IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ERIC R. WESTERFIELD, 

 Case No. 2:17-cv-970 

 Petitioner, Judge Michael H. Watson 

 Magistrate Judge Elizabeth P. Deavers 

 v. 

WARDEN, CHILLICOTHE 

CORRECTIONAL INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, has filed this Petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254. This matter is before the Court on its own motion under 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. 

Facts and Procedural History 

 The Ohio Tenth District Court of Appeals summarized the facts and procedural history of 

this case as follows: 

{¶ 3} In 2007, a jury found appellant guilty of one count of rape of a victim less 

than ten years of age, in violation of R.C. 2907.02. The trial court sentenced 

appellant to life in prison and classified him as a sexual predator. Westerfield I at 

¶ 12. On appeal, appellant alleged that the trial court improperly allowed the state 

to amend his indictment, that he received ineffective assistance of counsel, and 

that his conviction was against the manifest weight of the evidence. We rejected 

appellant’s arguments and affirmed his conviction and sentence. Id. at ¶ 41. 

{¶ 4} In 2013, appellant filed in the trial court a “Motion to Vacate Registration 

and Classification.” Westerfield II at ¶ 3. In his motion, appellant argued that his 

sentence should be vacated and that he should be resentenced under the version of 

Ohio’s sexual predator law in effect at the time he committed the offense. The 

trial court denied appellant’s motion. On appeal, appellant alleged that the trial 
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court failed to comply with former R.C. 2950.09(B)(2) because it failed to 

provide him notice of the sexual predator classification hearing that was held at 

the time of his sentencing in 2007. We rejected appellant’s arguments and 

affirmed the trial court’s denial of his motion. Id . at ¶ 8. 

{¶ 5} On November 12, 2015, appellant filed a motion for a new trial pursuant to 

Crim.R. 33. On November 27, 2015, plaintiff-appellee, State of Ohio, filed a 

memorandum contra appellant’s motion for a new trial, arguing that appellant’s 

motion was untimely and filed without leave of court. On January 19, 2016, the 

trial court filed a judgment entry denying appellant’s November 12, 2015 motion. 

II. Assignments of Error 

{¶ 6} Appellant appeals and assigns the following two assignments of error for 

our review: 

[I.] The trial court committed prejudicial error in withholding credible evidence. 

[II.] Appellant was denied effective assistance of counsel. 

State v. Westerfield, No. 16AP-85, 2016 WL 3521983, at *1 (Ohio App. 10th Dist. June 28, 

2016). On June 28, 2016, the appellate court affirmed the judgment of the trial court. Id. On 

November 23, 2016, the Ohio Supreme Court declined to accept jurisdiction of the appeal. State 

v. Westerfield, 147 Ohio St.3d 1445 (2016). 

 On November 3, 2017, Petitioner filed this Petition for a writ of habeas corpus pursuant 

to 28 U.S.C. § 2254. He asserts that he was denied the effective assistance of counsel, because 

his attorney advised him to reject the plea offer of three to six years (claim one); and that he was 

denied due process, because the State suppressed evidence that the alleged victim had made the 

same allegations regarding a prior boyfriend (claim two). 

 However, this is not Petitioner’s first federal habeas corpus petition challenging this same 

conviction. On July 16, 2012, Petitioner filed his first § 2254 action. On September 4, 2012, this 

Court dismissed that action as time-barred. Westerfield v. Warden, Chillicothe Corr. Inst., Case 

No. 2:12-cv-0631, 2012 WL 3812028 (S.D. Ohio Sept. 4, 2012). On October 21, 2014, 
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Petitioner filed a second § 2254 action. On May 27, 2015, this Court also dismissed that action. 

Westerfield v. Warden, Chillicothe Corr. Inst., Case No. 2:14-cv-2012, 2015 WL 3422269 (S.D. 

Ohio May 27, 2015). Thus, this action plainly constitutes a successive habeas corpus Petition. 

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 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). 
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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. 

111 F.3d at 47. 

Recommended Disposition 

Therefore, the Magistrate Judge RECOMMENDS that 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 

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 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). 
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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