United States District Court, S.D. Ohio, Eastern Division
TIZAZU F. AREGA, Petitioner,
TIMOTHY SHOOP, WARDEN, Respondent.
Chelsey M. Vascura, Magistrate Judge
OPINION AND ORDER
C. SMITH, JUDGE
11, 2019, the Magistrate Judge issued a Report and
Recommendation pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts
recommending that this action be transferred to the United
States Court of Appeals for the Sixth Circuit as successive.
(ECF No. 4.) Petitioner has filed an Objection to the
Magistrate Judge's Report and Recommendation. (ECF No.
6.) Pursuant to 28 U.S.C. § 636(b), this Court has
conducted a de novo review. For the reasons that follow,
Petitioner's Objection (ECF No. 6) is
OVERRULED. The Report and Recommendation
(ECF No. 4) is ADOPTED and
AFFIRMED. This action is
TRANSFERRED to the United States Court of
Appeals for the Sixth Circuit.
Court DECLINES to issue a certificate of
objects to the Magistrate Judge's recommendation to
transfer this case to the Sixth Circuit for authorization for
filing as a successive petition. Referring to Magwood v.
Patterson, 561 U.S. 320 (2010), Petitioner contends that
the Magistrate Judge improperly construed this action as
successive, because he challenges a void and invalid jury
verdict, and the state appellate court improperly affirmed
his conviction on rape by vaginal intercourse, a crime for
which he had not been charged. Petitioner complains that he
thereby has been denied his right to indictment by a grand
jury and a jury trial. He maintains that the Court has
jurisdiction to consider this action and seeks consideration
of his claims on the merits.
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a district court lacks jurisdiction to
entertain a successive petition for writ of habeas corpus in
the absence of an order from the court of appeals authorizing
the filing of such successive petition. 28 U.S.C. §
2244(b); Nelson v. United States, 115 F.3d 136 (2nd
Cir. 1997); Hill v. Hopper, 112 F.3d 1088 (11th Cir.
1997). Unless the court of appeals has given approval for the
filing of a second or successive petition, a district court
in the Sixth Circuit must transfer the petition to the Sixth
Circuit Court of Appeals. In re Sims, 111 F.3d 45,
47 (6th Cir. 1997) (per curiam).
has filed prior actions under 28 U.S.C. § 2254
challenging this same conviction. The Court dismissed
Petitioner's first habeas corpus petition as time-barred.
Arega v. Chillicothe Corr. Inst., 2:16-cv-00618.
Where a prior petition is dismissed as barred by the one-year
statute of limitations, the petitioner must obtain
authorization from the court of appeals pursuant to §
2244(b)(3) before he may file a subsequent habeas corpus
petition. See Sudberry v. Warden, Leb. Corr. Inst.,
No. 1:17-cv-45, 2017 WL 1050493, at *2 (S.D. Ohio Feb. 28,
2017). This Court transferred Petitioner's second habeas
corpus petition again challenging this same conviction to the
Sixth Circuit as successive. Arega v. Chillicothe Corr.
Inst., 2:18-cv-01486. In that action, Petitioner
likewise asserted, as he does herein, that the state courts
improperly indicted him and convicted him on different
charges of rape. Thus, this action plainly constitutes a
second or successive habeas corpus petition. Petitioner's
attempt to characterize the judgment against him as void does
not alter this Court's conclusion.
Objection (ECF No. 6) is OVERRULED. The
Report and Recommendation (ECF No. 4) is
ADOPTED and AFFIRMED. This
action is TRANSFERRED to the United States
Court of Appeals for the Sixth Circuit.
to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court now considers
whether to issue a certificate of appealability. “In
contrast to an ordinary civil litigant, a state prisoner who
seeks a writ of habeas corpus in federal court holds no
automatic right to appeal from an adverse decision by a
district court.” Jordan v. Fisher, ___ U.S.
___. __, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. §
2253(c)(1) (requiring a habeas petitioner to obtain a
certificate of appealability in order to appeal).
claim has been denied on the merits, a certificate of
appealability may issue only if the petitioner “has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right,
a petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve
encouragement to proceed further.'” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot
v. Estelle, 463 U.S. 880, 893, n.4 (1983)). When a claim
has been denied on procedural grounds, a certificate of
appealability may issue if the petitioner establishes that
jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its
procedural ruling. Id.
Court is not persuaded that reasonable jurists would debate
this Court's resolution of this action. Therefore, the
Court DECLINES to issue a certificate of
Court certifies that the appeal would not be in good faith
and that an application to proceed in forma pauperis
on appeal should be DENIED.