Withers v. Warden, Chillicothe Correctional Institution

Filing 3

REPORT AND RECOMMENDATIONS that 1 Petition for Writ of Habeas Corpus be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for authorization for filing as a successive petition. Objections due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 3/4/2015. (agm1)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MICHAEL WITHERS,
CASE NO. 2:15-CV-00129
JUDGE PETER C. ECONOMUS
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. This matter is before the Court on its own motion
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons that follow, the Magistrate Judge RECOMMENDS that
this action be TRANSFERRED to the United States Court of Appeals for the Sixth
Circuit for authorization for filing as a successive petition.
According to the petition, Petitioner challenges his April 8, 2005, convictions
pursuant to his guilty plea in the Franklin County Court of Common Pleas on charges
of rape and pandering obscenity involving a minor.1 Petitioner asserts that the state
courts’ decision denying him relief contravened or unreasonably applied federal law as
determined by the United States Supreme Court. The underlying basis for this claim is
not entirely clear.

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The charges involve two separate criminal Indictments.

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In any event, this is not Petitioner’s first federal habeas corpus petition
challenging these same convictions, as Petitioner so acknowledges. Petition, ECF 1,
PageID# 12. In June 2009, Petitioner filed a petition for a writ of habeas corpus in this
Court asserting that the trial court improperly imposed consecutive and more than
minimum terms of incarceration. On February 1, 2011, the Court dismissed Petitioner’s
prior § 2254 petition. Withers v. Sheets, No. 2:09-cv-494, 2010 WL 5684406 (S.D. Ohio
Nov. 29, 2010), adopted by Withers v. Sheets, 2011 WL 347115 (S.D. Ohio Feb. 1, 2011).
This Court therefore lacks jurisdiction to consider Petitioner’s claim.
28 U.S.C. § 2244 provides:
(b) (1) A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in
a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable; or
(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
(3) (A) Before a second or successive application permitted
by this section is filed in the district court, the applicant shall
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move in the appropriate court of appeals for an order
authorizing the district court to consider the application.

This Court determines whether a petition constitutes a successive petition prior to
transferring the case to the Court of Appeals. In re Smith, 690 F.3d 809 (6th Cir. 2012).
Whether a petition (a term we use interchangeably with
“application”) is “second or successive” within the meaning
of § 2244(b) does not depend merely on whether the
petitioner filed a prior application for habeas relief. The
phrase is instead “a ‘term of art’ that is ‘given substance’ by
the Supreme Court's habeas cases.” In re Salem, 631 F.3d 809,
812 (6th Cir.2011) (quoting Slack v. McDaniel, 529 U.S. 473,
486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Accordingly, in a
number of cases, the Court has held that an application was
not second or successive even though the petitioner had
filed an earlier one. In Stewart v. Martinez–Villareal, 523 U.S.
637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), the petitioner
filed a second petition that presented a claim identical to one
that had been included in an earlier petition. The claim had
been unripe when presented in the earlier petition. The
Court treated the two petitions as “only one application for
habeas relief [.]” Id. at 643, 523 U.S. 637, 118 S.Ct. 1618, 140
L.Ed.2d 849. In Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct.
2842, 168 L.Ed.2d 662 (2007), the Court held that an
application that presented a claim that had not been
presented in an earlier application, but that would have been
unripe if it had been presented then, was not second or
successive. Id. at 945, 551 U.S. 930, 127 S.Ct. 2842, 168
L.Ed.2d 662. In Magwood v. Patterson, ––– U.S. ––––, 130 S.Ct.
2788, 177 L.Ed.2d 592 (2010), the Court made clear that an
application challenging an earlier criminal judgment did not
count for purposes of determining whether a later
application challenging a new judgment in the same case
was second or successive. Id. at 2797–98.
Storey v. Vasbinder, 657 F.3d 372, 376–77 (6th Cir.2011) (a habeas corpus petition filed
after a remedial appeal does not constitute a successive petition).

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Before a second or successive petition for a writ of habeas corpus can be filed in
the district court, the applicant shall move in the appropriate circuit court of appeals for
an order authorizing the district court to consider the application. Under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), a district court does not
have jurisdiction to entertain a successive post-conviction motion or petition for writ of
habeas corpus in the absence of an order from the court of appeals authorizing the filing
of such successive motion or petition. Nelson v. United States, 115 F.3d 136 (2nd Cir.
1997); Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997). Unless the court of appeals has
given approval for the filing of a second or successive petition, a district court in the
Sixth Circuit must transfer the petition to the Sixth Circuit Court of Appeals. In re Sims,
111 F.3d 45, 47 (6th Cir. 1997) (per curia). Under § 2244(b)(3)(A), only a circuit court of
appeals has the power to authorize the filing of a successive petition for writ of habeas
corpus. Nunez v. United States, 96 F.3d 990 (7th Cir.1996).
That being the case, this Court is without jurisdiction to entertain a second or
successive § 2254 petition unless authorized by the Court of Appeals for the Sixth
Circuit. The Sixth Circuit, in turn, will issue this certification only if 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 factfinder would have found the applicant guilty. 28 U.S .C. § 2244(b)(2).
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The Sixth Circuit described the proper procedure for addressing a second or
successive petition filed in the district court without § 2244(b)(3)(A) authorization in In
re Sims:
[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.
111 F.3d at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curia).
WHEREUPON, the Magistrate Judge RECOMMENDS the instant petition be
TRANSFERRED to the Court of Appeals for the Sixth Circuit for authorization for
filing as a successive petition.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen days of the date of this Report, file and serve on all parties written objections to
those specific proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s). A judge of this Court shall make
a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. Upon proper objections, a judge of this
Court may accept, reject, or modify, in whole or in part, the findings or
recommendations made herein, may receive further evidence or may recommit this
matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

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The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a waiver of the right to appeal
the decision of the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d
947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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