Sheppard v. Warden, Pickaway Correctional

Filing 18

ORDER adopting Report and Recommendation re 13 Report and Recommendations granting 9 Motion to Dismiss; this matter 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

Thomas Sheppard,
Petitioner,

Case No. 1:15cv543

v.

Judge Michael R. Barrett

Warden,
Pickaway Correctional,
Respondent.
OPINION & ORDER
This matter is before the Court upon the Magistrate Judge’s February 5, 2016
Report and Recommendation (“R&R”) recommending that Respondent’s Motion to
Dismiss (Doc. 9) be granted (Doc. 13); and the Magistrate Judge’s February 5, 2016
Order denying as moot Petitioner’s motions and requests for taking of judicial notice of
adjudicative facts and motion to sever respondent’s misjoinder of claims and parties
(Doc. 14).
The parties were given proper notice, pursuant to 28 U.S.C. § 636(b)(1)(C),
including notice that the parties would waive further appeal if they failed to file
objections to the R&R in a timely manner. See United States v. Walters, 638 F.2d 947
(6th Cir. 1981). Petitioner filed timely objections to the Magistrate Judge’s R&R and
objections to the Magistrate Judge’s Order. (Doc. 16).
When a party files objections to a magistrate judge's report and recommendation
regarding a dispositive motion, the district judge must review “de novo any part of the
magistrate judge's disposition that has been properly objected to.” Fed. R. Civ. P.

72(b)(3); 28 U.S.C. § 636(b)(1)(B) & (C). In conducting its review, the district court “may
accept, reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see
also Fed. R. Civ. P. 72(a) (providing that a district judge shall consider a party’s
objections to a magistrate’s order on a nondispositive matter and “modify or set aside
any part of the order that is clearly erroneous or is contrary to law.”).
Petitioner objects to the Magistrate Judge’s conclusion that this matter should be
transferred to the Sixth Circuit pursuant to 28 U.S.C. § 1631 for consideration whether
the district court may review the petition in accordance with 28 U.S.C. § 2244(b).
Petitioner argues 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).
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). Moreover, in this instance,
the Sixth Circuit has previously ruled that Johnson did not announce a new rule of
constitutional law. (See Thomas Sheppard v. Warden, Lebanon Correctional Institution,
Case No. 1:08cv298, PAGEID # 1129).

Therefore, Petitioner is required to obtain

authorization pursuant to § 2244 to file his claims stemming from the Johnson decision.
Petitioner also objects because the Magistrate Judge did not reach the issue of
Respondent’s res judicata defense or the merits of his newly ripened claims. However,
it is unnecessary for this Court to rule on Respondent’s res judicata defense or rule on
the merits because this Court lacks jurisdiction to entertain Petitioner’s application. See
Burton v. Stewart, 549 U.S. 147, 157, 127 S. Ct. 793, 799, 166 L. Ed. 2d 628 (2007).

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Finally, Petitioner objects to the Magistrate Judge’s order denying as moot
Petitioner’s motions and requests for taking of judicial notice of adjudicative facts and
motion to sever respondent’s misjoinder of claims and parties. (Doc. 14). However,
because this Court does not have jurisdiction, it was unnecessary for the Magistrate
Judge to rule on these motions. Therefore, it the Magistrate Judge properly denied the
motions as moot.
The Court also finds that the Magistrate Judge properly recommended
transferring Petitioner’s petition to the Sixth Circuit. 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 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.”).
Based on the foregoing, the Magistrate Judge’s February 5, 2016 R&R (Doc. 13)
is hereby ADOPTED. It is hereby ORDERED that:
1. Respondent’s Motion to Dismiss (Doc. 9) is GRANTED; and
2. The Clerk of the Court is DIRECTED to 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
JUDGE MICHAEL R. BARRETT
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