IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

THOMAS EDWARDS, CASE No. 2:15-cv-3005 

 CASE NO. 2:11-cr-00229 

 Petitioner, JUDGE GREGORY L. FROST 

 v. 

UNITED STATES OF AMERICA, 

 Respondent. 

OPINION AND ORDER 

 On October 28, 2015, the Magistrate Judge issued a Report and Recommendation

recommending that Petitioner’s Motion to Re-Sentencing Due to the Use of Inaccurate 

Information at the Original Sentencing be transferred to the United States Court of Appeals for 

the Sixth Circuit for authorization for filing as successive. (ECF No. 133.) Petitioner has filed 

an Objection to the Magistrate Judge’s Report and Recommendation. (ECF No. 146.) 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. 146) is OVERRULED. 

The Report and Recommendation (ECF No. 133) is ADOPTED and AFFIRMED. Petitioner’s 

Motion to Re-Sentencing Due to the Use of Inaccurate Information at the Original Sentencing

(ECF No. 125) is hereby TRANSFERRED to the United States Court of Appeals for the Sixth 

Circuit for authorization for filing as successive. 

 Petitioner objects to the Magistrate Judge’s recommendation that his motion be construed 

as successive. Petitioner argues, essentially, that his current motion does not constitute a 

successive motion to vacate, set aside or correct sentence under § 2255, because it challenges a 

Case: 2:11-cr-00229-GLF-TPK Doc #: 148 Filed: 02/22/16 Page: 1 of 6 PAGEID #: <pageID>
2

new judgment of sentence entered on February 11, 2014 – and not the January 17, 2013, 

judgment which he challenged in his prior motion to vacate under § 2255. 

This Court determines whether a petition constitutes a successive petition prior to 

transferring the case to the Court of Appeals. In re Smith, 690 F.3d 809, 2012 WL 3631145 (6th 

Cir.2012). The United States Court of Appeals for the Sixth Circuit has clarified this rule, 

stating: 

Whether a petition (a term we use interchangeably with 

“application”) is “second or successive” within the meaning of § 

2244(b) does not depend merely on whether the petitioner filed a 

prior application for habeas relief. The phrase is instead “a ‘term of 

art’ that is ‘given substance’ by the Supreme Court's habeas cases.” 

In re Salem, 631 F.3d 809, 812 (6th Cir.2011) (quoting Slack v.

McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 

(2000)). Accordingly, in a number of cases, the Court has held that 

an application was not second or successive even though the 

petitioner had filed an earlier one. In Stewart v. Martinez–

Villareal, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), 

the petitioner filed a second petition that presented a claim 

identical to one that had been included in an earlier petition. The 

claim had been unripe when presented in the earlier petition. The 

Court treated the two petitions as “only one application for habeas 

relief [.]” Id. at 643, 523 U.S. 637, 118 S.Ct. 1618, 140 L.Ed.2d 

849. In Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 

L.Ed.2d 662 (2007), the Court held that an application that 

presented a claim that had not been presented in an earlier 

application, but that would have been unripe if it had been 

presented then, was not second or successive. Id. at 945, 551 U.S. 

930, 127 S.Ct. 2842, 168 L.Ed.2d 662. In Magwood v. Patterson,

561 U.S. 320, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), the Court 

made clear that an application challenging an earlier criminal 

judgment did not count for purposes of determining whether a later 

application challenging a new judgment in the same case was 

second or successive. Id. at 2797–98. 

Storey v. Vasbinder, 657 F.3d 372, 376–77 (6th Cir. 2011) (a habeas corpus petition filed after a 

remedial appeal does not constitute a successive petition). 

Case: 2:11-cr-00229-GLF-TPK Doc #: 148 Filed: 02/22/16 Page: 2 of 6 PAGEID #: <pageID>
3

In Magwood v. Patterson, 561 U.S. 320 (2010), the petitioner filed a § 2254 petition 

challenging his 1981 death sentence. “[T]he District Court upheld Magwood's conviction but 

vacated his sentence and conditionally granted the writ based on the trial court's failure to find 

statutory mitigating circumstances relating to Magwood's mental state.” Id. at 326 (footnote 

omitted). In response to the conditional writ, the state trial court held a new sentencing hearing 

in 1986, again imposing a sentence of death. Id. Magwood again filed a petition under 28 

U.S.C. § 2254, in which he asserted that he did not receive fair notice that he could be sentenced 

to death and he had been denied the effective assistance of counsel during the re-sentencing 

hearing. Id. at 328. The Supreme Court held that the 1986 sentencing hearing led to a new 

judgment, and that Magwood’s second habeas corpus petition therefore did not constitute a 

successive petition. Id. at 331. Although Magwood involved a petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254, it applies equally to motions under 28 U.S.C. § 2255. Ajan 

v. United States, 731 F.3d 629, 631 (6th Cir. 2013). 

