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Wogenstahl v. Shoop

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

July 30, 2019

JEFFREY A. WOGENSTAHL, Petitioner,
v.
TIM SHOOP, Warden, Chillicothe Correctional Institution, Respondent.

          District Judge Thomas M. Rose

          TRANSFER ORDER

          Michael R. Merz Magistrate Judge.

         This 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).

         Pertinent Litigation History

         This is 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. 902 (2012).

         Wogenstahl'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).

         Wogenstahl 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.

         Wogenstahl 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).

         The 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 jurisdiction.

         Analysis

         Federal 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).

         A 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.

         However, 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).

         A 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, ...


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