Keeling v. Warden Lebanon Correctional Institution

Filing 49

ORDER adopting Report and Recommendation re 45 Report and Recommendations denying 38 Motion for Leave to File; this matter is reopened and Petitioner's Application is transferred to the Sixth Circuit Court of Appeals. Signed by Judge Michael R. Barrett on 8/23/16. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Dante Keeling,
Petitioner,
v.

Case No. 1:08cv231

Warden,
Lebanon Correctional Institution,

Judge Michael R. Barrett

Respondent.
OPINION & ORDER
This matter is before the Court upon the Magistrate Judge’s October 30, 2015
Report and Recommendation recommending that Petitioner’s application in this closed
habeas case requesting permission “to file a numerically second federal petition for a writ
of habeas corpus (tile 28 U.S.C. § 2254) without certification (as unnecessary) under the
ripeness doctrine” be denied.

(Doc. 45).

Petitioner filed timely objections to the

Magistrate Judge’s R&R. (Doc. 48).
When objections to a magistrate judge’s report and recommendation are received
on a dispositive matter, the assigned district judge “must determine de novo any part of
the magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
decision; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1). Petitioner objects to the Magistrate
Judge’s conclusion that his application be denied. Petitioner maintains that his petition
is based upon newly ripened claims stemming from the Ohio Supreme Court’s decision in

State v. Johnson, 942 N.E.2d 1061 (Ohio 2010).
Before a district court may consider a successive petition, the petitioner must first
request and obtain authorization for such consideration from the court of appeals. 28
U.S.C. § 2244(b)(3). Petitioner maintains that he does not need prior authorization from
the Sixth Circuit because his new claims were not ripe when his initial petition was
decided. However, as the Magistrate Judge explained, courts have uniformly concluded
that a subsequent change in the law does not prevent the petition from qualifying as a
second or successive petition within the meaning of § 2244(b)(3)(A).

Therefore,

Petitioner is required to obtain authorization pursuant to § 2244 to file his claims
stemming from the Johnson decision.
As the Magistrate Judge concluded, this finding applies equally to Petitioner’s
claims which challenge the state court’s rulings on his post-conviction petition that was
filed after his first federal habeas petition was denied. To the extent that Petitioner
argues that Ohio’s post-conviction statute is ineffective to protect his rights, the
Magistrate Judge was correct to point out that “errors in post-conviction proceedings are
outside the scope of federal habeas corpus review.” Cress v. Palmer, 484 F.3d 844, 853
(6th Cir. 2007).
If a second or successive petition is filed in the district court without § 2244(b)(3)
authorization from the court of appeals, the district court may dismiss for want of
jurisdiction or “shall, if it is in the interest of justice, transfer such action . . . to any other
such court in which the action ... could have been brought at the time it was filed.” 28
U.S.C. § 1631; In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (“when a prisoner has sought §
2244(b)(3) permission from the district court, or when a second or successive petition for
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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.”).
Accordingly,

the

Magistrate

Judge’s

October

30,

2015

Report

and

Recommendation (Doc. 45) is ADOPTED. To the extent that Petitioner’s application
(Doc. 38) seeks to file a second petition without certification, that portion of the application
is DENIED. The Clerk of the Court is DIRECTED to reopen this case and transfer
Petitioner’s application to the United States Court of Appeals for the Sixth Circuit pursuant
to 28 U.S.C. § 1631 and In Re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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