Smith v. Warden Franklin Medical Center

Filing 4

ORDER FOR RESPONSE: It is hereby ORDERED that Respondent file any argument he wishes the Court to consider on the question whether the Petition herein is a second or successive petition on which Petitioner requires the prior permission of the Sixth Circuit to proceed not later than March 19, 2012. Signed by Magistrate Judge Michael R Merz on 3/9/12. (cib1)

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

Case No. 1:12-cv-196
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsFRANCISCO PINEDA, Warden,
:
Respondent.

ORDER FOR RESPONSE

This capital habeas corpus case is before the Court for initial review upon filing. Petitioner
previously filed a habeas corpus action in this Court challenging the same conviction which is at
issue here (Case No. 1:99-cv-832). The final judgment of this Court denying relief has been
affirmed on appeal by the Sixth Circuit. Smith v. Mitchell, 567 F.3d 246 (6th Cir. 2009). The
Supreme Court subsequently denied certiorari. Smith v. Mitchell, 130 S. Ct. 742 (2009).
Petitioner’s execution has been stayed by Judge Frost of this Court in the parallel § 1983 litigation
to which Petitioner is a party. Prima facie, then, it would appear that this is a second or successive
petition of which this Court would not have jurisdiction in the absence of permission from the Sixth
Circuit. 28 U.S.C. § 2244(b); Burton v. Stewart, 549 U.S. 147 (2007).
Petitioner, however, makes an extended argument as to why this is not a second or successive
petition (Petition, Doc. No. 1-2, PageID 45-48). The Court finds it inappropriate to decide that
question in the first instance without giving the Ohio Attorney General an opportunity to respond.

-1-

Accordingly, it is hereby ORDERED that Respondent file any argument he wishes the Court
to consider on the question whether the Petition herein is a second or successive petition on which
Petitioner requires the prior permission of the Sixth Circuit to proceed not later than March 19, 2012.
March 9, 2012.
s/ Michael R. Merz
United States Magistrate Judge

J:\Death Penalty\Smith v. Mitchell\Smith v. Pineda Ord re 2244.wpd

-2-