remanded to determine in the first instance whether the petition is second or successive.

Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (no authorization needed for non‑successive second petitions)
Magwood v. Patterson, 130 S. Ct. 2788 (2010) (district court may consider merits of new petition without authorization if not successive)
In re Sims, 111 F.3d 45 (6th Cir. 1997) (transfer for uncertain jurisdiction; not a mechanism for advisory transfer)
Martinez-Villareal, 523 U.S. 637 (1998) (establishes framework for whether a petition is second or successive)
Bowen, 436 F.3d 699 (6th Cir. 2006) (non‑second petitions may proceed to merits)