The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ANDREW BEVINS, JR.,
Petitioner, : Case No. 1:20-cv-166
- vs - District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
WARDEN,
Madison Correctional Institution,
:
Respondent.
TRANSFER ORDER
This habeas corpus case, brought pro se by Petitioner Andrew Bevins, is before the Court
on Respondent’s Motion to Transfer the case to the Sixth Circuit Court of Appeals for that court’s
determination under 28 U.S.C. § 2244(b) whether the case may proceed (ECF No. 6). The premise
of Respondent’s Motion is that this is a second or successive habeas petition by Mr. Bevins over
which this Court has no jurisdiction absent permission of the circuit court. Bevins opposes a
transfer (ECF No. 11).
Litigation History
Andrew Bevins was indicted by a Hamilton County, Ohio, grand jury on November 22,
2000, on charges of aggravated burglary and rape. Bevins was eventually sentenced to the prison
term he is now serving. After extended process in the state courts, he filed a petition for habeas
corpus in this Court. Case No. 1:08-cv-520. Magistrate Judge Timothy Hogan recommended
dismissal and District Judge Dlott adopted that recommendation. Bevins v. Brunsman, 2009 U.S.
Dist. LEXIS 123974 (S.D. Ohio, Dec. 16, 2009). Bevins did not appeal from that judgment or
seek a certificate of appealability from the Sixth Circuit; his subsequent efforts to amend that
judgment have been rebuffed.
Bevins subsequently filed a petition for post-conviction relief which resulted eventually in
an order from the First District Court of Appeals that the trial court must correct its miscalculation
of Bevins’ credit for pre-trial confinement, increasing that credit from 2,236 to 2,256 days. State
v. Bevins, 2018 Ohio App. LEXIS 5624, ¶ 15 (1st Dist. Dec. 28, 2018). As Bevins himself reports
in the Petition, the Court of Common Pleas complied, filing a nunc pro tunc corrected judgment
entry on February 27, 2019. (Judgment Entry attached to Petition, ECF No. 1, PageID 20-23.) On
the basis of this nunc pro tunc Entry, Bevins sought amendment of this Court’s prior habeas corpus
judgment via a motion under Fed.R.Civ.P. 59(e). However, the motion was rejected because of
the strict time limits on such motions. Bevins v. Warden, Lebanon Corr. Inst., No. 1:08-cv-520,
2019 U.S. Dist. LEXIS 185214 (S.D. Ohio, Oct. 24, 2019). Bevins then filed the instant Petition
on February 6, 2020.1
Relying on this history, Respondent moves to transfer this case to the Sixth Circuit as a
second or successive habeas petition on which Bevins requires the circuit court’s permission to
proceed (Motion, ECF No. 6). Recognizing the 2019 nunc pro tunc Judgment, the Warden argues
it is not the product of a full re-sentencing and therefore does not re-start the second-or-successive
counter. Id. at PageID 40, citing Freeman v. Wainwright, 959 F.3d 226 (6th Cir. 2020)(citing King
1 Although the Petition was not docketed until February 27, 2020, Bevins avers that he placed it in the prison mail
system on February 6, 2020 (Petition, ECF No. 1, PageID 16). Because it was not postmarked until February 25,
2020, the Magistrate Judge has reason to doubt the accuracy of Bevins’ averment. However, the petition appears to
be timely regardless of which date is chosen as the filing date.
v. Morgan, 807 F.3d 154, 156 (6th Cir. 2015).
Bevins opposes the transfer (Reply to Respondent’s Answer, ECF No. 11).
Petitioner first argues that the Motion to Transfer should be denied because Respondent
did not first file the full State Court Record as ordered by Magistrate Judge Bowman. Id. at PageID
59. However, the Sixth Circuit requires District Courts to decide whether petitions are second or
successive as a matter of jurisdiction. Thus filing the Motion to Transfer was an appropriate
response to the Order for Answer.
