Bocook v. Warden
REPORT AND RECOMMENDATION re 13 MOTION to Change Venue: The Magistrate Judge RECOMMENDS that Respondent's Motion be granted and that the matter be transferred to the United States Court of Appeals for the Sixth Circuit as a successive petition. Objections to R&R due by 4/12/2017. Signed by Magistrate Judge Norah McCann King on 3/29/2017. (er)(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
DARYL D. BOCOOK,
Case No. 2:16-cv-552
CHIEF JUDGE SARGUS
Magistrate Judge King
WARDEN, TOLEDO CORRECTIONAL
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 1993
aggravated murder conviction following a jury trial in the Muskingum
County Court of Common Pleas. This matter is now before the Court on
the Petition (ECF No. 1), Respondent’s Motion to Transfer (ECF No.
13), and the exhibits of the parties. For the reasons that follow, it
is recommended that Respondent’s Motion to Transfer be granted.
The pro se Petition was filed on May 27, 20161 in the Northern
Transfer Order (ECF No. 3). In it, Petitioner alleges that he was
denied the effective assistance of counsel because his trial counsel
failed to communicate a favorable plea offer to Petitioner. Petition
The Petition was executed on May 23, 2016. Petition (ECF No. 1, PageID# 10).
conviction. Petitioner filed his first petition for a writ of habeas
dismissed in January 2000. Bocook v. Huffman, 2:99-cv-0072 (S.D. Ohio
January 13, 2000). This Court and the United States Court of Appeals
Bocook v. Huffman, No. 00-3141 (6th Cir. June 5, 2000). The United
States Supreme Court denied the petition for a writ of certiorari.
Bocook v. Huffman, 531 U.S. 916 (2000). In October 2003, the Sixth
Circuit denied Petitioner’s motion for permission to file a second or
successive petition. In re: Daryl Bocook v. Huffman, No. 03-3407 (6th
Judgment (ECF No. 13-1); Post-Conviction Petition (ECF No. 13-8), but
those challenges were denied by the trial court, Journal Entry (ECF
affirmed on appeal, Judgment Entry (ECF No. 13-7); Opinion (ECF No.
13-16). See also Entry of the Ohio Supreme Court (ECF No. 13-19).
Thus, Petitioner remains in custody pursuant to the original state
Under these circumstances, this Court concludes that the Petition
is a second or successive petition within the meaning of 28 U.S.C. §
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.
If a district court in
the Sixth Circuit determines that a petition is a second or successive
petition, that court must transfer the petition to the United States
Court of Appeals for the Sixth Circuit.
In re Sims, 111 F.3d 45, 47
authorization only if the petitioner succeeds in making a prima facie
showing either that the claim sought to be asserted relies on a new
predicate for the claim could not have been discovered previously
through the exercise of diligence, and these facts, if proven, would
constitutional error, no reasonable fact finder would have found the
applicant guilty. 28 U.S.C. 21 2244(b)(2).
presented in the Petition absent authorization by the United States
Court of Appeals for the Sixth Circuit.
It is therefore RECOMMENDED that Respondent’s Motion to Transfer
(ECF No. 13) be granted and that the matter be transferred to the
United States Court of Appeals for the Sixth Circuit as a successive
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
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).
Response to objections
must be filed within fourteen (14) days after being served with a copy
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
district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
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
preserve an issue for appeal . . . .”) (citation omitted)). Filing
requirement of specific objections and is tantamount to a complete
failure to object.” Drew v. Tessmer, 36 F. App’x 561, 561 (6th Cir.
2002) (citing Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995)).
s/ Norah McCann King
Norah McCann King
United States Magistrate Judge
March 29, 2017
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