Jacobs v. Hill

Filing 15

Order of Transfer to the United States Court of Appeals for the Sixth Circuit. The Petitioner's Objections (Doc. 12 ) and Supplemental Objection (Doc. 13 ) be, and the same hereby are overruled; 2. The Magistrate Judge's Report & Recommendation (Doc. 10 ) be, and the same hereby is adopted; 3. The Respondent's Motion to Transfer (Doc. 8 ) be, and the same is hereby granted; 4. The Petitioner's Motion for [the] Court to Order Judgment in [his] favor (Doc. 11 ) be, and the same hereby is denied; and 5. The Clerk shall cause this case to be transferred to the Sixth Circuit as it appears to be a second or successive Petition. Related Documents 7 and 8 . Judge James G. Carr on 1/18/2023. (D,TM)

Case: 4:22-cv-00434-JGC Doc #: 15 Filed: 01/18/23 1 of 3. PageID #: 82

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Phillip Douglas Jacobs,

Case No. 4:22-cv-0434

Petitioner,
ORDER

v.
Warden Leon Hill, 1
Respondent.

This is a petition for habeas corpus under 28 U.S.C. § 2254(d). This case follows referral
to the Hon. Thomas M. Parker for a Report & Recommendation, which he filed on Sept. 21,
2022. (Doc. 10). The petitioner has filed Objections to Judge Parker’s Report (Doc. 12) and a
Supplemental Objection. (Doc. 13). The respondent has filed a Response to the petitioner’s
Objections. (Doc. 14).
For the reasons that follow, I concur in every respect with the Magistrate Judge’s Report
& Recommendation. As he did, I find that I lack jurisdiction because the instant petition clearly
appears to be a second or successive petition under 28 U.S.C. § 2254(b)(3)(A). Accordingly, I
transfer this case to the Sixth Circuit for further proceedings.
In 1972, a jury in the Preble County Ohio, Court of Common Pleas convicted the
petitioner of murder. The Ohio Adult Parole Authority (OAPA) granted parole, and while on
release in 1985, he was once again convicted in the Common Pleas Court of Mahoning County,
Ohio, this time for felonious assault and aggravated robbery with firearms specifications. That
court imposed, consecutively, a thirty-five to fifty-five year sentence. On revocation by the

1

The Warden at Marion Correctional, where Petitioner is housed, is now Harold May.
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Case: 4:22-cv-00434-JGC Doc #: 15 Filed: 01/18/23 2 of 3. PageID #: 83

OAPA, his life sentence was reinstated and also is running consecutively to the Mahoning
County sentences.
Petitioner bases his present claim for habeas relief on a decision of the Ohio Supreme
Court that, according to him, held that the statutory underpinnings resulting in his consecutive
sentences was unconstitutional. See, State v. Foster, 109 Ohio St.3d 1 (2006).
The petitioner has filed thirteen prior habeas petitions or applications to file for habeas
relief. That being so, the Magistrate Judge concluded the instant petition appears to be second or
successive, depriving this court of jurisdiction.
In his Objections, petitioner disputes the Magistrate Judge’s apparently indisputable
transfer recommendation. He claims that he is entitled to relief in light of State v. Foster, supra.
The fact remains that he previously has filed multiple habeas petitions relating to his murder
conviction.
His “so what” answer to this fact is that somehow Foster has restarted the one-year
limitations period under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. §
2254(d)e(1). (ADEPA). That, however, is not a question that I have authority to resolve. Before I
can consider that issue, the Sixth Circuit must decide whether I have jurisdiction to do so.
In light of that doctrine, the petitioner’s Objections have no merit. He must first persuade
the Circuit that I can consider any of the issues he now raises in his fourteenth attempt to seek
relief under § 2254(d).
I agree with the rationale and result in Judge Parker’s typically thorough and wellreasoned Report & Recommendation. At best, petitioner’s contentions in his Objections are
premature.

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Case: 4:22-cv-00434-JGC Doc #: 15 Filed: 01/18/23 3 of 3. PageID #: 84

It is, accordingly hereby
ORDERED THAT:
1. The Petitioner’s Objections (Doc. 12) and Supplemental Objection (Doc. 13) be, and
the same hereby are overruled;
2. The Magistrate Judge’s Report & Recommendation (Doc. 10) be, and the same
hereby is adopted;
3. The Respondent’s Motion to Transfer (Doc. 8) be, and the same is hereby granted;
4. The Petitioner’s Motion for [the] Court to Order Judgment in [his] favor (Doc. 11) be,
and the same hereby is denied; and
5. The Clerk shall cause this case to be transferred to the Sixth Circuit as it appears to be
a second or successive Petition.

So ordered.
James G. Carr
Sr. U.S. District Judge

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