KENNETH S. McHARGH, District Judge.
The petitioner Melvin Miles ("Miles") has filed a petition pro se for a writ of habeas corpus, arising out of his 1991 conviction and sentence for aggravated murder with a firearm specification, in the Cuyahoga County (Ohio) Court of Common Pleas. (Doc. 1.) In his petition, Miles raises a single ground for relief, verbatim:
(Doc. 1, at [17].)
The respondent has filed an motion to dismiss or, in the alternative, to transfer to the Sixth Circuit. (Doc. 6.) Miles has filed an opposition. (Doc. 7.)
The Ohio Court of Appeals set forth the following factual and procedural background:
(Doc. 6, RX 42, at 1-3; State v. Miles, No. 101790, 2015 WL 755281, at *1-*2 (Ohio Ct. App. Feb. 19, 2015).)
The court of appeals found that the trial court did not abuse its discretion in denying Miles' motion to withdraw his plea. (Doc. 6, RX 42, at 4-5; Miles, 2015 WL 755281, at *3.)
Miles appealed that judgment to the Supreme Court of Ohio, setting forth a single proposition of law:
(Doc. 6, RX 44.) On June 3, 2015, the state high court declined to accept jurisdiction of the appeal. (Doc. 6, RX 45.)
Miles filed a petition for a writ of habeas corpus in this court on August 7, 2015. (Doc. 1.)
A preliminary matter: In the motion to dismiss, the respondent contends that the petition contains three grounds for relief. (Doc. 6, at 7-8.) However, the petition specifies only a single ground, which is stated as:
(Doc. 1, at [17].) "Ground One" of the petition is ordinarily set forth in Section 12 of the form. At that point, Miles filled in: "See attached answer to Question 12." (Doc. 1, § 12, at [4].) Similarly, the "Supporting facts" section was filled in to refer to an attached answer. (Doc. 1, § 12(a), at [4].)
"Ground Two" of the petition was filled in "N/A" as was "Ground Three" ("N/A"). See doc. 1, at [6], and [7]. In the attachment to the petition, Miles set out the claims which he raised in the state courts. (Doc. 1, at [13]-[16].) Then, he provided the "Answer to Question[s] 12 & 12-a," which set forth the ground for habeas relief, as quoted above, and the supporting arguments. (Doc. 1, at [17].)
In sum, the petition for a writ of habeas corpus is based on a single ground for relief.
The respondent argues that the present petition constitutes a second or successive petition, which must first be vetted by the Sixth Circuit. (Doc. 6, at 8.) The respondent contends that the petition must be dismissed, or transferred to the Sixth Circuit. (Doc. 6, at 9.)
The habeas statute has several provisions relevant to this issue:
28 U.S.C.A. § 2244(b). The respondent identifies Sections 2244(b)(3)(A) and 2244(b)(3)(b) as relevant to the motion to dismiss. (Doc. 6, at 8-9.)
The respondent asserts that Miles will claim that a new factual predicate was discovered, which he could not have discovered earlier. The respondent argues:
(Doc. 6, at 8.)
Indeed, Miles argues that the issue underlying his claim "did not exist until October 18, 2013, when the Ohio Adult Parole Authority, altered the agreement between Miles and the State of Ohio." (Doc. 7, at 5.) The parole board's October 2013 decision led to his motion to withdraw plea, which was denied by the trial court without a hearing. (Doc. 6, RX 42, at 2; Miles, 2015 WL 755281, at *1-*2.) The appeal filed by Miles on August 8, 2014, attacked the trial court's decision to deny his motion to withdraw plea. (Doc. 6, RX 39; see generally doc. 6, RX 42; Miles, 2015 WL 755281 (affirming judgment of trial court).)
The state court of appeals found no abuse of discretion in the denial of the motion to withdraw plea. (Doc. 6, RX 42, at 4-5; Miles, 2015 WL 755281, at *2.) The court pointed out that "a motion to withdraw a guilty plea is not a proper remedy for a claimed breach of a plea bargain by the Parole Board." (Doc. 6, RX 42, at 4; Miles, 2015 WL 755281, at *2.) However, the court of appeals emphasized that "we express no opinion regarding the substance of Miles's claim — whether there was a breach of his plea agreement when the Parole Board denied him parole after he served 23 years of his imposed sentence." (Doc. 6, RX 42, at 6; Miles, 2015 WL 755281, at *3.) The appellate court's decision was simply that the trial court did not abuse its discretion in denying the motion to withdraw his guilty plea without a hearing. (Doc. 6, RX 42, at 5-6; Miles, 2015 WL 755281, at *3.)
This habeas petition is based on Miles' claim that the state court of appeals' refusal "to rule on the merits of a properly filed motion to withdraw guilty plea" was in violation of his constitutional due process rights. (Doc. 1, at [17].)
Section 2244's "gatekeeping provisions" apply only to a "second or successive petition" within the meaning of the statute. James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002).
The Supreme Court has recognized that the:
Tyler v. Cain, 533 U.S. 656, 661-662 (2001). More specifically, Section 2244(b)(2)(B) provides that a successive petition may be permitted:
In re Marsch, No. 05-6340, 2006 WL 3780362, at *2 (6th Cir. Dec. 20, 2006) (quoting 28 U.S.C. § 2244(b)(2)(B)(i)-(ii)).
