IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEPHEN H. WHITT, 

 Case No. 2:18-cv-00183 

 Petitioner, Judge James L. Graham 

 Chief Magistrate Judge Elizabeth P. Deavers 

 v. 

WARDEN, LEBANON 

CORRECTIONAL INSTITUTION, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 Petitioner has filed a petition for a writ of habeas corpus under to 28 U.S.C. § 2254. This 

matter is before the Court on its own motion pursuant to Rule 4 of the Rules Governing Section 

2254 Cases in the United States District Courts. For the reasons that follow, the Magistrate 

Judge RECOMMENDS that this action be TRANSFERRED to the United States Court of 

Appeals for the Sixth Circuit as successive. 

 Petitioner’s Motion for Leave to Proceed in forma pauperis (ECF No. 1) is GRANTED. 

See 8 U.S.C. § 1915(a)(1). 

 Petitioner challenges his April 10, 2010, convictions after a jury trial in the Coshocton 

County Court of Common Pleas on charges of rape and gross sexual imposition. He is currently 

serving a sentence of thirty-four years to life incarceration. Petitioner asserts that the trial court 

lacked subject matter jurisdiction due to a fatal variance from the Indictment (claim one); that the 

Judgment Entry of sentence is void, and the appellate court lacked jurisdiction to consider the 

appeal (claim two); and that the trial court lacked subject matter jurisdiction, because venue was 

never established (claim three). However, this is not Petitioner’s first federal habeas corpus 

petition in regard to his convictions. On August 15, 2002, Petitioner filed his first § 2254 
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petition. On August 7, 2014, the Court dismissed that action as procedurally defaulted and 

without merit. Whitt v. Warden, Case No. 2:12-cv-731. On February 11, 2015, Petitioner filed 

his second federal habeas corpus petition. On June 1, 2015, the Court transferred that action to 

the Court of Appeals for the Sixth Circuit as successive. Whitt v. Warden, Case No. 2:15-cv560. On January 5, 2016, the Court of Appeals denied Petitioner’s motion for leave to file a 

second or successive habeas petition. See In re Stephen Whitt, Case No. 15-3608 (6th Cir. Jan. 5, 

2016). On February 7, 2017, Petitioner filed his third federal habeas corpus petition. On 

February 24, 2017, the Court transferred that action to the Sixth Circuit as successive. Whitt v. 

Warden, Lebanon Corr. Inst., Case No. 2:17-cv-00110. On August 21, 2017, the Court of 

Appeals for the Sixth Circuit denied Petitioner’s motion for authorization for the filing of a 

successive petition. See In re Stephen Whitt, Case No. 17-3200 (6th Cir. Aug. 21, 2017). 

Plainly, therefore, the present action constitutes a successive petition. 

 Again, 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 
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circuit court of appeals has the power to authorize the filing of a successive petition for writ of 

habeas corpus. Id. 

That being the case, 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 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. 

Consequently, the Magistrate Judge RECOMMENDS this action be TRANSFERRED

to the United States Court of Appeals for the Sixth Circuit 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 
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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). 

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 

Chief United States Magistrate Judge