Opinion
CASE NO. 2:09-cv-929.
November 30, 2009
OPINION AND ORDER
On October 23, 2009, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts recommending that this action be transferred to the United States Court of Appeals for the Sixth Circuit as a successive petition. Petitioner has filed objections to the Magistrate Judge's recommendations. See Doc. Nos. 5, 6. For the reasons that follow, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition.
Petitioner asserts that his petition is timely. Additionally, he contends that this action does not constitute a successive petition, because his previous habeas corpus petition was dismissed without prejudice as unexhausted. Further, petitioner contends that he is actually innocent of the charges.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. The timeliness, and petitioner's alleged "actual innocence" are not at issue. Contrary to his allegation here, on October 26, 2006, his prior habeas corpus claims were dismissed as procedurally defaulted. See Gordon v. State of Ohio, Case No. 2:06-cv-00065 (S.D. Ohio). Therefore, petitioner's objections are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive petition.