IN THE UNITED STATES DISTRICT COURT 

FOR THE 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 CORRECTION 

INSTITUTION, 

 Respondent. 

ORDER and 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. Preliminarily, Petitioner has filed an Affidavit of Indigence and requests to 

proceed in forma pauperis. Upon consideration, the Court finds that Petitioner’s motion is 

meritorious, and it is therefore GRANTED. 

IT IS ORDERED THAT the Petitioner be allowed to prosecute this action without 

prepayment of fees or costs and that judicial officers who render services in this action shall do 

so as if the costs had been prepaid. 

This matter is also before the Court on its own motion to consider the sufficiency of the 

petition 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. 
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Petitioner challenges his March 2002 convictions after a jury trial in the Franklin County 

Court of Common Pleas on aggravated murder and aggravated robbery. The Ohio Tenth District 

Court of Appeals has summarized the procedural history of the case: 

In 2001, appellant was indicted for two counts of aggravated 

murder in violation of R.C. 2903.01 and one count of aggravated 

robbery in violation of R.C. 2911.01. A jury found appellant guilty 

on the first count of the lesser-included offense of murder in 

violation of R.C. 2903.02, and guilty on the second count of 

aggravated murder and of aggravated robbery. At sentencing, the 

trial court merged the murder and aggravated murder convictions 

and sentenced appellant to a term of life imprisonment without 

possibility of parole for the aggravated murder conviction. The 

trial court imposed a concurrent eight-year sentence on the 

aggravated robbery conviction. [1] Appellant appealed to this court 

and argued that his convictions were not supported by sufficient 

evidence and were against the manifest weight of the evidence, 

that he received ineffective assistance of counsel, and that the 

sentencing scheme in R.C. 2929.03 is unconstitutional. This court 

rejected appellant's arguments and affirmed his convictions and 

sentence. State v. Melhado, 10th Dist. No. 02AP–458, 2003–

Ohio–4763. 

In a 2010 motion to vacate a void judgment, appellant argued that 

the trial court failed to properly impose post-release control 

(“PRC”) for his aggravated robbery conviction. The trial court 

rejected that argument and denied the motion. 

This court dismissed appellant’s attempt to appeal that judgment 

because he did not timely file his appellate brief. In 2012, 

appellant filed another motion to vacate in which he again argued 

that the trial court failed to properly impose PRC. The trial court 

again rejected the argument, noting that it had already addressed 

and rejected the exact issue. On appeal, this court affirmed. State 

v. Melhado, 10th Dist. No. 13AP–114, 2013–Ohio–3547, ¶ 12–18. 

We rejected his PRC argument because he had already served his 

sentence for the aggravated robbery conviction and, therefore, any 

error in failing to properly impose PRC on that conviction was not 

correctable. Id . at ¶ 17. 

In 2015, appellant filed [a] “Motion for Discharge from Custody” 

in which he once again argued that the trial court failed to properly 

impose PRC. Appellant also argued, for the first time, that he was 

not afforded a preliminary hearing in a timely manner pursuant to 
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R.C. 2945.71(C)(1). The trial court denied the motion. In doing 

so, the trial court specifically noted that it had already rejected his 

PRC argument. It also concluded that appellant was not entitled to 

a preliminary hearing once he had been indicted. 

State v. Melhado, 2016 WL 3219850, at *1 (Ohio 10th App. Dist. June 9, 2016). On June 9, 

2016, the appellate court affirmed the judgment of the trial court. Id. On October 5, 2016, the 

Ohio Supreme Court declined to accept jurisdiction of the appeal. State v. Melhado, 146 Ohio 

St.3d 1516 (Ohio 2016). 

 On August 17, 2017, Petitioner filed this petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254. He asserts as follows: 

1. Due Process Rights Violations, Under U.S. Constitution 

Amendment (14) Fourteen. Trial Court was Divest [sic] of its 

Jurisdiction. Void Judgment, Void Sentence, False Imprisonment. 

2. P.R.C. violation, Due Process Constitutional Rights Violation 

Amendment (14). 

However, this is not Petitioner’s first federal habeas corpus petition. Petitioner has, on three 

prior occasions, presented challenges to these same convictions in this Court. Melhado v.

Warden, Warren Corr. Inst., 2:04-cv-1146, Petition (ECF No. 1); Motion to File Second or 

Successive Habeas Petition (ECF No. 22); Melhado v. Warden, Marion Corr. Inst., 2:14-cv-402. 

 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a district court 

lacks jurisdiction to entertain a successive petition for writ of habeas corpus in the absence of an 

order from the court of appeals authorizing the filing of such successive petition. 28 U.S.C. § 

2244(b); Nelson v. United States, 115 F.3d 136 (2nd Cir. 1997); Hill v. Hopper, 112 F.3d 1088 

(11th Cir. 1997). 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 Sixth 

Circuit Court of Appeals. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam). “[W]hen a 
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prior petition is dismissed because the petitioner procedurally defaulted his claims in state court, 

the dismissal qualifies as a decision ‘on the merits.’ In such a case, the prisoner must obtain 

authorization from the court of appeals pursuant to § 2244(b)(3) before filing a subsequent 

federal habeas application.” Smith v. Warden, Lebanon Corr. Inst., No. 1:16-cv-998, 2016 WL 

6790800, at *2 (S.D. Ohio Oct. 27, 2016) (citing In re Cook, 215 F.3d 606, 608 (6th Cir. 2000); 

Carter v. United States, 150 F.3d 202, 205-06 (2nd Cir. 1998)). 

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. 

The Clerk is ordered to serve the Petition on Respondent and the Attorney General of 

Ohio, Habeas Corpus Unit of the Corrections Litigation Section c/o 

Brian.Higgins@ohioattorneygeneral.gov and Habeas.docketclerk@ohioattorneygeneral.gov

 

 s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 United States Magistrate Judge