Sudberry v. Warden, Lebanon Correctional Insititution

Filing 5

REPORT AND RECOMMENDATION that because this Court lacks jurisdiction in this mater involving a successive habeas petition within the meaning of 28:2244(b), petitioner's re 4 Petition for Writ of Habeas Corpus be Transferred to the Sixth (6th ) Circuit for further proceedings as required under 28:2244(b)(3). Objections to R&R due by 3/14/2017. Signed by Magistrate Judge Karen L. Litkovitz on 2/28/2017. (art)(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
JAMES SUDBERRY,
Petitioner,
vs.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

Case No. 1: 17-cv-45
Barrett, J.
Litkovitz, M.J.

REPORT AND
RECOMMENDATION

In this prose habeas corpus action filed pursuant to 28 U.S.C. § 2254, petitioner
challenges his 2011 conviction for assault on a corrections officer in a case before the Warren
County, Ohio, Court of Common Pleas. (See Doc. 4, at PAGEID#: 36; see also Doc. 2, p. 1 &
n.1 , at PAGEID#: 25). On January 25, 2017, the undersigned issued an Order granting
petitioner' s application to proceed informa pauperis and ordering the petitioner to submit a
signed petition and to show cause in writing "why this action should not be transferred to the
Sixth Circuit Court of Appeals as a successive petition." (See Doc. 2). The petitioner has
complied with the January 25, 2017 Order by submitting both a signed petition and a response to
the show-cause order. (Docs. 3-4). Petitioner' s submissions were filed on February 16, 2017.

(See id.). This matter is now before the Court on petitioner's response to the show-cause order.
(Doc. 3).
As discussed in the January 25, 2017 Order (see Doc. 2), this is not the first habeas
corpus petition that petitioner has filed with this Court challenging his 2011 Warren County
Common Pleas Court conviction. In a prior prose petition, which petitioner submitted for filing
in August 2014 together with an in for ma pauperis application, petitioner raised claims generally
alleging "police brutality," ineffective assistance of counsel, " biased judge," and "impartial

jury." See Sudberry v. Warden, Southern Ohio Corr. Facility, No. l: l 4-cv-676 (Barrett, J. ;
Bowman, M.J.) (Docs. 1-2). On September2, 2014, the magistrate judge granted petitioner
leave to proceed in forma pauper is, but also recommended that the petition be dismissed with
prejudice pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts, 28 U.S.C. foll. § 2254, on the ground that it was " clear from the face of the
petition that the petitioner's grounds for relief are time-barred under the applicable one-year
statute of limitations set forth in 28 U.S.C. § 2244(d)(l)(A)." Id (Doc. 3). It appears from this
Court' s docket record for Case No. 1: l 4-cv-676 that petitioner next filed an objection to the
Report and Recommendation and, a month later, filed with the United States Court of Appeals
for the Sixth Circuit an application for authorization to file a second or successive § 2254
petition. See id. (Docs. 5-6). On June 1, 2015, the Sixth Circuit denied petitioner's application
to file a second or successive petition. (Doc. 6). Thereafter, on July 6, 2015, the District Court
issued an Order and Judgment overruling the petitioner's objections to the magistrate judge's
September 2, 2014 Report and Recommendation and dismissing the petition with prejudice on
the ground that it was "clear from the face of the petition that it is barred by the applicable oneyear statute of limitations set forth in 28 U.S.C. § 2244(d)." See id (Docs. 7-8). Petitioner did
not pursue an appeal to the Sixth Circuit from the District Court's final ruling in the case.
In his response to the January 25, 2017 show-cause order, petitioner does not dispute that
he is challenging the same conviction that was attacked by him in Case No. 1: l 4-cv-676. (See
Doc. 3).
Pursuant to 28 U.S.C. § 2244(b)(l), the federal district court must dismiss a claim
presented in a second or successive habeas corpus petition that was raised in a prior petition. In
addition, the court must dismiss a claim presented in a second or successive petition, which the

