Fears v. Warden, Chillicothe Correctional Institution
SUPPLEMENTAL MEMORANDUM OPINION - The Magistrate Judge recommends that Petitioner's Objections be overruled and this case be transferred to the Sixth Circuit as a second-or-successive habeas petition. Signed by Magistrate Judge Michael R. Merz on 3/29/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
- vs -
Case No. 2:17-cv-029
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
CHARLOTTE JENKINS, Warden,
SUPPLEMENTAL MEMORANDUM OPINION
This capital habeas corpus case is before the Court on Petitioner=s Objections (ECF No.
9) to the Magistrate Judge’s Order transferring this case to the Court of Appeals as a second-orsuccessive habeas application (ECF No. 6). The Sixth Circuit has terminated the transfer as
“prematurely docketed” so as to allow this Court to consider the Objections. As permitted by
Fed. R. Civ. P. 72, the Warden has filed a Response to those Objections (ECF No. 19). With the
consent of the Warden and court permission, Petitioner has filed a Reply to the Response (ECF
Nos. 26). Judge Barrett has recommitted the matter for reconsideration in light of the Objections
(ECF No. 25).
Magistrate Judge Authority/Standard of Review
Petitioner’s First Objection is that a decision to transfer a case to the circuit court as
second-or-successive is a “dispositive” decision and that a Magistrate Judge therefore has no
authority to enter an order on the question, but must make a recommendation to a District Judge
(Objections, ECF No. 9. PageID 107-11).
The Magistrate’s Act at 28 U.S.C. § 636(b)(1)(A) precludes a Magistrate Judge from
determining certain pretrial matters and those matters are called “dispositive” because they are
“dispositive of a claim or defense of a party.” See, Vogel v. U.S. Office Products Company, 258
F.3d 509, 514 (6th Cir. 2001), citing Fed.R.Civ.P. 72. The Sixth Circuit has decided the list of
dispositive motions in 28 U.S.C. § 636(b)(1)(A) is nonexhaustive and Magistrate Judges also
lack authority to decide analogous matters including Rule 11 claims for damages, Bennett v.
General Caster Service of N. Gordon Co., Inc., 976 F.2d 995 (6th Cir. 1992)(per curiam); denial
of in forma pauperis motions, Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990)(per curiam); or a
Rule 37 order striking pleadings with prejudice, Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d
1458, 1463 (10th Cir. 1988), cited approvingly in Bennett; or a remand order, Vogel v. U.S. Office
Products Co., 258 F.3d 509 (6th Cir. 2001).
In determining whether a particular motion is dispositive, the Sixth Circuit has undertaken a
functional analysis of the motion’s potential effect on litigation. Vogel v. U.S. Office Products
Company, 258 F.3d 509, 514 (6th Cir. 2001), citing Fed.R.Civ.P. 72. The list of dispositive
motions contained in § 636(b)(1)(A) is nonexhaustive, and unlisted motions that are functionally
equivalent to those listed in § 636(b)(1)(A) are also dispositive. Id. (holding motions to remand
are dispositive) and citing, Callier v. Gray, 167 F.3d 977, 981 (6th Cir. 1999)(holding that a
motion for default judgment is dispositive because it is “substantially similar to several of the
listed motions”); Vitols v. Citizens Banking Co., 984 F.2d 168, 169-70 (6th Cir. 1993)(holding
that a motion to certify a district court order for interlocutory appeal is dispositive); Bennett,
supra.(holding that a motion for Rule 11 sanctions is dispositive); United States Fid. & Guar.
Co. v. Thomas Solvent Co., 955 F.2d 1085 (6th Cir. 1992)(holding that because a motion to
realign parties would either destroy or preserve diversity jurisdiction, motions to realign are
dispositive); Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990)(holding that an order denying a
motion to proceed in forma pauperis is dispositive because it is the functional equivalent of an
Petitioner urges this Court to decide that decisions to transfer second-or-successive
habeas applications are functionally equivalent to dismissing a case for lack of jurisdiction and is
therefore actually dispositive (Objections, ECF No. 9, PageID 108). Petitioner admits that the
Sixth Circuit has not considered this question. Id. at 109. This is somewhat overstated. The
Sixth Circuit has received many transfer orders entered by the undersigned and has never
questioned the authority of a Magistrate Judge to enter such an order. See In re Kenneth Smith,
690 F.3d 809 (6th Cir. 2012); In re Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25,
2012). Because the circuit court would not have appellate jurisdiction over an appeal from a
Magistrate Judge’s report and recommendations on a dispositive motion, one would expect the
circuit court, if it agreed with Petitioner’s position, to remand the case for lack of appellate
jurisdiction. Instead, the circuit court has proceeded to decide the merits of the transfer.
In any event, Petitioner concedes the Sixth Circuit has not decided the question, that this
Court has generally treated transfer questions as nondispositive, but that the Northern District has
“generally treated motions to transfer as dispositive.” (Objections, ECF No. 9, PageID 109,
citing Keith v. LaRose, 2014 WL 1369655 (N.D. Ohio Mar. 28, 2014), and Roberts v.
