Sanders v. Warden Chillicothe Correctional Institution

Filing 2

REPORT AND RECOMMENDATION: the Magistrate Judge RECOMMENDS that this action beTRANSFERRED to the United States Court of Appeals for the Sixth Circuit for authorization for filing as a successive petition. Objections to R&R due within fourteen (14) days. Signed by Magistrate Judge Terence P. Kemp on 6/23/2015. (agm)(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
BILL ADAM SANDERS,
CASE NO. 2:15-cv-2304
JUDGE JAMES L. GRAHAM
MAGISTRATE JUDGE KEMP

Petitioner,
v.
CHILLICOTHE CORRECTIONAL
INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. §2254. This matter is before the Court on its own motion pursuant to Rule 4
of the Rules Governing Section 2254 Cases in the United States District Courts. 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 for
authorization for filing as a successive petition.
According to the Petition, Petitioner challenges his March 1995 convictions in the
Pickaway County Court of Common Pleas on three counts of attempted murder. He
asserts that he has been unlawfully sentenced. However, this is not Petitioner’s first
federal habeas corpus petition challenging these same convictions. On June 8, 2012, this
Court dismissed his prior §2254 petition as time-barred.

Sanders v. Chillicothe

Correctional Institution, Case No. 2:08-cv-00423. This action likewise appears plainly to
be barred by the one-year statute of limitations under 28 U.S.C. §2244(d). In any event,

this Court is without authorization to consider a successive habeas corpus petition
absent authorization from the United States Court of Appeals for the Sixth Circuit.
28 U.S.C. §2244 provides:
(b) (1) A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in
a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas
corpus application under section 2254 that was not
presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable; or
(B) (I) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and
(ii) the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
(3) (A) Before a second or successive application permitted
by this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order
authorizing the district court to consider the application.
The United States Court of Appeals for the Sixth Circuit recently clarified that this
Court determines whether a petition constitutes a successive petition prior to
transferring the case to the Court of Appeals. In re Smith, 690 F.3d 809 (6th Cir.2012).
The United States Court of Appeals for the Sixth Circuit clarified this rule, stating:

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Whether a petition (a term we use interchangeably with
“application”) is “second or successive” within the meaning
of § 2244(b) does not depend merely on whether the
petitioner filed a prior application for habeas relief. The
phrase is instead “a ‘term of art’ that is ‘given substance’ by
the Supreme Court's habeas cases.” In re Salem, 631 F.3d 809,
812 (6th Cir.2011) (quoting Slack v. McDaniel, 529 U.S. 473,
486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). Accordingly, in a
number of cases, the Court has held that an application was
not second or successive even though the petitioner had filed
an earlier one. In Stewart v. Martinez–Villareal, 523 U.S. 637,
118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), the petitioner filed a
second petition that presented a claim identical to one that
had been included in an earlier petition. The claim had been
unripe when presented in the earlier petition. The Court
treated the two petitions as “only one application for habeas
relief [.]” Id. at 643, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d
849. In Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168
L.Ed.2d 662 (2007), the Court held that an application that
presented a claim that had not been presented in an earlier
application, but that would have been unripe if it had been
presented then, was not second or successive. Id. at 945, 551
U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662. In Magwood v.
Patterson, ––– U.S. ––––, 130 S.Ct. 2788, 177 L.Ed.2d 592
(2010), the Court made clear that an application challenging
an earlier criminal judgment did not count for purposes of
determining whether a later application challenging a new
judgment in the same case was second or successive. Id. at
2797–98.
Storey v. Vasbinder, 657 F.3d 372, 376–77 (6th Cir. 2011) (a habeas corpus petition filed
after a remedial appeal does not constitute a successive petition).
This action plainly constitutes a successive petition. Petitioner's claim relating to
alleged sentencing errors could have been, but was not, raised by Petitioner in his prior
habeas corpus petition.
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

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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 (2nd 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 Sixth Circuit Court of Appeals. 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 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 Sixth Circuit, 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).

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The Sixth Circuit 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:
[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.
111 F.3d at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2d Cir.
1996).

WHEREUPON, the Magistrate Judge RECOMMENDS the instant petition be
TRANSFERRED to the Court of Appeals for the Sixth Circuit for authorization for
filing pursuant to §2244(b)(3)(A).
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).

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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.

/s/ Terence P. Kemp
United States Magistrate Judge

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