Deresse v. Warden Marion Correctional Institution

Filing 5

ORDER ADOPTING REPORT AND RECOMMENDATIONS. Signed by Judge George C. Smith on 6/23/15. (lvw)(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.
ORDER
This is petitioner’s second action for a writ of habeas corpus pursuant to 28 U.S.C. §2254
challenging his drug-related convictions in the Licking County Court of Common Pleas.
Petitioner’s first action filed in this Court, Dawitt N. Deresse v. Warden, Ross Correctional
Institution, 2:10-cv-1083 (S.D. Ohio), was dismissed on the basis of procedural default. On May
28, 2015, the United States Magistrate Judge recommended that this action be transferred to the
United States Court of Appeals for the Sixth Circuit as a second or successive petition in
accordance with the procedures established in In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Report
and Recommendation, ECF 3. This matter is now before the Court on Petitioner’s objection to
that recommendation. Objection, ECF 4. The Court has reviewed the matter de novo. See 28
U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
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. 28 U.S.C. § 2244(b)(3)(A). However, it is only an
action that follows an earlier decision “on the merits” that qualifies as a second or successive
petition.

In his objections, petitioner appears to argue that he did not, in fact, procedurally default
the claims sought to be presented on habeas corpus. However, a second, separate action is not
the appropriate vehicle for challenging an earlier judgment.
Petitioner also contends that a dismissal on the basis of procedural default is not a
decision “on the merits” that renders a later petition second or successive. It is true that a petition
filed after an earlier dismissal for lack of jurisdiction or for failure to exhaust state court
remedies does not qualify as a second or successive petition. Slack v. McDaniel, 529 U.S. 473,
487 (2000). However, as the Magistrate Judge noted, the United States Court of Appeals for the
Sixth Circuit has expressly held that a dismissal based on procedural default is a decision on the
merits. 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)”).
Because petitioner’s current habeas petition is a second or successive petition, this Court
lacks jurisdiction to consider the current petition unless and until the Court of Appeals so
authorizes.
Petitioner’s objection, Objection, ECF 4, is DENIED. The Report and Recommendation,
ECF 3, is ADOPTED AND AFFIRMED. This action is TRANSFERRED to the United States
Court of Appeals for the Sixth Circuit as a second or successive petition.

s/George C. Smith_
_____
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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