Dovala v. Tim

Filing 18

Memorandum of Opinion and Order of Transfer. For the reasons stated in the Order, the Court overrules the Objections (Doc #: 16 ), adopts the Report and Recommendation (Doc #: 13 ), and grants the Motion to Transfer habeas petition to the Sixth Circuit as a second or successive petition (Doc #: 7 .) Accordingly, the Court hereby DIRECTS the Clerk of Court to transfer this case to the United States Court of Appeals for the Sixth Circuit. Signed by Judge Dan Aaron Polster on 9/22/2017. (K,K)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MELISSA DOVALA,
Petitioner,
v.
GININE TIM, WARDEN,
Respondent.

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Case No. 1:16 CV 2511
Judge Dan Aaron Polster
MEMORANDUM OF OPINION
and
ORDER OF TRANSFER

This case is before the Court on the Report and Recommendation of Magistrate Judge
James R. Knepp, II (“R&R”). (Doc #: 13.) Magistrate Judge Knepp recommends that the Court
grant Respondent’s Motion to Transfer Habeas Petition to the Sixth Circuit Court of Appeals for
Petitioner Melissa Dovala to request permission to proceed with a second or successive petition
(“Motion”). (Doc #: 7.) Dovala has filed Objections to the Magistrate’s Report and
Recommendations, and Respondent has filed a Response to the Objections. (Respectively,
(Doc ##: 16, 17.)
As noted by Respondent, Dovala again argues that she should get one meaningful
opportunity for postconviction review of her ineffective assistance of counsel claim, citing
Stewart v. Martinez-Villareal, 523, U.S. 637 (1998). The Magistrate Judge already addressed
this claim. The Magistrate Judge not only found that Stewart was distinguishable, but he
concluded that this claim was ripe, albeit unexhausted, at the time she filed her first habeas

petition. In other words, her claim was not premature because the factual predicate for the claim
was in existence at the time she filed her first habeas petition. The Court has reviewed the
record and agrees. Because Dovala chose to proceed with the mixed petition, the present
petition is second or successive and, as such, should be transferred to the United States Court of
Appeals for the Sixth Circuit. 28 U.S.C. § 2244(b)(3); Burton v. Stewart, 549 U.S. 147, 154
(2007). For these reasons, the Court overrules the Objections (Doc #: 16), adopts the R&R
(Doc #: 13), and grants the Motion to Transfer (Doc #: 7.)
Accordingly, the Court hereby DIRECTS the Clerk of Court to transfer this case to the
United States Court of Appeals for the Sixth Circuit.
IT IS SO ORDERED.

/s/ Dan Aaron Polster September 22, 2017
Dan Aaron Polster
United States District Judge

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