Bevins next clams that correcting the miscalculation of jail time credit violates the Double
Jeopardy Clause. Id. at PageID 59-64. He asserts the correction violates his expectation of finality
in the prior judgment. Id. That claim, however, is completely inconsistent with the position he took
in the First District Court of Appeals in his last appearance before them. He was then appealing
from denial of his "Motion for Resentencing, Motion for Final Appealable Order and Motion to
Correct and Credit Defendant's Jail Time." Bevins, 2018 Ohio App. LEXIS 5624, ¶ 3. Thus Bevins
actually sought and received the relief which he now asserts violated his Double Jeopardy rights,
an increase in his jail time credit.
The relief Bevins seeks here is not some additional correction of his jail time credit. Rather,
in his Petition he demands an immediate release from custody (Petition, ECF No. 1, PageID 16).
The same is true of his Reply: he claims “because Bevins' sentence is void and invalid and has
expired and the judgment entries from September 22nd, 2005, January 31st, 2007 and February 27,
2019, cannot be corrected for lack of jurisdiction where the statute of limitation has run thus, he
should be immediately discharged.” (ECF No. 11, PageID 64). Thus the instant Petition is not just
an attack on the “new” nunc pro tunc judgment. This is not a collateral attack on the new judgment,
but rather attempts to use the new judgment as a “hook” to attack the conviction itself.
Analysis
Before Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.
L. No 104-132, 110 Stat. 1214)(the "AEDPA"), there was no limit on the number of times a person
confined on a state court judgment could seek habeas corpus relief and no time limit on doing so.
In enacting the AEDPA, Congress sought to eliminate these perceived defects in the habeas corpus
scheme by adopting a one-year statute of limitations and requiring that any second or successive
habeas petition receive permission to proceed from the circuit court of appeals. Over the twenty-
four years since AEDPA was enacted, this has led to some complex jurisprudence about second-
or-successive petitions.
The Supreme Court has made it clear that not every second-in-time petition is to be
classified as second-or-successive. "Although Congress did not define the phrase 'second or
successive,' . . . it is well settled that the phrase does not simply 'refe[r] to all § 2254 applications
filed second or successively in time." Magwood v. Patterson, 561 U.S. 320, 331-32 (2010)
(quoting Panetti v. Quarterman, 551 U.S. 930, 944 (2007)).
Interpreting Magwood, the Sixth Circuit has held a full resentencing allows a petitioner to
“challenge his undisturbed conviction without triggering the ‘second or successive’ requirements.”
King v. Morgan, 807 F.3d 154, 156 (6th Cir. 2015). King was extended to Ohio’s reopening of a
petitioner’s sentence merely to enter post-release control. In re Stansell, 828 F.3d 412 (6th Cir.
2016), effectively overruling Askew v. Bradshaw, 2016 WL 384829 (6th Cir. Feb. 2, 2016), citing
Mackey v. Warden, Lebanon Corr. Inst., 525 F. Appx 357, 363 (6th Cir. 2013), overruled by King.
King does “not exclude the possibility that minor amendments to a judgment, such as those that
correct clerical or technical errors while leaving a petitioner’s conviction and sentence intact, may
not create a new judgment.” In re: Javalen Wolfe, 2018 U.S. App. LEXIS 3206 (6th Cir. Feb. 9,
2018).
Interpreting 28 U.S.C. § 2244(d) in Crangle v. Kelly, 838 F.3d 673 (6th Cir. 2016), the court
held a new judgment, at least if it imposes a worse than before sentence by imposing post-release
control in lieu of parole, resets the statute of limitations clock. 838 F.3d at 677, followed in Brown
v. Harris, 2018 U.S. Dist. LEXIS 31483 (S.D. Ohio Feb. 27, 2018). The Crangle court held that
the “second-or-successive” holding in King supported its statute of limitations analysis:
We agree with the King court's analysis. The interpretation of
"judgment" in Magwood and King applies with equal force to §
2244(d)(1)(A) and § 2254(a). Accordingly, because "[t]he sentence
is the judgment," Burton v. Stewart, 549 U.S. 147, 156, 127 S. Ct.
