Fears v. Warden, Chillicothe Correctional Institution
Filing
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ORDER overruling 29 Objection to Magistrate Judge Order and transferring this matter to the United States Court of Appeals for the Sixth Circuit. Signed by Judge Michael R. Barrett on 3/29/18. (copy of this order has been emailed to the Sixth Circuit by the Clerk) (ba)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
ANGELO FEARS,
Petitioner,
:
- vs -
Case No. 2:17-cv-029
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
CHARLOTTE JENKINS, Warden,
:
Respondent.
ORDER
This case is before the Court on the Magistrate Judge’s Order (Doc. 6) transferring this
case to the United States Court of Appeals for the Sixth Circuit as a second-or-successive habeas
application.
I.
BACKGROUND
Petitioner was convicted in 1997 for aggravated murder, and the death sentence was
imposed by the Court of Common Pleas of Hamilton County, Ohio. (Doc. 1; PageID# 6). As
the Petition (Doc. 1) acknowledges, Fears previously attacked this judgment in a habeas corpus
petition filed in this Court under Case No. 1:01-cv-183. The foregoing Petition was dismissed
with prejudice on July 15, 2008. Fears v. Bagley, 462 Fed. Appx. 565, 2012 U.S. App. LEXIS
3295 (6th Cir. Feb. 16, 2012), cert denied, 133 S. Ct. 426 (2012). The mandate issued in that
case on October 11, 2012, returning jurisdiction to this Court. Thus, the state court judgment
remains final and unmodified.
On January 11, 2017, Fears filed the Petition that is currently before the Court. The
Petition asserts grounds based on Hurst v. Florida, 136 S. Ct. 616 (2016) (Doc. 1). The
magistrate judge concluded that Fears’ petition was second or successive, and issued an order
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transferring the case to the Sixth Circuit. (Doc. 6) The Parties filed objections and objection
responses (Doc. 9; Doc. 19) to the magistrate judge’s transfer order, and the undersigned
recommitted the matter to the magistrate judge for further analysis. (Doc. 25) The magistrate
judge filed a supplemental memorandum opinion (Doc. 27) on March 30, 2017. The Parties then
submitted his supplemental objections and objection responses (Doc. 29; Doc. 30) to the
supplemental memorandum opinion.
In each opinion, the magistrate judge recommended that this case be transferred to the
Sixth Circuit as a second-or-successive habeas petition.
II.
ANALYSIS
First, Fears argues that the magistrate judge lacked authority to transfer his Petition to the
Sixth Circuit, reasoning that a transfer order is “dispositive.” Second, Fears argues that the
Petition filed on January 11, 2017 is not second-or-successive, and thus not subject to the
transfer requirement. The Court will address each objection in turn.
A. Transfer Authority of the Magistrate Judge
The question of whether a transfer order is dispositive has been the subject of many
recent objections to opinions of magistrate judges in the Southern District of Ohio, in which
habeas petitioners argue that magistrate judges lack the authority to transfer second or successive
petitions to the Sixth Circuit. However, the question need not be resolved in this case. The
Court agrees with the magistrate judge (Doc. 27; PageID# 182) that, regardless of whether the
transfer order is dispositive, Petitioner’s objections involve questions of law that are subject to de
novo review. See also Tibbetts v. Warden, 1:14-cv-602, 2017 U.S. Dist. LEXIS 83416, at *4
(S.D. Ohio May 30, 2017) (Dlott, J.); Campbell v. Jenkins, No. 2:15-cv-1702, 2017 U.S. Dist.
LEXIS 130803, at *9 (S.D. Ohio Aug. 16, 2017) (Rice, J.).
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Accordingly, the Court will undertake a de novo review of the remaining issues.
B. The Transfer Requirement for Second or Successive Petitions
Federal law generally gives habeas petitioners one chance to pursue their claims in
federal court. In re Stansell, 828 F.3d 412, 413-414 (6th Cir. 2016). For petitions filed after the
first one – called "second or successive" petitions, per the language of the statute – applicants
must overcome strict limits before federal courts will permit them to seek habeas relief. Id.
(citing 28 U.S.C. § 2244(b)(3)(A)). “Indeed, district courts lack jurisdiction to deal with such
cases without circuit court permission.” Tibbetts v. Warden, Chillicothe Corr. Inst., 2017 U.S.
