Melhado v. Warden, Marion Correctional Institution
ORDER AND REPORT AND RECOMMENDATIONS: GRANTING 1 IFP and RECOMMENDING that this action be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as successive re 2 Petition for Writ of Habeas Corpus filed by Clive N Melhado. Objections to R&R due by 9/1/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on August 18, 2017. (jlk)(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
CLIVE N. MELHADO,
CASE NO. 2:17-CV-00725
JUDGE MICHAEL H. WATSON
Magistrate Judge Elizabeth P. Deavers
WARDEN, MARION CORRECTION
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Preliminarily, Petitioner has filed an Affidavit of Indigence and requests to
proceed in forma pauperis. Upon consideration, the Court finds that Petitioner’s motion is
meritorious, and it is therefore GRANTED.
IT IS ORDERED THAT the Petitioner be allowed to prosecute this action without
prepayment of fees or costs and that judicial officers who render services in this action shall do
so as if the costs had been prepaid.
This matter is also 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 Magistrate Judge RECOMMENDS that this
action be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as
Petitioner challenges his March 2002 convictions after a jury trial in the Franklin County
Court of Common Pleas on aggravated murder and aggravated robbery. The Ohio Tenth District
Court of Appeals has summarized the procedural history of the case:
In 2001, appellant was indicted for two counts of aggravated
murder in violation of R.C. 2903.01 and one count of aggravated
robbery in violation of R.C. 2911.01. A jury found appellant guilty
on the first count of the lesser-included offense of murder in
violation of R.C. 2903.02, and guilty on the second count of
aggravated murder and of aggravated robbery. At sentencing, the
trial court merged the murder and aggravated murder convictions
and sentenced appellant to a term of life imprisonment without
possibility of parole for the aggravated murder conviction. The
trial court imposed a concurrent eight-year sentence on the
aggravated robbery conviction.  Appellant appealed to this court
and argued that his convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence,
that he received ineffective assistance of counsel, and that the
sentencing scheme in R.C. 2929.03 is unconstitutional. This court
rejected appellant's arguments and affirmed his convictions and
sentence. State v. Melhado, 10th Dist. No. 02AP–458, 2003–
In a 2010 motion to vacate a void judgment, appellant argued that
the trial court failed to properly impose post-release control
(“PRC”) for his aggravated robbery conviction. The trial court
rejected that argument and denied the motion.
This court dismissed appellant’s attempt to appeal that judgment
because he did not timely file his appellate brief. In 2012,
appellant filed another motion to vacate in which he again argued
that the trial court failed to properly impose PRC. The trial court
again rejected the argument, noting that it had already addressed
and rejected the exact issue. On appeal, this court affirmed. State
v. Melhado, 10th Dist. No. 13AP–114, 2013–Ohio–3547, ¶ 12–18.
We rejected his PRC argument because he had already served his
sentence for the aggravated robbery conviction and, therefore, any
error in failing to properly impose PRC on that conviction was not
correctable. Id . at ¶ 17.
In 2015, appellant filed [a] “Motion for Discharge from Custody”
in which he once again argued that the trial court failed to properly
impose PRC. Appellant also argued, for the first time, that he was
not afforded a preliminary hearing in a timely manner pursuant to
R.C. 2945.71(C)(1). The trial court denied the motion. In doing
so, the trial court specifically noted that it had already rejected his
PRC argument. It also concluded that appellant was not entitled to
a preliminary hearing once he had been indicted.
State v. Melhado, 2016 WL 3219850, at *1 (Ohio 10th App. Dist. June 9, 2016). On June 9,
2016, the appellate court affirmed the judgment of the trial court. Id. On October 5, 2016, the
Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Melhado, 146 Ohio
St.3d 1516 (Ohio 2016).
On August 17, 2017, Petitioner filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. He asserts as follows:
1. Due Process Rights Violations, Under U.S. Constitution
Amendment (14) Fourteen. Trial Court was Divest [sic] of its
Jurisdiction. Void Judgment, Void Sentence, False Imprisonment.
2. P.R.C. violation, Due Process Constitutional Rights Violation
However, this is not Petitioner’s first federal habeas corpus petition. Petitioner has, on three
prior occasions, presented challenges to these same convictions in this Court. Melhado v.
Warden, Warren Corr. Inst., 2:04-cv-1146, Petition (ECF No. 1); Motion to File Second or
Successive Habeas Petition (ECF No. 22); Melhado v. Warden, Marion Corr. Inst., 2:14-cv-402.
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. §
2244(b); Nelson v. United States, 115 F.3d 136 (2nd Cir. 1997); Hill v. Hopper, 112 F.3d 1088
(11th Cir. 1997). 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 (2nd Cir. 1998)).
Therefore, the Magistrate Judge RECOMMENDS that this action be TRANSFERRED
to the United States Court of Appeals for the Sixth Circuit as successive.
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.
The Clerk is ordered to serve the Petition on Respondent and the Attorney General of
Brian.Higgins@ohioattorneygeneral.gov and Habeas.email@example.com
s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
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