ORDER SUSTAINING OBJECTIONS IN PART, REJECTING REPORT AND RECOMMENDATION, AND TRANSFERRING MOTION TO THE SIXTH CIRCUIT COURT OF APPEALS

THOMAS L. LUDINGTON, District Judge.

On June 16, 2014, Berry filed a motion to vacate his sentence, ECF No. 132. In his motion, he asserts that he received ineffective assistance of counsel and that he is actually innocent of the charges. Because Berry's motion is a second or successive motion pursuant to 28 U.S.C. § 2255, it will be transferred to the Sixth Circuit Court of Appeals.

I

On September 10, 2007, a jury convicted Berry of three counts of Possession with Intent to Distribute Cocaine Base, 21 U.S.C. § 841(a)(1), and one count of felon in possession of a firearm, 18 U.S.C. § 922(g)(1). On December 21, 2007, he was sentenced to 360 months' imprisonment. J. 3, ECF No. 85.

On June 30, 2010, Berry filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, which this Court denied. See Mot. Vacate Under 28 U.S.C. 2255, ECF No. 104; Order, ECF No. 111.

On June 16, 2014, Berry filed the instant motion to vacate his sentence. Mot. Vacate, ECF No. 132. This Court referred the motion to the United States Magistrate Judge. The Magistrate Judge noted that, although Berry titled the motion as "Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2255(F)(3)", it appeared that he was actually seeking relief pursuant to 28 U.S.C. § 2241. Accordingly, the Magistrate Judge recommended that Berry's motion be construed as a motion pursuant to § 2241, and she further recommended that the motion be denied.1

II

On November 17, 2014, Berry timely filed objections to the Magistrate Judge's report and recommendation.

Pursuant to Federal Rule of Civil Procedure 72, a party may object to and seek review of a magistrate judge's report and recommendation. See Fed. R. Civ. P. 72(b)(2). If objections are made, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). Objections must be stated with specificity. Thomas v. Arn, 474 U.S. 140, 151 (1985) (citation omitted). "Only those specific objections to the magistrate's report made to the district court will be preserved for appellate review." Carson v. Hudson, 421 F. App'x 560, 563 (6th Cir. 2011) (quoting Souter v. Jones, 395 F.3d 577, 585-86 (6th Cir. 2005)).

III

Berry's primary objections concern the characterization of his motion. The Magistrate Judge noted that Berry relies on two statutes in filing the motion, and it is unclear which he is actually relying on:

Rep. & Rec. 22. Accordingly, given Berry's heavy reliance on § 2241 in the body of his motion and brief, the Magistrate Judge construed Berry's motion as one pursuant to § 2241.

Berry asserts that this characterization was in error, and that he meant to bring a motion pursuant to § 2255. He maintains that he is seeking to have his conviction vacated, which is the province of § 2255 motions: "So, let the record reflect that Petitioner's sentence can be vacated by this Honorable Court, based on statutory error because it resulted in a miscarriage of justice ... making relief under 2255 appropriate." Objs. 3-4. In other words, Berry admits that his original motion may have been unclear,2 but that he is firmly arguing that his conviction should be vacated pursuant to § 2255 instead of § 2241.

Berry's objection will be sustained, and his motion will be construed as a motion pursuant to § 2255. Pro se litigants are treated to less stringent pleading requirements. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). As such, Berry is free to choose which standard—§ 2255 or § 2241—he is proceeding under, and this Court will respect his choice.3 Accordingly, Berry's third objection will be sustained and his current petition will be treated as a petition brought pursuant to § 2255.

Because this Court will construe Berry's petition as a petition pursuant to § 2255, it cannot address his remaining objections. Berry has already filed a § 2255 petition on June 30, 2010, and this Court denied the 2010 petition on April 29, 2011. See ECF No. 111. Therefore, Berry's June 2014 petition is a second or successive § 2255 petition.

Before a second or successive motion to vacate sentence is filed in a federal district court, an inmate shall first file a motion with the Sixth Circuit Court of Appeals requesting permission to file a second or successive motion to vacate sentence. In re Hanserd, 123 F.3d 922, 934 (6th Cir. 1997). If a second or successive motion to vacate sentence is erroneously filed with the district court, the court should transfer the motion to the Sixth Circuit pursuant to 28 U.S.C. § 1631. Id. (citing In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Under the AEDPA, a federal district court does not have jurisdiction to entertain a successive post-conviction motion or petition for writ of habeas corpus in the absence of an order from the court of appeals authorizing the filing of such a successive motion or petition. Ferrazza v. Tessmer, 36 F.Supp.2d 965, 971 (E.D. Mich. 1999). Unless the Sixth Circuit Court of Appeals has given its approval for the filing of a second or successive petition, a district court in the Sixth Circuit must transfer the petition to the Sixth Circuit Court of Appeals no matter how meritorious the district court believes the claim to be. Id. This Court will therefore transfer this matter to the Sixth Circuit for a determination of whether Berry is entitled to a certificate of authorization to file a second motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

And because this Court is without jurisdiction to make a determination on the merits, this Court cannot address Berry's remaining substantive objections concerning his § 2255.

IV

Accordingly, it is ORDERED that Berry's objections are SUSTAINED IN PART.

It is further ORDERED that the Report and Recommendation is REJECTED.

It is further ORDERED that the Clerk of the Court shall transfer the motion vacate his sentence, ECF No. 132, to the United States of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 for a determination of whether Berry can file a second or successive motion to vacate his sentence pursuant to 28 U.S.C. § 2255.