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).

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?