In re: Kenneth Smith v.

                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 12a0283p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                  X
                                                   -
 In re: KENNETH W. SMITH,
                                                   -
                                         Movant.
                                                   -
                                                   -
                                                       No. 12-3425

                                                   ,
                                                    >
                                                  N
                    Appeal from the United States District Court
                   for the Southern District of Ohio at Cincinnati.
                No. 1:12-cv-00196—Thomas M. Rose, District Judge.
                         Decided and Filed: August 24, 2012
              Before: MOORE, CLAY, and STRANCH, Circuit Judges.

                                  _________________
                                        ORDER
                                  _________________
       Kenneth Smith filed in the district court a numerically second petition for a writ
of habeas corpus that he claims is not “second or successive” within the meaning of 

28 U.S.C. § 2244

(b) because the claims included in the petition are newly ripe. The district
court, uncertain whether the petition was “second or successive,” transferred the case to
us to decide that question in the first instance. We decline to do so.

       A district court has jurisdiction to consider numerically second petitions that are
not “second or successive” petitions within the meaning of 

28 U.S.C. § 2244

(b) and
needs no authorization from us to consider them when they are filed in the district court.
See Stewart v. Martinez-Villareal, 

523 U.S. 637, 642

 (1998) (holding “no need for
[petitioner] to apply for authorization to file a second or successive petition” from court
of appeals because petition not successive); see also Magwood v. Patterson, 

130 S. Ct. 2788, 2796, 2803

 (2010) (holding district court did not err in considering merits of new
petition without prior authorization because petition was not successive); Burton v.
Stewart, 

549 U.S. 147, 153

 (2007) (holding district court lacked jurisdiction to review


                                            1
No. 12-3425         In re Kenneth Smith                                               Page 2


new petition because it was successive and therefore required authorization); Panetti v.
Quarterman, 

551 U.S. 930, 947

 (2007) (holding district court properly considered merits
of new petition because not successive; no prior involvement from court of appeals).

        Our opinion in In re Sims, 

111 F.3d 45, 47

 (6th Cir. 1997), which came before
the Supreme Court’s long line of cases clarifying the meaning of “successive,” does not
hold that district courts may transfer a numerically second petition to the court of appeals
to decide in the first instance whether the petition is “successive” under § 2244(b).
Indeed, that would contradict the clear language in Martinez-Villareal and subsequent
cases that a district court may (and should) rule on newly ripe claims and is “not required
to get authorization” from the court of appeals before doing so. 

523 U.S. at 644

.
Instead, Sims instructs district courts to transfer only “successive” petitions to our court
for want of jurisdiction under 

28 U.S.C. § 1631

 rather than dismiss them outright.

        Here, however, the district court never ruled that Smith’s petition was successive
and therefore that the district court lacked jurisdiction. Instead, the district court was “in
doubt” of its jurisdiction over the petition, and because the issue was “unclear,” decided
to transfer the petition to us to decide the jurisdictional question. R. 10 (Order at 4-6)
(Page ID #128-30). The district court suggested that “the Judicial Code offers a plainly
available method to determine jurisdiction,” but cites only Sims. 

Id. at 6

 (emphasis
added) (Page ID #130). We have found no rule, statute, or case that permits a lower
court to transfer a case to an appellate court when it is uncertain of its jurisdiction for an
advisory ruling. As discussed above, Sims offers instructions on what district courts
should do after determining that a lower court lacks jurisdiction; Sims does not create
a mechanism for uncertain district courts to transfer petitions to us for guidance on their
jurisdiction to hear a case.

        We therefore VACATE the district court’s transfer order as premature and
REMAND for a determination in the first instance of whether Smith’s claims are
successive within the meaning of 

28 U.S.C. § 2244

(b).

IT IS SO ORDERED.
No. 12-3425         In re Kenneth Smith                                             Page 3


                              ________________________

                               CONCURRING IN PART
                              ________________________

         CLAY, Circuit Judge, concurring in part. Under 

28 U.S.C. § 2244

, second-in-
time applications for a writ of habeas corpus are deemed “second or successive” unless
the claim(s) therein are based upon on a new constitutional rule of law that is
retroactively applicable or the factual basis for the claim(s) could not have been
discovered prior to the filing of the first habeas application and would demonstrate the
petitioner’s innocence. 

28 U.S.C. § 2244

(b)(2). If a claim is “deemed to arise in a
‘second or successive habeas corpus application,’” then “the petitioner must obtain leave
from the Court of Appeals before filing it with the district court.” Magwood v.
Patterson, 

130 S. Ct. 2788, 2796

 (2010) (citing 

28 U.S.C. § 2244

(b)(3)(A)). Without
authorization from the Court of Appeals, the district court must dismiss a second or
successive petition. 

28 U.S.C. § 2244

(b)(1). If, however, a habeas petition is “not
second or successive, it [is] not subject to § 2244(b) at all,” and the claims are
immediately reviewable by the district court without the necessity of authorization from
a Court of Appeals. Magwood, 

130 S. Ct. at 2796

; Stewart v. Martinez-Villareal,

523 U.S. 637

, 643–45 (1998); Storey v. Vasbinder, 

657 F.3d 372

, 376–78 (6th Cir.
2011).

         I agree with the majority that when a petitioner files a habeas application in the
district court, the district court must decide in the first instance 1) whether the habeas
application is deemed second or successive under 

28 U.S.C. § 2244

(b) and thus must be
transferred to the Court of Appeals for authorization prior to being considered, 

28 U.S.C. § 2244

(b)(3)(A); In re Sims, 

111 F.3d 45, 47

 (6th Cir. 1997); or 2) whether the
application is not second or successive and thus may be immediately reviewed by the
district court. See In re Bowen, 

436 F.3d 699

, 705–06 (6th Cir. 2006). However,
regardless of whether the district court’s order in this case explicitly found Smith’s
habeas petition to be second or successive, the magistrate judge did in fact transfer
Smith’s petition to our Court; consequently, we should determine the most prudent and
advisable disposition given the procedural status of the case.
No. 12-3425         In re Kenneth Smith                                              Page 4


        The majority remands the case for the district court to expressly state whether
Smith’s petition is second or successive. Following these instructions on remand, the
district court could decide that the petition is not second or successive and then proceed
to review it on the merits. Martinez-Villareal, 523 U.S. at 645–46. Alternatively, the
district court could decide that the petition is second or successive and again transfer the
petition to our Court for authorization under § 2244(b)(3)(A) to proceed to the merits of
the habeas claims. Magwood, 

130 S. Ct. at 2796

; Sims, 

111 F.3d at 47

. If the latter
circumstance occurs, we would be in the identical position that we are in currently, but
the time, energy, and resources of this Court and the parties will have been expended to
relitigate the same matters presented twice below and on appeal. Consequently, in the
interest of judicial economy, I would reach the issue and hold that the petition is not
second or successive and thus needs no authorization from this Court to proceed. See
generally Salling v. Budget Rent-A-Car Sys., 

672 F.3d 442, 444

 (6th Cir. 2012); Lexicon,
Inc. v. Safeco Ins. Co. of Am., 

436 F.3d 662

, 670 n.6 (6th Cir. 2006). This decision is
warranted because Smith’s claims involve the constitutionality of Ohio’s new lethal
injection execution policy and protocol, which was not adopted until September 18,
2011, as well as the constitutionality of the protocol as it applies to Smith, given his
recent 2009 diagnosis with laryngeal cancer and other medical problems. Smith alleges
that the procedures under the new protocol would create unconstitutionally extreme and
unnecessary pain given his physical condition and treating medical devices that affect
his ability to lie on his back, speak, eat, drink, and breathe. These claims were not ripe
at the time Smith filed his prior habeas petition. Needless to say, as a result, this case
would be remanded to the district court for the issues to be addressed on the merits.
Bowen, 436 F.3d at 705–06.

                                ENTERED BY ORDER OF THE COURT



                                          /s/ Leonard Green
                                                Clerk