Russell v. Warden Warren Correctional Institution

Filing 82

ORDER denying re 81 MOTION for Reconsideration re 80 Order on Motion for Miscellaneous Relief, filed by Mark R. Russell. Signed by Judge Edmund A. Sargus on 6/9/2022. (cmw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:08-cv-00171-EAS-KAJ Doc #: 82 Filed: 06/09/22 Page: 1 of 2 PAGEID #: 2654

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARK A. RUSSELL,
Petitioner,
v.

CASE NO. 2:08-cv-171
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson

WARDEN, WARREN
CORRECTIONAL INSTITUTION,
Respondent.
ORDER
This habeas corpus matter was dismissed on August 11, 2009. (Doc. 42.) The United
States Court of Appeals for the Sixth Circuit denied Petitioner’s application for a certificate of
appealability on September 23, 2010. (Doc. 58.) In the years since that Order, Petitioner has filed
several motions in this Court and in the Sixth Circuit, including two unsuccessful requests in the
Sixth Circuit for authorization to file a second or successive habeas corpus petition. (Docs. 62,
66.)
In 2019, while seeking a certificate of appealability in the Sixth Circuit, Petitioner filed a
“Motion Challenging Constitutionality of State Statute Pursuant to FRAP 44(b).” (Doc. 8 in
Appeal No. 19-3381.) Therein, he challenged Ohio’s Post-Conviction statutes and the Ohio
Supreme Court’s decision in State v. Steffen, 70 Ohio St.3d 399 (1994). (Id.) The Sixth Circuit
denied the motion, along with Petitioner’s request for a certificate of appealability. (Doc. 77.)
Petitioner then filed a similar “Motion Challenging Constitutionality of State Statute
Pursuant to FRAP 44(b)” in this Court, challenging the same statutes and Steffen, and arguing that
his underlying claims should be adjudicated on the merits. (Doc. 79.) This Court denied his

Case: 2:08-cv-00171-EAS-KAJ Doc #: 82 Filed: 06/09/22 Page: 2 of 2 PAGEID #: 2655

Motion, noting that Rule 44(b) of the Federal Rules of Appellate Procedure has no application to
this case, and that Petitioner must obtain authorization from the Sixth Circuit to file a successive
habeas corpus petition if he wants to raise additional grounds for relief. (Doc. 80.) See 28 U.S.C.
§ 2244(b)(3)(A).
Petitioner has now filed a Motion for Reconsideration. (Doc. 81.) He notes that the Sixth
Circuit did not tell him that he needed approval under § 2244 to raise this issue here. (Id. at
PAGEID 2650.) He asserts that this Court should protect the Constitution by finding Ohio’s PostConviction statutes unconstitutional and declaring that Steffen is no longer controlling law. (Id. at
PAGEID 2651.)
The Court is not persuaded that its previous Order should be reconsidered because the Sixth
Circuit did not instruct Petitioner how to proceed on his rejected motion. The habeas corpus claims
Petitioner made in this case have already been dismissed, and that dismissal has become final.
(Docs. 41-42, 58.) Any additional claims he wishes to make require approval from the Sixth
Circuit under 28 U.S.C. § 2244(b)(3)(A) as a matter of law. The motion for reconsideration (Doc.
81) is therefore DENIED.
IT IS SO ORDERED.
6/9/2022
Date

s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE