Mitchell v. Warden Chillicothe Correctional Institution

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C Smith on 3/17/14. (gcs2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES D. MITCHELL, JR.,
Petitioner,
CASE NOS.: 2:13-CV-0546
2:13-CV-908
JUDGE GEORGE C. SMITH
MAGISTRATE JUDGE ABEL

v.
NORM ROBINSON, WARDEN,
Respondent.

OPINION AND ORDER
On January 13, 2014, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus be denied and that this action
be dismissed.

Petitioner has filed an Objection to the Magistrate Judge’s Report and

Recommendation.

For the reasons that follow, Petitioner’s Objection, Doc. No. 16, is

OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This
action is hereby DISMISSED.
Petitioner objects to Magistrate Judge Abel’s recommendation that Case No. 2:13-CV908 be transferred to the United States Court of Appeals for the Sixth Circuit as a successive
petition. However, the Magistrate Judge recommended that the claims set forth in Case No.
2:13-CV-0546 be dismissed on the merits, and that the claims set forth in Case No. 2:13-CV-908
(two ineffective assistance of trial counsel claims) be dismissed as procedurally defaulted. See
Report and Recommendation, Doc. No. 14. Although the last paragraph of the Report and
Recommendation indicates that the latter case should be transferred to the Court of Appeals, this
plainly is a typographical error, in view of the remainder of the Report and Recommendation.

The body of the Report and Recommendation clearly holds that Case No. 13-CV-908 is not a
successive petition because it was filed while Case No. 2:13-cv-546 was still pending.
Consequently, following Beard v. Ohio, 2013 WL 1281929, at *2 (S.D. Ohio March 27, 2013),
the second habeas corpus action should be considered as a motion to amend the first habeas
corpus petition. January 13, 2014 Report and Recommendation pp. 14-15, Doc. 14, PageID 63536. The Report and Recommendation went on to correctly hold that the ineffective assistance of
counsel claims were procedurally barred because they were not timely presented to the Ohio
courts. Id., pp. 15-19, PageID 636-40.
WHEREUPON, Petitioner’s Objection is OVERRULED.

The Report and

Recommendation is ADOPTED and AFFIRMED. This action is hereby dismissed because
Petitioner’s claims in Case No. 2:13-CV-546 fail to provide a basis for federal habeas corpus
relief and his claims in Case No. 2:13-CV-908 are procedurally defaulted.
IT IS SO ORDERED.
s/ George C. Smith ________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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