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Watkins v. Warden, Madison Correctional Institution

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

June 26, 2018

RYAN WATKINS, Petitioner,
v.
WARDEN, MADISON CORRECTIONAL INSTITUTION, Respondent.

          Michael H. Watson Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE

         This is an action pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus. Petitioner seeks release from confinement imposed pursuant to a state-court judgment in a criminal action. This case has been referred to the Undersigned pursuant to 28 U.S.C. § 636(b) and Columbus General Order 14-1 regarding assignments and references to United States Magistrate Judges.

         This matter is before the Court on its own motion under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts (“Rule 4”). Pursuant to Rule 4, the Court conducts a preliminary review to determine whether “it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief. . . .” if it does so appear, the petition must be dismissed. Id. For the reasons that follow, these are the circumstances here.

         I.FACTS AND PROCEDURAL HISTORY

         Petitioner challenges his October 19, 2001, convictions after a jury trial in the Franklin County Court of Common Pleas on murder, aggravated robbery, felonious assault, and having a weapon while under disability, with firearm specifications. On September 26, 2002, the appellate court affirmed the judgment of the trial court. State v. Watkins, 10th Dist. No. 01AP- 1376, 2002 WL 31123872 (Ohio Ct. App. Sept. 26, 2002). Petitioner did not file a timely appeal, and on November 19, 2003, the Ohio Supreme Court denied his motion for a delayed appeal. State v. Watkins, No. 2003-1719, 2003-Ohio-5992, 100 Ohio St.3d 1483 (Ohio Sup. Ct. Nov. 19, 2003).

         On October 16, 2003, Petitioner filed his first federal habeas corpus Petition. He asserted (as he does here) that the trial court's failure to instruct the jury on the essential element of theft and aggravated robbery denied him due process, and that he was denied the effective assistance of trial counsel based on his attorney's failure to object to errors in the jury instructions. Watkins v. Hurley, No. 2:03-cv-941. However, on October 26, 2004, the Court issued final Judgment dismissing that action as procedurally defaulted. Id.

         Subsequently, in 2015, Petitioner filed a motion for re-sentencing in the state trial court based on the trial court's failure to properly notify him of post-release control at his sentencing hearing. The trial court denied the motion, but on March 1, 2016, the state appellate court reversed that decision, and remanded the case to the trial court for a “limited resentencing to properly impose post-release control.” State v. Watkins, 10th Dist. No. 15AP-694, 2016 WL 817003, at *2 (Ohio Ct. App. March 1, 2016).

{¶ 3} On remand, the trial court held a resentencing hearing and properly notified appellant of post-release control. At the hearing, appellant argued that certain of his convictions should merge for purposes of sentencing. The trial court concluded that in light of this court's limited remand, the only issue it could address at the resentencing hearing was appellant's post-release control notification. Therefore, the trial court did not consider appellant's merger argument.

State v. Watkins, 10th Dist. No. 16AP-581, 2017 WL 1162426, at *1 (Ohio Ct. App. March 14, 2017). On March 14, 2017, the appellate court affirmed the judgment of the trial court. Id. On July 26, 2017, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Watkins, No. 2017-0535, 2017-Ohio-6964, 150 Ohio St.3d 1411 (Ohio Sup. Ct. July 26, 2017).

         On June 14, 2018, Petitioner filed this pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He asserts, as he did previously, that he was denied due process and the right to the effective assistance of counsel because the trial court failed to define theft in its jury instruction on aggravated robbery, and trial counsel failed to object.[1]

         II. SUCCESSIVE PETITIONS

         As discussed, this is not Petitioner's first federal habeas corpus Petition. This Court therefore must first address whether the action is subject to transfer to the Sixth Circuit for authorization for filing as successive.

         Before a second or successive petition for a writ of habeas corpus can be filed in a district court, a petitioner must ask the appropriate circuit court of appeals to authorize the district court's consideration of the application. 28 U.S.C. § 2244(b)(3)(A). If a district court in the Sixth Circuit determines that a petition is a second or successive petition, see In re Smith, 690 F.3d 809 (6th Cir. 2012), the district court must transfer the petition to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). The Sixth Circuit, in turn, will authorize the filing of a second petition only if the petitioner establishes either that the claim sought to be asserted relies on a new rule of constitutional law made retroactive by the United States Supreme Court to cases on collateral review; or if the factual predicate for the claim could not have been discovered previously through the exercise of diligence, and these facts, if proven, would establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact finder would have found the applicant guilty. Id.

         However, in 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 ...


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