SUPPLEMENTAL REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, Magistrate Judge.
This case is before the Court on Defendant's Objections (Doc. No. 476) to the Magistrate Judge's Report and Recommendations (the "Report, " Doc. No. 474). Judge Rice has ordered the case recommitted for the Magistrate Judge to file a supplemental report after having considered Defendant's Objections (Doc. No. 477).
The Report noted that this was Mr. Dewitt's third-filed Motion to Vacate under 28 U.S.C. § 2255 (as Mr. Dewitt admits on the face of the Motion)(Doc. No. 473, the "Third 2255 Motion") and concluded Dewitt was precluded from proceeding in this Court without prior permission from the Sixth Circuit Court of Appeals (Doc. No. 474, PageID 2309). The Report recommended dismissal without prejudice pending circuit court approval. Id.
§ 2255 as amended by the AEDPA provides:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain -
(1) newly discovered evidence which, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
In the Third 2255 Motion, Dewitt pleads one Ground for Relief:
Under Missouri v. Frye, 132 S.Ct. 1399 (2012) and Lafler v. Cooper, 132 S.Ct. 1376 (2012), trial counsel's erroneous advice and misrepresentation regarding the nature and consequences of Dewitt's decision to proceed to trial falls below the wide range of professional competence demanded the Sixth Amendment which deprived Dewitt of effective assistance of counsel.
(Third 2255 Motion, Doc. No. 473, PageID 2300.)
In his Objections, Dewitt asserts his Third 2255 Motion is not a second or successive motion to vacate such as would require prior permission from the court of appeals because it is dependent on a new constitutional right recognized by the Supreme Court in Missouri v. Frye, 566 U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and Lafler v. Cooper, 566 U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).
Much of Dewitt's argument is directed to showing that his Third Motion is timely because it was filed within one year of the decisions in Frye and Lafler, both of which were handed down on March 21, 2012. However, the Report did not recommend dismissal on timeliness grounds. If Frye or Lafler had recognized a new constitutional right and made it retroactively applicable to cases pending on collateral review, the Third Motion would be timely because it was filed exactly a year after those two cases were decided. Timeliness, however, is not the issue.
The Magistrate Judge also agrees that, if Frye or Lafler had recognized a new constitutional right and made it retroactively applicable to cases pending on collateral review, Dewitt would not have to seek permission from the circuit court before filing. Dewitt cites Panetti v. Quarterman, 551 U.S. 930 (2007), and Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), both of which support the proposition that second or successive permission is not needed when the facts giving rise to a habeas or § 2255 claim arise after a prior petition has been decided. But the same thing is also true when the law changes to recognize a right which had not been recognized at the time the prior petition was ruled on. For example, in Bailey v. United States, 516 U.S. 137 (1995), the United States Supreme Court unanimously construed the term "use" in 18 U.S.C. § 924(c)(1) to mean "active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense, " a much narrower construction of that term than had been common in the circuit courts. The Sixth Circuit held successive § 2255 Motions raising Bailey issues could be filed without Circuit Court permission under the AEDPA. In re Hanserd, 123 F.3d 922 (6th Cir. 1997).
Dewitt argues the retroactivity decision required by 28 U.S.C. § 2255(f)(3) can be made by any inferior federal court and need not be made by the Supreme Court (Objections, Doc. No. 476, PageID 2315), citing Wiegand v. United States, 380 F.3d 890 (6th Cir. 2004). Here again Dewitt confuses the issues of timeliness and whether a motion is second or successive. In Wiegand the Sixth Circuit found an inferior federal court could decide the retroactivity question for purposes of the statute of limitations in § 2255(f)(3) by expressly contrasting (f)(3) with (h)(2). As quoted above, the (h)(2) language expressly requires that the new right be made retroactively applicable by the Supreme Court. This Court has previously held that Frye and Lafler do not recognize new rights which are retroactively applicable on collateral review. Rodriquez-Vilchis v. United States, 2012 U.S. Dist. LEXIS 171058 (S.D. Ohio Dec. 3, 2012)(withdrawn on other grounds 2012 U.S. Dist. LEXIS 182995), citing In re: Michael ...