Folley v. Spatney

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEREK O. FOLLEY, ) CASE NO. 1:26-cv-64
)
)
Petitioner, ) CHIEF JUDGE SARA LIOI
)
vs. )
) ORDER OF TRANSFER
WARDEN JERRY SPATNEY, )
)
)
Respondent. )
On January 9, 2026, pro se petitioner Derek O. Folley filed the above-captioned petition
for a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1 (Petition).) The habeas petition
challenges his 2021 conviction in the Montgomery County Court of Common Pleas on three counts
of unlawful sexual conduct with a minor. (Id. at 1.)1 The state trial court sentenced petitioner to
three consecutive five-year custody terms for an aggregate custody sentence of 15 years, followed
by five years of post-release control. (Doc. No. 1-1 (State Court Judgment), at 1.) Petitioner is
currently serving his sentence in the Grafton Correctional Institution in Grafton, Ohio. (Doc. No.
1, at 1.)
In the present habeas application, petitioner asserts two ground for relief: (1) “double
jeopardy – multiplicitious sentencing”, and (2) “impartial jury violation – Blakely violation.” (Doc.
No. 1, at 5, 7.) Petitioner asks this Court to vacate two of the three counts of unlawful sexual
1 All page number references herein are to the consecutive page numbers applied to each individual document by the
Court’s electronic filing system. Further, unless otherwise noted, all record citations refer to the present case.
Case: 1:26-cv-00064-SL Doc #: 6 Filed: 01/14/26 1 of 5. PageID #: <pageID>

2
conduct with a minor as a violation of double jeopardy and then reverse and vacate his conviction
on the remaining count. (Id. at 15.)
This is not the first petition for a writ of habeas corpus under 28 U.S.C. § 2254 petitioner
filed to challenge his 2021 Montgomery County convictions. On December 13, 2021, petitioner
filed his first application for relief under § 2254. (See Folley v. Foley, No. 1:21-cv-2340 (N.D.
Ohio filed Dec. 13, 2021).) In that prior habeas application, petitioner asserted six grounds for
relief: (1) speedy trial violations, (2) impartial jury violation, (3) Brady violations and denial of
due process, (4) double jeopardy – multiplicity indictment violation, (5) compulsory process
violation, and (6) miscarriage of justice. (See Folley, N.D. Ohio No. 1:21-cv-2340, Doc. No. 1
(Petition).) On March 3, 2022, this Court transferred the petition, pursuant to 28 U.S.C. § 2241(d),
to the United States District Court for the Southern District of Ohio. (See id., N.D. Ohio No. 1:21-
cv-2340, Doc. No. 33 (Order of Transfer).)
Upon receiving the transfer, the Southern District of Ohio assigned the action a new case
number. (See Folley v. Foley, S.D. Ohio No. 3:22-cv-65, Doc. No. 34 (Order).) On November 7,
2022, the assigned magistrate judge issued an omnibus report and recommendation (“R&R”),
recommending that the petition be denied and dismissed with prejudice as procedurally defaulted.
(See id., S.D. Ohio No. 3:22-cv-65, Doc. No. 203 (R&R).) On November 29, 2022, the district
court adopted the R&R and dismissed the petition with prejudice as procedurally defaulted. (See
id., S.D. Ohio No. 3:22-cv-65, Doc. No. 217 (Entry & Order Overruling Objections to R&R); Doc.
No. 218 (Judgment).). Petitioner appealed that decision to the Sixth Circuit Court of Appeals. (See
id., S.D. Ohio No. 3:22-cv-65, Doc. No. 229 (Notice of Appeal).) On May 25, 2023, the Sixth
Circuit denied petitioner’s application for a certificate of appealability, finding the grounds
Case: 1:26-cv-00064-SL Doc #: 6 Filed: 01/14/26 2 of 5. PageID #: <pageID>

