Melhado v. Warden, Marion Correctional Institution, No. 2:2017cv00725 - Document 8 (S.D. Ohio 2017)

Court Description: OPINION and ORDER adopting and affirming 3 the Report and Recommendation. This action is hereby TRANSFERRED to the Sixth Circuit as a successive petition. Signed by Judge Michael H. Watson on 10/2/17. (jk) (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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Melhado v. Warden, Marion Correctional Institution Doc. 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION CLIVE N. MELHADO, CASE NO. 2:17-cv-00725 Petitioner, JUDGE MICHAEL H. WATSON Magistrate Judge Elizabeth P. Deavers V. WARDEN, MARION CORRECTIONAL INSTITUTION, Respondent. OPINION AND ORDER On August 18, 2017, the Magistrate Judge issued a Report and Recommendation ("R&R"), pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, recommending that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this case be transferred to the United States Court of Appeals for the Sixth Circuit as successive. R&R, ECF No. 3. Petitioner objects to the R&R. ObJ., ECF No. 7. Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow. Petitioner's objection is OVERRULED. The R&R is ADOPTED and AFFIRMED, and this action is TRANSFERRED to the Sixth Circuit as a successive petition. Petitioner objects to the Magistrate Judge's recommendation that this case be transferred to the Sixth Circuit as a successive petition on the basis that, on June 21, 2001, the Franklin County Municipal Court conducted a hearing outside of his presence and dismissed pending charges against him, based on a motion by the prosecutor, in an entry that was never made a part of the docket. He asserts the Indictment in that case was filed after the case was dismissed. According to Petitioner, the Indictment against him therefore was void, and the trial court lacked jurisdiction over the case. Petitioner argues that this Court should not transfer his habeas case to the Sixth Circuit because he Just discovered that the municipal court case was dismissed in an entry that was not made part of the record, and he could not earlier obtain this newly-discovered evidence. He has attached a document entitled "Motion to Dismiss Pending Felony" in Case Number 2001 CR 014428, in support. ECF No. 7-1, PAGEID #50. Nonetheless, the record reflects that this action constitutes a successive petition that must be transferred to the Sixth Circuit for authorization for filing. It's true that not all second-in-time petitions are "second or successive." Panetti v. Quarterman, 551 U.S. 930, 944, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007). But this not-second-or-successive exception is generally restricted to two scenarios. The first is where ripeness prevented, or would have prevented, a court from adjudicating the claim in an earlier petition. See Stewart V. Martinez-Villareal, 523 U.S. 637, 645, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998) (noting that "in [such] situations, the habeas petitioner does not receive an adjudication of his claim"). The second is where a federal court dismissed an earlier petition because it contained exhausted and unexhausted claims and in doing so never passed on the merits. Case No. 2:17-cv-725 Page 2 of 3 In re Coley, - F.3d 2017 WL 3976704, at *1 (6th Cir. Sept. 11, 2017) (citing Slack V. McDanlel, 529 U.S. 473, 485-86 (2000)). As discussed by the Magistrate Judge, this is Petitioner's fourth federal habeas corpus petition challenging these same convictions, and Petitioner does not allege—nor does the record indicate—reasons that this petition should not be considered successive. Therefore, Petitioner must obtain authorization from the Sixth Circuit in order to obtain review in this Court. See In re Owens, 525 F. App'x 287, 291 (6th Cir. 2013) (citing 28 U.S.C. § 2244(b)(3)(A)). Petitioner's Objection, ECF No. 7, is OVERRULED. The R&R, EOF No. 3, is ADOPTED and AFFIRMED. This action is hereby TRANSFERRED to the Sixth Circuit as a successive petition. IT IS SO ORDERED. riCHAEL H. WATSON, JUDGE UNITED STATES DISTRICT COURT Case No. 2:17-cv-725 Page 3 of 3

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