Melhado v. Warden, Marion Correctional Institution
Filing
8
OPINION and ORDER adopting and affirming 3 the Report and Recommendation. This action is hereby TRANSFERRED to the Sixth Circuit as a successive petition. Signed by Judge Michael H. Watson on 10/2/17. (jk) (This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CLIVE N. MELHADO,
CASE NO. 2:17-cv-00725
Petitioner,
JUDGE MICHAEL H. WATSON
Magistrate Judge Elizabeth P. Deavers
V.
WARDEN, MARION
CORRECTIONAL INSTITUTION,
Respondent.
OPINION AND ORDER
On August 18, 2017, the Magistrate Judge issued a Report and
Recommendation ("R&R"), pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts, recommending that the petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this case be
transferred to the United States Court of Appeals for the Sixth Circuit as
successive. R&R, ECF No. 3. Petitioner objects to the R&R. ObJ., ECF No. 7.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For
the reasons that follow. Petitioner's objection is OVERRULED. The R&R is
ADOPTED and AFFIRMED, and this action is TRANSFERRED to the Sixth
Circuit as a successive petition.
Petitioner objects to the Magistrate Judge's recommendation that this case
be transferred to the Sixth Circuit as a successive petition on the basis that, on
June 21, 2001, the Franklin County Municipal Court conducted a hearing outside
of his presence and dismissed pending charges against him, based on a motion
by the prosecutor, in an entry that was never made a part of the docket. He
asserts the Indictment in that case was filed after the case was dismissed.
According to Petitioner, the Indictment against him therefore was void, and the
trial court lacked jurisdiction over the case. Petitioner argues that this Court
should not transfer his habeas case to the Sixth Circuit because he Just
discovered that the municipal court case was dismissed in an entry that was not
made part of the record, and he could not earlier obtain this newly-discovered
evidence. He has attached a document entitled "Motion to Dismiss Pending
Felony" in Case Number 2001 CR 014428, in support. ECF No. 7-1, PAGEID
#50.
Nonetheless, the record reflects that this action constitutes a successive
petition that must be transferred to the Sixth Circuit for authorization for filing.
It's true that not all second-in-time petitions are "second
or successive." Panetti v. Quarterman, 551 U.S. 930,
944, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). But this
not-second-or-successive
exception
is
generally
restricted to two scenarios. The first is where ripeness
prevented, or would have prevented, a court from
adjudicating the claim in an earlier petition. See Stewart
V. Martinez-Villareal, 523 U.S. 637, 645, 118 S.Ct.
1618, 140 L.Ed.2d 849 (1998) (noting that "in [such]
situations, the habeas petitioner does not receive an
adjudication of his claim"). The second is where a
federal court dismissed an earlier petition because it
contained exhausted and unexhausted claims and in
doing so never passed on the merits.
Case No. 2:17-cv-725
Page 2 of 3
In re Coley, - F.3d
2017 WL 3976704, at *1 (6th Cir. Sept. 11, 2017) (citing
Slack V. McDanlel, 529 U.S. 473, 485-86 (2000)). As discussed by the
Magistrate Judge, this is Petitioner's fourth federal habeas corpus petition
challenging these same convictions, and Petitioner does not allege—nor does
the record indicate—reasons that this petition should not be considered
successive. Therefore, Petitioner must obtain authorization from the Sixth Circuit
in order to obtain review in this Court. See In re Owens, 525 F. App'x 287, 291
(6th Cir. 2013) (citing 28 U.S.C. § 2244(b)(3)(A)).
Petitioner's Objection, ECF No. 7, is OVERRULED. The R&R, EOF No. 3,
is ADOPTED and AFFIRMED. This action is hereby TRANSFERRED to the
Sixth Circuit as a successive petition.
IT IS SO ORDERED.
riCHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
Case No. 2:17-cv-725
Page 3 of 3
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