OPINION AND ORDER
EDMUND A. SARGUS, Jr., Chief District Judge.
On April 25, 2017, the Magistrate Judge issued a Report and Recommendation recommending that Petitioner's Motion for Relief from Judgment (ECF No. 52) be transferred to the United States Court of Appeals for the Sixth Circuit as a successive petition pursuant to 28 U.S.C. § 2244(b). (ECF No. 65.) Petitioner has filed an Objection to the Magistrate Judge's Report and Recommendation. (ECF No. 68.) Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner's Objection (ECF No. 68) is
Petitioner seeks reconsideration of the Court's June 11, 2011, Judgment of dismissal of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that the Ohio Court of Appeals illegally remanded his case for re-sentencing on the offense of felony murder, acting beyond the scope of its jurisdiction. Because this constitutes a new claim for relief, the Magistrate Judge recommended that the motion be transferred to the Sixth Circuit Court of Appeals for authorization for filing as a successive petition. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005).
Petitioner objects to the Magistrate Judge's recommendation. Petitioner maintains that his motion may properly be considered under the provision of Rule 60(b) of the Federal Rules of Civil Procedure, because he raises an issue regarding the state appellate court's alleged lack of subject matter jurisdiction, which he inadvertently overlooked when he filed his habeas corpus petition, and which issue, he contends, may be raised at any time. Petitioner also disputes the characterization of his Rule 60(b) motion as raising a new claim for relief. Petitioner asserts that the transfer of this case to the Court of Appeals as successive will violate the Suspension Clause. Petitioner seeks a certificate of appealability.
However, as discussed by the Magistrate Judge, this Court lacks jurisdiction to consider new claims raised by a Petitioner in a Rule 60(b) motion.
Franklin v. Jenkins, 839 F.3d 465, 473 (6
Petitioner has requested a certificate of appealability. "In contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal court holds no automatic right to appeal from an adverse decision by a district court." Jordan v. Fisher, ___ U.S. ___, ___, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)(requiring a habeas petitioner to obtain a certificate of appealability in order to appeal.) The petitioner must establish the substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473, 484 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). To make a substantial showing of the denial of a constitutional right, a petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893 n. 4).
Petitioner has failed to meet this standard here. Petitioner's motion plainly constitutes a successive petition. Reasonable jurists would not debate whether the Court properly transferred the motion as a successive petition.
Therefore, Petitioner's Objection (ECF No. 68) is