Hartman v. Bagley

Filing 94

Opinion and Order signed by Judge James S. Gwin on 7/16/12 transferring Bret Hartman's Second Petition Under 28 USC Sec. 2254 to the Sixth Circuit Court of Appeals. (Related Docs. 89 , 93 ) (M,G)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
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BRETT HARTMAN,
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Petitioner,
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vs.
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DAVID BOBBY, Warden,
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Respondent.
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CASE NO. 1:02-CV-1336

OPINION & ORDER
[Resolving Doc. Nos. 89; 93]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:
On June 4, 2012, Petitioner Brett Hartman filed a petition for writ of habeas corpus. See 28
U.S.C. § 2254; [Doc. 89]. This is the second such motion Hartman has filed. [See Doc. 18.] In
addition, Hartman petitioned the Sixth Circuit for permission to file a successive habeas petition;
the Sixth Circuit denied that request on September 4, 2009. [See Doc. 88.]
In his current motion, Hartman asserts that the state of Ohio withheld testing of exculpatory
physical evidence and that a key witness perjured himself at trial. Hartman raised the former
argument in his first habeas petition, and he raised the latter issue in his petition to the Sixth Circuit
for permission to file a successive habeas petition.
“[T]he phrase ‘second or successive’ must be interpreted with respect to the judgment
challenged,” Magwood v. Patterson, 130 S.Ct. 2788, 2797 (2010), and Hartman challenges the same
state court judgment he challenged in his prior habeas petition—but is not subject to procedural or

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Ford exceptions, see id. at 2799, n.11. Moreover, Hartman’s petition seeks to raise an issue already
rejected on the merits (additional DNA testing), and one deemed inappropriate for a successive
petition (perjury). His petition is, therefore, a second or successive one.
“Before a second or successive application permitted by [§ 2244] is filed in the district court,
the applicant shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application.” 28 U.S.C. 2244(3)(A). See In re Williams, 364 F.3d 235, 238 (4th Cir.
2004); see also Keith v. Bobby, 551 F.3d 555, 557 (6th Cir. 2006). Accordingly, Hartman may not
file his motion without a certification from the Sixth Circuit Court of Appeals, see 28 U.S.C. §
2244(b)(3)(A) (“A second or successive motion must be certified as provided in section 2244 by a
panel of the appropriate court of appeals . . . .”), which he does not have.
The proper course, then, is to transfer Hartman’s motion to that Court. See In re Sims, 111
F.3d 45, 47 (6th Cir. 1997) (per curiam) (“[W]e hold that when . . . a second or successive petition
for habeas corpus relief or § 2255 motion is filed in the district court without § 2244(b)(3)
authorization from this court, the district court shall transfer the document to this court pursuant to
28 U.S.C. § 1631.”); 28 U.S.C. § 1631 (“Whenever a civil action is filed in a court . . . or an appeal
. . . is noticed for or filed with such a court and that court finds that there is a want of jurisdiction,
the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court
in which the action or appeal could have been brought . . . .”).

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Accordingly, the Court TRANSFERS Hartman’s motion to the Sixth Circuit Court of
Appeals.
IT IS SO ORDERED.

s/
James S. Gwin
JAMES S. GWIN
UNITED STATES DISTRICT JUDGE

Dated: July 16, 2012

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