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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SHERON PHIPPS, 

 CASE NO. 2:14-CV-1835 

 Petitioner, CRIM. NO. 11-CR-00080 

 JUDGE PETER C. ECONOMUS 

 v. Magistrate Judge Kemp 

UNITED STATES OF AMERICA, 

 Respondent. 

REPORT AND RECOMMENDATION 

 On October 6, 2014, Petitioner Sheron Phipps filed the instant motion to vacate, 

set aside, or correct sentence pursuant to 28 U.S.C. § 2255. He challenges his February 6, 

2012, judgment of conviction on a charge of possession with intent to distribute cocaine, 

made pursuant to the terms of his negotiated guilty plea. See Doc. Nos. 16, 41. He 

asserts that he was denied effective assistance of counsel. Motion to Vacate, Doc. No. 63. 

On March 3, 2014, however, Petitioner filed a prior § 2255 motion challenging this same 

conviction. Motion to Vacate, Doc. No. 53. On April 2, 2014, this Court denied 

Petitioner’s prior motion to vacate, set aside or correct sentence. Order, Doc. No. 57. 

This action therefore constitutes a successive petition (i.e. a second petition directed to 

the same conviction as a prior petition). 

 28 U.S.C. §2255(h) states that “[a] second or successive motion must be certified 

as provided in section 2244 by a panel of the appropriate court of appeals to contain— 

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(1) newly discovered evidence that, if proven and viewed in 

light of the evidence as a whole, would be sufficient to 

establish by clear and convincing evidence that no 

reasonable factfinder would have found the movant guilty 

of the offense; or 

(2) a new rule of constitutional law, made retroactive to 

cases on collateral review by the Supreme Court, that was 

previously unavailable. 

Under 28 U.S.C. § 2244(b)(3)(A), before a second or successive petition for a writ of 

habeas corpus can be filed in the district court, the applicant must move in the 

appropriate circuit court of appeals for an order authorizing the district court to 

consider the application. Under the Antiterrorism and Effective Death Penalty Act 

(AEDPA), a district court does not have jurisdiction to entertain a successive postconviction motion or petition for writ of habeas corpus in the absence of an order from 

the court of appeals authorizing the filing of such successive motion or petition. Nelson 

v. United States, 115 F.3d 136 (2nd Cir. 1997); Hill v. Hopper, 112 F.3d 1088 (11th Cir. 

1997). Unless the court of appeals has given approval for the filing of a second or 

successive petition, a district court in the Sixth Circuit must transfer the petition to the 

Sixth Circuit Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997)(per curia). 

Under § 2244(b)(3)(A), only a circuit court of appeals has the power to authorize the 

filing of a successive petition for writ of habeas corpus. Nunez v. United States, 96 F.3d 

990 (7th Cir. 1996). That being the case, this Court is without jurisdiction to entertain a 

second or successive § 2255 petition unless authorized by the Court of Appeals for the 

Sixth Circuit. 

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The Sixth Circuit described the proper procedure for addressing a second or 

successive petition filed in the district court without § 2244(b)(3)(A) authorization in In 

re Sims. 

[W]hen a prisoner has sought § 2244(b)(3)(A) permission 

from the district court, or 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. 

Id. at 47; see also Liriano v. United States, 95 F.3d 119, 123 (2d Cir. 1996)(per curia). 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be 

TRANSFERRED to the United States Court of Appeals for the Sixth Circuit for 

authorization for filing as successive. 

Procedure on Objections 

If any party objects to this Report and Recommendation, that party may, within 

fourteen (14) days of the date of this report, file and serve on all parties written 

objections to those specific proposed findings or recommendations to which objection is 

made, together with supporting authority for the objection(s). A judge of this Court 

shall make a de novo determination of those portions of the report or specified 

proposed findings or recommendations to which objection is made. Upon proper 

objections, a judge of this Court may accept, reject, or modify, in whole or in part, the 

findings or recommendations made herein, may receive further evidence or may 

recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). 

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The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the 

Report and Recommendation de novo, and also operates as a waiver of the right to appeal 

the decision of the District Court adopting the Report and Recommendation. See Thomas v. 

Arn, 474 U.S. 140, (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

The parties are further advised that, if they intend to file an appeal of any 

adverse decision, they may submit arguments in any objections filed, regarding 

whether a certificate of appealability should issue. 

 /s/ Terence P. Kemp 

 United States Magistrate Judge 

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