Dillon v. Warden, Ross Correctional Institution

Filing 8

ORDER granting 3 Motion to Dismiss; adopting Report and Recommendations re 7 Report and Recommendations.. Signed by Judge James L. Graham on 7/17/2017. (ds)(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
Randy Dillon,
Petitioner,
v.

Case NO. 2:17-cv-117

Warden, Ross Correctional
Institution
Respondent.
ORDER
Petitioner, a state inmate, has filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. §2254.

This matter is before

the court for consideration of the June 2, 2017, report and
recommendation of the magistrate judge, recommending that the
petition be transferred to the Sixth Circuit Court of Appeals as a
successive petition.

The magistrate judge noted that petitioner

previously filed a §2254 petition challenging the constitutionality
of the same convictions.

The petition was denied by the district

court, see Dillon v. Warden, Ross Correctional Institution, Case
No. 2:10-cv-638, 2012 WL 1123525 (S.D. Ohio April 3, 2012), and the
judgment of the district court was affirmed on appeal, see Dillon
v. Warden, Ross Correctional Institution, 541 F. App’x 599 (6th
Cir. 2013).

The magistrate judge correctly noted that unless the

court of appeals has given approval for the filing of a second or
successive petition, a district court in the Sixth Circuit must
transfer a subsequent petition to the United States Court of
Appeals for the Sixth Circuit.

In re Sims, 111 F.3d 45, 47 (6th

Cir. 1997).
The report and recommendation specifically advised plaintiff
that objections to the report and recommendation were due within

fourteen days, and that the failure to object to the report and
recommendation “will result in a waiver of the right to have the
district judge review the Report and Recommendation de novo, and
also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation.”

Doc.

7, p. 4.
The time period for filing objections to the report and
recommendation has expired, and no objections to the report and
recommendation have been filed.

Accordingly, the court adopts

the report and recommendation (Doc. 7).
(Doc. 3) is granted.

The motion to dismiss

This case is dismissed, and the instant

petition for a writ of habeas corpus is hereby transferred to the
United

States

Court

of

Appeals

for

the

Sixth

Circuit

authorization for filing as a successive petition.

Date: July 17, 2017

s/James L. Graham
James L. Graham
United States District Judge

2

for