United States District Court, S.D. Ohio, Western Division, Dayton
CHARLES E. DUNCAN, Petitioner,
MARK HOOKS, Warden, Ross Correctional Institution Respondent.
Herbert Rice District Judge.
REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge.
Charles E. Duncan brought this action for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 to obtain relief
from his conviction in the Clark County Court of Common Pleas
on one count of murder with a firearm specification and
sentence to life imprisonment with parole eligibility at
fifteen years. (Petition, ECF No. 3, PageID 22).
previously filed for habeas corpus relief from this same
conviction in Duncan v. Warden, Case No.
3:09-cv-078. In that case, Duncan pleaded three grounds for
Ground One: Petitioner is being held in
violation of his Fifth Amendment right to counsel.
Ground Two: Petitioner is being held in
violation of the Self-Incrimination Clause of the Fifth
Ground Three: Petitioner is being held in
violation of the Due Process Clause of the Fifth and
(Case No. 3:09-cv-078, Petition, ECF No. 2).
the first two grounds, the Magistrate Judge found they were
decided on the merits by the Second District Court of Appeals
and that that decision was not an objectively unreasonable
application of clearly established Supreme Court precedent
(Case No. 3:09-cv-078, Report and Recommendations, ECF No.
19, PageID 1066, citing State v. Duncan, 2007 WL
2285087 (2ndDist. Aug. 3, 2007). The Third Ground
for Relief, conviction on insufficient evidence, was also
rejected by the Second District and the Magistrate Judge
found that was a reasonable application of Jackson v.
Virginia, 443 U.S. 307 (1979), the relevant Supreme
Court precedent. Id. Judge Rice adopted the Report
over Duncan's objections (Case No. 3:09-cv-078, Decision
and Order, ECF No. 25). The Sixth Circuit Court of Appeals
affirmed. Duncan v. Warden, Case No. 10-3468
(6th Cir. July 6, 2012)(unreported; copy at Case
No. 3:09-cv-078, ECF No. 31. The United States Supreme Court
denied certiorari April 28, 2014 (Case No. 3:09-cv-078, Copy
at ECF No. 34).
instant Petition, Duncan pleads as his two grounds for relief
the first two grounds pleaded in the prior Petition. He
asserts that the instant Petition is not barred by the
second-or-successive requirements of 28 U.S.C. § 2244(b)
because he is challenging a new judgment of conviction
entered on October 27, 2016 (copy attached to ECF No. 3 at
PageID 28). As authority he relies on In re
Stansell, 828 F.3d 412 (6th Cir. 2016), and King v.
Morgan, 807 F.3d 154 (6thCir. 2015). In
King the Sixth Circuit held a full resentencing
allows a petitioner to “challenge his undisturbed
conviction without triggering the ‘second or
successive' requirements.” King was
extended to Ohio's reopening of a petitioner's
sentence merely to enter post-release control. In re
Stansell, 828 F.3d 412 (6th Cir. 2016).
federal district court presented with a second-in-time habeas
corpus petition must determine in the first instance whether
it is a second-or-successive petition. In re: Kenneth
Smith, 690 F.3d 809 (6th Cir. 2012); In
re Sheppard, 2012 U.S. App. LEXIS 13709 (6th
Cir. May 25, 2012). A district court lacks jurisdiction to
consider a second or successive petition without approval by
the circuit court. Franklin v. Jenkins, 839 F.3d
465(6th Cir. 2016); Burton v. Stewart,
549 U.S. 147 (2007). If a District Court concludes a petition
is second-or-successive, it must transfer the case to the
circuit court. In re Sims, 111 F.3d 45
(6th Cir. 1997).
Judgment Entry from which Duncan seeks relief was entered
October 27, 2016 (ECF No. 3, PageID 28). Duncan appealed from
that judgment to the Second District Court of Appeals. The
amended judgment had resulted from a motion to vacate a void
judgment, but on appeal the Second District held the amended
judgment was itself void because the trial judge had exceeded
his sentencing authority. This rendered the sentence void.
State v. Duncan, 2017-Ohio-8103, 2017 Ohio App.
LEXIS 4456 (2nd Dist. Oct. 6, 2017). The Second
District therefore remanded the case for resentencing.
appears to the Magistrate Judge that the judgment from which
Duncan seeks relief is not a final judgment and has already
been vacated by the Court of Appeals. Under King and
Stansell, the petition is not second-or-successive
because the judgment complained of was entered upon a remand
for resentencing. But this Court cannot consider whether to
grant habeas relief because the conviction is not yet shown
to be final.
the Magistrate Judge recommends that the Petition be
dismissed because Duncan has not yet exhausted his available
state court remedies, to wit, direct appeal from whatever
sentence is or will be entered on the Second District's
most recent remand. Because reasonable jurists would not
disagree with this conclusion, Petitioner should be denied a
certificate of appealability and the Court should certify to
the Sixth ...