The first issue, then, is whether Miles' current petition should be considered a "second or successive petition." The phrase is not defined in the statute, and courts have rejected a literal reading. James, 308 F.3d at 167. Not every subsequent petition for habeas corpus is considered a "second or successive petition" under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006) (citing Slack v. McDaniel, 529 U.S. 473, 487 (2000), and other cases); James, 308 F.3d at 167 (citing cases).
In order to file a "second or successive" habeas petition, the prisoner must first move for an order from the relevant U.S. Court of Appeals authorizing the district court to consider the application. Magwood v. Patterson, 130 S.Ct. 2788, 2796 (2010); Tyler, 533 U.S. at 660 n.2 (citing 28 U.S.C. § 2244(b)(3)(A)); Cress v. Palmer, 484 F.3d 844, 852 (6th Cir. 2007); In re Siggers, 132 F.3d 333, 335 (6th Cir. 1997).
The Sixth Circuit had previously found that, if a petition filed in this court is considered a "second" petition, the district court should transfer the petition to the Sixth Circuit Court of Appeals for its consideration. In re Sims, 111 F.3d 45, 46-47 (6th Cir. 1997) (per curiam); Marsch, 2006 WL 3780362, at *1. The movant would then have to satisfy the requirements of 28 U.S.C. § 2244(b)(1) and (2) before proceeding further. Siggers, 132 F.3d at 337-339.
In Magwood v. Patterson, however, the Supreme Court stated that, "if [the petitioner's] application was `second or successive,' the District Court should have dismissed it in its entirety because he failed to obtain the requisite authorization from the Court of Appeals." Magwood, 130 S.Ct. at 2796 (emphasis added); see also Burton v. Stewart, 549 U.S. 147, 157 (2007) (vacating judgment of court of appeals, and directing district court "to dismiss the habeas petition for lack of jurisdiction"). The Magwood Court also noted that, if the application is not "second or successive," it is not subject to Section 2244(b) at all, and the petitioner's claim would be reviewable (absent procedural default). Magwood, 130 S.Ct. at 2796.
Because the phrase "second or successive petition" is not statutorily defined in the AEDPA, courts have resorted to the "abuse of writ" doctrine. James, 308 F.3d at 167 (citing cases); see also Bowen, 436 F.3d at 704. Under the "abuse of writ" doctrine, a habeas petition is a "second" petition "when it raises a claim that could have been raised in the first petition but was not so raised, either due to deliberate abandonment or inexcusable neglect." Bowen, 436 F.3d at 704 (citing McCleskey v. Zant, 499 U.S. 467, 489 (1991)); see also Cress, 484 F.3d at 852 (unavailability of factual basis establishes cause for failure to raise claim); Siggers, 132 F.3d at 338.
The Supreme Court has found that, where there is a new judgment intervening between two habeas petitions, "an application challenging the resulting new judgment is not `second or successive' at all." Magwood, 130 S.Ct. at 2802. For example, federal courts have found that a subsequent habeas petition is not a "second or successive" petition where it raises a claim that originates at resentencing, and which could not have been addressed in the earlier petition. Lang v. United States, 474 F.3d 348, 351-353 (6th Cir.), cert. denied, 552 U.S. 1083 (2007) (citing cases); James, 308 F.3d at 168 (citing cases). Claims that could not have been raised in a prisoner's earlier habeas petition do not implicate the gatekeeping requirements of Section 2244. James, 308 F.3d at 168 (citing cases).
As set forth by the respondent, Miles filed his first petition for a writ of habeas corpus on Jan. 25, 2001. (Doc. 6, RX 4.) That petition was denied because this court found that the claims of his petition were procedurally barred. (Doc. 6, RX 5, at 2.)
Miles filed a second petition for writ of habeas corpus on Sept. 8, 2014. (Doc. 6, RX 46.) This court dismissed the petition, without prejudice, because it was apparent from the face of the petition that Miles had an appeal pending in state court concerning the parole authority's October 2013 denial of parole, and the trial court's subsequent denial of his motion to withdraw plea. (Doc. 6, RX 47.)
Miles filed this most recent petition for writ of habeas corpus on Aug. 7, 2015, asserting that he had exhausted his state remedies. (Doc. 1, at [23]; see also doc. 6, at 7 (respondent concedes state appeals complete).) The petition is based on the claim that Miles was denied due process "when the Ohio appellate court refused to rule on the merits of a properly file[d] motion to withdraw guilty plea." Thus, the claim is explicitly based on the court of appeals decision of Feb. 19, 2015, which affirmed the trial court's July 29, 2014, denial
Thus, the claim asserted in the current petition did not exist when Miles filed his 2001 petition, so this petition is not "second or successive" for the purposes of AEDPA's gatekeeping provisions. Lang, 474 F.3d at 353; James, 308 F.3d at 168. Miles had no way of knowing in 2001 that the parole authority would deny his release in 2013, after he had served the twenty-three years of his plea, and would also determine that he had an additional seven (7) years yet to serve. See doc. 6, RX 35, at [2], [11]. Claims that could not have been raised in the earlier petition do not implicate the gatekeeping requirements of Section 2244. James, 308 F.3d at 168 (citing cases).
In light of the preceding discussion, the court does not find that Miles's habeas petition is barred from consideration as a "second or successive application" under Section 2244. The motion to dismiss did not address the merits of Miles' claim, and the court will not address the merits of his claim sua sponte.
The motion to dismiss (doc. 6) the petition for a writ of habeas corpus should be denied.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Courts within fourteen (14) days of receipt of this notice. Failure to file objections within the specified time WAIVES the right to appeal the District Court's order. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
