Silva v. Warden, Chillicothe Correctional Institution

Filing 7

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Jesus M Silva, 6 MOTION to Dismiss for Lack of Jurisdiction successive habeas petition: The Magistrate Judge RECOMMENDS Respondent's 6 Motion to Dismiss for L ack of Jurisdiction be GRANTED and that this action be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition. Objections to R&R due by 8/15/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 7/26/2016. (mas)(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
JESUS SILVA,
Petitioner,

CASE NO. 2:16-CV-00381
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth A. Preston Deavers

v.
WARDEN, CCI,
Respondent.
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Respondent’s Motion to
Dismiss for Lack of Jurisdiction, and the exhibits of the parties. For the reasons that follow, the
Magistrate Judge RECOMMENDS that Respondent’s Motion to Dismiss for Lack of
Jurisdiction (ECF No. 6) be GRANTED, and that this action be TRANSFERRED to the United
States Court of Appeals for the Sixth Circuit as a successive petition.
Procedural History
Petitioner challenges his October 31, 2007, convictions made pursuant to his guilty plea
in the Franklin County Court of Common Pleas on two counts of trafficking in cocaine and
engaging in a pattern of corrupt activity. The trial court imposed an aggregate term of twenty
years of incarceration. On February 17, 2009, the state appellate court affirmed the judgment of
the trial court. State v. Silva, No. 07AP-986, 2009 WL 388235 (Ohio App. 10th Dist. Feb. 17,
2009). On June 17, 2009, the Ohio Supreme Court dismissed Petitioner’s appeal. State v. Silva,
122 Ohio St.3d 1412 (Ohio 2009). On December 30, 2011, Petitioner filed a motion to vacate in
the state trial court. The trial court denied the motion. Petitioner timely appealed, and on

December 19, 2013, the appellate court affirmed the judgment of the trial court. State v. Silva,
No. 13AP-176, 2013 WL 6728950 (Ohio App. 10th Dist. Dec. 19, 2013). Petitioner did not file
a timely appeal. On April 29, 2015, the Ohio Supreme Court denied his motion for a delayed
appeal. State v. Silva, 142 Ohio St.3d 1446 (Ohio 2015).
On July 26, 2011, Petitioner filed his first federal habeas corpus petition. On June 4,
2012, this Court dismissed that action as barred by the one-year statute of limitations under 28
U.S.C. § 2244(d). Silva v. Knab, No. 2:11-cv-671, 2012 WL 1987487 (S.D. Ohio June 4, 2012).
On April 28, 2016, Petitioner filed the instant petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He asserts that the evidence is constitutionally insufficient to
sustain his convictions (claim one) and that he was denied the effective assistance of counsel
based on the lack of an interpreter (claim two). Plainly, however, this action constitutes a
second, or successive petition.
28 U.S.C. § 2244(b)(3)(A) states that 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 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 (2d 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 United States Court of Appeals for the Sixth Circuit. 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

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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).
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) (per curiam).
Consequently, the Magistrate Judge RECOMMENDS Respondent’s Motion to Dismiss
for Lack of Jurisdiction (ECF No. 6) be GRANTED and that this action be TRANSFERRED to
the United States Court of Appeals for the Sixth Circuit as a successive petition.
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
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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).
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/ Elizabeth A. Preston Deavers__
Elizabeth A. Preston Deavers
United States Magistrate Judge

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