Payne v. Warden, Franklin Medical Center

Filing 2

TRANSFER ORDER - Pursuant to 28 U.S.C. § 1651, this case is ORDERED transferred to the United States Court of Appeals for the Sixth Circuit. Signed by Magistrate Judge Michael R Merz on 10/21/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LOWELL N. PAYNE, JR.,
Petitioner,

:

- vs -

Case No. 3:14-cv-358
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

C. BRADLEYM Warden, Franklin
Medical Center,
:
Respondent.

TRANSFER ORDER

Petitioner Lowell N. Payne, Jr., brings this habeas corpus action under 28 U.S.C. § 2254
to obtain relief from his convictions for rape in the Montgomery County Common Pleas Court in
that court’s case number 88-cr-960.
In the Antiterrorism and Effective Death Penalty Act of 1996, Congress enacted 28
U.S.C. § 2244(b) which provides:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
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and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

A district court lacks jurisdiction to consider a second or successive petition without
approval by the circuit court. Burton v. Stewart, 549 U.S. 147 (2007).
The standard form for § 2254 Cases asks the petitioner whether he has “previously filed
any type of petition, application, or motion in a federal court regarding the conviction that you
challenge in this petition?” Payne has answered that question “no.” (Petition, Doc. No. 1-1,
PageID 14). However, an examination of this Court’s docket reveals Payne has previously
challenged this conviction in this Court in at least the following cases: 3:89-cv-485, 3:94-cv477, 3:97-cv-484, 3:98-cv-223, and 3:11-cv-189; most of these are styled as habeas corpus
petitions.
The Sixth Circuit has commanded that under these circumstances, a case should be
transferred to it for consideration of whether permission should be granted to file a second or
successive petition. In re Sims, 111 F.3d 45 (6th Cir. 1997). Accordingly, pursuant to 28 U.S.C.
§ 1651, this case is ORDERED transferred to the United States Court of Appeals for the Sixth
Circuit.
October 22, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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