Filed: Mar. 08, 2016
Latest Update: Mar. 08, 2016
Summary: REPORT AND RECOMMENDATION STEPHANIE K. BOWMAN , Magistrate Judge . Petitioner, an inmate in state custody at the Ross Correctional Institution, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, challenging his Hamilton County, Ohio aggravated murder conviction. (Doc. 5). This matter is before the Court on respondent's motion to transfer the petition to the Sixth Circuit (Doc. 10) and petitioner's response in opposition. (Doc. 11). Petitioner raises the followin
Summary: REPORT AND RECOMMENDATION STEPHANIE K. BOWMAN , Magistrate Judge . Petitioner, an inmate in state custody at the Ross Correctional Institution, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, challenging his Hamilton County, Ohio aggravated murder conviction. (Doc. 5). This matter is before the Court on respondent's motion to transfer the petition to the Sixth Circuit (Doc. 10) and petitioner's response in opposition. (Doc. 11). Petitioner raises the following..
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REPORT AND RECOMMENDATION
STEPHANIE K. BOWMAN, Magistrate Judge.
Petitioner, an inmate in state custody at the Ross Correctional Institution, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his Hamilton County, Ohio aggravated murder conviction. (Doc. 5). This matter is before the Court on respondent's motion to transfer the petition to the Sixth Circuit (Doc. 10) and petitioner's response in opposition. (Doc. 11).
Petitioner raises the following three grounds for relief in the petition:
GROUND ONE: The trial court erred in denying petitioner's motion to suppress his statements to police.
GROUND TWO: The trial court erred to petitioner's prejudice in admitting damaging testimony.
GROUND THREE: The trial court erred to petitioner's prejudice by accepting and journalizing verdicts of guilty to possession and trafficking, in violation of the due process clauses of the Ohio and United States Constitutions.
(Doc. 5).
This is not the first federal habeas corpus petition filed by petitioner with this Court challenging his Hamilton County conviction. On January 25, 2010, petitioner filed his first habeas petition. See Harris v. Warden, Case No. 1:10-cv-43 (S.D. Ohio Jan. 25, 2010) (Dlott, J.; Litkovitz, M.J.) (Doc. 1). Petitioner raised the following three grounds for relief in his prior petition:
GROUND ONE: The trial court erred in denying defendant's motion to suppress his statements to police. Defendants statements are involuntary when he is interrogated extensively in a custodial setting before being informed of his right to silence and to counsel, and only waives those rights after making damaging statements.
GROUND TWO: The trial court erred to defendants prejudice in admitting hearsay testimony. I was denied constitutional right to confrontation and due process when the state was permitted to use the pretrial deposition of a key eyewitness and to introduce hearsay evidence from her in deposition.
GROUND THREE: The trial court erred to defendant's prejudice by accepting and journalizing a verdict of guilty to aggravated murder, in violation of the due process clauses of the Ohio and United States Constitutions. The evidence presented was insufficient, as a matter of law, to establish my participation in the offense charged, and the jury's verdict was against the manifest weight of the evidence.
Id. This Court denied the petition after concluding that the claims in the petition were procedurally defaulted. Id., Docs. 14, 18, 19.
Pursuant to 28 U.S.C. § 2244(b)(1), the federal district court must dismiss a claim presented in a second or successive habeas corpus petition that was raised in a prior petition. In addition, the court must dismiss a claim presented in a second or successive petition, which the petitioner did not include in the prior petition, unless: (1)(a) petitioner shows the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court, that was previously unavailable; or (b) the factual basis for the claim could not have been discovered previously through the exercise of due diligence; and (2) the facts would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. 28 U.S.C. § 2244(b)(2).
Before the district court may consider a successive petition, the petitioner must first request and obtain authorization for such consideration from the court of appeals. 28 U.S.C. § 2244(b)(3). The court of appeals may authorize the district court to consider a successive petition only if petitioner makes the prima facie showing described above. Id. See Magwood v. Patterson, 561 U.S. 320, 330-31 (2010); In re Cook, 215 F.3d 606, 607 (6th Cir. 2000).
In this case, petitioner is attacking the same conviction and sentence challenged in his prior petition.1 The Court's decision denying the prior petition on the ground that his claims were procedurally defaulted constitutes an adjudication on the merits. In re Cook, 215 F.3d 606, 608 (6th Cir. 2000) (holding that dismissal of petition based on unexcused procedural default of claims in state court is considered "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 habeas application. Therefore, the instant petition is a second or successive petition within the meaning of 28 U.S.C. § 2244(b), and this Court lacks jurisdiction to consider it without petitioner's first obtaining authorization from the Sixth Circuit.
When a prisoner has filed a second or successive petition for habeas corpus relief in the district court without first obtaining authorization from the Court of Appeals, the district court in the interest of justice pursuant to 28 U.S.C. § 1631 is required to transfer the case to the Sixth Circuit for consideration as required under § 2244(b)(3). See In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (citing Liriano v. United States, 95 F.3d 119, 122 (2d Cir. 1996)).
Accordingly, it is hereby recommended that respondent's motion to transfer petitioner's second habeas petition to the Sixth Circuit (Doc. 10) be GRANTED.
IT IS THEREFORE RECOMMENDED THAT:
Respondent's motion to transfer petitioner's habeas petition to Sixth Circuit Court of Appeals (Doc. 10) be GRANTED, and the petition for a writ of habeas corpus (Doc. 5) be TRANSFERRED pursuant to 28 U.S.C. § 1631 to the United States Court of Appeals for the Sixth Circuit for consideration whether the district court may review the petition in accordance with 28 U.S.C. § 2244(b).
