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Saag v. Warden, Chillicothe Correctional Institution

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

August 28, 2019

JEFFREY SAAG, Petitioner,
v.
WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

          Black, J.

          REPORT AND RECOMMENDATION

          Karen L. Litkovitz United States Magistrate Judge

         Petitioner, 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.

         Pursuant 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 DENIED.

         As 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, 10).[1] The Sixth Circuit Court of Appeals denied petitioner a certificate of appealability. Saag v. Warden, No. 16-3952 (6th Cir. Mar. 16, 2017).

         Petitioner 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 state-court level).

         Pursuant 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. § 2244(b)(2).

         Before 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).

         In this 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), [2] 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.).[3]

         The 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.

         Accordingly, 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.).

         IT IS THEREFORE RECOMMENDED THAT:

         1. 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 ...


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