Wolfe v. Warden Madsion Correctional Institution

Filing 7

TRANSFER ORDER - Accordingly, the Wardens Motion is GRANTED and it is hereby ORDERED that the Clerk transfer this case to the Sixth Circuit Court of Appeals for its determination of whether Mr. Wolfes instant Petition should be permitted to proceed. Signed by Magistrate Judge Michael R. Merz on 5/2/2017. (srb)(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
WESTERN DIVISION AT DAYTON
JAVELEN WOLFE,
Petitioner,

:

- vs -

Case No. 3:17-cv-094
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

RHONDA RICHARD, Warden,
Madison Correctional Institution,
:
Respondent.

TRANSFER ORDER

This habeas corpus action under 28 U.S.C. § 2254 is before the Court on Respondent’s
Motion to Transfer the case as a second or successive habeas corpus application which requires
permission from the circuit court before it can proceed (ECF No. 6).
A district court has no jurisdiction to consider the merits of a second or successive habeas
petition. Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147
(2007). However, it is the district court which must decide in the first instance whether a habeas
application is second or successive. In re: Kenneth Smith, 690 F.3d 809 (6th Cir. 2012); In re
Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012).
Mr. Wolfe in the instant case is challenging his conviction and imprisonment under the
same judgment he previously attacked in Wolfe v. Warden, No. 3:09-cv-442. This Court entered
final judgment dismissing that case with prejudice as barred by the statute of limitations. Wolfe
v. Warden, 2010 WL 552130 (S.D. Ohio Feb. 6, 2010). The only changes to the underlying
judgment have been nunc pro tunc entries correcting or adding the statutory reference and
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include the jail time credit. These amendments do not create changes in the judgment sufficient
to allow a second-in-time habeas application to be counted as if it were an original application.
Compare Crangle v. Kelly, 838 F.3d 673, 680 (6th Cir. 2016).
Accordingly, the Warden’s Motion is GRANTED and it is hereby ORDERED that the
Clerk transfer this case to the Sixth Circuit Court of Appeals for its determination of whether Mr.
Wolfe’s instant Petition should be permitted to proceed.

May 22, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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