United States District Court, S.D. Ohio, Western Division
REPORT AND RECOMMENDATION
L. Litkovitz United States Magistrate Judge
an inmate at Chillicothe Correctional Institution in
Chillicothe, Ohio, has filed a, pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his 2002 Clermont County, Ohio, rape convictions
and sentences. (Doc. 1). Because petitioner filed the
petition without payment of the $5.00 filing fee or a motion
to proceed in forma pauperis, the Court directed
petitioner, on July 9, 2019, to either pay the $5.00 filing
fee or submit an in forma pauperis application.
(Doc. 2). Further, because petitioner had previously
challenged in federal court his 2002 convictions and
sentences, the Court also ordered petitioner to show cause
why the petition should not be transferred to the Sixth
Circuit Court of Appeals as a successive petition. (Doc. 2).
Petitioner has now paid the $5.00 filing fee (see
Doc. 3) and filed a request for an evidentiary hearing (Doc.
4), which the Court understands to be his response to the
Court's Order to show cause.
to Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court must conduct a
preliminary review to determine "if it plainly appears
from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district
court." See 28 U.S.C. foll § 2254. Here,
for the reasons below, it plainly appears that petitioner is
not entitled to relief from the District Court, and, thus,
the undersigned RECOMMENDS that this action
be TRANSFERRED to the Sixth Circuit Court of
Appeals as a successive petition and that petitioner's
motion for an evidentiary hearing (Doc. 4) be
noted in the July 9, 2019 Order (see Doc. 2), this
is not the first habeas corpus petition that petitioner has
filed with this Court challenging his 2002 Clermont County
convictions. In a prior pro se petition, which petitioner
submitted to prison officials for mailing on September 11,
2015, petitioner challenged the same convictions on the
grounds that he had been placed in double jeopardy and his
sentences were void. This Court denied the previous petition
after concluding that petitioner's claims were
time-barred by the applicable one-year statute of
limitations. Saag v. Warden, No. 1:15-cv-599 (Black,
J.; Litkovitz, M.J.) (S.D. Ohio Aug. 3, 2016) (Docs. 8,
The Sixth Circuit Court of Appeals denied petitioner a
certificate of appealability. Saag v. Warden, No.
16-3952 (6th Cir. Mar. 16, 2017).
does not dispute in the motion for evidentiary hearing (Doc.
4) that he is challenging the same convictions that were
attacked by him in his prior application. Rather, petitioner
seeks an evidentiary hearing regarding the merits of the
instant habeas petition. (See Doc. 4, at PageID 22)
(asserting that the material facts were not developed at the
to 28 U.S.C. § 2244(b)(1), the federal district court
must dismiss a claim presented in a second or successive
habeas corpus petition that was raised in a prior petition.
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) 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)(i) the factual basis for the claim could not have been
discovered previously through the exercise of due diligence;
and (ii) 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. §
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).
case, petitioner is challenging the same convictions and
sentences challenged in his prior petition. Although a
dismissal of a prior habeas petition relating to the same
conviction or sentence will not render the subsequent
petition successive if the dismissal is based on technical
reasons that do not constitute an adjudication "on the
merits," see Stewart v. Martinez-Villareal, 523
U.S. 637 (1998),  it is well-settled that when the prior
petition is dismissed because the petitioner procedurally
defaulted his claims in state court or because the petition
is barred by the statute of limitations, the dismissal is an
adjudication on the merits of the claims, and the petitioner
must obtain prior authorization from the court of appeals
pursuant to § 2244(b)(3) before filing a subsequent
federal habeas application. See In re Cook, 215 F.3d
606, 608 (6th Cir. 2000) (involving procedural-default
dismissal); Carter v. United States, 150 F.3d 202,
205-06 (2d Cir. 1998) (same). See also In re Rains,
659 F.3d 1274, 1275 (10th Cir. 2011) (and cases cited
therein) (involving statute-of-limitations dismissal);
McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009)
(same); Murray v. Greiner, 394 F.3d 78, 81 (2d Cir.
2005) (same); Altman v. Benik, 337 F.3d 764, 766
(7th Cir. 2003) (same); Stokes v. Gehr, 399
Fed.Appx. 697, 699 n.2 (3d Cir. 2010) (same); Wamble v.
Brewer, No. 16-13739, 2016 WL 6893777, at *3 (E.D. Mich.
Nov. 23, 2016) (same); Edwards v. Warden, Ross Corr.
Inst, No. 1:10cv637, 2011 WL 901379, *1 (S.D. Ohio Jan.
10, 2011) (Bowman, M.J.) (Report & Recommendation) (and
cases cited therein) (same), adopted, 2011 WL 901378
(S.D. Ohio Mar. 14, 2011) (Dlott, J.).
instant petition for a writ of habeas corpus is
"successive" within the meaning of § 2244(b)
because petitioner's prior habeas petition, which was
dismissed with prejudice on statute-of-limitations grounds,
was adjudicated on the merits. Moreover, petitioner is not
contesting any "new judgment," such as a new
sentence imposed on resentencing, that occurred between the
habeas proceedings. See Magwood v. Patterson, 561
U.S. 320, 331-39 (2010). Rather, petitioner asserts that his
2002 convictions and sentences violate his equal protection
and due process rights because his written plea agreement,
which he claims to have recently received, "belies the
maximum punishment agreed to" in that "[petitioner
would not be on post-release control for a maximum of 5
years, but subject to parole sanctions." (Doc. 1, at
PageID 6). To the extent that petitioner's claim was
raised in his prior petition, it is successive. See
28 U.S.C. § 2244(b)(1). To the extent that petitioner
seeks to posit a new claim that was not asserted in his prior
petition, the claim is still successive under 28 U.S.C.
§ 2244(b)(2) because (1) petitioner has not shown it
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 (2) that the
factual basis for the claim could not have been discovered
previously through the exercise of due diligence, and such
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.
in sum, because the instant habeas corpus petition is
successive within the meaning of 28 U.S.C. § 2244(b),
this Court lacks jurisdiction to consider it in the absence
of prior authorization by the Sixth Circuit. 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 (2d Cir.
1996)); see also Withers v. Warden, Chillicothe Corr.
Inst, No. 2:15cv129, 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:
Because this Court lacks jurisdiction in this matter
involving a successive habeas petition, within the meaning of
28 U.S.C. § 2244(b), the petition be
TRANSFERRED pursuant to 28 U.S.C. §
1631 to the United States Court of Appeals for the Sixth
Circuit for review and determination whether the district
court may consider the successive claims for relief. See
Rodriguez v. Gray, No. 2:18-cv-114, 2018 WL 2470753
(S.D. Ohio Mar. 19, 2018) (transferring successive petition
to Sixth ...