Campbell v. Jenkins

Filing 35

ORDER DENYING MOTION TO TRANSFER WITHOUT PREJUDICE - The Warden's Motion to Transfer (ECF No. 30) is DENIED without prejudice to its renewal not later than thirty days after the mandate issues in Adams II. Signed by Magistrate Judge Michael R. Merz on 5/10/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ALVA E. CAMPBELL, JR.,
Petitioner,

:

- vs -

Case No. 2:15-cv-1702
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

ORDER DENYING MOTION TO TRANSFER WITHOUT
PREJUDICE

This capital habeas corpus case is before the Court on the Warden’s Motion to Transfer
(ECF No. 30), incorrectly docketed as a motion to dismiss for lack of jurisdiction and then
transfer to the Sixth Circuit. Petitioner opposes the Motion (Response, ECF No. 32) and the
Warden has filed a Reply in support (ECF No. 33).
A motion to determine that a habeas petition is second or successive and that it therefore
requires permission of the Court of Appeals to proceed is a non-dispositive motion on which an
assigned Magistrate Judge is to enter a decision, rather than make a recommendation to a District
Judge.
The premise for a transfer order is a District Court determination that a particular habeas
application is “second or successive” under 28 U.S.C. § 2244(b). A District Court may not
transfer a case to have the “second or successive” decision made by the circuit court in the first
instance. . In re: Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012); In re:

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Kenneth W. Smith, 690 F.3d 809 (6th Cir. 2012).
On the day after the instant Motion became ripe for decision, the Magistrate Judge denied
Petitioner’s then-pending Motion to Amend without prejudice to its renewal not later than thirty
days after the Sixth Circuit issues the mandate in Adams v. Bradshaw, ___ F.3d ___, 2016 U.S.
App. LEXIS 4678 (6th Cir. Mar. 15, 2016)(Adams II)(ECF No. 34, PageID 689). The reason for
the delay is to receive the Sixth Circuit’s clarification (or an eventual decision from the United
States Supreme Court) of the impact of Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2726, 192 L.
Ed. 2d 761 (2015), on the jurisprudence resulting from Adams v. Bradshaw, 644 F.3d 481 (6th
Cir. 2011)(Adams I).
The Warden argues that “the issue of cognizability is distinct from the application of
second petition rules. . . .” (Motion, ECF No. 30, PageID 654). The Magistrate Judge agrees that
they are distinct conceptually, but they have been entangled or at least intertwined in this Court’s
application of Adams I. During the time between the decision in Glossip and the decision in
Adams II, the undersigned spilled the digital equivalent of gallons ink attempting to apply
Glossip faithfully, only to find that the decision in Adams II had been stayed pending Glossip
and the Sixth Circuit’s grappling with its implications.
But the decision in Adams II itself is not yet final. As of the time of denial of the Motion
to Amend (April 27, 2016), the Ohio Attorney General had a motion pending before the Adams
II panel for clarification of its decision in light of Glossip. The same considerations of judicial
economy which applied to the Motion to Amend are also applicable to the instant Motion.

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Accordingly, the Motion to Transfer is DENIED without prejudice to its renewal not later
than thirty days after the mandate issues in Adams II.
May 10, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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