Jones v. Warden, Chillicothe Correctional Institute

Filing 10

REPORT AND RECOMMENDATIONS - Now that the appellate proceeding has been dismissed, jurisdiction is returned to this Court. The Court therefore has a pending second-or-successive habeas application without permission of the circuit court to proceed. Under those circumstances, it is respectfully recommended that the Petition herein be dismissed for lack of jurisdiction. Objections to R&R due by 3/16/2017. Signed by Magistrate Judge Michael R. Merz on 3/2/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ELWOOD H. JONES,
Petitioner,

:

- vs -

Case No. 1:17-cv-029
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Elwood Jones filed this habeas corpus case pursuant to 28 U.S.C. § 2254 on
January 11, 2017 (ECF No. 1). The Petition relates to his conviction and sentence of death in
Hamilton County Common Pleas Case No. B950578 on January 9, 1997. Id. at PageID 2, ¶ 2.
As Jones discloses at ¶ 14, this is his third-in-time habeas application attacking his capital
conviction. See Cases No. 1:01-cv-564 and 1:14-cv-440.
The Petition claims that it is timely because it is filed “within one year of the Supreme
Court’s decision in Hurst v. Florida, 136 S. Ct. 616 (2016), which was not decided until January
12, 2016. For the same reason, this petition is also not second or successive.” Id. at PageID 14, ¶
18. In the Supplement to the Petition, Jones argues his application is not second-or-successive
on analogy to Panetti v. Quarterman, 551 U.S. 930, 943 (2007), and arguing that, since he could
not have raised this claim in his initial petition, it was not an “abuse of the writ” to do it now
(ECF No. 2, PageID 54-55).
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A District Court presented with a second (or in this case third) in time petition is obliged
to determine whether the petition is second-or-successive. In re Smith, 690 F.3d 809 (6th Cir.
2012); In re Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012). A district court
lacks jurisdiction to consider a second or successive petition on the merits without approval by
the circuit court. Franklin v. Jenkins, 839 F.3d 465 (6th Cir. 2016); Burton v. Stewart, 549 U.S.
147 (2007). Therefore, if it finds a petition is second or successive, it must transfer the case to
the circuit court for the petitioner to obtain permission to proceed. In re Sims, 111 F.3d 45 (6th
Cir. 1997). It would be error for the District Court, for example, to dismiss the petition for
failure to state a claim or even for lack of jurisdiction because the petitioner did not first obtain
permission to file from the circuit court. Moreland v. Robinson, 813 F.3d 315 (6th Cir. 2016).
In attempted obedience to this circuit precedent, the Magistrate Judge found the instant
Third Petition was second-or-successive and transferred the case to the Sixth Circuit (ECF No.
3). The Sixth Circuit then opened its Case No. 17-3066 and docketed the Transfer Order (Case
No. 17-3066 App., ECF No. 2). In what the circuit docket calls a “Ruling Letter,” Petitioner’s
counsel was directed to “satisfy certain obligations under Sixth Circuit Rule 22,” to wit “You
must complete and return to the Clerk’s office the application form no later than February 22,
2017. If you do not electronically file the form or attach the documents required, this proceeding
may be dismissed.” (Case No. 17-3066 App., ECF No. 4.)
Jones’ counsel did not file the second or successive petition form, but moved to
“voluntarily dismiss” under Fed. R. App. P. 42(b)(Case No. 17-3066 App., ECF No. 9). The
circuit court then entered an order, signed by its Clerk as “by order of the Court,” which states
“Upon consideration of the Movant’s motion to voluntarily dismiss the appeal herein pursuant to
Rule 42(b), Federal Rules of Appellate Procedure, it is ordered that the motion is granted and the

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appeal is dismissed.”
The Transfer Order, when docketed in the Court of Appeals, transferred jurisdiction to
that court. Jackson v. Sloan, 800 F.3d 260, 261 (6th Cir. 2015).

Now that the appellate

proceeding has been dismissed, jurisdiction is returned to this Court. The Court therefore has a
pending second-or-successive habeas application without permission of the circuit court to
proceed. Under those circumstances, it is respectfully recommended that the Petition herein be
dismissed for lack of jurisdiction.

March 2, 2017.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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