United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY UNITED STATES MAGISTRATE JUDGE
Mike Van Dyke moves this court to transfer Petitioner's
second habeas corpus petition to the Sixth Circuit Court of
Appeals for consideration as an application for authorization
to file a second or successive petition under 28 U.S.C.
§ 2254. Docket No. 38. This matter has been assigned to
Magistrate Judge Frensley for a report and recommendation
under 28 U.S.C. § 636(b)(1)(B). It is recommended that
the respondent's motion be granted and the petition be
transferred to the Sixth Circuit where it may be reviewed for
authorization to file a second or successive petition in the
Middle District of Tennessee under 28 U.S.C. § 2254.
Randy Bea Anderson, pled guilty on counts of aggravated
burglary, theft of property valued below $10, 000, and theft
of property valued below $500. Docket No. 37-1, PageID
131-33. Petitioner was sentenced to ten years for all counts.
Docket No. 37-1. PageID 134. Petitioner filed a pro se
petition for post-conviction relief in state court claiming
his guilty plea was the result of a coerced confession.
Docket No. 37-1, PageID 134, 139-41. This petition was denied
on the merits in the Circuit Court for Maury County after an
evidentiary hearing. Docket No. 37-6, PageID 321. Petitioner
appealed this decision to the Tennessee Court of Criminal
Appeals. Docket No. 37-3, 287. The Tennessee Court of
Criminal Appeals affirmed the denial of post-conviction
relief. Docket No. 37-5, PageID 320. Petitioner did not file
a request for appeal to the Tennessee Supreme Court and final
judgment was entered by the Tennessee Court of Criminal
Appeals on February 12, 2016. Docket No. 37-6, PageID 321.
Petitioner's post-conviction relief appeal was pending,
he filed a pro se petition for writ of habeas corpus under 28
U.S.C. § 2254 in the Middle District of Tennessee on
February 6, 2015. Docket No. 1, PageID 1-6, 14. Petitioner
was appointed counsel and given 60 days to file an amended
petition. Docket No. 10. Counsel filed a motion to stay
(Docket No. 13) and the habeas proceeding was stayed pending
exhaustion of Petitioner's state claims (Docket No. 18).
the denial of the state claim for post-conviction relief in
the Tennessee Court of Criminal Appeals, Petitioner filed a
second pro se petition for writ of habeas corpus under 28
U.S.C. § 2254 in the Middle District of Tennessee on
March 14, 2016. Anderson v. Lee, 1:16-cv-00016
(Docket No. 1). Petitioner did not attempt to consolidate the
two federal habeas petitions, filed under separate case
numbers. Docket No. 38, PageID 323. The District Court denied
this second pro se habeas corpus petition on the merits on
July 8, 2016. Anderson v. Lee, No. 1:16-cv-00016
(Docket No. 17). The Court did not grant Petitioner a
certificate of appealability and Petitioner did not seek one
from the Sixth Circuit. Docket No. 38, PageID 323.
filed a motion to reopen his original habeas corpus claim on
June 9, 2017, which was granted by the Court. Docket No. 19,
PageID 77; Docket No. 20, PageID 79-80. The case was reopened
after resolution of the state claims and Petitioner
thereafter filed an Amended Petition on October 11, 2018.
Docket No. 26, PageID 87-93. The State requests a transfer of
the habeas corpus petition to the Sixth Circuit as an
application for authorization to review a second or
successive petition. Docket No. 38. Petitioner has responded
to the motion, arguing that the two petitions were not the
same claim (Docket No. 40), and the State filed a reply to
the petitioner's response. (Docket No. 41).
United States Code governs habeas corpus petitions and 28
U.S.C. § 2244(b)(3)(A) states that a petitioner should
take leave to apply to the appropriate court of appeals for
authorization to make a second or successive petition in
district court. In this case, Anderson did not file the
appropriate plea for consideration in the Sixth Circuit
before filing a successive habeas petition in district court,
and therefore the district court does not have the
jurisdiction to consider this claim before the Sixth Circuit
authorizes it. Burton v. Stewart, 549 U.S. 147, 152
(2007); Docket No. 38, PageID 324. Because this petition
rests on materially the same circumstances as the previous
resolved petition it should be transferred to the Sixth
Circuit for consideration as a second or successive petition.
In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
States statutory law does not define “second or
successive” petitions by their time of filing, but
rather whether the claims brought in this petition have been
previously adjudicated by a United States Court. 28 U.S.C.
§ 2244(a); In re Wogenstahl, 902 F.3d 621, 627
(6th Cir. 2018). If a district court has previously addressed
each claim and the claims have not materially changed since
that initial judgment, any following review of a petition is
to be second and successive, requiring Sixth Circuit
authorization. Stewart v. Martinez-Villareal, 523
U.S. 637, 643 (1998); In re Wogenstahl, 902 F.3d at
627. McClesky v. Zant categorizes these types of
petitions as those that “abuse the writ” - they
raise claims that could have been brought in previous
petitions and were excluded due to abandonment or neglect.
499 U.S. 467, 470 (1991).
first filed claim, which is at issue in this case, included
two counts of ineffective trial counsel, the first for
failing to ensure that Petitioner's plea was knowing and
voluntary and the second for failure to request a medical
examination. Docket No. 1, PageID 2. The first filed petition
included a count for abuse of due process arguing Petitioner
was not competent when he was convicted. Docket No. 26,
PageID 92. While the due process claim is not identical to
the other petition, as the first two claims were, the due
process claim does not fall within the exception provided by
In re Wogenstahl, that if the events giving rise to
the second petition were not yet ripe for litigation, the
second petition would not be successive. 902 F.3d at 627.
case, all material information to the habeas corpus claim was
available at the time of the first filing, and this exception
does not apply because Petitioner abused the writ by not
including this claim in the petition litigated first. 28
U.S.C. §2244(a). The habeas petition filed second was
adjudicated on the merits before the first-filed petition was
decided, except for the immaterial due process claim. The
first-filed petition made the same claims as the second-filed
and thus is considered a successive petition even though
argues that the petitions were materially different because
of the difference in Petitioner's legal representation
between the first and second filings. Docket No. 40, PageID
330. In the second filed petition, Anderson filed pro se and
represented himself in court. Petitioner was appointed
counsel in the first filed petition. Docket No. 38, PageID
322-23. Anderson argues that a petitioner cannot litigate
both pro se and with counsel at the same time, and so he must
be able to choose by which means to proceed. Jones v.
Bradshaw, 326 F.Supp.2d 857, 858 (N.D. Ohio 2004);
Docket No. 40, PageID 330. However, this argument is
unpersuasive because in Jones, the petitioner's
multiple claims arose before litigation of any of the claims,
and necessarily the petitioner had to choose between pro se
litigation and representative legal counsel. 326 F.Supp.2d at
858; Docket No. 40, PageID ...