United States District Court, S.D. Ohio, Eastern Division
CLIVE N. MELHADO, Petitioner,
LYNEAL WAINWRIGHT, WARDEN, Respondent.
L. Graham Judge
ORDER AND REPORT AND RECOMMENDATION
Kimberly A. Jolson United States Magistrate Judge
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.
has filed an application to proceed in forma
pauperis. Upon consideration, the Undersigned finds the
application to be meritorious and it is
GRANTED. Petitioner shall be
PERMITTED to prosecute this action without
prepayment of fees or costs and judicial officers who render
services in this action will do so as if costs had been
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. . . .” For the reasons that follow, these are
the circumstances here.
FACTS AND PROCEDURAL HISTORY
has filed what is entitled as a Motion to Vacate Void
Judgment Pursuant to Civil Rule 60(b), challenging his March
2002 convictions after a jury trial in the Franklin County
Court of Common Pleas on charges of murder, aggravated
murder, and aggravated robbery. (Doc. 1-1, PAGEID # 15, 28).
The trial court imposed a term of life imprisonment without
the possibility of parole. (PAGEID # 29). Petitioner asserts
that the trial court lacked subject matter jurisdiction
because the criminal complaint filed against him was
dismissed upon the filing of an Indictment by the grand jury.
(See PageID # 18-19). Petitioner argues that his convictions
therefore constitute a miscarriage of justice, and that the
judgment against him is fraudulent and void. He complains
that, although he raised this same argument in a prior
federal habeas corpus petition under 28 U.S.C. § 2254,
the Court did not address the issue, and instead transferred
that action to the United States Court of Appeals for the
Sixth Circuit as a successive petition. Melhado v.
Warden, Marion Corr. Inst., Case No. 2:17-cv-00725
(PAGEID # 34). On April 18, 2018, the Sixth Circuit denied
Petitioner's request for authorization for the filing of
a second or successive § 2254 petition. (Doc. 1-2,
PAGEID # 37). Petitioner thus now has filed this action,
purportedly under Rule 60(b)(3), (4), of the Federal Rules of
Civil Procedure, again arguing that his state convictions are
void and based on fraud.
60(b) cannot help Petitioner here. That rule “allows a
party to seek relief from a final judgment, and request
reopening of his case, under a limited set of circumstances
including fraud, mistake, and newly discovered
evidence.” Gonzalez v. Crosby, 545 U.S. 524,
528 (2005) (footnote omitted). It does not, however, provide
a means for a state prisoner to challenge the
constitutionality of a state court conviction in federal
court. Such an action is properly brought under the provision
of 28 U.S.C. § 2254, which provides:
The Supreme Court, a Justice thereof, a circuit judge, or a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a).
a Rule 60(b) motion cannot be used as a vehicle to circumvent
the limitations that Congress has placed upon the
presentation of claims in a second or successive habeas
corpus petition. See Moreland v. Robinson, 813 F.3d
315, 322 (6th Cir. 2016) (citing Gonzalez, 545 U.S.
at 531-32). As previously discussed, this Court lacks
jurisdiction to entertain a successive petition for a writ of
habeas corpus absent authorization for the filing of such an
action from the Court of Appeals. 28 U.S.C. § 2244(b).
Without such approval, this Court must transfer a successive
habeas corpus petition to the Sixth Circuit Court of Appeals.
In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per
“[F]or the purposes of § 2244(b) an
‘application' for habeas relief is a filing that
contains one or more ‘claims.' ”
Gonzalez, 545 U.S. at 530, 125 S.Ct. 2641. A §
2244(b) claim is “an asserted federal basis for relief
from a state court's judgment of conviction.”
Id. A movant is not making a habeas claim when he
seeks only to lift the procedural bars that prevented
adjudication of certain claims on the merits. Id. at
532 n. 4, 125 S.Ct. 2641. But he is making a habeas claim
when he seeks to add a ...