Smith v. Warden Franklin Medical Center

Filing 113

ENTRY AND ORDER OVERRULING APPEAL 105 AND OBJECTIONS 111 , AFFIRMING TRANSFER ORDER 103 , AND DIRECTING TRANSFER OF THIS CASE TO THE SIXTH CIRCUIT COURT OF APPEALS. Signed by Judge Thomas M. Rose on 7-17-2017. (de) Modified on 7/18/2017 to change document type(kpf).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KENNETH SMITH,

:
Case No. 1:12-cv-196
:
Petitioner,
:
Judge Thomas M. Rose
:
v.
:
:
FRANCISCO PINEDA, Warden,
:
Franklin Medical Center,
:
:
Respondent.
:
______________________________________________________________________________
ENTRY AND ORDER OVERRULING APPEAL (DOC. 105) AND OBJECTIONS
(DOC. 111), AFFIRMING TRANSFER ORDER (DOC. 103), AND DIRECTING
TRANSFER OF THIS CASE TO THE SIXTH CIRCUIT COURT OF APPEALS
______________________________________________________________________________
This case is before the Court on Petitioner Kenneth Smith’s Appeal (Doc. 105)
from the Magistrate Judge’s Transfer Order (Doc. 103), which ordered the transfer of
this case to the Sixth Circuit Court of Appeals as a second-or-successive habeas
application under 28 U.S.C. § 2244(b). After Smith filed an Appeal from the Transfer
Order, the Court recommitted the matter to the Magistrate Judge for further
consideration under Federal Rule of Civil Procedure 72(b)(3). (Doc. 106.) The Magistrate
Judge considered Smith’s objections in a Supplemental Memorandum Opinion (Doc.
108) and, once again, determined that the case is a second-or-successive habeas
application that must be transferred to the Sixth Circuit. Smith filed Objections (Doc.
111) to the Supplemental Memorandum Opinion; and Respondent, the Warden of the

Franklin Medical Center, filed an Opposition (Doc. 112) to Smith’s Objections. This
matter is therefore ripe for the Court’s review.
As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), and
due to the application of the law-of-the-case doctrine as set forth in the Magistrate
Judge’s Supplemental Memorandum Opinion (Doc. 108 at PAGEID # 2645), the Court
has made a de novo review of the record in this case. Upon said review, the Court finds
that the Appeal (Doc. 105) and Objections (Doc. 111) to the Transfer Order (Doc. 103)
are not well-taken and are hereby OVERRULED. Accordingly, the Court hereby
AFFIRMS the Transfer Order and ORDERS the Clerk to transfer this case to the Sixth
Circuit for determination of whether it may proceed under 28 U.S.C. § 2244(b).
DONE and ORDERED in Dayton, Ohio, this Monday, July 17, 2017.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

2