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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CHARLES E. DUNCAN,

Petitioner, : Case No. 3:17-cv-430

- vs - District Judge Walter Herbert Rice

Magistrate Judge Michael R. Merz

MARK HOOKS, Warden,

 Ross Correctional Institution

:

Respondent.

REPORT AND RECOMMENDATIONS

Petitioner Charles E. Duncan brought this action for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254 to obtain relief from his conviction in the Clark County Court of Common Pleas on 

one count of murder with a firearm specification and sentence to life imprisonment with parole 

eligibility at fifteen years. (Petition, ECF No. 3, PageID 22). 

Duncan previously filed for habeas corpus relief from this same conviction in Duncan v. 

Warden, Case No. 3:09-cv-078. In that case, Duncan pleaded three grounds for relief:

Ground One: Petitioner is being held in violation of his Fifth

Amendment right to counsel.

Ground Two: Petitioner is being held in violation of the SelfIncrimination Clause of the Fifth Amendment.

Ground Three: Petitioner is being held in violation of the Due

Process Clause of the Fifth and Fourteenth Amendments

(Case No. 3:09-cv-078, Petition, ECF No. 2). 
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As to the first two grounds, the Magistrate Judge found they were decided on the merits by 

the Second District Court of Appeals and that that decision was not an objectively unreasonable 

application of clearly established Supreme Court precedent (Case No. 3:09-cv-078, Report and 

Recommendations, ECF No. 19, PageID 1066, citing State v. Duncan, 2007 WL 2285087 (2nd

Dist. Aug. 3, 2007). The Third Ground for Relief, conviction on insufficient evidence, was also 

rejected by the Second District and the Magistrate Judge found that was a reasonable application 

of Jackson v. Virginia, 443 U.S. 307 (1979), the relevant Supreme Court precedent. Id. Judge 

Rice adopted the Report over Duncan’s objections (Case No. 3:09-cv-078, Decision and Order, 

ECF No. 25). The Sixth Circuit Court of Appeals affirmed. Duncan v. Warden, Case No. 10-

3468 (6th Cir. July 6, 2012)(unreported; copy at Case No. 3:09-cv-078, ECF No. 31. The United 

States Supreme Court denied certiorari April 28, 2014 (Case No. 3:09-cv-078, Copy at ECF No. 

34).

In the instant Petition, Duncan pleads as his two grounds for relief the first two grounds 

pleaded in the prior Petition. He asserts that the instant Petition is not barred by the second-orsuccessive requirements of 28 U.S.C. § 2244(b) because he is challenging a new judgment of 

conviction entered on October 27, 2016 (copy attached to ECF No. 3 at PageID 28). As authority 

he relies on In re Stansell, 828 F.3d 412 (6th Cir. 2016), and King v. Morgan, 807 F.3d 154 (6th

Cir. 2015). In King the Sixth Circuit held a full resentencing allows a petitioner to “challenge his 

undisturbed conviction without triggering the ‘second or successive’ requirements.” King was 

extended to Ohio’s reopening of a petitioner’s sentence merely to enter post-release control. In re 

Stansell, 828 F.3d 412 (6th Cir. 2016).

A federal district court presented with a second-in-time habeas corpus petition must 

determine in the first instance whether it is a second-or-successive petition. In re: Kenneth Smith, 
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690 F.3d 809 (6th Cir. 2012); In re Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 

2012). A district court lacks jurisdiction to consider a second or successive petition without 

approval by the circuit court. Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 

549 U.S. 147 (2007). If a District Court concludes a petition is second-or-successive, it must 

transfer the case to the circuit court. In re Sims, 111 F.3d 45 (6th Cir. 1997). 

The Judgment Entry from which Duncan seeks relief was entered October 27, 2016 (ECF 

No. 3, PageID 28). Duncan appealed from that judgment to the Second District Court of Appeals. 

The amended judgment had resulted from a motion to vacate a void judgment, but on appeal the 

Second District held the amended judgment was itself void because the trial judge had exceeded 

his sentencing authority. This rendered the sentence void. State v. Duncan, 2017-Ohio-8103, 

2017 Ohio App. LEXIS 4456 (2nd Dist. Oct. 6, 2017). The Second District therefore remanded 

the case for resentencing. Id. 

Thus it appears to the Magistrate Judge that the judgment from which Duncan seeks relief 

is not a final judgment and has already been vacated by the Court of Appeals. Under King and 

Stansell, the petition is not second-or-successive because the judgment complained of was entered 

upon a remand for resentencing. But this Court cannot consider whether to grant habeas relief 

because the conviction is not yet shown to be final. 

Accordingly, the Magistrate Judge recommends that the Petition be dismissed because 

Duncan has not yet exhausted his available state court remedies, to wit, direct appeal from 

whatever sentence is or will be entered on the Second District’s most recent remand. Because 

reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate 

of appealability and the Court should certify to the Sixth Circuit that any appeal would be 

objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
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If Mr. Duncan has in fact exhausted his state court remedies since he filed in this Court 

(December 21, 2017), he can furnish proof that the case is final and the Magistrate Judge will 

withdraw this Report and proceed to adjudicate the case.

February 22, 2018.

 s/ Michael R. Merz

 United States Magistrate Judge