Nedea v. Warden Hocking Correctional Facility

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS. This case is TRANSFERRED to the Court of Appeals for the Sixth Circuit for a determination of whether Petitioner may file it as a successive petition. Signed by Judge Algenon L. Marbley on 11/27/2012. (cw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ROMULUS LOUIS NEDEA,
Petitioner,

CASE NO. 2:12-CV-821
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP

v.
HOCKING CORRECTIONAL
FACILITY, WARDEN,
Respondent.

OPINION AND ORDER
Petitioner Romulus Louis Nedea filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. §2254 on September 7, 2012, asserting that he was being held in custody in violation of
the Constitution of the United States based on a 2006 decision of the Ohio Adult Parole Authority
denying his request for parole. Petitioner is currently serving a sentence imposed by the Lucas
County Court of Common Pleas in 1970. In a Report and Recommendation filed on September 17,
2012, the Magistrate Judge, noting that petitioner had previously challenged both his conviction and
the parole denial in federal habeas corpus actions, recommended that the case be transferred to the
United States Court of Appeals for the Sixth Circuit for authorization for filing as a successive
petition. Petitioner has filed a timely objection to that recommendation, which the Court reviews
de novo. See 28 U.S.C. §636(b)(1)(B).
Petitioner does not contest the fact that he has filed other federal habeas corpus cases
challenging his continued imprisonment. However, he argues that the recommendation to transfer
the case to the Court of Appeals as a successive petition, which was based on 28 U.S.C. §2244(b),
a provision of the Antiterrorism and Effective Death Penalty Act, is improper because that Act does
not apply retroactively in non-capital cases. It appears to be petitioner’s position that because he

was originally sentenced in 1970, the Act cannot be applied to him
Petitioner misunderstands the law and the cases which hold that the AEDPA does not apply
retroactively in non-capital cases. The cases he cites do not hold that the AEDPA does not apply
in non-capital cases where the conviction was obtained prior to the enactment of the AEDPA, which
occurred on April 24, 1996. In Boria v. Keane, 90 F.3d 36 (2d Cir. 1996), the issue was whether the
AEDPA’s new standard of review - that a writ could not be granted to a petitioner being held in
custody pursuant to a state court decision which was neither contrary to, nor an unreasonable
application of, clearly established federal law - applied to a case which had been filed before the Act
was signed into law. The Court of Appeals held that the Act was not intended to apply to noncapital habeas corpus cases which were pending on the date of its adoption. Here, however, the case
which Petitioner just filed was not pending on April 24, 1996, so Boria is inapplicable. The same
is true of Gentry v. Trippett, 956 F.Supp. 1320 (E.D. Mich. 1997), aff’d --- Fed. Appx. ----, 173 F.3d
855 (6th Cir. Jan 27, 1999), a case which dealt with the successive petition provision of the Act, and
which held only that this provision did not apply “to habeas petitions filed before April 24, 1996.”
Id. at 1324. Again, the instant petition was not filed before that date.
The correct rule dealing with applicability of the AEDPA is stated in Barker v. Yukins, 199
F.3d 867, 871 (6th Cir. 1999) as follows: “It is now well settled that AEDPA applies to all habeas
petitions filed on or after its April 24, 1996 effective date.” That is not a retroactive application of
the Act, but a prospective application. The Court of Appeals has consistently applied the AEDPA,
and specifically the “gate-keeping” provision found in §2244(b), to second or successive petitions
filed after the effective date of the Act even if the conviction and the first petition both pre-dated its
enactment. See, e.g., Buell v. Anderson, 48 Fed. Appx. 491 (6th Cir. September 24, 2002); see also

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In re Byrd, 269 F.3d 561 (6th Cir. 2001). This Court must do likewise.
For these reasons, Petitioner’s objection (Doc. 7) to the Report and Recommendation (Doc.
3) is OVERRULED and the Report and Recommendation is ADOPTED AND AFFIRMED. This
case is TRANSFERRED to the Court of Appeals for the Sixth Circuit for a determination of
whether Petitioner may file it as a successive petition.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge
DATED: November 27, 2012

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