Melhado v. Warden Marion Correctional Institution

Filing 2

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Clive N Melhado. It is RECOMMENDED that the Petition be transferred to the United States Court of Appeals for the Sixth Circuit as a successive petition. Objections to R&R due by 5/19/2014. Signed by Magistrate Judge Norah McCann King on 4/30/2014. (pes1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CLIVE N. MELHADO
Petitioner,
vs.

Civil Action 2:14-cv-402
Judge Economus
Magistrate Judge King

WARDEN, MARION CORRECTIONAL
INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of
habeas corpus under 28 U.S.C. § 2254, seeking to challenge his 2002
conviction in the Franklin County Court of Common Pleas on charges of
aggravated murder and aggravated robbery.

Petitioner has, on two

prior occasions, presented challenges to his conviction in this Court.
Melhado v. Warden, Warren Correctional Institution, 2:04-cv-1146,
Petition, ECF 1;

Motion to File Second or Successive Habeas Petition,

ECF 22.
Before a second or successive petition for a writ of habeas
corpus can be filed in a district court, a petitioner must ask the
appropriate circuit court of appeals for an order authorizing the
district court to consider the application.
2244(b)(3)(A).

28 U.S.C. §

If a district court in the Sixth Circuit determines

that a petition is a second or successive petition, see In re Smith,
690 F.3d 809 (6th Cir. 2012), that court must transfer the petition to

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the United States Court of Appeals for the Sixth Circuit.

In re Sims,

111 F.3d 45, 47 (6th Cir. 1997):
[W]hen a prisoner has sought § 2244(b)(3)(A) permission
from the district court, or when a second or successive
petition for habeas corpus relief or § 2255 motion is filed
in the district court without § 2244(b)(3) authorization
from this court, the district court shall transfer the
document to this court pursuant to 28 U.S.C. § 1631.
The Sixth Circuit, in turn, will issue this certification only if the
petitioner succeeds in making a prima facie showing either that the
claim sought to be asserted relies on a new rule of constitutional law
made retroactive by the United States Supreme Court to cases on
collateral review or that the factual predicate for the claim could
not have been discovered previously through the exercise of diligence,
and these facts, if proven, would establish by clear and convincing
evidence that, but for the constitutional error, no reasonable fact
finder would have found the applicant guilty. 28 U.S.C. 21 2244(b)(2).
The first petition filed by petitioner in this Court was
dismissed on the merits.

2:04-cv-1146, Report and Recommendation, ECF

10; Order Adopting and Affirming the Report and Recommendation, ECF
14. This Court and the United States Court of Appeals for the Sixth
Circuit declined to issue a certificate of appealability from that
judgment.

Id., Order, ECF 20; Order, ECF 21. Petitioner’s motion for

leave to file a second or successive petition was transferred to the
United States Court of Appeals for the Sixth Circuit. Id., Order, ECF
24. The Court of Appeals denied leave to file a second petition for a
writ of habeas corpus.

Id., Order, ECF 26. See also In re: Clive

Melhado, Case No. 08-3259 (6th Cir. July 31, 2008).

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Because the Petition presently before the Court is a successive
petition within the meaning of 28 U.S.C. § 2244, the Court lacks
jurisdiction to entertain the claims asserted in that Petition absent
authorization by the United States Court of Appeals for the Sixth
Circuit.
It is therefore RECOMMENDED that the Petition, ECF 1, be
transferred to the United States Court of Appeals for the Sixth
Circuit as a successive petition.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

April 30, 2014

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