Landrum v. Warden Chillicothe Correctional Institution
REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed for lack of jurisdiction. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealabili ty and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 3/1/2017. Signed by Magistrate Judge Michael R. Merz on 2/15/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
- vs -
Case No. 2:12-cv-859
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
NORMAN ROBINSON, Warden,
Chillicothe Correctional Institution,
REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on Notice of the February 13, 2017,
Order of the United States Court of Appeals for the Sixth Circuit, In re: Lawrence Landrum,
Case No. 16-3151 (unreported; copy at ECF No. 47).
On February 16, 2016, on the undersigned’s recommendation, District Judge Rose
transferred this case to the Sixth Circuit as a second or successive habeas corpus petition within
the meaning of 28 U.S.C. § 2244(b)(2). The Sixth Circuit agreed that the Petition was second or
successive but barred from consideration, denying both Landrum’s motion to remand and
permission to proceed. (ECF No. 47, PageID 492).
A District Court is without jurisdiction to consider a second or successive petition
without permission of the circuit court. Burton v. Stewart, 549 U.S. 147 (2007). It is therefore
respectfully recommended that the Petition herein be dismissed for lack of jurisdiction. Because
reasonable jurists would not disagree with this conclusion, Petitioner should be denied a
certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would
be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
February 15, 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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