Sanders v. Warden Chillicothe Correctional Institution
Filing
4
OPINION AND ORDER adopting Report and Recommendations re 2 Report and Recommendations.and transferring the petition to the Sixth Circuit for consideration as a second or successive petition, and dismisses the case. Signed by Judge James L Graham on 7/13/2015. (ds)(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.
OPINION AND ORDER
On June 23, 2015, the Magistrate Judge issued a Report and Recommendation
pursuant to Rule 4 of the rules Governing Section 2254 Cases in the United States
District Courts, recommending that the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 be transferred to the United States Court of Appeals for the
Sixth Circuit for authorization for filing as a successive petition. (ECF No. 2.) Petitioner
has filed an Objection to the Magistrate Judge’s Report and Recommendation. (ECF No. 3.)
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
reasons that follow, Petitioner’s Objection (ECF No. 3) is OVERRULED. The Report and
Recommendation (ECF 2) is ADOPTED and AFFIRMED.
This action is hereby
TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for
authorization for filing as a successive petition.
Petitioner objects to the Magistrate Judge’s recommendation. He acknowledges
that this is not his first federal habeas corpus petition relating to his March 1995
1
convictions in Pickaway County on three counts of attempted murder, but argues that
this action does not constitute a successive petition because he previously challenged
his commitment and he now challenges the imposition of sentence.
In his prior federal habeas corpus petition, Petitioner raised claims that he is
being held under “void commitment papers” because the trial court denied his motion
for a change of venue and he is actually innocent. He also claimed that the judgment is
void because he was denied his right to a speedy trial, the prosecutor failed to disclose
exculpatory evidence, and he is innocent of the charges.
See Sanders v. Warden,
Chillicothe Correctional Institution, Case No. 2:12-cv-00423.1 No objections were filed, and
on June 8, 2012, this Court dismissed that action as untimely. Id. Petitioner now asserts
that his sentence violates Ohio’s law on allied offenses of similar import. Thus, both of
these cases challenge the validity of Petitioner’s convictions and sentence. As noted by
the Magistrate Judge, Petitioner’s claim relating to alleged sentencing errors could have
been, but was not, raised by Petitioner in his prior federal habeas corpus petition. This
action thereby constitutes a successive petition.
Therefore, Petitioner’s Objection (ECF No. 3) is OVERRULED. The Report and
Recommendation (ECF 2) is ADOPTED and AFFIRMED.
This action is hereby
DISMISSED.
Date: July 13, 2015
s/James L. Graham
_____________________________
JAMES L. GRAHAM
United States District Judge
1
Petitioner indicates that his prior federal habeas petition was filed under Case No. 08-cv-423, but this appears to
have been an error.
2
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