The Magwood Court expressly refused to address whether the 

habeas petitioner is allowed to challenge “not only his resulting, 

new sentence, but also his original, undisturbed conviction” in the 

subsequent application. Magwood, 561 U.S. at 342 (emphasis in 

original). However, as the Supreme Court went on to note in 

Magwood, 561 U.S. at 342 n. 16, several courts, including the 

Sixth Circuit, have held that the subsequent application is 

permitted only to the extent that the petitioner complains of errors 

that “originated at resentencing” which could not have been 

addressed in the earlier petition. See, e.g., Lang v. United States, 

474 F.3d 348, 351–53 (6th Cir.2007) (and cases cited therein); 

Ocampo v. United States, No. 06–20172, 2014 WL 859841, at *3 

(E.D.Mich. Mar.5, 2014) (citing Lang and Ajan ), appeal 

dismissed, No. 14–1335 (6th Cir. Apr. 21, 2014); Barclay v.

Tibbles, No. 5:13cv124, 2014 WL 809197, at *5, *10 (N.D.Ohio 

Feb.28, 2014); Ellison v. Timmerman–Cooper, No. 1:10cv595, 

2011 WL 7946038, at *2 (S.D.Ohio Sept.20, 2011) (Merz, M.J.) 

(Report & Recommendation), adopted, 2012 WL 1898629 

(S.D.Ohio May 23, 2012) (Spiegel, J.); see also Banks v. Bunting, 

No. 5:13cv1472, 2013 WL 6579036, at *1, *5–7 (N.D.Ohio 

Case: 2:11-cr-00229-GLF-TPK Doc #: 148 Filed: 02/22/16 Page: 3 of 6 PAGEID #: <pageID>
4

Dec.13, 2013) (holding that the petitioner's claim that his “guilty 

plea was not voluntary and knowing because he was not properly 

advised regarding the post-release control portion of his sentence” 

was successive within the meaning of 28 U.S.C. § 2244(b) because 

the claim “attack[ed] the validity of his underlying conviction 

rather than any error that arose out of his resentencing hearing” 

limited to proper imposition of post-release control); Askew v.

Bradshaw, No. 5:12cv131, 2013 WL 5279357, at *1, *9–11 

(N.D.Ohio Sept.18, 2013) (holding that a habeas petition was 

successive because the petitioner's claims amounted to an attack on 

the validity of the petitioner's original conviction and sentence and 

not his resentencing to the proper term of post-release control); 

Myers v. Coleman, No. 2:12cv975, 2013 WL 3984282, at *4–6 

(S.D.Ohio Aug.1, 2013) (Abel, M.J.) (Report & Recommendation) 

(concluding that two grounds for relief were successive because 

they related to the initial judgment of conviction, rather than 

petitioner's resentencing, and thus could have been raised in his 

prior habeas petition), adopted as modified on other grounds, 2013 

WL 5441755, at *3–4 (S.D.Ohio Sept.27, 2013) (Frost, J.). 

Moreover, courts have held that claims challenging amended 

judgment entries correcting clerical sentencing errors are 

successive because such entries “do not change or otherwise 

constitute a ‘new judgment’ within the meaning of Magwood with 

respect [a] petitioner's prior federal habeas corpus petition.” See, 

e.g., Berry v. Oppy, No. 2:13cv617, 2014 WL 1091067, at *2 

(S.D.Ohio Mar.18, 2014) (Smith, J.) (citing In re Martin, 398 F. 

App'x 326, 327 (10th Cir.2010); In re Lampton, 667 F.3d 585, 

587–89 (5th Cir.2012); Hawkins v. United States, No. 89–CR–

80335, 2011 WL 2533658, at *1–2 (E.D.Mich. June 27, 2011)); cf. 

Carter v. Warden, Chillicothe Corr. Inst., No. 1:11cv800, 2012 

WL 2601760, at *9 (S.D.Ohio July 5, 2012) (Bowman, M.J.) 

(Report & Recommendation) (holding that “Nunc Pro Tunc” 

sentencing entry in accordance with a remand order to correct an 

error regarding post-release control “did not change or otherwise 

constitute a ‘new judgment’ within the meaning of Magwood with 

respect to petitioner's conviction or sentence imposed ... for the 

underlying criminal offenses”), adopted, 2012 WL 4056850 

(S.D.Ohio Sept.14, 2012) (Spiegel, J.). 

