United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge.
this pro se habeas corpus action filed pursuant to
28 U.S.C. § 2254, petitioner challenges his 2011
conviction for assault on a corrections officer in a case
before the Warren County, Ohio, Court of Common Pleas.
(See Doc. 4, at PAGEID#: 36; see also Doc.
2, p. 1 & ft J, at PAGEID#: 25). On January 25, 2017, the
undersigned issued an Order granting petitioner's
application to proceed in forma pauperis and
ordering the petitioner to submit a signed petition and to
show cause in writing "why this action should not be
transferred to the Sixth Circuit Court of Appeals as a
successive petition." (See Doc. 2). The
petitioner has complied with the January 25, 2017 Order by
submitting both a signed petition and a response to the
show-cause order. (Docs. 3-4). Petitioner's submissions
were filed on February 16, 2017. (See id). This
matter is now before the Court on petitioner's response
to the show-cause order. (Doc. 3).
discussed in the January 25, 2017 Order (see Doc.
2), this is not the first habeas corpus petition that
petitioner has filed with this Court challenging his 2011
Warren County Common Pleas Court conviction. In a prior pro
se petition, which petitioner submitted for filing
in August 2014 together with an in forma pauperis
application, petitioner raised claims generally alleging
"police brutality, " ineffective assistance of
counsel, "biased judge, " and "impartial
jury." See Sudherry v. Warden, Southern Ohio Con:
Facility, No. 1:14-cv-676 (Barrett, J.; Bowman, M.J.)
(Docs. 1-2). On September 2, 2014, the magistrate judge
granted petitioner leave to proceed in forma
pauperis, but also recommended that the petition be
dismissed with prejudice pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District
Courts, 28 U.S.C. foil. § 2254, on the ground that it
was "clear from the face of the petition that the
petitioner's grounds for relief are time-barred under the
applicable one-year statute of limitations set forth in 28
U.S.C. § 2244(d)(1)(A)/' Id. (Doc. 3). It
appears from this Court's docket record for Case No.
1:14-cv-676 that petitioner next filed an objection to the
Report and Recommendation and, a month later, filed with the
United States Court of Appeals for the Sixth Circuit an
application for authorization to file a second or successive
§ 2254 petition. See Id. (Docs. 5-6). On June
1, 2015, the Sixth Circuit denied petitioner's
application to file a second or successive petition. (Doc.
6). Thereafter, on July 6, 2015, the District Court issued an
Order and Judgment overruling the petitioner's objections
to the magistrate judge's September 2, 2014 Report and
Recommendation and dismissing the petition with prejudice on
the ground that it was "'clear from the face of the
petition that it is barred by the applicable one-year statute
of limitations set forth in 28 U.S.C. § 2244(d)."
See Id. (Docs. 7-8). Petitioner did not pursue an
appeal to the Sixth Circuit from the District Court's
final ruling in the case.
response to the January 25, 2017 show-cause order, petitioner
does not dispute that he is challenging the same conviction
that was attacked by him in Case No. 1:14-CV-676.
(See Doc. 3).
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
case, because the instant petition relates to the same
conviction or sentence under attack in the prior petition, it
appears 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). Although a
dismissal of a prior habeas petition relating to the same
conviction or sentence will not render the subsequent
petition successive if the dismissal is based on technical
reasons that do not constitute an adjudication "on the
merits, " see Stewart v. Martinez-Villareal,
523 U.S. 637 (1998),  it is well-settled that when the prior
petition is dismissed because the petitioner procedurally
defaulted his claims in state court or because the petition
is barred by the statute of limitations, the dismissal is an
adjudication of the merits of the claims, and the petitioner
must obtain prior authorization from the court of appeals
pursuant to § 2244(b)(3) before filing a subsequent
federal habeas application. See In re Cook, 215 F,
3d 606, 608 (6th Cir. 2000) (involving procedural-default
dismissal); Carter v. United Slates, 150 F.3d 202,
205-06 (2nd Cir. 1998) (same); See also In re Rains,
659 F.3d 1274, 1275 (10th Cir. 2011) (and cases cited
therein) (involving statute-of-limitations dismissal);
McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009)
(same); Murray v. Greiner, 394 F.3d 78, 81 (2nd Cir.
