Wogenstahl v. Warden, Chillicothe Correctional Institution
SUPPLEMENTAL REPORT - Because Wogenstahl's current Petition is a second-or- successive habeas application, he cannot proceed in this Court without permission from the circuit court. It is therefore respectfully recommended that the District Judge affirm the Transfer Order. Objections to Report due by 8/2/2017. Signed by Magistrate Judge Michael R. Merz on 7/19/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JEFFREY A. WOGENSTAHL,
- vs -
Case No. 1:17-cv-298
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
CHARLOTTE, JENKINS, Warden,
Chillicothe Correctional Institution,
This capital habeas corpus case under 28 U.S.C. § 2254 is before the Court on
Petitioner=s Objections (ECF No. 9) to the Magistrate Judge’s Transfer Order (ECF No. 6).
Judge Rose recommitted the matter for reconsideration in light of the Objections (ECF No. 10).
On Petitioner’s unopposed motion (ECF No. 16), the Magistrate Judge authorized supplemental
briefing which is now complete (ECF Nos. 18, 20, 21). The case is therefore ripe on the
Petitioner Jeffrey Wogenstahl was convicted of murdering ten-year old Amber Garrett
and sentenced to death on March 15, 1993. He filed his first habeas corpus Petition in this Court
in 1999 (Case No. 1:99-cv-843). That Petition was dismissed with prejudice March 5, 2008, and
the dismissal was affirmed by the Sixth Circuit. Wogenstahl v. Mitchell, 668 F.3d 3017 (6th Cir.
2012), cert. denied sub nom. Wogenstahl v. Robinson, 568 U.S. 902 (2012).
The Petition in this case was filed May 3, 2017 (ECF No. 1). Upon initial review under
Rule 4 of the Rules Governing § 2254 Cases, the Magistrate Judge concluded the Petition here
was second or successive and ordered it transferred to the Sixth Circuit for that court’s
determination under 28 U.S.C. § 2244(b) of whether the case could proceed (Transfer Order,
ECF No. 6). The effectiveness of the Transfer Order was stayed pending a decision by Judge
Rose on any appeal. Id. at PageID 595.
First Objection: Lack of Magistrate Judge Authority
Wogenstahl first objects that the Magistrate Judge lacked authority to enter the Transfer
Order because the Order is “dispositive” and only District Judges have authority to enter
“dispositive” orders (Objections, ECF No. 9, PageID 1172-73, citing Vogel v. U.S. Office
Products Co., 258 F.3d 509 (6th Cir. 2001)).
The Magistrates’ Act, codified at 28 U.S.C. § 636(b)(1)(A), precludes a magistrate judge
from determining certain pretrial matters and those matters are called “dispositive” because they
are “dispositive of a claim or defense of a party.” The list of dispositive motions contained in §
636(b)(1)(A) is nonexhaustive, and unlisted motions that are functionally equivalent to those
listed in § 636(b)(1)(A) are also dispositive. Vogel, supra (holding motions to remand are
dispositive) and citing, Callier v. Gray, 167 F.3d 977, 981 (6th Cir. 1999)(holding that a motion
for default judgment is dispositive because it is “substantially similar to several of the listed
motions”); Vitols v. Citizens Banking Co., 984 F.2d 168, 169-70 (6th Cir. 1993)(holding that a
motion to certify a district court order for interlocutory appeal is dispositive); Bennett v. General
Caster Service of N. Gordon Co., Inc., 976 F.2d 995 (6th Cir. 1992)(per curiam)(holding that a
motion for Rule 11 sanctions is dispositive); United States Fid. & Guar. Co. v. Thomas Solvent
Co., 955 F.2d 1085 (6th Cir. 1992)(holding that because a motion to realign parties would either
destroy or preserve diversity jurisdiction, motions to realign are dispositive); Woods v. Dahlberg,
894 F.2d 187 (6th Cir. 1990)(holding that an order denying a motion to proceed in forma pauperis
is dispositive because it is the functional equivalent of an involuntary dismissal). See also
National City Bank v. Aronson, 474 F. Supp. 2d 925 (S.D. Ohio 2007)(Marbley, J.)(remand
motion is dispositive). In determining whether a particular motion is dispositive, the Sixth
Circuit has undertaken a functional analysis of the motion’s potential effect on litigation. Vogel,
976 F.2d at 514-515.
The Sixth Circuit has never held that a transfer order under the AEDPA is the functional
equivalent of any of the listed dispositive motions and has repeatedly accepted jurisdiction to
decide the § 2244(b) question on transfer orders from the undersigned. However, it has also
remanded cases for District Judge consideration of the transfer question on objections to the
transfer order. That is why in this case the effectiveness of the Transfer Order was sua sponte
postponed until Judge Rose could decide the appeal.
