United States District Court, S.D. Ohio, Western Division
M. Rose District Judge.
REPORT AND RECOMMENDATIONS ON TWELFTH MOTION FOR
RELIEF FROM JUDGMENT
Michael R. Merz United States Magistrate Judge.
case is before the Court on Defendant's Motion for Relief
from Judgment under Fed.R.Civ.P. 60(b)(Doc. No. 266). This is
Mr. Lewis's twelfth motion for relief from the judgment
of this Court denying his Motion to Vacate under 28 U.S.C.
Second Supplemental Report on Mr. Lewis's eleventh Rule
60 motion, the magistrate Judge noted:
The Motion before the Court on which two prior Reports have
been filed is Lewis' eleventh motion for relief from the
judgment dismissing his Motion to Vacate under 28 U.S.C.
§ 2255. In the Motion, Lewis claims he was denied due
process of law when the Court did not issue an order to him
to show cause why his Motion to Vacate was not untimely
before dismissing the Motion on statute of limitations
grounds, a procedure he claims is commanded by Day v.
McDonough, 547 U.S. 198 (2006).
Lewis' Motion to Vacate was filed and dismissed sua
sponte for untimeliness in August 2011. Lewis did not
seek to appeal the lack of notice and an opportunity to be
heard. He first raised that claim in a Rule 60(b) motion in
November 2011. The Magistrate Judge recommended denying a
certificate of appealability from the denial both on
Lewis' overbroad reading of Day and on the
merits of the limitations issue (ECF No. 141). Both Judge
Rose and the Sixth Circuit denied a certificate of
appealability on that issue (ECF No. 156 and Lewis v.
United States, No. 12-3315 (6th Cir. May 23,
2012)(unreported, copy at ECF No. 165). Since that time Lewis
has repeatedly sought and been denied relief from judgment
(ECF Nos. 190, 192, 197, 208, 224). On that basis, the two
prior Reports on the instant Motion recommend denial on the
basis of the law of the case.
(ECF No. 240).
avoid another denial on the basis of the law of the case
doctrine, Mr. Lewis relies on Buck v. Davis, 580
U.S.__, 137 S.Ct. 759, 197 L.Ed.2d 1 (2017). He asserts that
Buck holds “that the District Courts must not be the
same judge to issue the C.O.A. [certificate of appealability]
in the same motion as he decided on the merits, ” (ECF
No. 266, PageID 1891).
Buck the Supreme Court held that when a
court of appeals decides the certificate of
appealability question on the basis of and only after
deciding the merits of the case, it “is in essence
deciding an appeal without jurisdiction.” 137 S.Ct. at
773, quoting Miller-El v. Cockrell, 537 U.S. 322,
in considering Lewis's most recent appeal, the Sixth
Circuit did not commit the error identified in Buck.
Instead, it decided the certificate of appealability issue
without reaching the merits. Lewis v. United States,
Case No. 16-4077 (6th Cir. Mar. 23,
2017)(unreported; copy at ECF No. 263, PageID 1812-14).
of course, does not argue error in the court of appeals, but
that this Court erred, in violation of the Buck
decision, by deciding the merits and the certificate of
appealability question by the same judge who decided the
was handed down February 22, 2017. This Court is unaware of
any prior holding by the United States Supreme Court that a
court of appeals could not pretermit the certificate of
appealability analysis and deny a certificate because the
appeal would lack merit. This ruling in Buck is
therefore a new rule which is not applicable to cases on
collateral review. Teague v. Lane, 489 U.S. 288
even assuming Buck were to be applied to cases on collateral
review, it does not in any way hold that a different judge
must decide the merits and the certificate of appealability
question. Rather, it holds that a court of appeals must
decide the appealability question before it reaches the
merits of a habeas or § 2255 case.
Court, of course, also decided the certificate of
appealability question. Although 28 U.S.C. § 2253 on its
face assigns certificate of appealability questions to the
circuit courts, those courts have held since shortly after
the Antiterrorism and Effective Death Penalty Act of 1996
(Pub. L. No 104-132, 110 Stat. 1214)(the "AEDPA")
was enacted that the initial decision on appealability
certificates is to be made by the district courts.
Kincade v. Sparkman, 117 F.3d 949 (6th Cir.
1997)(adopting analysis in Lozada v. United States,107 F.3d 1011, 1017 (2nd Cir. 1997). To reinforce that order
of proceeding, the Supreme Court has included the requirement
that “[t]he district ...