Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Lewis

United States District Court, S.D. Ohio, Western Division

October 30, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEREMY E. LEWIS, Defendant.

          Thomas M. Rose District Judge.

          REPORT AND RECOMMENDATIONS ON TWELFTH MOTION FOR RELIEF FROM JUDGMENT

          Michael R. Merz United States Magistrate Judge.

         This 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. § 2255.

         In a 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).

         To 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).

         In 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, 336-37 (2003).

         Moreover, 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).

         Lewis, 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 merits.

         Buck 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 (1989).

         But 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.

         This 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.