Sheppard v. Warden Chillicothe Correctional Institution

Filing 4

ORDER FOR RESPONSE. It is hereby ORDERED that Respondent file any argument she 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 3/9/2012. (mdf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
BOBBY T. SHEPPARD,
:
Petitioner,

Case No. Case No. 1:12-cv-198
:

District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

-vsMARGARET A. BAGLEY, Warden,
Chillicothe Correctional Institution,
:
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. 1-00-cv-493). The final judgment of this Court denying relief has been
affirmed on appeal by the Sixth Circuit. Sheppard v. Bagley, 657 F.3d 338 (6th Cir. 2011), and
Justice Kagan has recently extended Petitioner’s time to file a petition for certiorari in the Supreme
Court to and including April 13, 2012. 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 16-19). The Court finds it inappropriate to decide that
question in the first instance without giving the Ohio Attorney General an opportunity to respond.
Accordingly, it is hereby ORDERED that Respondent file any argument she wishes the Court
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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\Sheppard v. Bagley\Sheppard Inj Hab Ord 2244.wpd

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