2005) (same); Altman v. Benik, 337 F.3d 764, 766
(7th Cir. 2003) (same); Stokes v. Gehr, 399
F.App'x 697, 699 n.2 (3rd Cir. 2010) (same); Womble
v. Brewer, No. 16-13739, 2016 WL 6893777, at *3 (E.D.
Mich. Nov. 23, 2016) (same); Edwards v. Warden, Ross
Corr. Inst, No. 1:10cv637, 2011 WL 901379, *1 (S.D. Ohio
Jan. 10 2011) (Bowman, M.J.) (Report & Recommendation)
(and cases cited therein) (same). adopted, 2011 WL
901378 (S.D. Ohio Mar. 14, 2011) (Dlott, J.).
petitioner's pro se petition for a writ of
habeas corpus is "successive" within the meaning of
§ 2244(b) because petitioner's prior habeas
petition, which was dismissed with prejudice on
statute-of-limitations grounds, was adjudicated on the
merits. Moreover, petitioner is not contesting any "new
judgment, " such as a new sentence imposed on
resentencing, that occurred between the habeas proceedings.
See Magwoodv. Patterson, 561 U.S. 320, 331-39
(2010). It appears from the face of the instant petition that
petitioner is asserting four grounds for relief that are
substantially similar, if not identical, to the four claims
that were presented in his prior habeas petition.
(See Doc. 4, at PAGEID#: 39-40, 42-44). To the
extent that petitioner seeks to posit new claims that were
not asserted in his prior petition, the claims are still
successive under 28 U.S.C. § 2244(b)(2) because (1)
petitioner has not shown they rely 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 (2) that the factual bases for the
new claims could not have been discovered previously through
the exercise of due diligence, and such 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. After reviewing petitioner's response to the
January 25, 2017 show-cause order (see Doc. 3), the
undersigned is convinced that petitioner has not satisfied
the jurisdictional standards set forth in § 2244(b),
which would permit this Court to review the instant
in sum, because the instant habeas corpus petition is
successive within the meaning of 28 U.S.C. § 2244(b),
this Court lacks jurisdiction to consider it in the absence
of prior authorization by the Sixth Circuit. When a prisoner
has filed a successive petition for habeas corpus relief in
the district court without first obtaining authorization from
the Court of Appeals, the district court in the interest of
justice pursuant to 28 U.S.C. § 1631 is required to
transfer the case to the Sixth Circuit for consideration as
required under § 2244(b)(3). See In re Sims,
111 F.3d 45, 47 (6th Cir. 1997) (citing Liriano v. United
States, 95 F.3d 119, 122 (2nd Cir. 1996)); see also
Withers v. Warden, Chillicothe Corr. Inst., No.
2:15cvl29, 2015 WL 965674, at *2-3 (S.D. Ohio Mar. 4, 2015)
(Kemp, M.J.), adopted, 2015 WL 1212556 (S.D. Ohio
Mar. 16, 2015) (Economus, J.). Therefore, it is RECOMMENDED
that the instant petition be transferred to the Sixth Circuit
for review and determination whether the district court
should be granted authorization to entertain it.
THEREFORE RECOMMENDED THAT:
this Court lacks jurisdiction in this matter involving a
successive habeas petition within the meaning of 28 U.S.C.
§ 2244(b), petitioner's pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
TRANSFERRED to the Sixth Circuit for further proceedings as
required under 28 U.S.C. § 2244(b)(3).
to Fed.R.Civ.P. 72(b), WITHIN 14 DAYS after being served with
a copy of the recommended disposition, a party may serve and
file specific written objections to the proposed findings and
recommendations. This period may be extended further by the
Court on timely motion for an extension. Such objections
shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendation is based in
whole or in part upon matters occurring on the record at an
oral hearing, the objecting party shall promptly arrange for
the transcription of the record, or such portions of it as
all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections WITHIN 14 DAYS ...