Cowherd v. Litteral, No. 5:2017cv00321 - Document 14 (E.D. Ky. 2018)

Court Description: MEMORANDUM OPINION & ORDER: 1. Petitioner Johnny Cowherd's Objection to the Recommended Disposition 7 are OVERRULED; 2. The Magistrate Judge's Recommended Disposition 6 is ADOPTED; 3. Petitioner Cowherd's Petition to Vacate Convict ion & Sentence 1 SHALL BE CONSTRUED as a Petition for Writ of Habeas Corpus; 4. Petitioner Cowherd's Petition 1 SHALL BE TRANSFERRED to the U.S. Court of Appeals for the Sixth Circuit for a determination of whether the Petitioner will be gra nted authorization to file a second or successive habeas petition; 5. Petitioner Cowherd's Motion for Leave to Proceed in forma pauperis 3 is DENIED AS MOOTE; 6. This matter is STRICKEN from the Court's active docket. Signed by Judge Gregory F. VanTatenhove on 11/15/2018.(KM)cc: COR,COA, Petitioner via U.S. mail

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Cowherd v. Litteral Doc. 14 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY CENTRAL DIVISION LEXINGTON JOHNNY COWHERD, Petitioner, V. KATHY LITTERAL, Respondent. ) ) ) ) ) ) ) ) ) Civil No.: 5:17-cv-00321-GFVT-EBA MEMORANDUM OPINION & ORDER *** *** *** *** This matter is before the Court on a Recommended Disposition filed by United States Magistrate Judge Edward B. Atkins. [R. 6.] Mr. Cowherd seeks to file a third Motion to Vacate under 28 U.S.C. § 2254. However, in order to file a second petition, Mr. Cowherd must first be granted authorization from the Sixth Circuit. Having received no authorization, the recommendations from Judge Atkins are ADOPTED and Mr. Cowherd’s objections are OVERRULED. I The Petitioner, Johnny Cowherd, was first convicted in Fayette Circuit Court on November 23, 1993, and sentenced to 104 years in prison. Id. at 1. In 2001, he filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. Id.; see also Cowherd v. Million, No. 5:01-cv-250-HRW-JBT. The petition was ultimately denied, and that denial was affirmed by the Sixth Circuit. Cowherd v. Million, 260 F. App’x 781, 784 (6th Cir. 2008). Subsequently, Mr. Cowherd filed a petition under Rule 60(b), which the Court treated as a successive habeas corpus petition. [R. 6 at 2.] This petition was transferred to the Sixth Dockets.Justia.com Circuit, who denied authorization for a successive petition on January 10, 2014. Id. He then filed a fifth motion in Kentucky courts under Kentucky Civil Rule 60.02. Id. This was denied in May of 2014, affirmed by the Kentucky Court of Appeals, and denied review by the Kentucky Supreme Court. Id. at 2–3. On December 5, 2016, he filed a Petition for Writ of Certiorari with the United States Supreme Court, which was also denied. Id. at 3. Now, Mr. Cowherd has filed a “Petition to Vacate Conviction and Sentence Pursuant to Fed. R. 60(b)(6).” [R. 1.] Consistent with local practice, Magistrate Judge Edward B. Atkins prepared a Report and Recommendation, recommending this Court deny the petition. [R. 6.] As Judge Atkins notes, Mr. Cowherd did not identify the judgment from which he seeks relief, as required by Rule 60(b). Id. at 3. Nor does he identify circumstances under Rule 60(b) which would entitle him to relief. Id. Based on the substance of the motion, and its claims for relief under constitutional law, Judge Atkins recommends the Court treat the filing as a third petition under 28 U.S.C. § 2254. Because this petition does not assert a claim that was not already raised in Mr. Cowherd’s previous filings, and because there has been no intervening judgment, Judge Atkins found this petition is “second or successive.” [R. 6 at 4.] Accordingly, pursuant to 28 U.S.C. § 2244(b), this Court has no jurisdiction unless Mr. Cowherd first receives authorization from the Sixth Circuit. Id. at 5; Burton v. Stewart, 549 U.S. 147, 153 (2007). II Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the Recommended Disposition or else waive his rights to appeal. In order to receive de novo review by this Court, any objection to the recommended disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific 2 objection must “explain and cite specific portions of the report which [defendant] deem[s] problematic.” Robert v. Tesson, 507 F.3d 981, 994 (6th Cir. 2007) (internal quotations and citations omitted). A general objection that fails to identify specific factual or legal issues from the recommendation, however, is not permitted, since it duplicates the Magistrate’s efforts and wastes judicial economy. Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). Mr. Cowherd’s objections, even under the less stringent standard applied to pleadings made by pro se litigants, are not sufficiently specific to trigger de novo review. See Pilgram v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). He objects to the classification of his petition as a § 2254 petition but includes no reason to construe the motion under Rule 60. [R. 7.] Instead, he reiterates the same arguments he presented in his initial petition. [Compare R. 7, R. 8 with R. 1.] Even so, the Court has reviewed Judge Atkins’s Recommendations and agrees with his conclusions. III After reviewing de novo the entire record, as well as the relevant case law and statutory authority, the Court agrees with Judge Atkins’s Recommendation. Because his petition must be construed as a subsequent § 2254 petition, this matter must be submitted to the Sixth Circuit for authorization. Accordingly, and the Court being otherwise sufficiently advised, it is hereby ORDERED as follows: 1. Petitioner Johnny Cowherd’s Objections to the Recommended Disposition [R. 7; R. 8] are OVERRULED; 2. The Magistrate Judge’s Recommended Disposition [R. 6] is ADOPTED as and for the Opinion of this Court; 3. Petitioner Johnny Cowherd’s Petition to Vacate Conviction and Sentence 3 Pursuant to Fed. R. 60(b)(6) [R. 1] SHALL BE CONSTRUED as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254; 4. Petitioner Johnny Cowherd’s Petition [R. 1] SHALL BE TRANSFERRED to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631 for a determination of whether the Petitioner will be granted authorization to file a second or successive habeas petition; 5. Petitioner Johnny Cowherd’s Motion for Leave to Proceed in forma pauperis [R. 3] is DENIED AS MOOT; and 6. This matter is STRICKEN from the Court’s active docket. This the 15th day of November, 2018. 4

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