Norris v. Konteh

• Decision Date: 14 September 1999
• Docket Number: No. 4:98 CV 3018.,4:98 CV 3018.
• Citation: 67 F.Supp.2d 833
• Parties: Robert Lee NORRIS, Petitioner, v. Khelleh KONTEH, Warden Respondent.
• Court: U.S. District Court — Northern District of Ohio

67 F.Supp.2d 833

Robert Lee NORRIS, Petitioner, v. Khelleh KONTEH, Warden Respondent.

No. 4:98 CV 3018.

United States District Court, N.D. Ohio, Eastern Division.

September 14, 1999.

Robert Lee Norris, Marion, OH, pro se.

MEMORANDUM OPINION AND ORDER

ECONOMUS, District Judge.

This matter is before the Court upon Petitioner's pro se Objection To Magistrate's Report And Recommendation (Dkt.# 14) (hereinafter the "Objection").¹

Also before the Court for final disposition are two documents filed by Petitioner. On January 25, 1999, Petitioner filed a document (Dkt.# 8) styled "Motion For Order Of Enforcement Directing Respondent ["et al. *Respondents"] To Comply With The Sixth Circuit Mandate Pronounced By [And] Through: Norris v. Schotten, at 146 F.3d 314, 1998 Fed App. 0159P (6th Cir.1998) @ Part II, Section G." On January 26, 1999, Petitioner filed a document (Dkt.# 9) styled "Motion To "Stay" Proceedings Pending Resolution Of Interlocutory Appeal."

I. Procedural and Factual Background

Petitioner is a prisoner in state custody in Ohio who on December 30, 1998 filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt.# 1) (the "instant petition").² The instant petition attacked a judgment of conviction and sentence from the Stark County Common Pleas Court, Case No. 92 CR 287, in which Petitioner was convicted of one count of kidnapping and two counts of rape, and sentenced to an "aggregate total" of 45-75 years in prison and a fine of $30,000.00. See Dkt.# 1 at 1.

Prior to the filing of the instant petition, Petitioner had filed a previous petition for a writ of habeas corpus attacking the aforesaid Ohio Court judgment (the "original petition") on July 17, 1995. See Norris v. Schotten, 146 F.3d 314, 322 (6th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998). The Court of Appeals affirmed the judgment of the district court denying the request for habeas relief set forth in the original petition. Id. at 321.

On January 28, 1999, the case sub judice was referred to Magistrate Judge James S. Gallas for preparation of a report and recommendation ("R & R") pursuant to LR 72.2(b) (Dkt.# 11), which was issued on May 25, 1999 (Dkt.# 13). In the R & R, Magistrate Judge Gallas concluded that "[t]he district court has no jurisdiction over this case pursuant to 28 U.S.C. § 2244(b), which requires prior circuit court leave to file a successive petition." R & R at 1. Magistrate Judge Gallas then stated:

As evidenced by the attached order of the Sixth Circuit Court of Appeals in Case No. 99-3160 relating to Case 95 CV 1545, Norris had previously sought leave to file his first successive petition which was denied on November 2, 1998 by the circuit court. Consequently, transfer of the petition now before this court pursuant to 28 U.S.C. § 1631 would not be in the interest of justice [footnote omitted]. Norris has had one prior application to file a successive petition turned down, and Norris was well aware of the proper procedure when he filed this second successive petition on December 30, 1998 but has contemptuously chosen not to follow § 2244(b)'s directives in an obvious effort to burden the district court.

Accordingly, the petition and the numerous papers filed by Norris should be dismissed.

R & R at 1-2.

II. Discussion

For the reasons which follow, the Court finds that the Objection is not well-taken, except with respect to Petitioner's claim regarding the monetary penalty or fine he was ordered to pay by the Ohio Court. In focusing upon the precise issue which must be addressed in order to determine the merit of the Objection, this Court notes that "[p]ertinent to this case are the restrictions on second or successive habeas applications, and associated `gatekeeping' provisions." Carlson v. Pitcher, 137 F.3d 416, 418 (6th Cir.1998).

A. Is the instant petition a second or successive application for a writ?

Because the instant petition was filed subsequent to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the AEDPA applies herein. See Lopez v. Douglas, 141 F.3d 974, 975-76 (10th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 556, 142 L.Ed.2d 462 (1998) ("Since Petitioner filed his second § 2254 petition after April 24, 1996, the effective date of the AEDPA, he was required to comply with the Act's relevant provisions and obtain prior authorization from this court before filing in the district court.").³

Second, Magistrate Judge Gallas correctly concluded that the petition "is clearly successive⁴ to the original petition which is adjudicated in Norris v. Schotten, 146 F.3d 314 [balance of citation omitted]." R & R at 1. Magistrate Judge Gallas therefore further correctly concluded that "[t]he district court has no jurisdiction over this case pursuant to 28 U.S.C. § 2244(b), which requires prior circuit court leave to file a successive petition." R & R at 1.

