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 Deavers

V.

WARDEN, CHiLLICOTHE

CORRECTIONAL INSTITUTION,

Respondent.

OPINION AND ORDER

On June 7, 2018, the Magistrate Judge issued a Report and

Recommendation recommending that this action be transferred to the United

States Court of Appeals for the Sixth Circuit as a successive Petition. ECF No.

6. Petitioner has filed an Objection to the Magistrate Judge's Report and

Recommendation. ECF No. 9.

Petitioner argues that he has presented a meritorious ground for relief.

However, as discussed by the Magistrate Judge, this action plainly constitutes a

successive Petition. Petitioner has previously filed two 2254 actions challenging

these same underlying criminal convictions. Therefore, this Court lacks

jurisdiction to address his claim, absent authorization from the Court of Appeals.

28 U.S.C. § 2244(b)(3)(a).

Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo

review. For the foregoing reasons and for the reasons addressed in the
Magistrate Judge's Report and Recommendation, Petitioner's Objection, EOF

No. 9, is OVERRULED. The Report and Recommendation, EOF No. 6, is

ADOPTED and AFFIRMED. This action is TRANSFERRED to the Sixth Circuit

as successive.

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the

United States District Courts, the Court now considers whether to issue a

certificate of appeaiabiiity. A state prisoner who seeks a writ of habeas corpus in

federal court does not have an automatic right to appeal a district court's adverse

decision unless the court issues a certificate of appeaiabiiity. 28

U.S.C. § 2253(c).

When a claim has been denied on the merits, a certificate of appeaiabiiity

may be issued only ifthe petitioner "has made a substantial showing of the denial

of a constitutional right." 28 U.S.C. § 2253(c)(2). To make a substantial showing

of the denial of a constitutional right, a petitioner must show "that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were

'adequate to deserve encouragement to proceed further.'" Slack v. McDanlel,

529 U.S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4

(1983)). When a claim has been denied on procedural grounds, a certificate of

appeaiabiiity may be issued ifthe petitioner establishes that jurists of reason

would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling. Id.

The Court is not persuaded that reasonable Jurists would debate whether

the Court properly transferred this action to the Sixth Circuit for authorization for

filing as a successive Petition. The Court therefore DECLINES to issue a

certificate of appealability.

The Clerk is DIRECTED to enter final JUDGMENT.

IT IS SO ORDERED.

IICHAEL H. WATSON, JUDGE

UNITED STATES DISTRICT COURT