Withers v. Warden, Chillicothe Correctional Institution

Filing 5

MEMORANDUM ORDER AND OPINION adopting Report and Recommendations re 3 Report and Recommendations.. This action hereby is TRANSFERRED to the USCA for the Sixth Circuit. Signed by Senior Judge Peter C. Economus on 3/16/2015. (ds)(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,
Petitioner,
v.

Case No. 2: 15-cv-129
Judge Peter C. Economus

WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,

MEMORANDUM OPINION AND ORDER

Respondent.

On March 4, 2015, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a 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.
This matter is before the Court on Petitioner’s Objection (Doc. 4) to the Magistrate Judge’s
Report and Recommendation.
Pursuant to 28 U.S.C. § 636(b), the Court has conducted a de novo review. For the
reasons that follow, Petitioner’s Objection (Doc. 4) is OVERRULED.

The Report and

Recommendation is ADOPTED and AFFIRMED. This action hereby is TRANSFERRED to
the United States Court of Appeals for the Sixth Circuit for authorization for filing as a
successive petition.
Petitioner objects to the Magistrate Judge’s Report and Recommendation. Petitioner
states that he is not challenging his April 8, 2005, convictions, as he indicated in his Petition
(Doc. 1 at 1), but the state court’s denial of his May 201[1] 1 request for a hearing under Franks
v. Delaware, 438 U.S. 154 (1978), which, he contends, the Ohio courts improperly construed as

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Petitioner’s reference to a May 2012 motion for a hearing under Franks appears to be a typographical
error. This Court is unable to locate any such filing.

a petition for post conviction relief. Petitioner objects to the Magistrate Judge’s reference to a
legal citations and statutes as unfair. He argues that, because the Court previously dismissed his
habeas corpus petition on the basis of procedural default there was no adjudication on the merits,
and this action does not constitute a successive habeas corpus petition. Petitioner alternatively
argues that he meets the requirements for consideration of his successive petition.
The Ohio Tenth District Court of Appeals indicates that in May 2011, Petitioner filed a
motion for a hearing pursuant to Franks in which he sought to challenge the affidavit police
submitted in support of his arrest and search warrants related to his April 2005 convictions on
charges involving sexually oriented offenses with his minor step-children, and pandering
sexually oriented matter involving a minor. The state trial court construed Petitioner’s motion as
a petition for post conviction relief under O.R.C. § 2953.21, and dismissed it as untimely and
barred under Ohio’s doctrine of res judicata. State v. Withers, Nos. 12AP-865, 12AP-868, 2013
WL 5436524 (Ohio App. 10th Dist. September 26, 2013):
Clearly, by his May 20, 2011 motion, Withers sought to vacate his
sentence on the basis that his constitutional rights had been
violated in the issuance of both the arrest and search warrants.
Moreover, his May 2011 motion is a collateral challenge to the
validity of his conviction in a criminal case.
Id. at *2.
As indicated by the state appellate court, Petitioner still challenges the constitutionality of
the same April 2005 convictions he previously challenged in his prior federal habeas corpus
petition. This remains true regardless of whether he now seeks to raise new and different
grounds for relief or challenge the denial of a motion filed after the dismissal of his prior § 2254
petition. See Warren v. Burt, 2013 WL 3014161, at *2 (W.D. Mich. June 17, 2013) (“A second
petition is one which alleges new and different grounds for relief after a first petition was

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denied.”) (citing McClesky v. Zant, 499 U.S. 467, 470 (1991); Burger v. Zant, 984 F.2d 1129,
1132-33 (11th Cir. 1993)). For the reasons indicated in the Magistrate Judge’s Report and
Recommendation, this Court therefore is without jurisdiction to consider his claims, absent
authorization for the filing of a successive petition. Further, the Court’s prior dismissal on the
basis of a procedural default is considered to be an adjudication on the merits that will preclude
the filing of a second 2254 petition. Id. (citing In re Cook, 215 F.3d 606, 608 (6th Cir. 2000)).
Courts are entitled to rely on cases and statutes, and they are available in libraries and public
databases. Further, it is the United States Court of Appeals, and not this Court, that determines
whether Petitioner can meet the requirements for consideration of a second § 2254 petition.
Pursuant to 28 U.S.C. § 636(b), the Court has conducted a de novo review. For the
foregoing reasons, Petitioner’s Objection (Doc. 4), is OVERRULED.

The Report and

Recommendation is ADOPTED and AFFIRMED. This action hereby is TRANSFERRED to
the United States Court of Appeals for the Sixth Circuit for authorization for filing as a
successive petition.
IT IS SO ORDERED.

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