United States District Court, S.D. Ohio, Western Division
JEFFREY A. WOGENSTAHL, Petitioner,
TIM SHOOP, Warden, Chillicothe Correctional Institution, Respondent.
District Judge Thomas M. Rose
Michael R. Merz Magistrate Judge.
capital habeas corpus case is before the Court on
Petitioner's Response (ECF No. 9) to the Court's
Order (ECF No. 5) to show cause why this case should not be
transferred to the Sixth Circuit Court of Appeals as a second
or successive habeas corpus application. The Warden has
responded to Petitioner's position (ECF No. 10).
Jeffrey Wogenstahl's third-in-time habeas corpus case.
The first, No. 1:99-cv-843, ended in judgment on the merits
for the Warden. Wogenstahl v. Mitchell, 2007 U.S.
Dist. LEXIS 67388 (S.D. Ohio Sep. 12, 2007),
aff'd 668 F.3d 307 (6th Cir. 2012),
cert den. sub nom Wogenstahl v. Robinson, 568 U.S.
second habeas case was docketed here at 1:17-cv-298. This
Court found that to be a second-or-successive petition.
Wogenstahl v. Jenkins, 2018 U.S. Dist. LEXIS 50076
(S.D. Ohio Mar. 27, 2018). The Sixth Circuit agreed and gave
Wogenstahl permission to proceed under 28 U.S.C. §
2244(b). In re: Jeffrey Wogenstahl, 902 F.3d 621
(6th Cir. 2018). After it was returned to this
Court, that case was stayed pursuant to Rhines v.
Weber, 544 U.S. 269 (2005), because the Petition
included claims that were unexhausted. On May 30, 2019,
Wogenstahl filed a status report in that case in which he
identified the Petition in this case as raising claims
different from those on which he had received permission to
proceed from the circuit court (2017 Case, ECF No. 45, PageID
2236). The Court found this was at least an implicit
concession that he had not received circuit court permission
to file the Petition in this case (ECF No. 5, PageID 163) and
ordered him to show cause why the case should not be
transferred under In re Sims, 111 F.3d 45
(6th Cir. 1997).
reports that on October 9, 2015, he moved to reopen his
direct appeal to the Supreme Court of Ohio (ECF No. 9, PageID
311). Upon conclusion of those proceedings, that court again
affirmed his conviction. State v. Wogenstahl, 150
Ohio St.3d 571 (2017), cert. den. sub nom. Wogenstahl v.
Ohio, 138 S.Ct. 2576 (2018). On May 28, 2019, Wogenstahl
filed the instant Petition.
contends he needs no permission from the circuit court
because the instant Petition is not second-or-successive
within the meaning of that term as developed in the case law.
In Magwood v. Patterson, 561 U.S. 320 (2010), the
Supreme Court held where a habeas petition is the first to
challenge a new state court judgment, it is not
second-or-successive. Wogenstahl notes that he has received a
new direct appeal judgment from the Ohio Supreme Court and
asserts this is sufficient under Storey v.
Vasbinder, 657 F.3d 372 (6th Cir. 2011).
Warden argues Storey is distinguishable because in
that case the district court had ordered petitioner be
granted a new state appeal because his first appeal had been
tainted by ineffective assistance of appellate counsel. Thus
the appeal was “a remedial appeal, ” ordered in a
prior petition. Here the Supreme Court of Ohio reopened the
direct appeal to consider the question of trial court subject
matter jurisdiction and affirmed the existence of that
courts are courts of limited jurisdiction; they are empowered
to hear only those cases which are within the judicial power
of the United States as defined in the United States
Constitution and as further granted to them by Act of
Congress. Finley v. United States, 490 U.S. 545, 550
(1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976). A
federal court is furthermore obliged to note lack of subject
matter jurisdiction sua sponte. Louisville &
Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908);
Capron v. Van Noorden, 6 U.S. 126 (1804); Clark
v. United States, 764 F.3d 653 (6th Cir.
2014); Answers in Genesis of Ky., Inc. v. Creation
Ministries Int'l, Ltd., 556 F.3d 459, 465
(6th Cir. 2009).
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).
When the District Court errs in that determination by finding
an application is second or successive (a false positive),
the practice of the Sixth Circuit has been to find that
permission to proceed is unnecessary and to remand the case.
Jackson v. Sloan, 800 F.3d 260, 261 (6th
Cir. 2015), citing Howard v. United States, 533 F.3d
472 (6th Cir. 2008); In re: Cedric E.
Powell, No. 16-3356, 2017 U.S. App. LEXIS 1032
(6th Cir. Jan. 6, 2017). However, an error in the
other direction, finding a petition is not second or
successive when the circuit court later finds it is (a false
negative), results in a full adjudication of a case which is
later held for naught. See Avery v. United
States, 2019 U.S. App. LEXIS 15740,
2019 WL 2273409 (6th Cir. May 28, 2019). In that
case the Sixth Circuit expressly authorized this Court to
consider a successive § 2255 motion to vacate in 2016
and then, after exhaustive litigation, decided three years
later the District Court had no jurisdiction.
the district court must decide in the first instance whether
a petition or § 2255 motion is second or successive.
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). When the District
Court errs in that determination, the practice of the Sixth
Circuit has been to find that permission to proceed is
unnecessary and to remand the case. Jackson v.
Sloan, 800 F.3d 260, 261 (6th Cir. 2015),
citing Howard v. United States, 533 F.3d 472
(6th Cir. 2008); In re: Cedric E. Powell,
No. 16-3356, 2017 U.S. App. LEXIS 1032 (6th Cir.
Jan. 6, 2017).
habeas petition raising a claim after a conditional writ and
new sentencing hearing which could have been raised on the
original petition is not barred as a second or successive
petition because it challenges a new judgment. Magwood v.
Patterson, 561 U.S. 320, 341-42 (2010). A petitioner in
this situation may challenge the earlier conviction embodied
in any new judgment without satisfying the
second-or-successive requirements. A full resentencing allows
a petitioner to “challenge his undisturbed conviction
without triggering the ‘second or successive'
requirements.” King v. Morgan, 807 F.3d 154,
156 (6th Cir. 2015). 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). King does “not
exclude the possibility that minor amendments to a judgment,