3
asserted in the petition procedurally defaulted. (See id., S.D. Ohio No. 3:22-cv-65, Doc. No. 265
(Order).).
Now, nearly three years later, petitioner has filed a second petition for a writ of habeas
corpus under 28 U.S.C. § 2254 challenging the same conviction, and asserting two of the same
grounds for relief that he raised in his prior petition, specifically “double jeopardy – multiplicitious
sentencing” and “impartial jury violation.” (Doc. No. 1, at 5, 7.) Before a second or successive
habeas application can be filed in the district court, a petitioner must move in the appropriate court
of appeals for an order authorizing the district court to consider the application. 28 U.S.C. §
2244(b)(3)(A). The district court does not have jurisdiction to entertain a successive habeas
petition in the absence of an order from the court of appeals authorizing the filing. In re Sims, 111
F.3d 45, 47 (6th Cir. 1997). When a second or successive petition is filed in this Court without §
2244(b)(3) authorization, the Court must transfer the petition to the Sixth Circuit. See id.
Not every numerically second habeas petition, however, is subject to these gatekeeping
procedures. To be “successive” within the meaning of the statute, the subsequent petition must
relate to the same conviction or sentence under attack in the prior petition. See In re Page, 179
F.3d 1024, 1025 (7th Cir. 1999) (collecting cases). Even then, not all subsequent petitions relating
to the same conviction or sentence are considered successive. See Slack v. McDaniel, 529 U.S.
473, 487, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637,
643, 118 S. Ct. 1618, 140 L. Ed. 2d 849 (1998). The later petition is not successive where the first
petition was dismissed as premature, see, e.g., Stewart, 523 U.S. at 643; was dismissed without
prejudice for failure to exhaust state court remedies, see, e.g., Slack, 529 U.S. 485–86; or was
dismissed because the petitioner failed to either pay the filing fee or provide proper support for his
Case: 1:26-cv-00064-SL Doc #: 6 Filed: 01/14/26 3 of 5. PageID #: <pageID>

4
application for pauper status, see, e.g., Stewart, 523 U.S. at 645 (citing Marsh v. United States
District Court for the Northern District of California, No. 94-cv-0581, 1995 WL 23942 (N.D. Cal.
Jan. 9, 1995)). In all of those contexts, the district court has jurisdiction to consider the subsequent
petitions, without first obtaining authorization from the court of appeals, because the prior
dispositions were not “on [the] merits.” See Slack, 529 U.S. at 485–86.
Conversely, when a prior petition is dismissed “on the merits,” the prisoner must obtain
authorization from the court of appeals pursuant to § 2244(b)(3) before filing a subsequent federal
habeas petition. In re Cook, 215 F.3d 606, 608 (6th Cir. 2000). These include second petitions filed
after the petitioner’s first petition was dismissed on the grounds of procedural default or on the
grounds that it was barred by the statute of limitations. See, e.g., id. (permission required where
grounds in first petition were procedurally barred); Staffney v. Booker, No. 2:09-cv-14553, 2009
WL 4506425, at *1 (E.D. Mich. Nov. 25, 2009) (permission required where first petition was time-
barred).
Before the Court can consider the merits of this petition, it must determine whether it is
successive. Petitioner’s prior petition challenged the same conviction that is the subject of this
petition. Additionally, petitioner asserted the claims in this petition in his prior petition. The prior
petition was dismissed on the merits as procedurally defaulted. The Court concludes, therefore,
that this is a successive petition. That being the case, this Court is without jurisdiction to entertain
this petition, unless authorized to do so by the Sixth Circuit.
Case: 1:26-cv-00064-SL Doc #: 6 Filed: 01/14/26 4 of 5. PageID #: <pageID>

5
Accordingly, the Clerk is ORDERED to TRANSFER this habeas petition to the United
States Court of Appeals for the Sixth Circuit for authorization to file a subsequent petition as
required by 28 U.S.C. § 2244(b)(3)(A) pursuant to 28 U.S.C. § 1631.
IT IS SO ORDERED.
Dated: January 14, 2026
HONORABLE SARA LIOI
CHIEF JUDGE
UNITED STATES DISTRICT COURT
Case: 1:26-cv-00064-SL Doc #: 6 Filed: 01/14/26 5 of 5. PageID #: <pageID>