793, 166 L. Ed. 2d 628 (2007) (quotation omitted), a new sentence
not only permits a challenge to either the new sentence or the
undisturbed conviction, but also restarts AEDPA's one-year window
to challenge that judgment.
838 F.3d at 678.
Conversely, a new judgment that imposes a better-than-before sentence does not restart the
statute of limitations or, inferentially, the second-or-successive counter. Freeman v. Wainwright,
959 F.3d 226 (6th Cir. 2020). The Crangle court held the same opinion. “As several other courts
of appeals have noted, such "a reduced sentence [is] not a new one." Id. The nunc pro tunc
Judgment Entry of February 2019 reduced Bevins’ sentence by twenty days by increasing his jail
time credit by that amount.
Bevins argues that the nunc pro tunc judgment makes his sentence worse, but he has not
substantiated that claim by showing how it does so and the claim is, as noted above, inconsistent
with his having asked for correction of the jail time credit in his most recent state court action2.
2 Whether Bevins received as much jail time credit as he asked for is not capable of being determined from the appellate
decision and the Respondent has, appropriately, not yet filed the state court record here.
It is certainly possible that the Sixth Circuit could disagree with this analysis of § 2244(b).
The Magistrate Judge has found no case directly in point holding that an increase in jail time credit
is not a “new” judgment so as to re-set the second-or-successive counter. But this Court must
make the second-or-successive determination in the first instance; we are not permitted to shift
that decision to the Sixth Circuit. In re: Kenneth Smith, 690 F.3d 809 (6th Cir. 2012); In re
Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012).
When the District Court errs by finding a petition is second or successive and the circuit
court disagrees, the practice of the Sixth Circuit has been to find that permission to proceed is
unnecessary and to remand the case. Jackson v. Sloan, 800 F.3d 260, 261 (6th Cir. 2015), citing
Howard v. United States, 533 F.3d 472 (6th Cir. 2008); In re: Cedric E. Powell, Case No. 16-
3356, 2017 U.S. App. LEXIS 1032 (6th Cir. Jan. 6, 2017). Congress directed the circuit court to
make that decision within thirty days3, so the case should not be substantially delayed by a transfer
that results in a remand.
On the other hand, if the District Court decides a petition is not second or successive and
proceeds to adjudicate it, it runs the risk of a substantial waste of litigants’ time. That is because
a District Court has no jurisdiction to consider a second-or-successive petition. Burton v. Stewart,
549 U.S. 147 (2007); Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016). Subject matter jurisdiction
is a requirement that cannot be waived by the parties, so a judgment entered in a case where the
District Court erred (as the circuit court later decides) in finding a petition was not second-or-
successive is void. Litigation must then start over if the circuit court gives permission. This is
certainly not in the best interests of the habeas petitioner who will remain in custody during both
the district court and appellate court proceedings.
3 28 U.S.C. § 2244(b)(3)(D). The Sixth Circuit has treated this time limit as precatory.
Conclusion
Based on the analysis set forth above, the Magistrate Judge concludes that the Petition
herein is second-or-successive and orders that this case be transferred to the Sixth Circuit Court of
Appeals for determination under 28 U.S.C. § 2244(b) whether it may proceed.
The question of whether a petition is second-or-successive is a non-dispositive pretrial
question and therefore within the initial decisional authority of a Magistrate Judge under
Fed.R.Civ.P. 72(a). However, if the Transfer Order is docketed immediately, that case will be
forthwith transferred and this Court will lose jurisdiction over it. Jackson v. Sloan, 800 F.3d 260,
261 (6th Cir. 2015). To ensure that Petitioner can obtain, if he desires it, review of this Transfer
Order by a District Judge, the Clerk is directed not to effect the transfer until the later of (1) the
date on which Petitioner’s time to object expires or (2) the date on which Judge Black has
completed any review.
October 13, 2020.
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 this
Order within fourteen days after being served. Because this document is being served by mail,
three days are added under Fed.R.Civ.P. 6 for any objections by Petitioner. Such objections shall
specify the portions of the Order objected to and shall be accompanied by a memorandum of law
in support of the objections. 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.