Roberson v. Bracy

Filing 16

Memorandum Opinion and Order adopting Report and Recommendation: Pursuant to Fed. R. Civ. P. 72(b)(3), the Court has conducted its de novo review of the matters raised in the objections to the Report and Recommendation. Following this review, the objections, as supplemented, are overruled. The Report and Recommendation is adopted in its entirety as the Order of this Court. Pursuant to 28 U.S.C. Sections 1631 and 2244, this case is transferred to the United States Court of Appeals for the Sixth Circuit for the purpose of seeking permission to proceed with a second or successive petition. (Related Doc. Nos. 7 , 11 , 12 ). Judge Sara Lioi on 6/26/2018. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

REGINALD S. ROBERSON,
PETITIONER,
vs.
CHARMAINE BRACY,
RESPONDENT.

)
)
)
)
)
)
)
)
)
)

CASE NO. 1:17-cv-1626
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER ADOPTING
REPORT AND RECOMMENDATION

Before the Court is the Report and Recommendation (Doc. No. 12 [“R&R”]) of Magistrate
Judge James R. Knepp II, recommending that this Court grant respondent’s alternative motion
(Doc. No. 7) seeking transfer to the Sixth Circuit Court of Appeals of this petition for writ of
habeas corpus filed under 28 U.S.C. § 2254. Petitioner Reginald S. Roberson (“Roberson”) filed
objections and, without leave, also filed amended objections. (Doc. Nos. 14, 15.) Respondent filed
neither her own objections nor any response to petitioner’s objections, as amended.
As pointed out in the R&R, Roberson filed a federal habeas petition on October 19, 2012
(Case No. 1:12-CV-2623), raising three grounds for relief. The petition was dismissed on April
29, 2014 and, although a notice of appeal was filed, the appeal was subsequently dismissed on
September 12, 2014 due to lack of jurisdiction.1 A petition for rehearing was denied on October
15, 2014.
The instant petition was filed on August 3, 2017. It raised six grounds for relief. The R&R
aptly concludes:

1

The Court of Appeals ruled that the notice of appeal was filed late and was not signed, and that Roberson had failed
to respond to the court’s earlier order to show cause why the appeal should not be dismissed.

Here, the grounds Petitioner attempts to raise challenge his underlying 2009
conviction, as he did in his prior petition. Petitioner’s first three grounds3 mirror, to
a large degree, the grounds raise in his prior petition. Compare Ex. 1, Doc. 1, at 5-9
(raising (1) illegal search and seizure, (2) sufficiency, and (3) ineffective assistance
of counsel claims) with Doc. 1, at 19, 23, 29, 30, 31, 35 (raising (1) “due process”
claim with supporting facts related to search and seizure, (2) sufficiency, and (3)
ineffective assistance of counsel claims). Thus, these claims were either raised
previously, or, to the extent they differ in any regard, they still challenge errors at
trial, and thus, “could have been raised in the first petition but [were] not so raised,
either due to deliberate abandonment or inexcusable neglect.” In re Bowen, 436
F.3d at 704. As such, the Petition is second or successive, and Petitioner must obtain
permission from the Sixth Circuit before such a filing. [footnote omitted].
Petitioner’s Fourth, Fifth and Sixth grounds do not sound in habeas. Rather, they
appear to be objections to the handling of his prior federal habeas petition. Habeas
relief is only available “only on ground [a petitioner] is in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
These grounds are thus not properly raised in this proceeding.
3

(R&R at 188,2 footnote 3 in original; footnote 4 omitted.)
Pursuant to Fed. R. Civ. P. 72(b)(3), the Court has conducted its de novo review of the
matters raised in the objections to the R&R. Following this review, the objections, as
supplemented, are overruled. The Report and Recommendation is adopted in its entirety as the
Order of this Court. Pursuant to 28 U.S.C. §§ 1631 and 2244, this case is transferred to the United
States Court of Appeals for the Sixth Circuit for the purpose of seeking permission to proceed with
a second or successive petition.
IT IS SO ORDERED.

Dated: June 26, 2018
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

2

Page number references are to the page identification number generated by the Court’s electronic docketing system.

2