Melhado v. Warden Pickaway Correctional Institution

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CLIVE N. MELHADO,
Petitioner,
vs.
WARDEN, Pickaway Correctional
Institution,
Respondent.
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Case No. 2:26-cv-194
Chief Judge Sarah D. Morrison
Magistrate Judge Karen L. Litkovtiz
REPORT AND RECOMMENDATION
Petitioner, an inmate in state custody at the Pickaway Correctional Institution, has
filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his
March 2002 Franklin County, Ohio murder conviction and sentence. (Doc. 1). By
separate Order, Petitioner was granted leave to proceed in forma pauperis. (Doc. 4).
But for the reasons set forth below, the Undersigned RECOMMENDS that this
action be TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as
a second or successive petition under 28 U.S.C. § 2244(b).
It appears that this is the fifth habeas corpus petition that Petitioner has submitted
in this Court challenging his Franklin County murder conviction. See Melhado v.
Warden, Marion Correctional Institution, Case No. 2:18-cv-675 (S.D. Ohio Aug. 10,
2018) (Graham, J.; Jolson, M.J.) (Doc. 7) (petition transferred to the Sixth Circuit Court
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of Appeals as successive); Melhado v. Warden, Marion Correctional Institution, Case
No. 2:17-cv-725 (S.D. Ohio Oct. 2, 2017) (Watson, J.; Deavers, M.J.) (Doc. 8) (petition
transferred as successive); Melhado v. Warden, Marion Correctional Institution, Case
No. 2:14-cv-402 (S.D. Ohio May 9, 2014) (Economus, J.; King, M.J.) (Doc. 5) (petition
transferred as successive); Melhado v. Warden, Warren Correctional Institution, Case
No. 2:04-cv-1146 (S.D. Ohio Aug. 9, 2005) (Frost, J.; Abel, M.J.) (Doc. 14) (petition
dismissed on merits) (Doc. 24) (motion to file successive petition transferred to Sixth
Circuit Court of Appeals).
“Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), ‘a state
prisoner always gets one chance to bring a federal habeas challenge to his conviction.’”
In re Hill, 81 F. 4th 560, 567 (6th Cir. 2023) (quoting Banister v. Davis, 590 U.S. 504,
509 (2020)). “But after that, the road gets rockier. To file a second or successive
application in a district court, a prisoner must first obtain leave from the court of appeals
based on a ‘prima facie showing’ that his petition satisfies the statute’s gatekeeping
requirements.” Banister, 590 U.S. at 509 (citing 28 U.S.C. § 2244(b)(3)(C)); see also
Magwood v. Patterson, 561 U.S. 320, 330-31 (2010); Rule 9 of the Rules Governing
Section 2254 Cases in the United States District Courts (“Before presenting a second or
successive petition, the petitioner must obtain an order from the appropriate court of
appeals authorizing the district court to consider the petition as required by 28 U.S.C. §
2244(b)(3) and (4).”). Without that authorization, a district court lacks jurisdiction to
consider a second or successive petition and must transfer such a petition to the Court of
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Appeals for the Sixth Circuit. Franklin v. Jenkins, 839 F.3d 465, 475 (6th Cir. 2016); In
re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per curiam); 28 U.S.C. § 1631.
Not all habeas corpus petitions filed second (or later) in time are “second or
successive” within the meaning of § 2244(b). Banister, 590 U.S. at 511-12. Generally, a
petition targeting the same state court judgment challenged by a prior petition is second
or successive. Burton v. Stewart, 549 U.S. 147, 153 (2007). The Sixth Circuit utilizes the
following guidelines for determining whether a petition is second or successive:
A second-in-time petition is not considered second or successive when (1)
the second petition challenges a new state-court judgment; (2) the proposed
claim would have been unripe at the time of the original petition; or (3) the
proposed claim was not decided on the merits because it was dismissed as
unexhausted.
In re Gutierrez, No. 23-2004, 2024 WL 3333932, at *1 (6th Cir. Apr. 11, 2024) (cleaned
up).
Here, the instant Petition does not meet any of the exceptions set forth above. The
judgment challenged is Petitioner’s March 2002 Franklin County murder conviction and
life sentence under Case No. 01 CR 3599.1 This is the same judgment that he challenged
in the four previous habeas corpus cases listed above.
Petitioner appears to argue in the instant Petition that fraud and a miscarriage of
1 Viewed at
https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/caseSearch?or7coasT9wWPmU
BL00rk Public Records search under Petitioner’s name, Clive Melhado. This Court may
take judicial notice of court records that are available online to members of the public.
See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v. Stovall, 188 F.3d
327, 332 n.3 (6th Cir. 1999)).
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justice were committed because the criminal complaint filed upon his arrest was
dismissed when the grand jury returned a felony indictment against him. (Doc. 1, at 2). In
Case No. 2:04-cv-1146 (S.D. Ohio), Petitioner raised claims challenging the
constitutionality of Ohio Rev. Code § 2929.03(D)(3); the sufficiency of evidence; and the
effectiveness of trial counsel’s representation. His claims were denied and the action was
dismissed. The Sixth Circuit affirmed the judgment and also denied Petitioner’s request
to file a second or successive petition.
In Case No. 2:14-cv-402 (S.D. Ohio), Petitioner raised claims challenging the trial
court’s failure to advise him of his right to appeal; failure to impose proper post-release
control and issue a valid sentence; failure to consider proper sentencing factors; violation
of Petitioner’s right against double jeopardy; and failure to issue final appealable order—
“new” claims that could have been raised at the time he filed his original Petition. The
case was transferred to the Sixth Circuit as an unauthorized second or successive petition.
In Case No. 2:17-cv-725 (S.D. Ohio) and Case No. 2:18-cv-675 (S.D. Ohio),
Petitioner challenged the validity of the dismissal of his initial indictment (criminal
complaint upon his arrest) following the issuance by the grand jury of a felony
indictment—variations of the claim he seeks to raise in the instant Petition. Those cases
were also transferred to the Sixth Circuit as unauthorized second or successive petitions.
On March 6, 2026, this Court issued an order directing Petitioner to show cause
why the instant action should not be transferred to the Sixth Circuit Court of Appeals as
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an unauthorized second or successive petition. (Doc. 4). In response, Petitioner asserts
that the Pickaway Correctional Institution warden took illegal custody of Petitioner by
way of a void judgment, that he was given a death sentence for a crime he did not
commit, and that exculpatory evidence exists that he has been denied the ability to
produce. (Doc. 5, at 47). Without expressing any opinion as to the merits of Petitioner’s
assertions, the Undersigned finds that they are legally insufficient to establish that the
instant Petition is not second or successive.
Because the instant Petition is second or successive within the meaning of 28
U.S.C. § 2244(b), this Court lacks jurisdiction to proceed in the absence of prior
authorization by the Sixth Circuit. When a petitioner files a second or successive petition
in the District Court without first obtaining authorization from the Court of Appeals, the
District Court, in the interest of justice, pursuant to 28 U.S.C. § 1631, must transfer the
case to the Sixth Circuit for consideration as required by § 2244(b)(3). In re Sims, 111
F.3d at 47.
Accordingly, it is RECOMMENDED that this action be TRANSFERRED to the
Sixth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served
with a copy of the recommended disposition, a party may serve and file specific
written objections to the proposed findings and recommendations. This period
may be extended further by the Court on timely motion for an extension. Such
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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 Recommendation is based in whole or in part upon matters occurring on the
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 14
DAYS after being served with a copy of those objections. Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th
Cir. 1981).
March 19, 2026
KAREN L. LITKOVITZ
United States Magistrate Judge
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