United States District Court, S.D. Ohio, Western Division, Cincinnati
Michael R. Barrett, District Judge
REPORT AND RECOMMENDATIONS ON WARDEN'S MOTION FOR
RECONSIDERATION OF RECOMMITTAL
Michael R. Merz, United States Magistrate Judge
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on the Warden's Motion (ECF No. 42) asking the
District Court to reconsider its Recommittal Order (ECF No.
ECF No. 37). Although the Motion is pre-trial and
non-dispositive, it asks a District Judge to reconsider an
order made by that Judge sua sponte, and is
therefore appropriate for a recommendation from the assigned
disfavor motions for reconsideration because they consume a
court's scarce time for attention to a matter that has
already been decided. They are subject to limitations based
on that disfavor.
As a general principle, motions for reconsideration are
looked upon with disfavor unless the moving party
demonstrates: (1) a manifest error of law; (2) newly
discovered evidence which was not available previously to the
parties; or (3) intervening authority. Harsco Corp. v.
Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985),
cert. denied, 476 U.S. 1171, 90 L.Ed.2d 982 (1986).
Meekison v. Ohio Dep't of Rehabilitation &
Correction, 181 F.R.D. 571, 572 (S.D. Ohio
Warden does not suggest the Recommittal Order is based on a
manifest error of law or that he has new evidence or
intervening authority. Instead, the Warden objects to the
order of proceeding, arguing that he is entitled to a ruling
on his Objections to the Interim Report and Recommendations
before discovery is done and the Court takes evidence. But he
points to no law supporting that manner of proceeding. In the
exercise of judicial discretion for the staging of
proceedings, the Magistrate Judge could have ordered
discovery and an evidentiary hearing before filing any report
at all. The Interim Report had the intention and has served
the function of narrowing the issues to be decided.
true that as the case is presently scheduled, the Attorney
General's Office will have to staff the discovery and the
evidentiary hearing, expenditures of resources that Office
would not have to make if they could achieve an outright
victory at this stage of the proceedings. But by ordering
discovery and an evidentiary hearing, the Magistrate Judge
has in effect decided the case will not be ripe for decision
without the additional evidence. If the Warden believes it
was error to grant discovery and a hearing, he could have
objected to those orders, but did not do so within the time
allowed by Fed.R.Civ.P. 72.
essence of the Warden's Motion appears to be
“consideration of the merits of the juror bias claim by
an Article III judge should be a necessary step before this
federal court intrudes on the sanctity of a state trial
court's jury room.” (Motion, ECF No. 42, PageID
3845). But federal habeas corpus law does not provide for any
such “necessary” step nor single out particular
kinds of constitutional claims which are too important to be
heard by magistrate judges in the first instance.
Court committed no error of law in recommitting the matter.
Such recommittal is expressly authorized by Fed.R.Civ.P. 72.
The Motion for Reconsideration should therefore be DENIED.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Such objections shall
specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections within fourteen days after being served with a
copy thereof. Failure to make objections in accordance with
this procedure may forfeit rights on appeal. See United
States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981);
Thomas v. Arn, 474 U.S. 140, 153-55 (1985).