United States District Court, S.D. Ohio, Western Division
ORDER AND REPORT AND RECOMMENDATION
L. Litkovitz, M.J.
an inmate at Southern Ohio Correctional Facility, in
Lucasville, Ohio, is serving a term of life imprisonment for
a 1992 Ohio murder conviction. (See Doc. 1-1, at
PageID 15). This matter is before the Court on
petitioner's "Motion for Expert Psychiatric &
Medical Evaluation at a Federal Medical Facility"
(hereinafter referred to as "motion for expert
evaluation") (Doc. 1 -1), motion for appointment of
counsel (Doc. 1-2), motion for service of process (Doc. 1-3),
a second motion for appointment of counsel (Doc. 6), and
motion for a hearing (Doc. 9). Through these motions,
petitioner seeks assistance in challenging his 1992 murder
conviction. On June 6, 2019, the undersigned ordered
petitioner, inter alia, to show cause why the action
should not be transferred to the Sixth Circuit Court of
Appeals as successive because petitioner has previously
challenged in federal court his 1992 conviction. (Doc. 7, at
PageID 167). Petitioner has now responded to the Court's
June 6, 2019 Order. (Doc. 8).
reasons that follow, the undersigned
RECOMMENDS that petitioner's motions for
expert evaluation (Doc. 1-1) and for appointment of counsel
(Doc. 1-2; Doc. 6) be TRANSFERRED to the
Sixth Circuit Court of Appeals pursuant to 28 U.S.C. §
2244(b) as a second or successive habeas corpus petition
seeking relief under 28 U.S.C. § 2254. In light of the
recommendation to transfer these motions to the Sixth
Circuit, petitioner's remaining motions for service of
process (Doc. 1-3) and a hearing before this Court (Doc. 9)
are DENIED as moot.
has previously challenged in federal court his underlying
1992 murder conviction. See In re Peeples, No.
06-4091 (6th Cir. Dec. 26, 2006) (Batchelder, Gilman, &
Rogers, JJ.) (setting forth procedural history of the case
and denying petitioner authorization to file a second or
successive habeas petition challenging the 1992
conviction). Petitioner now seeks expert evaluation and
appointment of counsel to file claims challenging his 1992
conviction on grounds that: (1) he was actually innocent; (2)
he was incompetent to stand trial; (3) his confession was
involuntary; (4) he received ineffective assistance of
counsel; (5) his right to due process was violated; (6) he
was denied a fair trial; and (7) he was denied proper medical
care at the time of trial and sentencing. (See Doc.
1-1, at PageID 16; Doc. 1-2, at PageID 108; Doc. 6).
law generally gives habeas petitioners one shot to pursue
their claims in federal court. For petitions filed after the
first one-'second or successive' petitions in the
language of the statute-applicants must overcome strict
limits before federal courts will permit them to seek habeas
relief." In re Stansell, 828 F.3d 412, 413 (6th
Cir. 2016) (citing 28 U.S.C. § 2244(b)(3)(A)). A
district court must dismiss a claim presented in a second or
successive habeas corpus petition that was raised in a prior
petition. 28 U.S.C. § 2244(b)(1). 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: (A) the 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 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. § 2244(b)(2).
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
above. Id. The determination of whether a habeas
application is second or successive, however, is committed to
the district court in the first instance. In re
Smith, 690 F.3d 809, 810 (6th Cir. 2012).
a statute removes jurisdiction over a particular type of case
from the district courts, it must by necessity also remove
from the district courts' consideration motions for the
appointment of counsel to file the particular claims over
which the district courts lack jurisdiction." United
States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (per
curiam). See also United States v. Howard, No.
6:09-7074-DCR, 2015 WL 5612001, at *2 (E.D. Ky. Sept. 22,
2015) (transferring motion for appointment of counsel to
Sixth Circuit as a second or successive petition). It follows
that the district courts would also lack jurisdiction to
consider a motion for expert evaluation.
this Court denied petitioner's first § 2254 petition
on the merits, see In re Peeples, No. 06-4091, at p.
1, petitioner's motions for expert evaluation and
appointment of counsel should have been brought in the Sixth
Circuit Court of Appeals as part of a § 2244(b) petition
for authorization to file a successive habeas petition in
this Court. See, e.g., Key, 205 F.3d at 774. This
Court lacks jurisdiction to consider petitioner's motions
for expert evaluation and appointment of counsel in the
absence of prior authorization by the Sixth Circuit. See
id.; see also Howard, 2015 WL 5612001, at *2. 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.).
IS THEREFORE RECOMMENDED THAT:
motions for expert evaluation (Doc. 1-1) and for appointment
of counsel (Doc. 1-2; Doc. 6) be TRANSFERRED
to the Sixth Circuit Court of Appeals pursuant to 28 U.S.C.
§ 2244(b) as a second or successive habeas corpus
petition seeking relief under 28 U.S.C. § 2254.
IT IS THEREFORE ORDERED THAT:
light of the above recommendation, petitioner's remaining
motions for service of process (Doc. 1-3) and a hearing
before this Court (Doc. 9) are DENIED as
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 after being served with a copy thereof. Failure