IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

CLIVE N. MELHADO, 

 Case No. 2:18-CV-00675 

 Petitioner, JUDGE JAMES L. GRAHAM 

 Magistrate Judge Kimberly A. Jolson 

 v. 

LYNEAL WAINWRIGHT, WARDEN, 

 Respondent. 

OPINION AND ORDER 

 On July 23, 2018, the Magistrate Judge issued a Report and Recommendation pursuant to 

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts 

recommending that this action be transferred to the United States Court of Appeals for the Sixth 

Circuit as a successive habeas corpus petition. (Doc. 4). Petitioner has filed an Objection to the 

Magistrate Judge’s Report and Recommendation and a Motion for Summary Judgment. (Docs. 

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

reasons that follow, Petitioner’s Objection (Doc. 6) is OVERRULED. The Motion for 

Summary Judgment (Doc. 5) is DENIED. The Report and Recommendation (ECF No. 3) 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 challenges his March 2002 convictions in the Franklin County Court of 

Common Pleas on murder, aggravated murder, and aggravated robbery. He asserts that the trial 

court lacked subject matter jurisdiction because the criminal complaint filed against him was 

dismissed upon the filing of an Indictment by the grand jury. Petitioner argues that this action 
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does not constitute a successive § 2254 action, because he challenges the Warden’s authority to 

detain him, on the basis that his convictions are a nullity and the result of fraud, in violation of 

the Fourteenth Amendment. Petitioner has filed a Motion for Summary Judgment on this same 

basis. He argues that the judgment against him is void, because the trial court lacked subject 

matter jurisdiction, and the judgment entry being used by the warden to detain him is based on 

fraud and carries no legal authority. 

 However, these claims are properly brought under the provision of 28 U.S.C. § 2254, 

which provides: 

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall 

entertain an application for a writ of habeas corpus in behalf of a person in 

custody pursuant to the judgment of a State court only on the ground that he is in 

custody in violation of the Constitution or laws or treaties of the United States. 

28 U.S.C. § 2254(a). Further, as discussed by the Magistrate Judge, Petitioner has filed 

at least three prior § 2254 actions challenging these same convictions. Melhado v. 

Warden, Warren Corr. Inst., Case No. 2:04-cv-1146; Melhado v. Warden, Marion Corr. 

Inst., Case No. 2:14-cv-402; and Melhado v. Warden, Marion Corr. Inst., Case No. 2:17-

cv-725. Therefore, this action plainly constitutes a successive petition, and this Court 

lacks jurisdiction to consider Petitioner’s claims absent authorization from the United 

States Court of Appeals for the Sixth Circuit. See In re Owens, 525 Fed.Appx. 287, 291 

(6th Cir. 2013) (citing 28 U.S.C. 2244(b)(3)(A)). 

 Petitioner’s Objection (Doc. 6) is OVERRULED. The Motion for Summary Judgment 

(Doc. 5) is DENIED. The Report and Recommendation (ECF No. 3) 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 
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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 

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 the denial of Petitioner’s 

Motion for Summary Judgment, and transfer of this action to the Court of Appeals for the Sixth 

Circuit as a successive petition. The Court therefore 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. 
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IT IS SO ORDERED. 

 Date: August 10, 2018 _s/James L. Graham_______ 

 JAMES L. GRAHAM 

 United States District Judge