United States District Court, S.D. Ohio, Western Division, Dayton
EVERETTE E. HOWARD, Petitioner,
WARDEN, London Correctional Institution Respondent.
M. Rose District Judge
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Michael R. Merz United States Magistrate Judge
case is before the Court on Petitioner's Objections (ECF
No. 36) to the Magistrate Judge's Report and
Recommendations (“Report, ” ECF No. 35). District
Judge Rose has recommitted the matter for reconsideration in
light of the Objections (ECF No. 38).
Petitioner has filed a Notice of Appeal (ECF No. 37), the
Notice does not deprive this Court of jurisdiction to
consider the Objections since they are in aid of the appeal,
being related to the certificate of appealability issue.
Objections are actually entitled “Objection to the
Liberal Consturction sua sponte by the District
Judge of COA to (60(b).” Petitioner correctly states
that Judge Rose in his Decision denying the writ of habeas
corpus also denied Howard a certificate of appealability
(Decision and Entry, ECF No. 29, PageID 1261). This Decision
was entered October 4, 2017, and was accompanied by the
Clerk's Judgment dismissing the case with prejudice (ECF
claims he then filed a “C.O.A. reconsideration”
which “the District Court clearly and erroneously
construed the C.O.A. out of the favor of petitioner, to a
Fed.R.Civ.P. 60(b)(1) motion at which petitioner does not
challenge that defense.” (Objections, ECF No. 36,
PageID 1293. He also claims that the District Court failed to
comply with 28 U.S.C. § 2253(c)(2) and (3). Finally he
asserts that “[t]he district court must construe as a
motion for reconsideration of C.O.A.” Id.,
citing Sanborn v. Parker, 2007 U.S. Dist. LEXIS
32542 (W.D. Ky. Feb. 14, 2007).
has not read Sanborn thoroughly enough. There the
petitioner moved, one month after judgment, to expand the
certificate of appealability granted by the District Court.
Judge Coffman found that motion was “tantamount to
moving this Court to reconsider the denial of his COA.”
Id. at *5. She went on to hold that “[a]
motion for reconsideration is construed as a motion to alter
or amend pursuant to Fed.R.Civ.P. 59(e).” Id.
Sanborn, however, had filed his motion to expand after the
mandatory deadline for filing Rule 59(e) motions. Judge
Coffman then held “[w]here a party's Rule 59 motion
is not filed within the mandatory 10-day period, however, it
is appropriate to consider the motion as a motion pursuant to
Rule 60 for relief from judgment.” Id. at *6.
exactly what happened here. Howard filed his Motion for
Certificate of Appealability by depositing it in the prison
mail system on November 20, 2017, forty-seven days after
judgment (Report, ECF No. 35, PageID 1288.) Recognizing that
fact, the Magistrate Judge did exactly what Judge Coffman
recommends in Sanborn: construing the motion as
being made under Fed.R.Civ.P. 60(b). Id. at PageID
1289. If, however, Howard insists on having his Motion
considered as a motion for reconsideration, it must be denied
as untimely; the district court has no power to modify the
time limit on Rule 59(e) motions for reconsideration.
relevant rules have changed since Sanborn. First of
all, the ten-day limit on motions to amend the judgment under
Fed.R.Civ.P. 59(e) has been extended to twenty-eight days.
Howard was, as noted, nineteen days late on that deadline.
Moreover, the practice on district court consideration of a
motion for certificate of appealability has changed. At the
time of Sanborn in 2007, it was not uncommon to wait
until after judgment on the merits to consider a certificate
of appealability. However, on December 1, 2009, the Supreme
Court adopted Rule 11 of the Rules Governing § 2254
Cases which requires a district court, to “issue or
deny a certificate of appealability when it enters a final
order adverse to the applicant.” That is precisely what
Judge Rose did in his Decision and Entry (ECF No. 29 at
Report treats Howard's request for a certificate of
appealability on the merits and finds no merit to it, i.e.,
that he had not shown reasonable jurists would disagree with
this Court's decision (Report, ECF No. 35, PageID
1289-91. He now makes no objection to that conclusion and the
Magistrate Judge therefore stands by his prior recommendation
that Howard not be granted relief from judgment to grant a
certificate of appealability. Howard now must apply to the
Court of Appeals for a certificate of appealability.
accordance with the foregoing analysis, Petitioner's
Motion for Certificate of Appealability (ECF No. 34) should
be denied as untimely if it is construed as he requests or
denied as without merit as recommended in the Report (ECF No.
35). In either event because reasonable jurists would not
disagree with this conclusion, Petitioner should be denied a
certificate of appealability on the Court's ruling on the
referenced Motion and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and
therefore should not be permitted to proceed in forma
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. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. .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 ...