Draughon v. Warden, Chillicothe Correctional Institution

Filing 7

ORDER ADOPTING REPORT AND RECOMMENDATION; OVERRULING Petitioner's Objection; TRANSFERRING this action to the United States Court of Appeals for the Sixth Circuit as a successive petition. DENYING Petitioner's Motion for Temporary Restraining Order. Signed by Judge Algenon L. Marbley on 2/17/2017. (cw)(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
MICKEY L. DRAUGHON,
CASE NO. 2:17-CV-00020
JUDGE ALGENON L. MARBLEY
Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On January 31, 2017, the Magistrate Judge issued an Order and Report and
Recommendation pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts recommending that this action be transferred to the United States Court of
Appeals for the Sixth Circuit as a successive petition and denying Petitioner’s Motion for
Temporary Restraining Order. (ECF No. 4.) Petitioner has filed an Objection to the Magistrate
Judge’s Order and Report and Recommendation. (ECF No. 6.) 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. 6) is OVERRULED. The Order and Report and Recommendation (ECF No. 4) is
ADOPTED and AFFIRMED. This action is TRANSFERRED to the United States Court of
Appeals for the Sixth Circuit as a successive petition.
Petitioner’s Motion for Temporary Restraining Order (ECF No. 2) is DENIED.
Petitioner objects to the Magistrate Judge’s recommendation that this action be
transferred to the Sixth Circuit as successive. Petitioner again argues that this case does not
constitute a second or successive petition, because he raises claims relating to the Ohio Supreme
Court’s decision in State v. Smith, 104 Ohio St.3d 106 (Ohio 2004), as applied to his conviction

as a sexually violent predator. Petitioner again asserts that he could not previously have raised
such issue because the Ohio Supreme Court did not issue its decision in Smith until December 8,
2004, after this Court’s final judgment of dismissal of his prior federal habeas corpus petition.
Petitioner argues that his claim regarding the denial of effective assistance of counsel and related
claims should not be construed as successive because the Court previously dismissed such claims
as procedurally defaulted.
For the reasons discussed in the Magistrate Judge’s Order and Report and
Recommendation, these arguments are not persuasive. Where the Court dismisses the prior
habeas corpus petition based on a procedural default, “the dismissal qualifies as a decision ‘on
the merits’” and the petitioner must obtain authorization from the Court of Appeals pursuant to
2244(b)(3) prior to filing a subsequent federal habeas application. Smith v. Warden, Lebanon
Corr. Instit., No. 1:16-cv-998, 2016 WL 6790800, at *2 (S.D. Ohio Oct. 27, 2016) (citations
omitted). Further, “courts have uniformly concluded that claims based on a subsequent change
in the law. . . require authorization from the circuit courts before they may be raised in a second
federal habeas petition.” Keeling v. Warden, Lebanon Corr. Inst., Case No. 1:08-cv-231 (S.D.
Ohio Aug. 24, 2016), Report and Recommendation (ECF No. 45) PageID# 440.
Therefore, for these reasons, and for the reasons addressed in the Magistrate Judge’s
Order and Report and Recommendation, Petitioner’s Objection (ECF No. 6) is OVERRULED.
The Order and Report and Recommendation (ECF No. 4) is ADOPTED and AFFIRMED.
This action is TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a
successive petition.
Petitioner’s Motion for Temporary Restraining Order (ECF No. 2) is DENIED.

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IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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