United States District Court, S.D. Ohio, Western Division
OPINION AND ORDER
MICHAEL R. BARRETT, JUDGE UNITED STATES DISTRICT COURT
matter is before the Court on the Report and Recommendations
(“R&R”) of the Magistrate Judge. (Doc. 30).
Petitioner filed a response to the R&R, which the Court
treats as objections. (Doc. 32).
procedural background and the pertinent facts have been
thoroughly and adequately summarized in the Magistrate
Judge's previous R&Rs (Docs. 11, 23, 30), and thus,
will not be repeated here. However, the Court will identify
the facts relevant to its decision when addressing
Petitioner's objections below.
STANDARD OF REVIEW
objections to a magistrate judge's report and
recommendation are received on a dispositive matter, the
assigned district judge "must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to." Fed.R.Civ.P. 72(b)(3). After
review, the district judge "may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions." Id.; see also 28 U.S.C.
§ 636(b)(1). General objections are insufficient to
preserve any issues for review: "[a] general objection
to the entirety of the magistrate [judge]'s report has
the same effects as would a failure to object."
Howard v. Sec'y of Health & Human Servs.,
932 F.2d 505, 509 (6th Cir. 1991).
August 9, 2012, Petitioner filed his Petition for Writ of
Habeas Corpus. The Magistrate Judge recommended his Petition
be dismissed with prejudice as time-barred (Doc. 11).
Petitioner was, however, granted a certificate of
appealability limited to the question of whether he was
entitled to equitable tolling of the AEDPA one-year statute
of limitations. (Docs. 20, 25). On appeal, the Court affirmed
denial of equitable tolling. Henson v. Warden, Case
No. 13-4322 (6th Cir. July 29, 2015).
filed his Motion to Amend/Correct Petition for Writ of Habeas
Corpus at issue herein well over a year after the Sixth
Circuit affirmed this Court's Order. (Doc. 29). The
Magistrate Judge recommends denying Petitioner's motion,
reaching two related conclusions. First, the Magistrate Judge
found Petitioner was not presenting a new ground for relief;
rather, he argues the Court erred in not finding equitable
tolling appropriate. Thus, the Magistrate Judge concluded
Petitioner's motion should be treated as a motion for
relief from judgment under Federal Rule of Civil Procedure
60(b). Second, the Magistrate Judge concluded
Petitioner's motion was untimely.
objects, arguing he does present a new ground for relief. As
best the undersigned can tell, Petitioner appears to argue
the extraordinary circumstances present are that he is older
now, with a better understanding of the legal system and
thus, better able to represent himself. He also asserts
because he filed something at least once per year, he should
be permitted leave to amend his petition. Finally, he blames
previous counsel and the clerk's office for the
“procedural bar.” (Doc. 32, PageID 1340).
reviewed the issue de novo, the undersigned agrees
with the Magistrate Judge that Petitioner has not presented a
new ground for relief. Rather, he again argues he is entitled
to equitable tolling as a result of the extraordinary
circumstances now present. To the contrary, none of the
“circumstances” Petitioner argues are present
constitute extraordinary circumstances. Regardless, because
Petitioner does not present a new ground for relief, the
Magistrate Judge properly treated Petitioner's motion as
a Rule 60(b) motion.
to this motion, Federal Rule of Civil Procedure 60(c) states
as follows: “[a] motion under Rule 60(b) must be made .
. . no more than a year after the entry of judgment or order
or the date of the proceeding.” Fed.R.Civ.P. 60(c).
Because judgment was entered on October 29, 2013,
Petitioner's November 3, 2016 motion is untimely.
Petitioner's lack of awareness with respect to the
Federal Rules of Civil Procedure does not excuse his
consistent with the foregoing, Petitioner's objections
(Doc. 32) are OVERRULED and the Magistrate Judge's
R&R (Doc. 30) is ADOPTED IN ITS ENTIRETY. This ...