Rodriguez v. Warden, London Correctional Institution

Filing 47

Memorandum Opinion and Order: Petitioner's motion for relief from judgment (Doc. No. 42 ) and motion to expand the record and to revive procedurally defaulted claims (Doc. No. 46 ) are denied. Further, the Court certifies that an appeal from this decision could not be taken in good faith and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. Sections 1915(a)(3), 2253(c); Fed. R. App. P. 22(b). Judge Sara Lioi on 3/11/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOSE RODRIGUEZ,

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)
PETITIONER,
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)
vs.
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WARDEN, LONDON CORRECTIONAL )
INSTITUTION,
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RESPONDENT.
)
)

CASE NO. 3:11CV2437
JUDGE SARA LIOI

MEMORANDUM OPINION
AND ORDER

This matter is before the Court on petitioner’s motion for relief from judgment.
(Doc. No. 42.) Respondent filed his opposition (Doc. No. 43) and petitioner filed a reply (styled
as a “response contra”) (Doc. No. 45). Petitioner has also filed a motion to expand the record and
to revive procedurally defaulted claims. (Doc. No. 46.) The Court perceives no reason to wait for
or require any response to that motion.
On March 20, 2012, this Court denied petitioner’s motion to stay and dismissed
his habeas petition with prejudice, certifying that an appeal could not be taken in good faith and
that there was no basis upon which to issue a certificate of appealability. (See Doc. Nos. 30, 31
[Memorandum Opinion and Judgment Entry].) The Court made this determination because
petitioner’s first ground for relief was not cognizable in habeas proceedings, and his second and
third grounds for relief were both procedurally defaulted. (Memorandum Opinion at 1260.)
On April 9, 2012, petitioner filed a notice of appeal (Doc. No. 33), through
counsel who had made an appearance on January 15, 2012. (See Doc. No. 28.) Petitioner filed a

pro se notice of appeal on May 9, 2012 (Doc. No. 34),1 followed by a pro se motion for
certificate of appealability on May 14, 2012 (Doc. No. 35), and a pro se notice of completion of
exhaustion on May 21, 2012 (Doc. No. 36). On May 22, 2012, this Court denied the motion for
certificate of appealability, pointing out that it had already ruled that there was no basis for
issuing one and directing that the request and arguments would be better made to the Sixth
Circuit Court of Appeals. (See Doc. No. 37.)
On December 14, 2012, the Court of Appeals denied petitioner’s application for a
certificate of appealability and his request to proceed in forma pauperis on appeal. (Doc. No.
41.) The order does not explicitly dismiss the appeal, but the docket of the Sixth Circuit shows
the appeal as “termed” as of December 14, 2012, and the denial order is the last entry on the
docket.2
Although not apparent from the record in the instant case, petitioner filed another
habeas petition (Case No. 3:14-cv-444), which this Court transferred to the Sixth Circuit Court of
Appeals on March 19, 2014, as a second or successive petition requiring leave of that court to
proceed. (See Case No. 3:14-cv-444, Doc. No. 3.) The Court of Appeals denied leave on
September 24, 2014. (Id., Doc. No. 4.)
The instant motion for relief from judgment was filed pro se on October 27, 2014.
In his motion, petitioner argues that the dismissal of his first habeas petition by this Court must
be “seriously question[ed]” (Motion at 1297), and that “[t]he denial for failure to exhaust state

1

The court of appeals subsequently dismissed this appeal as a duplicate of the earlier appeal. (See Doc. No. 40.)

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The order states: “Reasonable jurists would agree that Rodriguez’s claims do not deserve encouragement to
proceed further. The first claim is not cognizable . . . . [and] Rodriguez procedurally defaulted his second and third
claims[.]” (Doc. No. 41 at 1294-95.)

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remedy’s [sic] was an error[.]” (Id.) The Sixth Circuit does not agree—in fact, it has rejected that
argument twice.
There is no merit to either of petitioner’s motions. These matters are res judicata
in light of the Sixth Circuit’s denial of leave to proceed with a second or successive petition. The
Court need devote no further time to petitioner’s repeated arguments, nor should the respondent
be required to needlessly respond to the latest motion to expand the record and reinstate
procedurally defaulted claims.
Accordingly, Doc. Nos. 42 and 46 are DENIED. Further, the Court certifies that
an appeal from this decision could not be taken in good faith and that there is no basis upon
which to issue a certificate of appealability. 28 U.S.C. §§ 1915(a)(3), 2253(c); Fed. R. App. P.
22(b).
IT IS SO ORDERED.

Dated: March 11, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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