Petitioner argues that a transfer order is the functional equivalent of a dismissal for lack of
jurisdiction (Objections, ECF No. 9, PageID 1173). Not so. Such an order dismisses nothing,
but merely seeks the necessary permission of the circuit court to proceed. District courts have no
jurisdiction over second-or-successive habeas applications. Franklin v. Jenkins, 839 F.3d 465 (6th
Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007). The risk of proceeding in a capital habeas
case without jurisdiction is that the district court will find later, when the Court of Appeals
reverses for lack of jurisdiction, that it has wasted years of effort litigating a case. So long as he
has a stay of execution in place, a year-long delay is of no consequence to a condemned inmate.
Given scarce judicial resources, that is not true of a district court.1
Although the Magistrate Judge disagrees with Wogenstahl’s assertion that the Transfer
Order is dispositive, he agrees that the standard of review should be de novo.
Second Objection: Improperly Raising the § 2244(b) Issue Sua Sponte
Wogenstahl also complains that the Magistrate Judge raised the § 2244(b) issue sua
sponte (Objections, ECF No. 9, PageID 1173-75).
Wogenstahl asserts the second-or-successive issue is a defense and the burden lies with
the Respondent to raise it (Objections, ECF No. 9, PageID 1174, citing Sanders v. United States,
373 U.S. 1 (1963)). Sanders was decided thirty-three years before the AEDPA was enacted.
Along with Fay v. Noia, 372 U.S. 391 (1963), and Townsend v. Sain, 372 U.S. 293, 313 (1963),
it was part of the trilogy of habeas cases decided in the Spring of 1963 which created the
veritable flood of habeas cases which has been an important part of the federal docket ever since.
The number of those cases led to two important legislative developments, adoption of the
Magistrates’ Act in 1968 and of the Rules Governing Section 2254 Cases in 1976. Rule 4 of that
set of Rules calls for a preliminary screening of habeas petitions before an answer is ordered.
The Supreme Court has sanctioned raising a statute of limitations defense as that stage sua
For many years now, the Southern District of Ohio has had one of the largest capital litigation dockets in the
sponte. The statute of limitations is an affirmative defense which is forfeited if not pleaded as
required by Fed. R. Civ. P. 8(c). A district court may dismiss a habeas petition sua sponte on
limitations grounds when conducting an initial review under Rule 4 of the Rules Governing §
2254 Cases. Day v. McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense
even after answer which did not raise it).
Unlike the statute of limitations, which can be forfeited if not pleaded, lack of jurisdiction
is never waived or forfeited. Fed. R. Civ. P. 12(h)(3). A federal court is further obliged to note
lack of subject matter jurisdiction sua sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S.
149, 152 (1908); Capron v. Van Noorden, 6 U.S. 126 (1804); Answers in Genesis of Ky., Inc. v.
Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009); Clark v. United States, 764 F.
3d 653 (6th Cir. 2014).
If a habeas petition is second-or-successive, then the district court lacks jurisdiction to
consider it without circuit court permission. Therefore it was not error to raise the § 2244(b)
issue sua sponte.
To the extent Petitioner claims he should have been given an opportunity to brief the
issue before any ruling, he has now had that opportunity in filing Objections and the
supplemental briefing the Court allowed. Recommittal to the Magistrate Judge is in any event
the relief Petitioner requested on this Second Objection and that relief has been granted.
Third Objection: The Petition Is Not Second or Successive
Wogenstahl’s substantive objection is that his instant Petition is not second-or-successive
(ECF No. 9, PageID 1176-84).
Wogenstahl begins by noting that both the Supreme Court and the Sixth Circuit have held
that not all second-in-time habeas applications are second or successive. Id. at PageID 1177-78,
citing Panetti v. Quarterman, 551 U.S. 930 (2007); Stewart v. Martinez-Villareal, 523 U.S. 637
(1998); In re Jones, 652 F.3d 603 (6th Cir. 2010); Storey v. Vasbinder, 657 F.3d 372 (6th Cir.