Magistrate Judge Gallas correctly determined that Petitioner has failed to comply with the requirement set forth in 28 U.S.C. § 2244(b)(3)(A) that the applicant "shall" move in the appropriate court of appeals for an order authorizing the district court to consider a second or successive application "before" such application is filed in the district court.⁵ R & R at 2. The Tenth Circuit explained:

Since Petitioner filed his second § 2254 petition after April 24, 1996 ... he was required to comply with the [AEDPA's] relevant provisions and obtain prior authorization from this court before filing in the district court. He failed to obtain this authorization. Therefore, the district court lacked jurisdiction to decide his unauthorized second petition, and this court must vacate the district court order [denying the petitioner's motion under Fed.R.Civ.P. 60(b)(6)].

Lopez, 141 F.3d at 975-76 (emphasis added).

In the Objection, Petitioner first lodges his objection "to the magistrate's belief that this court does not have jurisdiction to entertain an action pursuant to 28 U.S.C. § 2254." Dkt.# 14 at 2. However, to the extent that Petitioner was required to comply with the requirement set forth in 28 U.S.C. § 2244(b)(3)(A) that the applicant "shall" move in the appropriate court of appeals for an order authorizing the district court to consider a second or successive application "before" such application is filed in the district court, and to the extent that Petitioner failed to so move, this Court has no jurisdiction to address the petition. Accordingly, to that extent, the objection to Magistrate Judge Gallas' "belief" that this Court lacks jurisdiction for the reason that Petitioner has failed to comply with § 2244(b)(3)(a) is not well-taken.

B. Does the claim with regard to the monetary penalty or fine constitute a second or successive "application" for a writ?

The Sixth Circuit has made clear that "every court addressing the issue since AEDPA took effect has held" that "[a] habeas petition filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies does not qualify as a `second or successive' application within the meaning of § 2244(b)(1)." Carlson, 137 F.3d at 419 (quoting McWilliams v. State of Colorado, 121 F.3d 573, 575 (10th Cir.1997)). Similarly, in a decision discussed in Carlson, 137 F.3d at 419, the Second Circuit has stated:

Prior to the AEDPA amendments, a petition filed after a previously submitted petition was dismissed without prejudice was not considered an abuse of the writ. The abuse of the writ doctrine is rooted in the need for finality and concerns of comity, McCleskey v. Zant, 499 U.S. 467, 491-92, 111 S.Ct. 1454, 1469, 113 L.Ed.2d 517 (1991); however, neither concern is implicated when a petition is filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies. See Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963) (holding that the doctrine of writ abuse is not implicated "if the same ground was earlier presented but not adjudicated on the merits"). In fact, dismissal without prejudice of an entire petition, including exhausted claims, for failure to exhaust certain claims promotes the policies underlying the doctrine. It serves the interest in finality by discouraging piecemeal litigation and encouraging petitioners first to exhaust their state remedies and then to "present the federal court with a single habeas petition." Rose v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982)....

... Although Congress plainly intended the AEDPA amendments to work significant procedural changes in habeas corpus review, nothing in the legislative history or Felker suggests that Congress wished to depart from the longstanding and widely accepted rule discussed above, that no barrier to habeas review arises from the dismissal of a petition on procedural grounds without prejudice to refiling.

... We, therefore, hold that a petition filed after a prior petition is dismissed without prejudice for failure to exhaust state remedies is not a "second or successive" petition within the meaning of § 2244.

For the foregoing reasons, we dismiss as unnecessary the petitioner's motion for authorization to file a petition for writ of habeas corpus in the district court. Petitioner may file his petition with the district court directly.

Camarano, 98 F.3d at 46-47 (emphasis added).

In this matter, the Sixth Circuit has previously addressed Petitioner's claim set forth in the petition concerning the monetary penalty or fine imposed by the Ohio Court of Common Pleas. The Sixth Circuit dismissed this claim "without prejudice for failure to exhaust." Norris, 146 F.3d at 336.

In order to adjudicate the Objection as it relates to this distinct claim, it is necessary to review in detail the manner in which the Sixth Circuit disposed of this claim during the appeal of the original petition. In this regard, the Sixth Circuit panel stated:

A...