IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DALE P. FIELD, JR., 

 Case No. 2:17-cv-00751 

 Petitioner, Chief Judge Edmund A. Sargus, Jr. 

 Magistrate Judge Elizabeth A. Preston Deavers 

 v. 

OHIO ADULT PAROLE AUTHORITY, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner brings this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

This matter is before the Court on the Petition, Respondent’s Motion to Transfer, Petitioner’s 

Response, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge 

RECOMMENDS that Respondent’s Motion to Transfer (ECF No. 23) be DENIED, and that 

Respondent be DIRECTED to submit a Response to the Petition within twenty-one (21) days. 

Facts and Procedural History 

On March 4, 2011, Petitioner was sentenced pursuant to his guilty plea to one count of 

unlawful sexual conduct with a minor in the Geauga County Court of Common Pleas to a term of 

three years of incarceration, to be followed by five years of supervised release. See State v. 

Field, No. 2011-G-3010, 2012 WL 5499654 (Ohio App. 11th Dist. Nov. 13, 2012). According 

to the Petition, on May 13, 2014, Petitioner was arrested in West Virginia for violating the terms 

of his parole. On August 27, 2015, he pleaded guilty in Taylor County, West Virginia, to two 

counts of domestic battery, and was sentenced to an aggregate term of two years. Thereafter, on 

January 7, 2016, Petitioner pleaded guilty to violating his parole. He received a sentence of six 

months for the parole violation. 
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 However, Petitioner complains that the Ohio Adult Parole Authority has 

unconstitutionally refused to credit the time he is serving in West Virginia for his sentence on the 

parole violation, as required under Ohio law, his initial judgment entry of sentence, and by the 

terms of his sentence in West Virginia. Petitioner asserts that his maximum sentence has expired 

and seeks immediate release. He indicates that he raised this same claim in a state habeas corpus 

petition in the Ohio Supreme Court; however, on January 25, 2017, the Ohio Supreme Court sua 

sponte dismissed that action. (ECF No. 1, PAGEID # 13.) It is the position of the Respondent 

that this action should be transferred to the United States Court of Appeals for the Sixth Circuit 

as successive. 

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

habeas corpus can be filed in the district court, the applicant shall 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 post-conviction 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. Burton v. Stewart, 549 U.S. 147, 152-53 (2007). 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 United States Court of Appeals for the Sixth 

Circuit. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam). 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. Id. 

Thus, this Court is without jurisdiction to entertain a second or successive § 2254 petition 

unless authorized by the Court of Appeals for the Sixth Circuit. The Sixth Circuit, in turn, will 
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issue this certification only if Petitioner succeeds in making a prima facie showing either that the 

claim sought to be asserted relies on a new rule of constitutional law made retroactive by the 

United States Supreme Court to cases on collateral review; or that the factual predicate for the 

claim could not have been discovered previously through the exercise of diligence, and these 

facts, if proven, would establish by clear and convincing evidence that, but for the constitutional 

error, no reasonable factfinder would have found the applicant guilty. 28 U.S.C. § 2244(b)(2). 

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. 

 Clearly, the statute does not refer to all applications filed second or successively in time. 

Panetti v. Quarterman, 551 U.S. 930, 944 (2007). A later-filed petition that presents a claim that 

was not ripe for presentation at the time the earlier action was filed will not be considered a 

second or successive petition within the meaning of the statute. Id. at 947. “A petition is 

successive if ‘it raises a claim that could have been raised in the first petition but was not so 

raised, either due to deliberate abandonment or inexcusable neglect.’” In re Marsch, 209 F. 

App’x 481, 483 (6th Cir. 2006) (quoting In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006) (citing 

McCleskey v. Zant, 499 U.S. 467, 489 (1991)). “The restrictions also do not apply if an 

intervening state court judgment (such as a resentencing) occurred after the first habeas petition 

was decided.” In re Campbell, 874 F.3d 454, 459 (6th Cir. 2017) (citing Magwood v. Patterson, 

561 U.S. 320, 339 (2010); King v. Morgan, 807 F.3d 154, 157 (6th Cir. 2015)). The United 
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States Court of Appeals for the Sixth Circuit has held that a habeas corpus petition that 

challenges the denial of parole, but which is filed after an earlier petition challenging the 

underlying criminal conviction, is a second or successive petition within the meaning of § 

2244(b)(3)(A) if the denial of parole occurred prior to the filing of the first habeas corpus action. 

In re Marsch, 209 F. App’x 481. 

 Petitioner filed a prior federal habeas corpus petition challenging his underlying criminal 

conviction on unlawful sexual conduct with a minor. Field v. Turner, No. 1:13-cv-1415, 2016 

WL 1161924 (N.D. Ohio March 24, 2016). Petitioner now challenges the actions of the Ohio 

Adult Parole Authority in denying his release as a result of his January 2016, parole violation 

based on his subsequent domestic violence convictions in West Virginia. Petitioner could not 

have raised this same claim in his earlier habeas corpus petition. 

Recommended Disposition 

 Therefore, the Magistrate Judge RECOMMENDS that Respondent’s Motion to Transfer

(ECF No. 23) be DENIED, and that Respondent be DIRECTED to submit a Response to the 

Petition within twenty-one (21) days. 

Procedure on Objections 

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

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 
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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). 

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/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 United States Magistrate Judge