Franklin v. Warden, Chillicothe Correctional Institution

Filing 28

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 27 ). Signed by Judge Timothy S. Black on 3/26/2016. (mr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANTONIO SANCHEZ FRANKLIN,
Petitioner,
vs.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

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Case No. 3:12-cv-312
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 27)
This capital habeas corpus case is before the Court on the Report and
Recommendations of United States Magistrate Judge Michael R. Merz, to whom this case
is referred pursuant to 28 U.S.C. § 636(b). (Doc. 27). On November 23, 2015, the Court
denied Petitioner’s motion for leave to file an amended habeas petition and, having
determined that this case was a second or successive application for a writ of habeas
corpus, the case was transferred to the Sixth Circuit Court of Appeals for a determination
as to whether Petitioner may file said application under 28 U.S.C. § 2244(b)(2). (Doc.
25). However, on February 23, 2016, the Sixth Circuit issued an order dismissing the
action for want of prosecution, as Petitioner failed to cure identified defaults, despite
being given notice and time to do so. In re: ANTONIO FRANKLIN, No. 16-3008 (6th
Cir. Feb. 23, 2016); (Doc. 26). Accordingly, the Magistrate Judge issued the Report and
Recommendations at bar, noting that this Court lacks jurisdiction to adjudicate a second

or successive habeas application unless Petitioner first obtains authorization from the
Court of Appeals. (Doc. 27); Burton v. Stewart, 549 U.S. 147, 152 (2007). As Petitioner
“obtained neither a reversal of this Court[’s] determination that the case was second or
successive nor permission to proceed,” the Magistrate Judge recommended that the case
be dismissed without prejudice. (Doc. 27 at 1). No objections have been filed to the
Report and Recommendations, and the time for doing so has expired.
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court determines
that the Report and Recommendations (Doc. 27) should be, and is hereby, adopted in its
entirety. Accordingly:
1.

The Report and Recommendation (Doc. 27) is ADOPTED; and

2.

This case is DISMISSED without prejudice, and the Clerk shall enter
judgment accordingly, whereupon this case shall be TERMINATED
on the docket of this Court.

IT IS SO ORDERED.
Date: 3/26/2016

s/ Timothy S. Black
Timothy S. Black
United States District Judge

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