Jordan v. Warden, Madison Correctional Institution et al

Filing 2

REPORT AND RECOMMENDATION: The Magistrate Judge RECOMMENDS the instant petition for a writ of habeas corpus be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition - objections due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/20/2015. (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
ERIC SEAN JORDAN,
CASE NO. 2:15-CV-0629
JUDGE JAMES L. GRAHAM
MAGISTRATE JUDGE KEMP

Petitioner,
v.
RHONDA RICHARD, WARDEN,
Respondent.

REPORT AND RECOMMENDATION
Petitioner Eric Sean Jordan brings the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. §2254. This matter is before the Court to conduct an initial
screening under Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. That Rule provides that “[i]f it plainly appears from the petition ... that
the petitioner is not entitled to relief in the district court, the judge must dismiss the
petition....” 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 ,
which must decide whether to authorize the filing of a successive petition.
Petitioner indicates that he is challenging his March 2005 convictions after a jury
trial in the Harrison County Court of Common Pleas on two counts of rape, for which
he is presently serving a prison term of eighteen years. He asserts that the trial court
improperly admitted hearsay and other evidence and wrongly imposed consecutive
terms of incarceration.

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This is not Petitioner's first federal habeas corpus petition. On June 30, 2008,
Petitioner previously filed a §2254 petition challenging the constitutionality of these
same convictions. On January 5, 2010, final judgment was entered dismissing that
action. Jordan v. Warden, Lebanon Correctional Institution, Case No. 2:08-cv-0632, 2010 WL
58244 (S.D. Ohio Jan. 5, 2010). On March 28, 2012, the United States Court of Appeals
for the Sixth Circuit affirmed this Court’s judgment.

Jordan v. Warden, Lebanon

Correctional Institution, 675 F.3d 586 (6th Cir. 2012).
Plainly, therefore, this action constitutes a successive petition.
28 U.S.C. § 2244(b)(3)(A) states that 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 (2d 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 United States Court of
Appeals for the Sixth Circuit. 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

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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 Court of Appeals, 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).
The Court of Appeals 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, supra.
[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.

Id. at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curiam).

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Consequently, the Magistrate Judge RECOMMENDS the instant petition for a
writ of habeas corpus be TRANSFERRED to the United States Court of Appeals for the
Sixth Circuit as a successive petition.
Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) 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).
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 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any
adverse decision, they may submit arguments in any objections filed, regarding
whether a certificate of appealability should issue.
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/s/ Terence P. Kemp
United States Magistrate Judge

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