Sanders v. Warden Chillicothe Correctional Institution, No. 2:2015cv02304 - Document 4 (S.D. Ohio 2015)

Court Description: OPINION AND ORDER adopting Report and Recommendations re 2 Report and Recommendations.and transferring the petition to the Sixth Circuit for consideration as a second or successive petition, and dismisses the case. Signed by Judge James L Graham on 7/13/2015. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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Sanders v. Warden Chillicothe Correctional Institution Doc. 4 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION BILL ADAM SANDERS, CASE NO. 2:15-CV-2304 JUDGE JAMES L. GRAHAM MAGISTRATE JUDGE KEMP Petitioner, v. CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent. OPINION AND ORDER On June 23, 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 the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be transferred to the United States Court of Appeals for the Sixth Circuit for authorization for filing as a successive petition. (ECF No. 2.) Petitioner has filed an Objection to the Magistrate Judge’s Report and Recommendation. (ECF No. 3.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s Objection (ECF No. 3) is OVERRULED. The Report and Recommendation (ECF 2) 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. Petitioner objects to the Magistrate Judge’s recommendation. He acknowledges that this is not his first federal habeas corpus petition relating to his March 1995 1 Dockets.Justia.com convictions in Pickaway County on three counts of attempted murder, but argues that this action does not constitute a successive petition because he previously challenged his commitment and he now challenges the imposition of sentence. In his prior federal habeas corpus petition, Petitioner raised claims that he is being held under “void commitment papers” because the trial court denied his motion for a change of venue and he is actually innocent. He also claimed that the judgment is void because he was denied his right to a speedy trial, the prosecutor failed to disclose exculpatory evidence, and he is innocent of the charges. See Sanders v. Warden, Chillicothe Correctional Institution, Case No. 2:12-cv-00423.1 No objections were filed, and on June 8, 2012, this Court dismissed that action as untimely. Id. Petitioner now asserts that his sentence violates Ohio’s law on allied offenses of similar import. Thus, both of these cases challenge the validity of Petitioner’s convictions and sentence. As noted by the Magistrate Judge, Petitioner’s claim relating to alleged sentencing errors could have been, but was not, raised by Petitioner in his prior federal habeas corpus petition. This action thereby constitutes a successive petition. Therefore, Petitioner’s Objection (ECF No. 3) is OVERRULED. The Report and Recommendation (ECF 2) is ADOPTED and AFFIRMED. This action is hereby DISMISSED. Date: July 13, 2015 s/James L. Graham _____________________________ JAMES L. GRAHAM United States District Judge Petitioner indicates that his prior federal habeas petition was filed under Case No. 08-cv-423, but this appears to have been an error. 1 2

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