Gansheimer, 2011 WL 7637550 (N.D. Ohio Dec. 21, 2011)). Neither opinion discusses the
functional equivalence question, but instead, as Petitioner says, “treats” the question as if it were
dispositive without discussion. Judge Helmick’s decision in Keith expressly says the motion to
transfer was referred to Magistrate Judge Burke for a report and recommendation. A Magistrate
Judge is unlikely to respond to such a referral by telling the District Judge she has decided to
render a decision instead of giving the requested report.
Performing the functional analysis, one can see analogies between the transfer question
and other non-statutory matters found to be dispositive. For example, an order certifying a
question for interlocutory appeal moves a case from the district court to the circuit court and has
been held to be a functional equivalent even though it does not dispose of a claim. See Vitols,
supra. Similarly, an order remanding a removed case to state court does not “dispose” of a
claim, but moves it to a different court and has been held to be dispositive. See Vogel, supra.
On the other hand, a transfer of venue under 28 U.S.C. 1404 changes the forum but has not been
held to be dispositive. Intrastate transfers of venue in habeas corpus cases under 28 U.S.C. §
2241(d) happen frequently and are often done sua sponte by Magistrate Judges.
Petitioner claims a transfer is functionally equivalent to a dismissal for lack of
jurisdiction. Not so. Rather, it makes a determination that there is a prerequisite to exercise of
jurisdiction, to wit, permission from the circuit court. A district court lacks jurisdiction to
consider a second-or-successive petition without approval by the circuit court. Franklin v.
Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007). A transfer order
does not dismiss a case for lack of jurisdiction, but delays exercise of jurisdiction until that
prerequisite is met.
Entirely apart from the question of Magistrate Judge authority to enter a transfer order is
the standard of review on that order. The Magistrate Judge agrees with Petitioner that the
standard of review is de novo because the question whether a second-in-time petition is also
second-or-successive is a pure question of law to which the “contrary to law” standard applies,
regardless of whether the Magistrate Judge filing is dispositive or non-dispositive.
In sum, the Magistrate Judge urges the District Court to rule expressly that transfer
questions are not functionally equivalent to motions to dismiss for lack of jurisdiction and are
therefore within the Magistrate Judge’s decisional authority in the first instance. Chief Judge
Sargus has followed this course in deciding that a Magistrate Judge has decisional authority,
subject to de novo review, on a Fed. R. Civ. P. 15 motion to amend a capital habeas petition,
despite a parallel “functional equivalent” argument such as is made here. Monroe v. Houk, No.
2:07-cv-258, 2016 U.S. Dist. LEXIS 38999 at *2-3 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J
Second or Successive Habeas Application
The Transfer Order found first that the instant habeas petition was “second-in-time,”
noting that it attacks the same judgment and death sentence adjudicated in Case No. 1:01-cv-183
which became final when the Sixth Circuit mandate issued October 11, 2012 (Order, ECF No. 6,
PageID 84-85). Petitioner does not quarrel with that finding, but argues the Petition is not
second-or-successive because the two grounds for relief pleaded in the Petition, based as they are
on Hurst v. Florida, 577 U.S. ___, 136 S. Ct. 616 (2016), could not have been raised before that
case was decided (Objections, ECF No. 9, PageID 112).
The Transfer Order agreed these claims could not have been raised in the original case
and therefore they were not “withheld” in abuse of the writ when the first case was filed.
Petitioner argues in the Objections as he did in the Petition itself (and as his counsel have argued
in other capital cases) that “[t]o determine whether a petition is second-or-successive, courts
apply the abuse-of-the-writ doctrine.” (Objections, ECF No. 9, PageID 112, citing In re Bowen,
436 F.3d 699 (6th Cir. 2006). As noted in the Transfer Order, Petitioner’s argument inverts the
logic of Bowen. Bowen essentially says that if a habeas application would have counted as an
abuse of the writ before AEDPA, it will now count as second or successive. But that does not
logically imply the inverse: a second-in-time petition does not escape being second-or-successive
by not being an abuse of the writ. The AEDPA’s bar on second-or-successive applications goes
well beyond the prior law ban on abuse of the writ.
Fears’ claims under Hurst do not escape the second-or-successive classifications by being
based on newly-arising facts as in Panetti v. Quarterman, 551 U.S. 930 (2007). Instead it is
based on new law. But it is also not like Atkins v. Virginia, 536 U.S. 304 (2002), where the
Court recognized a new substantive constitutional right – the right not to be executed if one is
intellectually disabled – that was applicable retroactively to cases on collateral review. Applying
the required analysis under Teague v. Lane, 489 U.S. 288 (1989), the right created by Hurst is a
new procedural right not applicable to cases on collateral review unless or until the Supreme
Court or the Sixth Circuit decides otherwise, which they have not.
The Magistrate Judge offers no opinion on Petitioner’s argument in his Reply (ECF No.
26) that the procedure mandated by 28 U.S.C. § 2244(b)(2) “may be unconstitutional” under
Teague, supra. That argument is far beyond the scope of what the Warden argued in his
Response and is not properly raised for the first time in a reply.
The Magistrate Judge recommends that Petitioner’s Objections be overruled and this case
be transferred to the Sixth Circuit as a second-or-successive habeas petition.
March 29, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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