United States District Court, S.D. Ohio, Eastern Division
STEPHEN H. WHITT, Petitioner,
WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
Elizabeth P. Deavers Magistrate Judge.
OPINION AND ORDER
L. GRAHAM United States District Judge.
March 12, 2018, the Magistrate Judge issued a Report and
Recommendation pursuant to Rule 4 of the Rules Governing
Section 2254 Cases recommending that this action be
transferred to the United States Court of Appeals for the
Sixth Circuit as successive. (ECF No. 4.) Petitioner has
filed an Objection to the Magistrate Judge's
Report and Recommendation. (ECF No. 5.) Pursuant to
28 U.S.C. § 636(b), this Court has conducted a de
novo review. For the reasons that follow,
Petitioner's Objection (ECF No. 5) is
OVERRULED. The Report and
Recommendation (ECF No. 4) is ADOPTED
and AFFIRMED. This action is
TRANSFERRED to the Sixth Circuit as a
Court DECLINES to issue a certificate of
objects to the Magistrate Judge's recommendation that
this action be transferred to the Sixth Circuit for
authorization for filing as a successive petition. Petitioner
again argues that the charges against him were
constitutionally invalid, and that he has been denied due
process and equal protection. Petitioner asserts that he was
convicted pursuant to a fatal variance, and that the judgment
against him is illegal and void. He contends that this action
does not constitute a successive petition under Magwood
v. Patterson, 561 U.S. 320 (2010), because he challenges
the trial court's January 30, 2012, re-sentencing entry,
and because he raises a claim based on a new rule of
constitutional law that is retroactively applicable on
collateral review. Petitioner requests that the Court take
judicial notice of the documents he has attached to his
Objection, and to portions of the state record.
certain “limited circumstances, a § 2254 petition
is not considered ‘second or successive' within the
meaning of § 2244(b) even though the petitioner filed a
previous habeas application.” Storey v.
Vasbinder, 657 F.3d 372, 376 (6th Cir. 2011).
For example, a habeas petition is not considered
“second or successive” under § 2244(b) when
the claim has been raised in a prior petition, but dismissed
as unripe, although other claims in the initial petition were
decided on the merits. Stewart v.
Martinez-Villareal, 523 U.S. 637, 643-46, 118 S.Ct.
1618, 140 L.Ed.2d 849 (1998). Even if the claim was not
presented in an earlier petition, a subsequent petition
raising the claim does not constitute a
“successive” petition for purposes of §
2244(b) if the claim would have been dismissed as unripe in
the initial petition. Panetti, 551 U.S. at 945, 127
S.Ct. 2842. Nor do the successive petition restrictions apply
if the first petition was dismissed for lack of exhaustion.
Slack, 529 U.S. at 478, 487, 120 S.Ct. 1595. The
restrictions also do not apply if an intervening state court
judgment (such as a resentencing) occurred after the first
habeas petition was decided. Magwood, 561 U.S. at
335, 339, 130 S.Ct. 2788; King v. Morgan, 807 F.3d
154, 157 (6th Cir. 2015).
In re Campbell, 874 F.3d 454, 459 (6th Cir. 2017).
In Magwood, 561 U.S. at 331-39, referred to by the
Petitioner, the Supreme Court held that a habeas corpus
petition is not successive where it is filed after the trial
court conducts a re-sentencing hearing that results in the
issuance of a new judgment against the Petitioner.
Id. However, the re-sentencing entry Petitioner
refers to occurred in January 2012, and prior to the filing
of his first federal habeas corpus petition. See Whitt v.
Warden, Case No. 2:12-cv-731. Moreover, as discussed by
the Magistrate Judge, Petitioner thereafter filed two
subsequent habeas corpus petitions challenging these same
convictions, and has twice been denied authorization for the
filing of a successive petition. Report and
Recommendation (ECF No. 4, PageID# 311.) Under these
circumstances, this action plainly constitutes a successive
petition. Moreover, as discussed, this Court therefore lacks
jurisdiction to consider Petitioner's claims absent
authorization from the Sixth Circuit Court of Appeals. 28
U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549
U.S. 147, 152-53 (2007). Therefore, Petitioner's
Objection (ECF No. 5) is OVERRULED.
His request for judicial notice is DENIED.
The Report and Recommendation (ECF No. 4) is
ADOPTED and AFFIRMED. This
action is TRANSFERRED to the Sixth Circuit
as a successive petition.
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appeal ability. “In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court, ” Jordan v. Fisher, __ U.S.
__, __, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. §
2253(c)(1) (requiring a habeas petitioner to obtain a
certificate of appeal ability in order to appeal.)
claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner “has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right,
a petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve
encouragement to proceed further.' ” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893, n. 4 (1983)). When a
claim has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling. Id.
Court is not persuaded that reasonable jurists would debate
this Court's decision transferring the case to the Court
of Appeals as a successive petition. Therefore, the Court
DECLINES to issue a certificate of
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
the appeal would not be in good faith, and that an
application to proceed in forma pauperis on appeal
should be DENIED.