Opinion
CASE NO. 2:09-cv-442.
June 26, 2009
ORDER and REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court for preliminary consideration under Rule 4 of the Rules Governing Section 2254 Cases in United States District Courts. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition. Petitioner's request to proceed in forma pauperis is GRANTED.
PROCEDURAL HISTORY
According to the petition, this action involves petitioner's conviction pursuant to his guilty plea in the Vinton County Court of Common Pleas on complicity to aggravated murder and abuse of a corpse. The trial court sentenced petitioner to eleven years incarceration. On November 13, 2006, the Ohio Fourth District Court of Appeals affirmed petitioner's conviction and sentence. On April 18, 2007, the Ohio Supreme Court dismissed petitioner's subsequent appeal. Petitioner filed a "motion for correction of void judgment" in the state trial court, in which he asserted that the trial court had failed "to fulfill a statutory duty prior to sentencing." Petition, at 2. The trial court denied petitioner's motion, and his appeal of the trial court's decision apparently remains pending in the Ohio Court of Appeals. Id., at 3.On June 4, 2009, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
1. Petitioner's sentence is void for failure to fulfill the statutory duty set forth in sentencing statutes in violation of due process and equal protection.
2. Petitioner's sentence unlawfully exceeds the statutory maximum based upon judicial factfinding of elements not alleged or contained within indictment.
3. Petitioner was deprived of effective counsel during trial and on direct appeal, violating his Sixth and Fourteenth Amendment rights.
However, this is not petitioner's first federal habeas corpus petition. On June 15, 2007, he filed a prior habeas corpus petition, dismissed by this Court on October 23, 2008, challenging these same convictions. See State v. Cremeens, 07cv572 (S.D. Ohio Eastern Division). Therefore, this action constitutes a successive petition.
28 U.S.C. § 2244(b)(3)(A) states that before a second or successive petition for a writ of habeas corpus can be filed in the district court, the applicant shall move in the appropriate circuit court of appeals for an order authorizing the district court to consider the application.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a district court does not have jurisdiction to entertain a successive post-conviction motion or petition for writ of habeas corpus in the absence of an order from the court of appeals authorizing the filing of such successive motion or petition. Nelson v. United States, 115 F.3d 136 (2nd Cir. 1997); Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997). Unless the court of appeals has given approval for the filing of a second or successive petition, a district court in the Sixth Circuit must transfer the petition to the Sixth Circuit Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curia). Under § 2244(b)(3)(A), only a circuit court of appeals has the power to authorize the filing of a successive petition for writ of habeas corpus. Nunez v. United States, 96 F.3d 990 (7th Cir. 1996).
That being the case, this Court is without jurisdiction to entertain a second or successive § 2254 petition unless authorized by the Court of Appeals for the Sixth Circuit. The Sixth Circuit, in turn, will issue this certification only if petitioner succeeds in making a prima facie showing either that the claim sought to be asserted relies on a new rule of constitutional law made retroactive by the United States Supreme Court to cases on collateral review; or that the factual predicate for the claim could not have been discovered previously through the exercise of diligence, and these facts, if proven, would establish by clear and convincing evidence that, but for the constitutional error, no reasonable factfinder would have found the applicant guilty. 28 U.S.C. § 2244(b)(2).
The Sixth Circuit described the proper procedure for addressing a second or successive petition filed in the district court without § 2244(b)(3)(A) authorization in In re Sims, supra.
[W]hen a prisoner has sought § 2244(b)(3)(A) permission from the district court, or when a second or successive petition for habeas corpus relief or § 2255 motion is filed in the district court without § 2244(b)(3) authorization from this court, the district court shall transfer the document to this court pursuant to 28 U.S.C. § 1631.Id. at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996) (per curia).
Therefore, the Magistrate Judge RECOMMENDS that the instant petition be TRANSFERRED to the Court of Appeals for the Sixth Circuit pursuant to § 2244(b)(3)(A). Petitioner's request to proceed in forma pauperis is GRANTED.