Bocook v. Warden

Filing 14

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
EASTERN DIVISION

DARYL D. BOCOOK,
Petitioner,
Case No. 2:16-cv-552
CHIEF JUDGE SARGUS
Magistrate Judge King

v.
WARDEN, TOLEDO CORRECTIONAL
INSTITUTION,
Respondent.

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
District

of

Ohio

and

was

subsequently

transferred

to

this

Court.

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
(PageID# 5).
This

1

is

petitioner’s

second

challenge

in

this

Court

to

this

The Petition was executed on May 23, 2016. Petition (ECF No. 1, PageID# 10).

1

conviction. Petitioner filed his first petition for a writ of habeas
corpus

under

28

U.S.C.

§

2254

in

January

1999,

which

this

Court

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
for

the

Sixth

Circuit

denied

a

certificate

of

appealability.

See

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
Cir.

Oct.

challenges

29,
to

2003).

this

Thereafter,

conviction

in

the

Petitioner
state

filed

court,

additional

Motion

to

Void

Judgment (ECF No. 13-1); Post-Conviction Petition (ECF No. 13-8), but
those challenges were denied by the trial court, Journal Entry (ECF
No.

13-2);

Journal

Entry

(ECF

No.

13-11),

whose

judgments

were

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
court judgment.
Under these circumstances, this Court concludes that the Petition
is a second or successive petition within the meaning of 28 U.S.C. §
2244(b)(3)(A).
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.

2

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

(6th

in

Cir.

1997).

The

Sixth

Circuit,

turn,

will

issue

this

authorization only if the petitioner succeeds in making a prima facie
showing either that the claim sought to be asserted relies on a new
rule

of

Supreme

constitutional
Court

to

law

cases

on

made

retroactive

collateral

review

by
or

the

United

that

the

States
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 fact finder would have found the
applicant guilty. 28 U.S.C. 21 2244(b)(2).
This

Court

lacks

jurisdiction

to

entertain

the

new

claim

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
petition.

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.

3

28

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
thereof.

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
“failure

to

constituted

object
a

waiver

to

the

of

[the

magistrate
defendant’s]

judge’s

recommendations

ability

to

appeal

the

district court’s ruling”); United States v. Sullivan, 431 F.3d 976,
984 (6th Cir. 2005) (holding that defendant waived appeal of district
court’s

denial

magistrate

of

judge’s

pretrial
report

motion
and

by

failing

to

recommendation).

timely
Even

object

when

to

timely

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
fails

to

specify

the

issues

of

contention,

does

not

suffice

to

preserve an issue for appeal . . . .”) (citation omitted)). Filing
only

“vague,

general,

or

conclusory

objections

does

not

meet

the

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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