Barclay v. Tibbles

7 Citing cases

  1. Dovala v. Tim

    Case No. 1:16 CV 2511 (N.D. Ohio Jul. 21, 2017)

    In the Sixth Circuit, "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." In re Sims, 111 F.3d 45, 47 (6th Cir. 1997); see also In re Smith, 690 F.3d 809, 810 (6th Cir. 2012) (directing district courts to transfer successive petitions to the Sixth Circuit for want of jurisdiction under 28 U.S.C. § 1631, even in light of Magwood v. Patterson, 561 U.S. 320, 331 (2010), which directs district courts to dismiss such petitions); Barclay v. Tibbles, 2014 U.S. Dist. LEXIS 25982, at *9, n.1 (N.D. Ohio Feb. 28, 2014) (transferring successive grounds for relief to the Sixth Circuit, pursuant to precedent); Askew v. Bradshaw, 636 F. App'x 342, 345 n.1 (6th Cir. 2016) (reaffirming the In re Sims rule, directing district courts to transfer second or successive petitions to the Sixth Circuit).

  2. Shinholster v. Bradshaw

    Case No. 5:12 CV 2495 (N.D. Ohio Aug. 16, 2016)

    In its December 18, 2014, order this Court granted Petitioner's habeas petition on the substantive basis of his ineffective assistance of appellate counsel claim and ordered the trial court to determine which of Petitioners two convictions and concurrent sentences to vacate—which it did. Petitioner now challenges this resolution; therefore, the matter should be transferred to the Sixth Circuit—rather than dismissed—pursuant to Sixth Circuit precedent. See In re Smith, 690 F.3d 809, 810 (6th Cir. 2012) (directing district courts to transfer successive petitions to the Sixth Circuit for want of jurisdiction under 28 U.S.C. § 1631, even in light of Magwood v. Patterson, 561 U.S. 320, 331 (2010), which directs district courts to dismiss such petitions); see also Barclay v. Tibbles, 2014 U.S. Dist. LEXIS 25982, at *9, n.1 (N.D. Ohio Feb. 28, 2014) (transferring successive grounds for relief to the Sixth Circuit, pursuant to precedent). CONCLUSION AND RECOMMENDATION

  3. Netherland v. Warden, Chillicothe Corr. Inst.

    Case No. 1:15-cv-669 (S.D. Ohio Jun. 3, 2016)

    In the immediate aftermath of Magwood, the lower district courts in Ohio relied on the Sixth Circuit's Lang decision, as well as other circuit court precedents, to hold that Magwood applies to permit review of a subsequent petition only to the extent that the later petition addresses an issue that originated in the intervening proceeding. See, e.g., Ocampo v. United States, No. 06-20172, 2014 WL 859841, at *3 (E.D. Mich. Mar. 5, 2014) (citing Lang and Ajan v. United States, 731 F.3d 629 (6th Cir. 2013)), appeal dismissed, No. 14-1335 (6th Cir. Apr. 21, 2014); see also Carnail v. Bradshaw, No. 1:12cv1042, 2015 WL 235849, at *10-11 (N.D. Ohio Jan. 16, 2015); Barclay v. Tibbles, No. 5:13cv124, 2014 WL 809197, at *5, *10 (N.D. Ohio Feb. 28, 2014); Banks v. Bunting, No. 5:13cv1472, 2013 WL 6579036, at *1, *5-7 (N.D. Ohio Dec. 13, 2013); Myers v. Coleman, No. 2:12cv975, 2013 WL 3984282, at *4-6 (S.D. Ohio Aug. 1, 2013) (Abel, M.J.) (Report & Recommendation), adopted as modified on other grounds, 2013 WL 5441755, at *3-4 (S.D. Ohio Sept. 27, 2013) (Frost, J.); Ellison v. Timmerman-Cooper, No. 1:10cv595, 2011 WL 7946038, at *2 (S.D. Ohio Sept. 20, 2011) (Merz, M.J.) (Report & Recommendation), adopted, 2012 WL 1898629 (S.D. Ohio May 23, 2012) (Spiegel, J.). However, the Sixth Circuit has recently held in contradiction to those lower court decisions that "a new judgment" entered following an intervening proceeding, such as resentencing, "permits the inmate to challenge the original conviction," as well as the intervening new judgment, "without clearing the second-or-successive hurdles."

  4. Edwards v. United States

    CASE No. 2:15-cv-3005 (S.D. Ohio Feb. 22, 2016)   Cited 1 times

    See, e.g., Lang v. United States, 474 F.3d 348, 351-53 (6th Cir.2007) (and cases cited therein); Ocampo v. United States, No. 06-20172, 2014 WL 859841, at *3 (E.D.Mich. Mar.5, 2014) (citing Lang and Ajan ), appeal dismissed, No. 14-1335 (6th Cir. Apr. 21, 2014); Barclay v. Tibbles, No. 5:13cv124, 2014 WL 809197, at *5, *10 (N.D.Ohio Feb.28, 2014); Ellison v. Timmerman-Cooper, No. 1:10cv595, 2011 WL 7946038, at *2 (S.D.Ohio Sept.20, 2011) (Merz, M.J.) (Report & Recommendation), adopted, 2012 WL 1898629 (S.D.Ohio May 23, 2012) (Spiegel, J.); see also Banks v. Bunting, No. 5:13cv1472, 2013 WL 6579036, at *1, *5-7 (N.D.OhioDec.