Akemon v. Ohio Adult Parole Authority, No. 1:13-cv-407, 2014 WL 4908914, at *12 (S.D. Ohio 

July 3, 2014)(finding that claims raised after a re-sentencing hearing that challenged the 

underlying judgment of conviction, and that could have been raised in the initial § 2254 petition, 

constituted successive claims that required authorization for filing). 

Case: 2:11-cr-00229-GLF-TPK Doc #: 148 Filed: 02/22/16 Page: 4 of 6 PAGEID #: <pageID>
5

Here, the record reflects that the Court issued a February 11, 2014, Amended Order, to 

correct what plainly appears to have been a clerical error in the initial, January 17, 2013, 

Judgment and Commitment Order. The transcript of the sentencing hearing confirms that, on 

January 16, 2013, the Court imposed a term of 60 months imprisonment on Count 1, and 38 

months imprisonment on Count 2, ordering such sentences to be served consecutively to each 

other. (ECF No. 119, PageID# 539.) The Minute Entry for sentencing proceedings (ECF No. 

74) indicates the same. The docket likewise reflects that the Judgment imposed consecutive 

terms of imprisonment on Counts 1 and 2. (ECF No. 75.) The United States Court of Appeals 

for the Sixth Circuit noted the same in its dismissal of Petitioner’s appeal. (ECF No. 124, 

PageID# 562.)1

 

That being the case, this Court concludes that Amended Order correcting the clerical 

error did not change or otherwise constitute a “new judgment” within the meaning of Magwood

with respect to petitioner's prior § 2255 motion. This Court has previously reached the same 

conclusion in regard to an amended judgment entry correcting what appeared to have been a 

clerical error. Berry v. Oppy, No. 2:13-cv-0617, 2014 WL 1091067 (S.D. Ohio March 18, 

2014)(citing In re Martin, 398 F. App'x 326, 327 (10th Cir. 2010) (distinguishing Magwood in 

holding that a habeas petition filed after an amended judgment correcting a “clerical error” was 

entered constituted a successive petition under § 2244(b)); In re Lampton, 667 F.3d 585, 587–89 

(5th Cir. 2012); Hawkins v. United States, No. 89–CR–80335, 2011 WL 2533658, at *1–2 

                                                            

1 The Sixth Circuit stated: 

[T]he district court. . . imposed the following sentence: 60 months on Count 1 and 38 months on 

Count 2, to be served consecutively. When the court prepared the judgment, however, it 

expressed the sentence as 60 months on Count 1 and 38 months on Count 2 to be served 

concurrently. Recognizing its error, the district court subsequently sua sponte amended the 

judgment, ordering that Edward’s sentences be served consecutively, for a total term of 98 months 

imprisonment. 

United States v. Edwards, No. 14-3170 (ECF No. 124, PageID# 562.) 

Case: 2:11-cr-00229-GLF-TPK Doc #: 148 Filed: 02/22/16 Page: 5 of 6 PAGEID #: <pageID>
6

(E.D.Mich. June 27, 2011); Mackey v. Sheets, 2012 WL 3878145, at *9–10 (S.D.Ohio Sept.6, 

2012)). 

Moreover, Petitioner does not raise in his numerically second § 2255 petition any new 

claim resulting from the Court’s Amended Order correcting the clerical error which could not 

have been previously raised. To the contrary, Petitioner asserts that his prior criminal history 

points were improperly calculated based on inaccurate information in the PreSentence 

Investigation Report. Motion to Re-Sentencing Due to the Use of Inaccurate Information at the 

Original Sentencing (ECF No. 125, PageID# 567.) Petitioner raised this same issue in his prior 

Motion Under 28 U.S.C. 2255 to Vacate, Set Aside or correct Sentence by a Person in Federal 

Custody (ECF No. 81, PageID# 241), and this Court has already rejected that claim. See Report 

and Recommendation (ECF No. 111)(finding that the claim should have been raised on direct 

appeal). 

Therefore, this Court concludes that Petitioner’s current Motion to Re-Sentencing Due to 

the Use of Inaccurate Information at the Original Sentencing constitutes a successive motion 

under 28 U.S.C. § 2255. 

Petitioner’s Objection (ECF No. 146) is OVERRULED. The Report and 

Recommendation (ECF No. 133) is ADOPTED and AFFIRMED. Petitioner’s Motion to ReSentencing Due to the Use of Inaccurate Information at the Original Sentencing (ECF No. 125) 

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

for filing as successive. 

IT IS SO ORDERED. 

 /s/ GREGORY L. FROST

 GREGORY L. FROST 

 United States District Judge 

Case: 2:11-cr-00229-GLF-TPK Doc #: 148 Filed: 02/22/16 Page: 6 of 6 PAGEID #: <pageID>