2011); In re Bowen, 436 F.3d 699 (6th Cir. 2006); and In re Brock, 2010 U.S. App. LEXIS 27235
(6th Cir. Jun 8, 2010).
Wogenstahl then notes that the Sixth Circuit “employs the abuse-of-the-writ doctrine to
determine whether a petitioner’s numerically second petition raising newly viable claims is a
second or successive petition under 28 U.S.C. § 2254(b)” (ECF No. 9, PageID 1179, citing
Bowen, supra; In re Marsch, 2006 U.S. App. LEXIS 31720 (6th Cir. Dec. 20, 2006); and In re
Landrum, 2017 U.S. App. LEXIS 6035 (6th Cir. Feb. 13, 2017)).
The abuse-of-the-writ doctrine was a judicial construction created to deal with repetitive
petitions before the AEDPA, at a time when there was no statutory limit on the number of habeas
corpus petitions a prisoner could file. Under that doctrine, a numerically second petition is
"second" when it raises a claim that could have been raised in the first petition but was not so
raised, either due to deliberate abandonment or inexcusable neglect. Bowen at 704, citing
McCleskey v. Zant, 499 U.S. 467, 489 (1991). But while § 2244(b) excludes petitions which are
abusive, it does not codify the old abuse-of-the-writ doctrine. That is to say, a petition does not
escape classification as second-or-successive just because it is not an abuse of the writ. Rather, it
must be based on same claim that was not available at the time of the first petition, either
because of lack of ripeness as in Bowen or because the claim had not yet arisen as in Panetti.
As Wogenstahl notes, the Sixth Circuit requires a claim-by-claim analysis of the secondor-successive question (Objections, ECF No. 9, PageID 1180, citing In re Bowling, 2007 U.S.
App. LEXIS 30397 (6th Cir. Sept. 12, 1997). Thus the claims pleaded by Wogenstahl in the
instant Petition must be examined in that way.
The instant Petition pleads four claims for relief:
First Claim for Relief:
The prosecution suppressed material
Second Claim for Relief: The prosecution knowingly adduced
false testimony and engaged in inaccurate argument both of which
it neither corrected nor disclosed the falsity to trial counsel.
Third Claim for Relief: Trial counsel’s acts and omissions
deprived Jeffrey Wogenstahl of effective assistance of counsel
during the pretrial, trial, and mitigation phases.
Fourth Claim for Relief: The cumulative effect of the federal
constitutional errors denied Wogenstahl due process under the
Fifth, Sixth, Eighth [,] and Fourteenth Amendments.
(Petition, ECF No. 7, PageID 598-99.)
Wogenstahl acknowledges that relief on the Fourth Claim (cumulative error) is precluded
by Lorraine v. Coyle, 291 F.3d 416 (6th Cir. 2002). He has pleaded the claim in the apparent
hope the Supreme Court will reverse this position and declare its decision applicable on
The other three claims are based on extensive exhibits filed with the Petition (Appendix,
ECF No. 8). Much of this documentation existed and was in the hands of Wogenstahl’s counsel
at the time of trial. (See, e.g., the first twelve documents in the Appendix.) Wogenstahl’s theory
about why his first three claims are not second-or-successive is as follows:
The filing of Wogenstahl’s pending petition was prompted by
documents that he received in the course of litigation since the
completion of his initial habeas petition. He pursued Freedom of
Information Act requests as well as state public records requests.
The latter resulted in a mandamus action being filed in the Ohio
Supreme Court which the parties resolved after court ordered
mediation. See State ex rel. Office of the Ohio Public Defender v.
Harrison Police Dept., Ohio Supreme Court Case No. 16-0410
(“post federal habeas litigation”). It was not until the Harrison
Police Department allowed counsel (as a result of that litigation) to
view and copy the entire police file in this case that the following
claims for relief, and the evidence supporting them, became
available and/or ripe. This petition was filed within one-year of
obtaining these documents.
(Objections, ECF No. 9, PageID 1180-81.) Thus Petitioner’s theory is that a habeas claim arises
when the evidence to support it becomes available.2 Wogenstahl offers no support for that
theory from the case law. In fact this Court has consistently distinguished between claims that
are newly-arising (e.g., a Ford v. Wainright claim that arises when a death row inmate becomes
incompetent to be executed) and claims for which a petitioner has newly-discovered evidence.