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petitioner did not include in the prior petition, unless: (1 )(a) petitioner shows the claim relies on
a new rule of constitutional law, made retroactive to cases on collateral review by the United
States Supreme Comt, that was previously unavailable; or (b) the factual basis for the claim
could not have been discovered previously through the exercise of due diligence; and (2) the
facts would be sufficient to establish by clear and convincing evidence that, but for constitutional
error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense.
28 U.S .C. § 2244(b)(2).
Before the district court may consider a successive petition, the petitioner must first
request and obtain authorization for such consideration from the court of appeals. 28 U.S.C. §
2244(b)(3). The court of appeals may authorize the district court to consider a successive
petition only if petitioner makes the primafacie showing described above. Id.
In this case, because the instant petition relates to the same conviction or sentence under
attack in the prior petition, it appears to be "successive" within the meaning of the statute. See

Jn re Page, 179 F.3d 1024, 1025 (7th Cir. 1999) (and cases cited therein). Although a dismissal
of a prior habeas petition relating to the same conviction or sentence will not render the
subsequent petition successive if the dismissal is based on technical reasons that do not constitute
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an adjudication "on the merits," see Stewart v. Martinez-Villareal, 523 U .S. 637(1998), it is

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Specifically, courts have held that a later petition is not successive where the first petition was dismissed

as premature, see Stewart, 523 U.S. at 645 ; the first petition was dismissed without prejudice for fai lure to exhaust
state court remedies, see Slack v. McDaniel, 529 U.S. 473 , 485-86 (2000); Carlson v. Pitcher, 137 F.3d 4 16 (6th Cir.
1998); the second petition was filed after a remedial appeal ordered in response to the prior petition, see Storey v.
Vasbinder, 657 F.3d 372, 3 77-78 (6th Cir. 20 I I); or the first petition was dismissed because petitioner failed to
either pay the filing fee or provide proper support for his application for pauper status, see Stewart, 523 U.S. at 645
(citing Marsh v. United States Dist. Court for the N. Dist. ofCalifornia, No. C-94-0581-VRW, 1995 WL 23942
(N.D. Cal. Jan. 9, 1995)). In all of those contexts, the district court had jurisdiction to consider the subsequent
petitions without first obtaining authorization from the court of appeals because the prior dispositions were not "on
the merits." See Slack, 529 U.S. at 485-86; Carlson, 137 F.3d at 419; Camarano v. Irvin, 98 F.3d 44, 46-4 7 (2nd
Cir. 1996); cf Storey, 657 F.3d at 377-78 (where initial petition involved disposition ofonly one constitutional
claim- i.e., whether the petitioner was entitled to a new direct appeal).

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well-settled that when the prior petition is dismissed because the petitioner procedurally
defaulted his claims in state com1 or because the petition is barred by the statute of limitations,
the dismissal is an adjudication of the merits of the claims, and the petitioner must obtain prior
authorization from the court of appeals pursuant to§ 2244(b)(3) before filing a subsequent
federal habeas application. See In re Cook, 215 F.3d 606, 608 (6th Cir. 2000) (involving
procedural-default dismissal); Carter v. United States, 150 F.3d 202, 205-06 (2nd Cir. 1998)
(same); See also In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011) (and cases cited therein)
(involving statute-of-limitations dismissal); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir.
2009) (same); Murray v. Greiner, 394 F.3d 78, 81 (2nd Cir. 2005) (same); Altman v. Benik, 337
F.3d 764, 766 (7th Cir. 2003) (same); Stokes v. Gehr, 399 F. App ' x 697, 699 n.2 (3rd Cir. 2010)
(same); Womble v. Brewer, No. 16-13739, 2016 WL 6893777, at *3 (E.D. Mich. Nov. 23, 2016)
(same); Edwards v. Warden, Ross Corr. Inst., No. 1:10cv637, 2011WL901379, *l (S.D. Ohio
Jan. 10 2011) (Bowman, M.J.) (Report & Recommendation) (and cases cited therein) (same),

