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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 WESTERN DIVISION AT DAYTON

GREGORY G. WHITE, 

Petitioner, : Case No. 3:18-cv-289 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

NORMAN ROBINSON, Warden, 

 London Correctional Institution 

 : 

 Respondent. 

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS 

 This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 14) to the 

Magistrate Judge’s Supplemental Report and Recommendations recommending transfer to the 

Sixth Circuit (“Supplemental Report,”ECF No. 11). District Judge Rose has again recommitted 

the case for reconsideration in light of these newest Objections (ECF No. 15). 

 White first objects that there is no legitimate state interest in finding that he has 

procedurally defaulted (Objections, ECF No. 14, PageID 117). No such finding was made in the 

Supplemental Report. Procedural default is a merits question this Court cannot reach until the 

Sixth Circuit has granted permission to proceed. 

 White cites numerous Supreme Court cases dealing with whether a district court should 

allow a second petition, but all of those cases were handed down before adoption of the 

Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the 

"AEDPA"). Prior to the AEDPA, there was no statutory limit on the numbers of habeas cases a 

petitioner could file attacking the same state court judgment. It was the AEDPA which first 
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adopted that limitation as a matter of statutory law. After AEDPA a district court no longer has 

discretion to allow a second or successive petition; only the circuit court can do that. 

 White’s second objection is that he is now being held on “new” charges on which he did 

not have an opportunity to defend which he says constitutes a miscarriage of justice (PageID 120-

21). But there is no miscarriage of justice exception to the requirement of obtaining circuit court 

permission to proceed on a second or successive petition. 

 Because the instant Petition is second or successive, it must be transferred to the Sixth 

Circuit for that court to decide whether White may proceed. 

October 22, 2018. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days 

because this Report is being served by mail. .Such objections shall specify the portions of the 

Report objected to and shall be accompanied by a memorandum of law in support of the objections. 

If the Report and Recommendations are based in whole or in part upon matters occurring of record 

at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or 

such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless 

the assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 

947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).