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Chipman v. Bottom

United States District Court, E.D. Kentucky, Northern Division, Covington

July 21, 2015

GREGORY WAYNE CHIPMAN, Petitioner,
v.
DON BOTTOM, Warden, Northpoint Training Center Respondent.

ORDER

AMUL R. THAPAR, District Judge.

Petitioner Gregory Wayne Chipman filed a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254, claiming that his conviction violated the Fourteenth Amendment due to a number of procedural errors in his indictment and trial, as well as ineffective assistance from trial and appellate counsel. R. 1. Magistrate Judge Candace J. Smith filed a Report and Recommendation ("R&R"), finding that the Court lacks jurisdiction to hear Chipman's petition because it is a second or successive petition. R. 4. Chipman objected to Judge Smith's R&R, but conceded that this is a second or successive petition. R. 5 at 1 (conceding that Magistrate Judge Smith accurately recited procedural history and current posture). Accordingly, the Court will adopt Judge Smith's R&R as the opinion of the Court and transfer Chipman's petition to the Sixth Circuit.

In his objection to the R&R, Chipman complains that Judge Smith did not examine the record or address his petition on the merits. R. 5 at 2. Judge Smith's R&R notes that Chipman filed at least two prior § 2254 petitions. R. 4 at 4. He filed an unsuccessful petition in 2005, and a second unsuccessful petition in 2007. Id. at 2-3. Chipman concedes that Judge Smith correctly recited the procedural history of this case, including his prior petitions. R. 5 at 1. Chipman must receive authorization from the Sixth Circuit Court of Appeals before he can file a second or successive § 2254 petition-and before the Court can address the merits of his claims. See 28 U.S.C. § 2244(b)(3)(A). Chipman did not receive the required authorization. As a result, the Court must transfer his petition to the Sixth Circuit. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).

Accordingly, it is ORDERED that:

(1) The R&R, R. 4, is ADOPTED as the opinion of the Court.
(2) Chipman's petition for a writ of habeas corpus, R. 1, is TRANSFERRED to the Sixth Circuit Court of Appeals, pursuant to 28 U.S.C. § 1631.

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