United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge
ORDER STAYING PROCEEDINGS
Michael R. Merz United States Magistrate Judge
an action for a writ of habeas corpus, brought pro
se by Petitioner Lawrence Wilson under 28 U.S.C. §
2254. As with all actions for post-conviction relief in this
Court, it has been referred to the undersigned pursuant to
General Order Day 13-01. The case is ripe for initial review
under Rule 4 of the Rules Governing § 2254 Cases.
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),
both superseded on other grounds by 28 U.S.C. § 1367. A
federal court is further 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, 657 (6th Cir.
2014); Answers in Genesis of Ky., Inc. v. Creation
Ministries Int'l, Ltd., 556 F.3d 459, 465
(6th Cir. 2009).
seeks relief from his conviction in the Montgomery County
Court of Common Pleas on a charge of rape of a person under
thirteen years of age. Judgment on that conviction in No.
96-CR-1019 was initially entered by Judge David Sunderland on
July 30, 1997 (ECF No. 1-2, PageID 79.)
originally sought federal habeas corpus relief from that
conviction in Wilson v. Warden, No. 3:99-cv-128. This Court
dismissed that case January 3, 2000, and the Sixth Circuit
affirmed that dismissal February 8, 2002.
District Court has no jurisdiction to rule on a
second-or-successive habeas petition. Franklin v.
Jenkins, 839 F.3d 465(6th Cir. 2016);
Burton v. Stewart, 549 U.S. 147 (2007). At the same
time, however, it is the District Court which must decide in
the first instance whether a petition 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).
concedes that the instant Petition is second-in-time. He
contends, however, that it is not second-or-successive within
the meaning of 28 U.S.C. § 2244 because there is a new
state court judgment entered after completion of his first
case, to wit, the Nunc Pro Tunc Termination Entry entered by
Common Pleas Judge Frances McGee on January 7, 2011 (ECF No.
1-2, PageID 83).
on April 8, 2019, Wilson filed in the Sixth Circuit a Motion
under 28 U.S.C. § 2244 for leave to file a second or
successive habeas corpus petition under 28 U.S.C. § 2254
(6th Cir. No. 19-3310). Four of the five claims he
asked the Sixth Circuit for permission to file are identical
to the four claims he makes in the instant Petition. This
filing in the Sixth Circuit constitutes an admission by
Wilson that the instant Petition is second or successive;
indeed he refences the 2011 Nunc Pro Tunc entry.
acknowledges this filing in his instant Petition:
Wilson has moved the United States Court of Appeals for the
Sixth Circuit for permission to file a second or successive
habeas petition which has been docketed as In re:
Lawrence Wilson, case number 19-3310. Pursuant to 28
U.5.C. § 2244(b)(3)(D), the Court was required to answer
within thirty (30) days[.] However, the court has held that
this “provision is hortatory or advisory rather than
mandatory.” In re Siggers, 132 F.3d 333, 336
(6th Cir. 1997); In re McDonald, 514 F.3d
539, 542 n.2 (6th Cir. 2008). Nevertheless, The
term “shall” is not permissive; it is mandatory.
Citizens Coal Council v. United States Enviro. Protection
Agency, 447 F.3d 879, 921 (6th Cir. 2006). It
has now been unanswered for over one hundred twenty (120)
days. The claims raised in this numerically second habeas
petition were not ripe at the time that the initial habeas
petition was filed and do not fall within[ ]§ 2244's
strictures governing second or successive petitions. Because
the Court of Appeals authorization is not required for this
Second in Time Petition for a Writ of Habeas Corpus by a
person in State Custody this petition follows.
(ECF No. 1-1, PageID 31-32.)
is correct that the text of 28 U.S.C. § 2244(b)(3)(D)
uses language ordinarily understood to be mandatory when it
requires a court of appeals to “grant or deny the
authorization to file a second or successive application not
later than 30 days after the filing of the motion.”.
However, the statute does not suggest that if a decision is
not rendered within thirty days, a party is free to proceed
without permission. Whether or not the cited Sixth Circuit
authority is ...