Opinion
CASE NO. 2:15-CV-02232
07-07-2015
RUSTY EUGENE MOOTISPAW, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.
MAGISTRATE JUDGE KEMP
OPINION AND ORDER
On June 24, 2015, 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 for authorization for filing as a successive petition. (ECF No. 3.) Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. (ECF No. 4.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review.
Petitioner challenges his 1981 murder conviction in the Fayette County Court of Common Pleas. He acknowledges that this is his second federal habeas corpus petition, but argues that the case would not be barred by the one-year statute of limitations under 28 U.S.C. § 2244(d), because he did not discover the nature of his claim until sometime in 2013, at which time he pursued a petition for post-conviction relief. Petitioner has attached an Affidavit from James A. Kiger, the former Prosecuting Attorney of Fayette County dated May 1, 2013, in support. (ECF No. 401, PageID# 40-41.)
As discussed by the Magistrate Judge, this Court is without the authority to consider a successive petition or address whether the statute of limitations bars consideration of this case absent authorization from the United States Court of Appeals for the Sixth Circuit. 28 U.S.C. § 2244.
Therefore, Petitioner's Objection (ECF No. 4) is OVERRULED. The Report and Recommendation (ECF No. 3) is ADOPTED and AFFIRMED. This action is hereby TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for authorization for filing as a successive petition.
IT IS SO ORDERED.
/s/ George C . Smith
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT