Jackson v. Warden Pickaway Correctional Institution

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Dion Jackson,
Plaintiff,
v.
Warden, Pickaway Correctional
Institution,
Defendant.
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Case No. 1:25-cv-180
Judge Susan J. Dlott
Order Adopting Report and
Recommendation
This matter is before the Court on the Magistrate Judge’s October 16, 2025 Report and
Recommendation (“R&R”) recommending that this action be transferred to the United States
Court of Appeals for the Sixth Circuit as a second or successive petition and ordering that
Petitioner’s Motion for Status Update or Ruling (Doc. 4) be denied as moot. (Doc. 5.) On
October 27, 2025, Petitioner filed an Objection. (Doc. 6.) For the reasons that follow, the Court
will OVERRULE the Objection (Doc. 6), ADOPT the R&R (Doc. 5), and TRANSFER this
action to the United States Court of Appeals of the Sixth Circuit as a second or successive
petition.
Petitioner Dion Jackson is an inmate in state custody at the Pickaway Correctional
Institution, in Orient, Ohio. On March 20, 2025, he filed a pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, challenging his 2009 Hamilton County, Ohio convictions
and sentence in Case No. 08-cr-5964 for one count of murder and two counts of felonious
assault, each with firearm specifications.1 (See Doc. 1.)
1 Petitioner’s underlying criminal case can be viewed at the Hamilton County Clerk of Court’s webpage:
https://www.courtclerk.org/data/case_summary.php?sec=history&casenumber=%2F08%2FCRA%2F23402&submi
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Applying law from the Sixth Circuit, the Magistrate Judge determined that Jackson’s
Petition is a second or successive Petition challenging the same 2009 judgment that was at issue
in his previous § 2254 habeas case. (Compare Case No. 1:11-cv-449 (Doc. 1, PageID 1) with
Case No. 1:25-cv-180 (Doc 1, PageID 1)). The Magistrate Judge also determined that
Petitioner’s sole ground for relief, asserting error by the trial court in failing to instruct the jury
on voluntary manslaughter, was not “unripe” at the time of his initial Petition and appears to be a
reformation of his Ground Six in his initial petition. (See Case No. 1:11-cv-449 (Doc. 1, PageID
11)). The Magistrate Judge determined that Petitioner’s reliance upon the Ohio Supreme Court’s
decision in State v. Thompson, 23 N.E.3d 1096 (Ohio 2014) to make his argument does not
change the Court’s analysis. “Although Thompson was decided after his 2009 convictions, the
Ohio Supreme Court relied upon two 1992 Ohio Supreme Court cases—decided well before
Petitioner’s convictions—to set forth the test for voluntary manslaughter.” (Doc. 5 at PageID
27–28 (citing Thompson, 23 N.E.3d at 1133)). Thus, the Magistrate Judge found that the same
legal standards applied in 2011, when Petitioner filed his first Petition challenging the same
convictions he raises now.
Finally, the Magistrate Judge determined that Petitioner’s previous federal habeas corpus
Petition was not dismissed for containing unexhausted claims. See In re Gutierrez, No. 23-2004,
2024 WL 3333932, at *1 (6th Cir., April 11, 2024) (“The exception for unexhausted claims is
meant to allow a petitioner to return to federal court when he has had some of his § 2254 claims
dismissed as unexhausted[.]”). Rather, Petitioner’s first § 2254 challenge to his convictions was
denied because his claims were without merit, non-cognizable, and procedurally defaulted. (See
t.x=21&submit.y=13 (searched under Petitioner’s name and case number). The Court takes judicial notice of this
case docket. See Chase v. Macauley, 971 F.3d 582, 587 n.1 (6th Cir. 2020) (citing Lyons v. Stovall, 188 F.3d 327,
332 n.3 (6th Cir. 1999)).
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Case No. 1:11-cv-449 (Doc. 24, PageID 1214–15)).
Because the Petition is a second or successive petition within the meaning of 28 U.S.C. §
2244(b), the Magistrate Judge determined that this Court lacks jurisdiction to consider it in the
absence of prior authorization by the Sixth Circuit. When a prisoner has filed a second or
successful habeas 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 is required to
transfer the case to the Sixth Circuit for consideration as required under § 2244(b)(3). See In re
Sims, 111 F.3d 45, 46 (6th Cir. 1997).
Title 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure Rule 72(b)(1)
authorize magistrate judges to make recommendations concerning dispositive motions that have
been referred to them. Parties then have fourteen days to file and serve specific written
objections to the report and recommendations. 28 U.S.C. 636(b)(1); Fed. R. Civ. P. 72(b)(2). If
a party files objections to a report and recommendation on a dispositive matter, a district judge
must review the objections under the de novo standard. Baker v. Peterson, 67 F. App’x 308, 310
(6th Cir. 2003). “The district judge may accept, reject, or modify the recommended disposition;
receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (substantially similar).
Jackson filed an Objection to the Magistrate Judge’s R&R on October 27, 2025. (Doc.
6.) In his Objection, he asserts that his new Petition is not a second or successive pleading under
§ 2244(b) because it rests on “new evidence.” (Doc. 6 at PageID 32.) Pursuant to 28 U.S.C. §
2244(b)(1), the federal district court must dismiss a claim presented in a second or successive
habeas corpus petition that was raised in a prior petition. The court must dismiss a claim
presented in a second or successive petition, which the petitioner did not include in the prior
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petition, unless: (1)(a) petitioner shows the claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the United States Supreme Court, that was previously
unavailable; or (b) the factual basis for the claim could not have been discovered previously
through the exercise of due diligence; and (2) the facts would be sufficient
to establish by clear and convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the petitioner guilty of the underlying offense. 28 U.S.C. §
2244(b)(2).
Here, the Magistrate Judge determined, and the undersigned agrees, that Petitioner’s
argument was already presented in his prior habeas action. In his Objection, Petitioner seems to
be arguing that evidence was newly obtained and establishes his innocence but that the evidence
was suppressed previously. (Doc. 6 at PageID 32–33.) Petitioner does not identify what the
newly obtained evidence is or why it could not have been discovered previously. Nor does he
establish that the facts would be sufficient to establish by clear and convincing evidence that, but
for constitutional error, no reasonable factfinder would have found the petitioner guilty of the
underlying offense. 	Finding the objection to be vague and general, the Court overrules the
Objection.
The Court finds the R&R (Doc. 5) to be thoughtfully considered and well-taken. The
Court ADOPTS the R&R (Doc. 5) and TRANSFERS Petitioner’s habeas corpus Petition to the
Sixth Circuit Court of Appeals pursuant to 28 U.S.C. § 1631 as a second or successive habeas
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corpus application seeking relief under 28 U.S.C. § 2254.
IT IS SO ORDERED.
BY THE COURT:
S/Susan J. Dlott
Susan J. Dlott
United States District Judge
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