Melhado v. Warden Marion Correctional Institution

Filing 5

Petitioner's Objection, ECF 4, is DENIED; ORDER adopting Report and Recommendations re 2 Report and Recommendations. The Petition, ECF 1, IS ORDERED TRANSFERRED to the US Court of Appeals for the Sixth Circuit as a successive petition. Signed by Senior Judge Peter C Economus on 5/9/14. (ds)

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.

ORDER
This is an action for a writ of habeas corpus under 28 U.S.C. §
2254.

On

April

30,

2014,

the

United

States

Magistrate

Judge

recommended that the action be transferred to the United States Court
of Appeals for the Sixth Circuit as a successive petition.
and Recommendation, ECF 2.

Report

This matter is now before the Court on

petitioner’s objection to that recommendation.
court will consider the matter de novo.

Objection, ECF 4.

See 28 U.S.C. § 636(b);

The
Fed.

R. Civ. P. 72(b).
This
Franklin

action
County

aggravated

challenges
Court

robbery.

of

petitioner’s

Common

Pleas

Petitioner

does

2002

for
not

conviction

aggravated
dispute

the

in

the

murder

and

Magistrate

Judge’s finding that petitioner has previously presented challenges to
this conviction in this Court. Objection, PAGEID 38.

See Melhado v.

Warden, Warren Correctional Institution, 2:04-cv-1146, Petition, ECF
1;

Motion to File Second or Successive Habeas Petition, ECF 22.

1

However,

petitioner

disagrees

with

the

Magistrate

characterization of the action as a successive petition.

Judge’s
Petitioner

specifically argues that, because of errors allegedly committed by the
state trial court, 1 “the Petitioner is yet to be properly sentenced and
given a final Appealable Order.
be

sentenced

and

this

Until then, the Petitioner is yet to

petition

Petitioner’s First Petition.”

at

bar

should

be

treated

as

Objection, PAGEID 39.

This Court agrees with the Magistrate Judge that the Petition is
properly characterized as a successive petition within the meaning of
28 U.S.C. § 2244(b)(3)(A).

This Court therefore lacks authority to

consider the claims raised in the present Petition unless and until
the United States Court of Appeals for the Sixth Circuit authorizes
that consideration. Id.
Accordingly,

petitioner’s

Objection,

ECF

4,

is

DENIED.

The

Report and Recommendation, ECF 2, is ADOPTED AND AFFIRMED.
The Petition, ECF 1, IS ORDERED TRANSFERRED to the United States
Court of Appeals for the Sixth Circuit as a successive petition.
IT IS SO ORDERED.

1

These alleged errors form the basis of some of the claims presented in the
Petition, ECF 1.

2