Henness v. Warden Chillicothe Correctional Institution

Filing 62

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition herein be dismissed without prejudice for lack of jurisdiction. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certific ate 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. Objections to R&R due by 4/20/2018. Signed by Magistrate Judge Michael R. Merz on 4/6/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
WARREN KEITH HENNESS,
:
Petitioner,

Case No. 2:14-cv-2580
:

District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

-vsCHARLOTTE JENKINS, Warden,
Chillicothe Correctional Center
:
Respondent.

REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on the Sixth Circuit’s dismissal of the
proceeding before it on the question whether to grant Henness permission to proceed with the
case, given that this Court had determined that the case was a second or successive habeas
corpus application.
On February 27, 2018, the District Court determined that this was a second or successive
case and ordered it transferred to the circuit court (ECF No. 58). The case was thereupon
transferred and assigned Sixth Circuit Case No. 18-3184. On March 28, 2018, Henness moved
to dismiss the transferred cause “in lieu of filing the second or successive petition form pursuant
to 6th Cir. R. 22.” (Motion to Voluntarily Dismiss, ECF No. 8 in Case No. 18-3184). On April
3, 2018, the Sixth Circuit granted that motion (ECF No. 61), effectively returning the case to this
Court.

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Because the case is second or successive, this Court has no jurisdiction to consider it on
the merits without circuit court permission which Henness has now refused to seek.

Franklin v.

Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007). It is accordingly
respectfully recommended that the Petition herein be dismissed without prejudice 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.

April 6, 2018.
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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