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Stenson v. Warden, Warren Correctional Institution

United States District Court, S.D. Ohio, Western Division

January 6, 2017

CHRISTOPHER STENSON, Petitioner,
v.
WARDEN, WARREN CORRECTIONAL INSTITUTION, Respondent.

          BLACK, J.

          REPORT AND RECOMMENDATION

          Stephanie K. Bowman United States Magistrate Judge.

         Petitioner, an inmate in state custody at the Warren Correctional Institution in Lebanon, Ohio, has filed a pro se petition for writ of habeas corpus challenging his March 7, 2014 Hamilton County, Ohio convictions and sentence in case number B-1207554. (Doc. 1). This matter is before the Court on respondent's motion to transfer the petition to the Sixth Circuit (Doc. 8) and petitioner's response in opposition. (Doc. 9).

         Petitioner raises the following single ground for relief in the petition:

GROUND ONE: Alleged “State Court” proceedings were contrary to treaty, law and constitution of the United States as trial court was without jurisdiction in unceded Indian Territory, rendering proceedings void ab initio pursuant to Worchester v. Georgia.

(Doc. 1, Petition at PageID 4).

         This is not the first federal habeas corpus petition filed by petitioner with this Court challenging his Hamilton County conviction and sentence. On November 24, 2014, petitioner filed his first habeas petition. See Stenson v. Warden, Case No. 1:14-cv-897 (S.D. Ohio Nov. 24, 2014) (Black, J.; Merz, M.J.) (Doc. 1). Petitioner raised the following two grounds for relief in his prior petition:

Ground One: I, the petitioner is being unlawfully imprisoned because Case No. B-1207554 did not make it to its proper jurisdiction which is the United States Supreme Court. Article III; the Judicial Branch section 2/clause 2 of U.S. Constitution Article VI; National Debt/Supremacy of the national government clause 2/clause 3 of U.S. Constitution.
Ground Two: When the State of Ohio became a party to Case No. B-1207554, it was supposed to go directly to the United States Supreme. Since the case never made it to its proper jurisdiction, this is a violation of my due process pursuant to the 5th and 14th amendments of the U.S. Constitution, and Article III; the Judicial Branch section 2/clause 2, and Article VI; National Debt/Supremacy of the national government clause 2/clause 3 of the U.S. Constitution

(Id. at PageID 5-6). On January 15, 2016, following a stay pending exhaustion of state court remedies, the Court found petitioner's grounds for relief to be without merit and dismissed the petition with prejudice. (See id., Doc. 18, 19).

         Pursuant to 28 U.S.C. § 2244(b)(1), the federal district court must dismiss a claim presented in a second or successive habeas corpus petition that was raised in a prior petition. In addition, the court must dismiss a claim presented in a second or successive petition, which the petitioner did not include in the prior petition, unless: (1)(a) petitioner shows the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court, that was previously unavailable; or (b) the factual basis for the claim could not have been discovered previously through the exercise of due diligence; and (2) the facts would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2244(b)(2).

         Before the district court may consider a successive petition, the petitioner must first request and obtain authorization for such consideration from the court of appeals. 28 U.S.C. § 2244(b)(3). The court of appeals may authorize the district court to consider a successive petition only if petitioner makes the prima facie showing described above. Id. See Magwood v. Patterson, 561 U.S. 320, 330-31 (2010); In re Cook, 215 F.3d 606, 607 (6th Cir. 2000). The subsequent petition must relate to the same conviction or sentence under attack in the prior petition to be “successive” within the meaning of the statute. See In re Page, 179 F.3d 1024, 1025 (7th Cir. 1999) (and cases cited therein). However, not all subsequent petitions relating to the same conviction or sentence are considered successive. See Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). Otherwise, “a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review.” Id. at 645.

         Courts have held that a later petition is not successive where the first petition was dismissed as premature, see id.; the first petition was dismissed without prejudice for failure to exhaust state court remedies, see Slack v. McDaniel, 529 U.S. 473, 485-86 (2000); Carlson v. Pitcher, 137 F.3d 416 (6th Cir. 1998); the second petition was filed after a remedial appeal ordered in response to the prior petition, see Storey v. Vasbinder, 657 F.3d 372, 377-78 (6th Cir. 2011); or the first petition was dismissed because petitioner failed to either pay the filing fee or provide proper support for his application for pauper status, see Stewart, 523 U.S. at 645 (citing Marsh v. United States Dist. Court for the N. Dist. of California, No. C-94-0581-VRW, 1995 WL 23942 (N.D. Cal. Jan. 9, 1995)). In all of those contexts, the district court had jurisdiction to consider the subsequent petitions without first obtaining authorization from the court of appeals, because the prior dispositions were not “on the merits.” See Slack, 529 U.S. at 485-86; Carlson, 137 F.3d at 419; Camarano v. Irvin, 98 F.3d 44, 46-47 (2nd Cir. 1996); cf. Storey, 657 F.3d at 377-78 (where initial petition involved disposition of only one constitutional claim-i.e., whether the petitioner was entitled to a new direct appeal).

         In contrast, when a prior petition is dismissed because the petitioner procedurally defaulted his claims in state court, the dismissal qualifies as a decision “on the merits.” In such a case, the prisoner must obtain authorization from the court of appeals pursuant to § 2244(b)(3) before filing a subsequent federal habeas application. In re Cook,215 F.3d 606, 608 (6th Cir. 2000); Carter v. United States,150 F.3d 202, 205-06 (2nd Cir. 1998). Similarly, when the prior petition is dismissed on the ground that it is barred by the statute of limitations, the dismissal is an adjudication of the merits of the claims, and petitioner must obtain prior authorization from the court of appeals entitling him to file a subsequent petition for habeas corpus relief. See, e.g., McNabb v. Yates,576 F.3d 1028, 1030 (9th Cir. 2009); Murray v. Greiner,394 F.3d 78, 81 (2nd Cir. ...


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