  5. Rose v. Warden

    Case No. 1:15-cv-353 (S.D. Ohio Feb. 10, 2016)

    In the aftermath of Magwood, district courts in the Sixth Circuit have relied on the Sixth Circuit's Lang decision, as well as other circuit court precedents, to hold that Magwood applies to permit review of a subsequent petition only to the extent that the later petition addresses an issue that originated in the intervening proceeding. See, e.g., Ocampo v. United States, No. 06-20172, 2014 WL 859841, at *3 (E.D. Mich. Mar. 5, 2014) (citing Lang and Ajan v. United States, 731 F.3d 629 (6th Cir. 2013)), appeal dismissed, No. 14-1335 (6th Cir. Apr. 21, 2014); see also Carnail v. Bradshaw, No. 1:12cv1042, 2015 WL 235849, at *10-11 (N.D. Ohio Jan. 16, 2015); Barclay v. Tibbles, No. 5:13cv124, 2014 WL 809197, at *5, *10 (N.D. Ohio Feb. 28, 2014); Banks v. Bunting, No. 5:13cv1472, 2013 WL 6579036, at *1, *5-7 (N.D. Ohio Dec. 13, 2013); Myers v. Coleman, No. 2:12cv975, 2013 WL 3984282, at *4-6 (S.D. Ohio Aug. 1, 2013) (Abel, M.J.) (Report & Recommendation), adopted as modified on other grounds, 2013 WL 5441755, at *3-4 (S.D. Ohio Sept. 27, 2013) (Frost, J.); Ellison v. Timmerman-Cooper, No. 1:10cv595, 2011 WL 7946038, at *2 (S.D. Ohio Sept. 20, 2011) (Merz, M.J.) (Report & Recommendation), adopted, 2012 WL 1898629 (S.D. Ohio May 23, 2012) (Spiegel, J.). However, the Sixth Circuit has recently held in contradiction to those lower court decisions that "a new judgment" entered following an intervening proceeding, such as resentencing, "permits the inmate to challenge the original conviction," as well as the intervening new judgment, "without clearing the second-or-successive hurdles."

  6. Wilkins v. Warden

    Case No. 1:14-cv-559 (S.D. Ohio Jun. 24, 2015)

    However, as the Supreme Court went on to note in Magwood, 561 U.S. at 342 n.16, several courts, including the Sixth Circuit, have held that the subsequent application is permitted only to the extent that the petitioner complains of errors that "originated at resentencing" which could not have been addressed in the earlier petition. See, e.g., Lang v. United States, 474 F.3d 348, 351-53 (6th Cir. 2007) (and cases cited therein); Ocampo v. United States, No. 06-20172, 2014 WL 859841, at *3 (E.D. Mich. Mar. 5, 2014) (citing Lang and Ajan v. United States, 731 F.3d 629 (6th Cir. 2013)), appeal dismissed, No. 14-1335 (6th Cir. Apr. 21, 2014); Barclay v. Tibbles, No. 5:13cv124, 2014 WL 809197, at *5, *10 (N.D. Ohio Feb. 28, 2014); Ellison v. Timmerman-Cooper, No. 1:10cv595, 2011 WL 7946038, at *2 (S.D. Ohio Sept. 20, 2011) (Merz, M.J.) (Report & Recommendation), adopted, 2012 WL 1898629 (S.D. Ohio May 23, 2012) (Spiegel, J.); see also Banks v. Bunting, No. 5:13cv1472, 2013 WL 6579036, at *1, *5-7 (N.D. Ohio Dec. 13, 2013) (holding that the petitioner's claim that his "guilty plea was not voluntary and knowing because he was not properly advised regarding the post-release control portion of his sentence" was successive within the meaning of 28 U.S.C. § 2244(b) because the claim "attack[ed] the validity of his underlying conviction rather than any error that arose out of his resentencing hearing" limited to proper imposition of post-release control); Askew v. Bradshaw, No. 5:12cv131, 2013 WL 5279357, at *1, *9-11 (N.D. Ohio Sept. 18, 2013) (holding that a habeas petition was successive because the petitioner's claims amounted to an attack on the validity of the petitioner's original conviction and sentence and

  7. Gregley v. Bradshaw

    CASE NO. 1:14CV971 (N.D. Ohio Mar. 19, 2015)

    However, as pointed out by United States District Court Judge Lioi of this District, precedent of the Sixth Circuit holds that the Court should not dismiss these claims outright, but should transfer them because the Court lacks jurisdiction in which to do so. See Barclay v. Tibbles, No. 5:13CV124, 2014 WL 809197, at *3, fn.1 (N.D. Ohio, Feb. 28, 2014) (noting the contradictory holdings between the Supreme Court in Magwood, which held that a district court should have dismissed a second or successive petition in its entirety because the petitioner failed to obtain the proper authorization from the appellate court to file the petition, and the Sixth Circuit, which determined after Magwood in In re Smith, 690 F.3d 809, 810 (6th Cir. 2012) that district courts should transfer a second or successive petition to the Sixth Circuit "for want of jurisdiction under 28 U.S.C. § 1631 rather than dismiss it outright."). Accordingly, based upon Sixth Circuit precedent, the undersigned recommends that the Court TRANSFER the entire instant federal habeas corpus petition to the Sixth Circuit for authorization to file a second or successive petition.