Dist. LEXIS 51968, *12, 2017 WL 1247792 (citing Franklin v. Jenkins, 839 F.3d 465(6th Cir.
2016); Burton v. Stewart, 549 U.S. 147, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007)).
The determination of whether a habeas application is second or successive is committed
to the District Court in the first instance. 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). If the district court
determines that the petition is second or successive, then the district court must transfer it to the
Sixth Circuit, which will undertake an analysis of whether the petition may proceed. “Because
district courts have no jurisdiction to consider the merits of a second-or-successive habeas
application, they risk serious waste of time and effort if they accept a petition and the court of
appeals later concludes they had no jurisdiction to consider it.” Tibbetts, 2017 U.S. Dist. LEXIS
83416, *7. In other words, this Court, and the litigants, risk wasting significant resources if this
Court improvidently accepts jurisdiction over the Petition. With this caution in mind, the Court
turns to the question of whether the Petition is “second-or-successive.”
The abuse of writ doctrine governs whether a petition is “second-or-successive.” “Under
the abuse of the writ doctrine, a numerically second petition is ‘second’ when it raises a claim
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that could have been raised in the first petition but was not so raised, either due to deliberate
abandonment or inexcusable neglect.” In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006). Here,
there is no dispute that Fears’ first petition was filed in 1997, and dismissed in 2008. The
Petition now before the Court was filed in 2017. However, Fears argues that this case is not
second-or-successive because it asserts claims that could not have been raised earlier, because it
is based on a factual predicate (i.e., the Supreme Court’s decision in Hurst) that did not exist at
the time of his first petition. This argument fails.
Petitioner is attempting to treat the Supreme Court’s decision in Hurst as a new “factual
predicate” that did not exist when his original habeas petition was filed. Analyzing the secondor-successive rule in conjunction with its exceptions defined in 28 U.S.C. § 2244, the Sixth
Circuit has rejected the approach for which Petitioner advocates: “What the exception cannot
mean is what Coley claims it means: that a petition is not second or successive whenever it relies
on a rule that did not exist when the petitioner filed his first petition.” In re Coley, 871 F.3d 455,
457-58 (6th Cir. 2017) (finding Petition based on Hurst to be second or successive; denying
motion to remand). The Sixth Circuit reasoned that such an approach would render superfluous
the exceptions to the rule that “second or successive” be dismissed, which exceptions are
reflected in 28 U.S.C. § 2244. Id. 1 Furthermore, “[i]t cannot be that every new legal rule,
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Petitioner also argues that, should this Court deem the Petition second-or-successive, such a
result forces Petitioner to proceed under 28 U.S.C. § 2244(b). According to Petitioner,
“§2244(b) cannot be constitutionally applied to Fears’ case.” (Doc. 29; PageID# 216). “As a
result, the Court should not transfer Fears’ petition to the Sixth Circuit as a second-or-successive
petition but allow Fears’ petition to remain in the district court . . . to avoid this constitutional
problem.” (Id.) However, even if § 2244(b) were unconstitutional, the Court is not persuaded
that the proper course is to redefine a second-or-successive petition as not second-or-successive.
Regardless, this Court agrees with the Magistrate Judge that Petitioner’s argument goes “far
beyond the scope of what the Warden argued in his Response and is not properly raised for the
first time in a reply.” (Doc. 27; PageID# 184). Petitioner wholly ignores the foregoing
conclusion of the Magistrate Judge in his supplemental objections (Doc. 29).
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including those not made retroactive on collateral review, also constitutes a new factual
predicate.” In re Coley, 871 F.3d 455, 458 (6th Cir. 2017).
Accordingly, reliance on Hurst is insufficient to avoid classification as a “second-orsuccessive” petition. Having found the Petition to be second or successive, the district court is
required to transfer the Petition to the Sixth Circuit.
III.
CONCLUSION
Therefore, consistent with the above, the Court OVERRULES Fears’ objections (Doc. 9;
Doc. 29) and TRANSFERS this case to the United States Court of Appeals for the Sixth Circuit.
s/ Michael R. Barrett
_____________________________
Hon. Michael R. Barrett
United States District Judge
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