adopted, 2011 WL 901378 (S.D. Ohio Mar. 14, 2011) (Dlott, J.). 2
Here, petitioner' s prose petition for a writ of habeas corpus is "successive" within the
meaning of§ 2244(b) because petitioner' s prior habeas petition, which was dismissed with
prejudice on statute-of-limitations grounds, was adjudicated on the merits. Moreover, petitioner
is not contesting any "new judgment," such as a new sentence imposed on resentencing, that
occurred between the habeas proceedings. See Magwood v. Patterson, 561 U.S. 320, 331 -39
(2010). It appears from the face of the instant petition that petitioner is asserting four grounds
for relief that are substantially similar, if not identical, to the four claims that were presented in
his prior habeas petition. (See Doc. 4, at PAGEID#: 39-40, 42-44). To the extent that petitioner
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Contrast Gonzalez v. Crosby, 545 U.S. 524, 535-36 (2005) (a motion for relief from judgment under Fed.
R. Civ. P. 60(b), which " challenges only the District Court's previous ru ling on the AEDPA statute of limitations, ...
is not the equivalent of a successive habeas petition" ).

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seeks to posit new claims that were not asserted in his prior petition, the claims are still
successive under 28 U. S. C. § 2244(b)(2) because (I) petitioner has not shown they rely on a new
rule of constitutional law, made retroactive to cases on collateral review by the United States
Supreme Coui1, that was previously unavailable; or (2) that the factual bases for the new claims
could not have been discovered previously through the exercise of due dili gence, and such facts
would be sufficient to establish by clear and convincing evidence that, but fo r constitutional
error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense.
After reviewing petitioner's response to the January 25, 2017 show-cause order (see Doc. 3), the
undersigned is convinced that petitioner has not satisfi ed the jurisdicti onal standards set forth in
§ 2244(b), which would permit thi s Court to review the instant petition. 3
Accordingly, in sum, because the instant habeas corpus petition is successive w ithin the
meaning of 28 U. S.C. § 2244(b), this Court lacks jurisdiction to consider it in the absence of
pri or authorization by the Sixth Circuit. When a prisoner has filed a successive petition for
habeas corpus relief in the district court without first obtaining authorization from the Coui1 of
Appeals, the district court in the interest of j ustice pursuant to 28 U.S.C. § 163 1 is required to
transfer the case to the Sixth Circuit for consideration as required under § 2244(b)(3). See In re

Sims, 111 F.3d 45, 47 (6th C ir. 1997) (citing Liriano v. United States, 95 F.3d 11 9, 122 (2nd Cir.
1996)); see also Withers v. Warden, Chillicothe Corr. Inst., No. 2:1 5cv l 29, 20 15 WL 965674, at
*2-3 (S.D. Ohio Mar. 4, 2015) (Kemp, M.J.), adopted, 2015 WL 12 12556 (S.D. Ohio Mar. 16,

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Constru ing peti tioner's response liberally, it appea rs that petitioner is arguing that the Sixth Circuit would
not entertain his case, but rather instructed him to "go to lower courts & exhaust his claims" before seeking habeas
relief. (See Doc. 3). However, upon review of the prior case, it appears the Sixth Circuit merely denied petitioner's
application for authorization to file a second or successive petition while the Report and Recommendation was
pending before the District Court to deny the petition on statute-of-lim itations grounds. The District Court's
subsequent adoption of the Report and Recommendation amounted to an adjudication of the merits of that petition.
Neither the Sixth Circuit' s ruling on the application for authorization nor the District Court's final Order and
Judgment in Case No. I: 14-cv-676 remotely suggests that the prior case was not adj ud icated "on the merits" or was
disposed in a way to permit petitioner to exhaust remed ies before seeking to file a subsequent petition.

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2015) (Economus, J.). Therefore, it is RECOMMENDED that the instant petition be
transferred to the Sixth Circuit for review and determination whether the district court should be
granted authorization to entertain it.

IT IS THEREFORE RECOMMENDED THAT:
Because this Court lacks jurisdiction in this matter involving a successive habeas petition
within the meaning of28 U.S.C. § 2244(b), petitioner' s prose petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 be TRANSFERRED to the Sixth Circuit for further
proceedings as required under 28 U.S.C. § 2244(b)(3).

Date:

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United States Magistrate Judge

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UNITED ST ATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. 1: l 7-cv-45

JAMES SUDBERRY,
Petitioner,

Barrett, J.
Litkovitz, M.J.

vs .
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. 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 Recommendation is based in whole or in part upon matters occurring on the 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 pai1y may respond to another party's objections

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
( 1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981 ).
cbc

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