Wilcox v. Warden, Toledo Correctional Institution

Filing 4

REPORT AND RECOMMENDATION: Magistrate Judge GRANTS 3 MOTION for Leave to Proceed in forma pauperis, RECOMMENDS TRANSFERRING 1 Petition for Writ of Habeas Corpus to the United States Court of Appeals for the Sixth Circuit as successive. Objections to R&R due by 8/15/2017. Signed by Magistrate Judge Kimberly A. Jolson on 8/1/2017. (ew)(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
TOBY D. WILCOX,
CASE NO. 2:17-CV-00604
JUDGE MICHAEL H. WATSON
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
TOLEDO CORRECTIONAL
INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner has requested to proceed in forma pauperis. (Doc. 3). His motion
for leave to proceed without payment of fees or costs is GRANTED.
This matter is before the Court on its own motion to consider the sufficiency of the
petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts. For the reasons that follow, the undersigned RECOMMENDS that this action
be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as successive.
I. Facts and Procedural History
Petitioner challenges his August 18, 2005, convictions after a jury trial in the Franklin
County Court of Common Pleas on six counts of aggravated murder, one count of attempted
aggravated murder, two counts of aggravated kidnapping, one count of aggravated robbery, and
one count of aggravated burglary. Petitioner was sentenced to a term of life imprisonment
without the possibility of parole plus forty-three years. The Ohio Tenth District Court of
Appeals affirmed the judgment of the trial court. State v. Wilcox, No. 05AP-972, 2006 WL
3743828 (Ohio Ct. App. Dec. 21, 2006). On May 2, 2007, the Ohio Supreme Court denied

Petitioner’s motion for leave to file a delayed appeal. State v. Wilcox, 113 Ohio St.3d 1486
(2007). Petitioner also unsuccessfully pursued state post-conviction relief. See State v. Wilcox,
No. 13AP-402, 2013 WL 5476397 (Ohio Ct. App. 2013); State v. Wilcox, No. 13AP-477, 2014
WL 1350903 (Ohio Ct. App. 2014).
On July 17, 2017, Petitioner filed this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He asserts that the trial court erred by failing to provide a jury instruction on the
lesser included offense of murder (claim one); that his convictions were against the manifest
weight of the evidence (claim two); that the trial court erred in permitting admission of
Petitioner’s statements against him (claim three); that his convictions are based on the admission
of unreliable DNA evidence obtained in violation of his constitutional rights (claim four); that
the trial court lacked subject matter jurisdiction (claim five); that his indictment was fatally
flawed, in violation of his constitutional rights (claim six); that he was unconstitutionally denied
the right to a preliminary hearing (claim seven); that he was denied the right to the effective
assistance of trial and appellate counsel (claim eight); and that he was not properly bound over,
in violation of the Constitution (claim nine).
However, this is not Petitioner’s first federal habeas corpus petition. On April 10, 2008,
Petitioner filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging these same convictions. On September 2, 2009, this Court dismissed that action as
barred by the one-year statute of limitations under 28 U.S.C. § 2244(d). Wilcox v. Kerns, No.
2:08-cv-318, 2009 WL 2899892 (S.D. Ohio Aug. 2, 2009).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a district court
lacks jurisdiction to entertain a successive petition for writ of habeas corpus in the absence of an
order from the court of appeals authorizing the filing of such successive petition. 28 U.S.C.

2

§ 2244(b). 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 the petition to the Sixth Circuit Court of
Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam). “[W]hen a prior petition is
dismissed because the petitioner procedurally defaulted his claims in state court, the dismissal
qualifies as a decision ‘on the merits.’” In such a case, the prisoner must obtain authorization
from the court of appeals pursuant to § 2244(b)(3) before filing a subsequent federal habeas
application.” Smith v. Warden, Lebanon Corr. Inst., No. 1:16-cv-998, 2016 WL 6790800, at *2
(S.D. Ohio Oct. 27, 2016) (citing In re Cook, 215 F.3d 606, 608 (6th Cir. 2000); Carter v. United
States, 150 F.3d 202, 205–06 (2d Cir. 1998)).
As discussed, Petitioner’s previous petition was dismissed as barred by AEDPA’s oneyear statute of limitations. “[I]t is well-settled that when the prior petition is dismissed because
the petitioner procedurally defaulted his claims in state court or because the petition is barred by
the statute of limitations, the dismissal is an adjudication of the merits of the claims[.]” Sudberry
v. Warden, Leb. Corr. Ins., No. 1:17-cv-45, 2017 WL 1050493, at *2 (S.D. Ohio Feb. 28, 2017).
In such a case, “the petitioner must obtain prior authorization from the court of appeals pursuant
to § 2244(b)(3) before filing a subsequent federal habeas application.”

Id.

That is the

circumstance here.
II. Recommended Disposition
For the foregoing reasons, the undersigned RECOMMENDS that this action be
TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as successive.

3

Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).
The parties are specifically advised that 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. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse
decision, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

Date: July 14, 2017

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

4