Dovala v. Tim, No. 1:2016cv02511 - Document 18 (N.D. Ohio 2017)
Court Description: Memorandum of Opinion and Order of Transfer. For the reasons stated in the Order, the Court overrules the Objections (Doc #: 16 ), adopts the Report and Recommendation (Doc #: 13 ), and grants the Motion to Transfer habeas petition to the Sixth Circuit as a second or successive petition (Doc #: 7 .) Accordingly, the Court hereby DIRECTS the Clerk of Court to transfer this case to the United States Court of Appeals for the Sixth Circuit. Signed by Judge Dan Aaron Polster on 9/22/2017. (K,K)
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Dovala v. Tim Doc. 18 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION MELISSA DOVALA, Petitioner, v. GININE TIM, WARDEN, Respondent. ) ) ) ) ) ) ) ) ) Case No. 1:16 CV 2511 Judge Dan Aaron Polster MEMORANDUM OF OPINION and ORDER OF TRANSFER This case is before the Court on the Report and Recommendation of Magistrate Judge James R. Knepp, II (“R&R”). (Doc #: 13.) Magistrate Judge Knepp recommends that the Court grant Respondent’s Motion to Transfer Habeas Petition to the Sixth Circuit Court of Appeals for Petitioner Melissa Dovala to request permission to proceed with a second or successive petition (“Motion”). (Doc #: 7.) Dovala has filed Objections to the Magistrate’s Report and Recommendations, and Respondent has filed a Response to the Objections. (Respectively, (Doc ##: 16, 17.) As noted by Respondent, Dovala again argues that she should get one meaningful opportunity for postconviction review of her ineffective assistance of counsel claim, citing Stewart v. Martinez-Villareal, 523, U.S. 637 (1998). The Magistrate Judge already addressed this claim. The Magistrate Judge not only found that Stewart was distinguishable, but he concluded that this claim was ripe, albeit unexhausted, at the time she filed her first habeas Dockets.Justia.com petition. In other words, her claim was not premature because the factual predicate for the claim was in existence at the time she filed her first habeas petition. The Court has reviewed the record and agrees. Because Dovala chose to proceed with the mixed petition, the present petition is second or successive and, as such, should be transferred to the United States Court of Appeals for the Sixth Circuit. 28 U.S.C. § 2244(b)(3); Burton v. Stewart, 549 U.S. 147, 154 (2007). For these reasons, the Court overrules the Objections (Doc #: 16), adopts the R&R (Doc #: 13), and grants the Motion to Transfer (Doc #: 7.) Accordingly, the Court hereby DIRECTS the Clerk of Court to transfer this case to the United States Court of Appeals for the Sixth Circuit. IT IS SO ORDERED. /s/ Dan Aaron Polster September 22, 2017 Dan Aaron Polster United States District Judge -2-
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