For example, in Smith v. Pineda, 2017 U.S. Dist. LEXIS 50346, *1 (S.D. Ohio Apr. 3, 2017),
adopted Smith v. Pineda, 2017 U.S. Dist. LEXIS ________ (S.D. Ohio July 18, 2017), the Court
distinguished between newly-arising predicates and newly-discovered evidence to support
existing claims. See also Tibbetts v. Warden, 2017 U.S. Dist. LEXIS 51968 (S.D. Ohio Apr. 5,
2017), aff’d. 2017 U.S. Dist. LEXIS 83416 (S.D. Ohio May 30, 2017)(Dlott, J.).
28 U.S.C. § 2244(b) contemplates that newly-discovered evidence can support granting
permission for a second-or-successive habeas application, but only if
the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light
of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that, but for constitutional error, no
The mention that the documents were discovered less than a year before May 3, 2017, is presumably in support of
an argument that this second Petition is timely under 28 U.S.C. § 2244(d)(1)(D).
reasonable factfinder would have found the applicant guilty of the
In other words, a newly-discovered evidence claim must show due diligence in discovering the
evidence and that it is sufficient to show actual innocence. Wogenstahl’s theory that newlydiscovered evidence gives rise to a new claim avoids both of these procedural hurdles which
Congress clearly intended to erect to second-or-successive habeas applications, particularly in
capital cases such as this where the crime was committed twenty-five years ago.
In his supplemental Merit Brief, Wogenstahl argues he can avoid the § 2244(b) hurdle
because (1) his claims were not ripe “during his initial habeas proceedings or in the alternative
(2) he can show cause and prejudice to excuse not filing earlier or in the alternative (3) “transfer
is not mandated because a fundamental miscarriage of justice has occurred in this case.” (ECF
No. 18, PageID 1210.)
In support of his new Petition, Wogenstahl claims that the following exhibits should have
been turned over at the time of trial under Brady v. Maryland, 373 U.S. 83 (1963): Exhibits 13a,
13b, 14 – 33, 35 – 73, 76, 77, 79, 81, 86, and 87. Id. at PageID 1217. He emphasizes that these
documents were in fact only turned over on May 3, 2016, in “post federal habeas litigation.” Id.
As to how he obtained the documents, he references the Freedom of Information Act, the Ohio
Public Records Act, and a mandamus action in the Ohio Supreme Court. The mandamus
complaint was not filed until March 18, 2016.3 The Complaint avers that the relevant request for
public records to the Harrison Police Department was made January 14, 2016. Wogenstahl has
been continuously represented by counsel in this Court since his original Petition was filed in
1999. Why wait seventeen years to make a public records request from such an obvious source?
websitehttps://supremecourt.ohio.gov/clerk/ecms/#/caseinfo/2016/0410, visited July 18, 2017.
If the case is transferred, Petitioner will have to justify this delay to the Sixth Circuit under 28
U.S.C. §2244(b)(2)(B). Construing the statute to permit filing within one year of discovery of
new evidence permits Petitioner to avoid that burden.
Wogenstahl writes at length in his Merits Brief how his failure to file until now is
excusable under Martinez v. Ryan, 566 U.S. ___, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012), and
Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911, 185 L. Ed. 2d 1044 (2013). There the
Supreme Court held that failure to raise an ineffective assistance of trial counsel claim in postconviction could be excused if a petitioner received ineffective assistance of post-conviction
counsel. The Sixth Circuit has not yet held Martinez and Trevino apply in Ohio; this Court
assumes they do. But how can ineffective assistance of post-conviction counsel which occurred
many years ago (before the first habeas petition was filed in 1999) excuse failure to gather
evidence by habeas corpus counsel while the first petition was pending or since the first case was
Finally, Wogenstahl argues this case “presents a fundamental miscarriage of justice.”
Even assuming he had presented new evidence which meets the demanding standard of Schlup v.
Delo, 513 U.S. 298, 316 (1995)(which he has not), he has presented no authority for the
proposition that actual innocence will exempt a petitioner from obtaining circuit permission
before proceeding on a second-or-successive petition. There is no authority known to this Court
that even suggests that actual innocence evidence makes a claim newly arising like the claim in
Because Wogenstahl’s current Petition is a second-or-successive habeas application, he
cannot proceed in this Court without permission from the circuit court.
It is therefore
respectfully recommended that the District Judge affirm the Transfer Order.
July 19, 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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