Deresse v. Warden Marion Correctional Institution

Filing 3

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Dawit N. Deresse in that the Court RECOMMENDS that this action be transferred to the United States Court of Appeals for the Sixth Circuit as a second or successive petition. Objections to R&R due by 6/15/2015. Signed by Magistrate Judge Norah McCann King on 5/28/15. (sem)(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

DAWIT N. DERESSE,
Petitioner,
vs.

Civil Action 2:15-cv-2121
Judge Smith
Magistrate Judge King

WARDEN, MARION CORRECTIONAL
INSTITUTION,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this action for a writ of
habeas corpus under 28 U.S.C. § 2254, seeking to challenge his 2009
drug related convictions in the Licking County Court of Common Pleas.
This is petitioner’s second challenge in this Court to those
convictions. Petitioner’s earlier habeas corpus action, Dawitt N.
Deresse v. Warden, Ross Correctional Institution, 2:10-cv-1083 (S.D.
Ohio), was dismissed on the basis of procedural default.
Before a second or successive petition for a writ of habeas
corpus can be filed in a district court, a petitioner must ask the
appropriate circuit court of appeals for an order authorizing the
district court to consider the application.
2244(b)(3)(A).

28 U.S.C. §

If a district court in the Sixth Circuit determines

that a petition is a second or successive petition, see In re Smith,
690 F.3d 809 (6th Cir. 2012), that court must transfer the petition to
the United States Court of Appeals for the Sixth Circuit.
111 F.3d 45, 47 (6th Cir. 1997):

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.
The Sixth Circuit, in turn, will issue this certification only if the
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 fact
finder would have found the applicant guilty. 28 U.S.C. 21 2244(b)(2).
The dismissal of Petitioner’s first petition was a dismissal on
the merits. See In re Cook, 215 F.3d 606, 608 (6th Cir. 2000)(“[W]e
hold that because his initial § 2254 application was dismissed for
unexcused procedural default and was therefore ‘on the merits,’ Cook’s
current application is a ‘second or successive habeas corpus
application’ under § 2254(b)”). This Court therefore lacks
jurisdiction to consider Petitioner’s current petition unless and
until the Court of Appeals so authorizes.
It is therefore RECOMMENDED that this action be transferred to
the United States Court of Appeals for the Sixth Circuit as a second
or successive petition.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file

2

and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

28

Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the Report and Recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to
appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

objections are filed, appellate review of issues not raised in those
objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th Cir.

2007) (“[A] general objection to a magistrate judge’s report, which
fails

to

specify

the

issues

of

contention,

does

not

suffice

preserve an issue for appeal . . . .”) (citation omitted)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
May 28, 2015

to