Wogenstahl v. Warden, Chillicothe Correctional Institution

Filing 6

TRANSFER ORDER - It is hereby ORDERED that this case be transferred to the Sixth Circuit Court of Appeals for that court's determination of whether the case may proceed. The effective date of this Order is STAYED until the time for appeal to District Judge Rose has expired or until he has decided the appeal, whichever is later. Signed by Magistrate Judge Michael R. Merz on 5/4/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JEFFREY A. WOGENSTAHL,
Petitioner,

:

- vs -

Case No. 1:17-cv-298
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

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

TRANSFER ORDER

This capital habeas corpus case under 28 U.S.C. § 2254 is before the Court for initial
review under Rule 4 of the Rules Governing § 2254 Cases.
This is Mr. Wogenstahl’s second-in-time habeas corpus application. His first habeas
application was filed in this Court under case No. 1:99-cv-843. That case was dismissed with
prejudice on March 5, 2008. The Sixth Circuit affirmed that dismissal. Wogenstahl v. Mitchell,
668 F.3d 307 (6th Cir. 2012), and the Supreme Court denied certiorari, Wogenstahl v. Robinson,
133 S. Ct. 311 (2012).
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA") amended 28 U.S.C. § 2244(b) to read as follows:
(b)
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
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(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B)(i) 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 reasonable factfinder would have
found the applicant guilty of the underlying offense.
(3)
(A) Before a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.
(B) A motion in the court of appeals for an order
authorizing the district court to consider a second or
successive application shall be determined by a threejudge panel of the court of appeals.
(C) The court of appeals may authorize the filing of a
second or successive application only if it determines that
the application makes a prima facie showing that the
application satisfies the requirements of this subsection.
(D) The court of appeals shall grant or deny the
authorization to file a second or successive application not
later than 30 days after the filing of the motion.
(E) The grant or denial of an authorization by a court of
appeals to file a second or successive application shall not
be appealable and shall not be the subject of a petition for
rehearing or for a writ of certiorari.
(4) A district court shall dismiss any claim presented in a second or
successive application that the court of appeals has authorized to

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be filed unless the applicant shows that the claim satisfies the
requirements of this section.

A district court lacks jurisdiction to consider a second or successive petition without
approval by the circuit court. Franklin v. Jenkins, 839 F.3d 465 (6th Cir. 2016); Burton v.
Stewart, 549 U.S. 147 (2007). However, the district court must decide in the first instance
whether a petition or § 2255 motion is second or successive. In re: Kenneth Smith, 690 F.3d 809
(6th Cir. 2012); In re Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012).
The instant Petition is a second or successive habeas application. It attacks the same
judgment of conviction and sentence as the prior habeas case (Petition, ECF No. 1-1, PageID
19). So far as the Court is informed, there has been no new judgment in Mr. Wogenstahl’s state
court proceedings. Compare Magwood v. Patterson, 561 U.S. 320 (2010); King v. Morgan, 807
F.3d 154, 156 (6th Cir. 2015). The prior case was dismissed with prejudice. Compare Panetti v.
Quarterman, 551 U.S. 930 (2007); In re Bowen, 436 F.3d 699 (6th Cir. 2006).
Petitioner does not address the second or successive question in his Petition. Nor has he
filed with it any proof he has obtained permission to proceed from the Sixth Circuit. Having
determined the habeas application is second or successive, this Court is bound to transfer it to the
Sixth Circuit for that Court’s determination of whether or not Petitioner may proceed. In re Sims,
111 F.3d 45 (6th Cir. 1997).

CONCLUSION

Accordingly, it is hereby ORDERED that this case be transferred to the Sixth Circuit
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Court of Appeals for that court’s determination of whether the case may proceed. The effective
date of this Order is STAYED until the time for appeal to District Judge Rose has expired or
until he has decided the appeal, whichever is later.

May 4, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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