United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
Stephanie K. Bowman United States Magistrate Judge.
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.
raises the following single ground for relief in the
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).
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).
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. §
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.
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).
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. ...