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.

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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