IN RE: ANTHONY CIAVONE (2017)

ORDER

Anthony Ciavone, a pro se Michigan prisoner, moves this court for an order authorizing the district court to consider a second or successive 28 U.S.C. § 2254 habeas corpus petition. See 28 U.S.C. § 2244(b). He also moves this court to order the respondent to produce Rule 5 materials and for release pending appeal.

In 2004, a Wayne County Circuit Court jury found Ciavone guilty of first-degree murder and felony murder. Ciavone was sentenced to a term of life imprisonment on each charge. The Michigan Court of Appeals affirmed Ciavone's convictions but vacated one of his two life sentences on the basis of double jeopardy. People v. Ciavone, No. 256187, 2007 WL 4322168 (Mich. Ct. App. Dec. 11, 2007). Ciavone filed a motion for reconsideration, seeking to expand the remand with a claim that 36th District Court Judge Theodore C. Wallace had fraudulently signed an order stating that Ciavone had either waived a competency evaluation or had been found competent after a hearing—a hearing that, according to Ciavone, never occurred. The appellate court denied relief and the Michigan Supreme Court denied leave to appeal. People v. Ciavone, 764 N.W.2d 254 (Mich. 2009) (Mem.). Ciavone then filed two unsuccessful motions for relief from judgment wherein he claimed a due process violation with respect to his competency and new evidence relating to a competency evaluation.

In October 2011, Ciavone filed his first habeas petition, raising, among other claims, that his right to due process was violated in connection with the state court's failure to have him evaluated for competency. The district court directed the respondent to produce a transcript of Ciavone's competency hearing, if available. The respondent investigated the existence of the transcript and informed the district court that no records, other than the trial court docket entries, could be located. The district court thereafter denied Ciavone's habeas petition but certified Ciavone's competency claim for appeal. This court denied an application for an expanded certificate of appealability.

In December 2014, the respondent filed a motion to vacate and remand in this court, explaining that the missing transcript of the competency hearing had been located and the district court should be given an opportunity to rule on the competency claim with the aid of the transcript. Ciavone filed a motion in response to the respondent's motion to vacate, alleging fraud upon the court and claiming that the respondent had fabricated the transcript. He also filed his own motion to remand in order for the district court to resolve his claims of fraud upon the court. After consideration, this court granted both motions to remand and remanded the action for reconsideration of Ciavone's competency claim in light of the transcript. The court denied Ciavone's motion alleging fraud upon the court, but advised that he could argue the authenticity of the competency hearing transcript on remand.

On remand, after consideration of the competency hearing transcript and a letter from the court reporter, the district court concluded that there was no plausible evidence to suggest that the transcript was inauthentic or fraudulent. With the benefit of that transcript, the district court concluded that Ciavone's competency claim lacked merit. The district court therefore denied Ciavone's habeas petition but, once again, granted a certificate of appealability on Ciavone's competency claim. This court certified two additional issues for appeal: 1) whether the district court abused its discretion when it considered the December 17, 2003, competency hearing transcript, in violation of Cullen v. Pinholster, 563 U.S. 170 (2011); and 2) if properly considered under Pinholster, whether the district court abused its discretion by ignoring evidence that the competency hearing transcript was not authentic.

After consideration, this court concluded that: (1) the district court did not err in considering the competency hearing transcript; (2) the district court did not abuse its discretion by concluding that the transcript was authentic; and (3) the transcript disposed of most of Ciavone's underlying habeas claims, and the remaining claims lacked merit. Accordingly, this court affirmed the district court's denial of Ciavone's § 2254 petition.

In his current motion, Ciavone seeks authorization to file a second or successive habeas petition to raise the following claims: (1) his right to due process was violated when he was not present at trial; (2) trial counsel committed fraud on the court during the alleged competency hearing; and (3) his right to due process was denied where he was denied the transcript of the competency hearing when he ordered it. Ciavone asserts that these claims were newly discovered during the remand of his prior habeas petition and appeal to this court and that they have never been adjudicated on their merits.

To obtain our permission to file a second or successive petition under 28 U.S.C. § 2254 raising a new claim, a petitioner must make a prima facie showing that his application presents a claim which “relies on a new rule of constitutional law, made retroactive ․ by the Supreme Court” or presents facts that “could not have been discovered previously” and would establish the petitioner's actual innocence by clear and convincing evidence. 28 U.S.C. § 2244(b)(2).

Ciavone has not made such a showing. He does not cite a new rule of constitutional law that is applicable to his case and his claims do not meet the newly discovered evidence standard. In fact, Ciavone has set forth no additional evidence that was not made part of the record during the consideration of his first habeas petition.

We DENY Ciavone's motion for authorization and DENY his other pending motions.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk