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 

 Magistrate Judge Elizabeth P. Deavers 

 v. 

WARDEN, LEBANON 

CORRECTIONAL INSTITUTION, 

 Respondent. 

OPINION AND ORDER 

 On March 12, 2018, the Magistrate Judge issued a Report and Recommendation pursuant 

to Rule 4 of the Rules Governing Section 2254 Cases recommending that this action be 

transferred to the United States Court of Appeals for the Sixth Circuit as successive. (ECF No. 

4.) Petitioner has filed an Objection to the Magistrate Judge’s Report and Recommendation. 

(ECF No. 5.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For 

the reasons that follow, Petitioner’s Objection (ECF No. 5) is OVERRULED. The Report and

Recommendation (ECF No. 4) is ADOPTED and AFFIRMED. This action is 

TRANSFERRED to the Sixth Circuit as a successive petition. 

 The Court DECLINES to issue a certificate of appealability. 

 Petitioner objects to the Magistrate Judge’s recommendation that this action be 

transferred to the Sixth Circuit for authorization for filing as a successive petition. Petitioner 

again argues that the charges against him were constitutionally invalid, and that he has been 

denied due process and equal protection. Petitioner asserts that he was convicted pursuant to a 

fatal variance, and that the judgment against him is illegal and void. He contends that this action 

does not constitute a successive petition under Magwood v. Patterson, 561 U.S. 320 (2010), 
2 

because he challenges the trial court’s January 30, 2012, re-sentencing entry, and because he 

raises a claim based on a new rule of constitutional law that is retroactively applicable on 

collateral review. Petitioner requests that the Court take judicial notice of the documents he has 

attached to his Objection, and to portions of the state record. 

 In certain “limited circumstances, a § 2254 petition is not considered ‘second or 

successive’ within the meaning of § 2244(b) even though the petitioner filed a previous habeas 

application.” Storey v. Vasbinder, 657 F.3d 372, 376 (6th Cir. 2011). 

For example, a habeas petition is not considered “second or 

successive” under § 2244(b) when the claim has been raised in a 

prior petition, but dismissed as unripe, although other claims in the 

initial petition were decided on the merits. Stewart v. MartinezVillareal, 523 U.S. 637, 643–46, 118 S.Ct. 1618, 140 L.Ed.2d 849 

(1998). Even if the claim was not presented in an earlier petition, a 

subsequent petition raising the claim does not constitute a 

“successive” petition for purposes of § 2244(b) if the claim would 

have been dismissed as unripe in the initial petition. Panetti, 551 

U.S. at 945, 127 S.Ct. 2842. Nor do the successive petition 

restrictions apply if the first petition was dismissed for lack of 

exhaustion. Slack, 529 U.S. at 478, 487, 120 S.Ct. 1595. The 

restrictions also do not apply if an intervening state court judgment 

(such as a resentencing) occurred after the first habeas petition was 

decided. Magwood, 561 U.S. at 335, 339, 130 S.Ct. 2788; King v.

Morgan, 807 F.3d 154, 157 (6th Cir. 2015). 

In re Campbell, 874 F.3d 454, 459 (6th Cir. 2017). In Magwood, 561 U.S. at 331-39, referred to 

by the Petitioner, the Supreme Court held that a habeas corpus petition is not successive where it 

is filed after the trial court conducts a re-sentencing hearing that results in the issuance of a new 

judgment against the Petitioner. Id. However, the re-sentencing entry Petitioner refers to 

occurred in January 2012, and prior to the filing of his first federal habeas corpus petition. See 

Whitt v. Warden, Case No. 2:12-cv-731. Moreover, as discussed by the Magistrate Judge, 

Petitioner thereafter filed two subsequent habeas corpus petitions challenging these same 

convictions, and has twice been denied authorization for the filing of a successive petition. 
3 

Report and Recommendation (ECF No. 4, PageID# 311.) Under these circumstances, this action 

plainly constitutes a successive petition. Moreover, as discussed, this Court therefore lacks 

jurisdiction to consider Petitioner’s claims absent authorization from the Sixth Circuit Court of 

Appeals. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152-53 (2007). 

Therefore, Petitioner’s Objection (ECF No. 5) is OVERRULED. His request for judicial notice 

is DENIED. The Report and Recommendation (ECF No. 4) is ADOPTED and AFFIRMED. 

This action is TRANSFERRED to the Sixth Circuit as a successive petition. 

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 appealability. “In 

contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal 

court holds no automatic right to appeal from an adverse decision by a district court,” Jordan v.

Fisher, –––U.S. ––––. ––––, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1) (requiring a 

habeas petitioner to obtain a certificate of appealability in order to appeal.) 

When a claim has been denied on the merits, a certificate of appealability may issue only 

if the 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. McDaniel, 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 appealability may issue if the petitioner establishes 

that jurists of reason would find it debatable whether the petition states a valid claim of the 
4 

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. 

This Court is not persuaded that reasonable jurists would debate this Court's decision 

transferring the case to the Court of Appeals as a successive petition. Therefore, the Court 

DECLINES to issue a certificate of appealability. 

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that the appeal would not be in 

good faith, and that an application to proceed in forma pauperis on appeal should be DENIED. 

IT IS SO ORDERED. 

Date: March 30, 2018 

 ______s/James L. Graham _____ 

 JAMES L. GRAHAM 

 United States District Judge