United States District Court, S.D. Ohio, Western Division
DERRICK L. JOHNSON, Petitioner,
CHARLES BRADLEY, Warden, Pickaway Correctional Institution, Respondent.
AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATIONS ON MOTION TO VACATE (DOC. #41),
REPORT AND RECOMMENDATIONS ON MOTION TO AMEND OR FROM RELIEF
FROM JUDGMENT (DOC. #44), AND REPORT AND RECOMMENDATIONS ON
RECOMMITTAL (DOC. #46); OVERRULING PETITIONER'S
OBJECTIONS THERETO (DOCS. ##42 AND 51); OVERRULING
PETITIONER'S MOTION TO VACATE AND REINSTATE CASE DUE TO
LACK OF SERVICE OF THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION[S] (DOC. #40); OVERRULING PETITIONER'S
MOTION TO AMEND, OR IN THE ALTERNATIVE, FOR RELIEF FROM
JUDGMENT UNDER FED. R. CIV. P. 59 AND 60 (DOC. #43); CASE TO
REMAIN TERMINATED ON DOCKET
H. RICE, UNITED STATES DISTRICT JUDGE
October 2, 2017, the Court issued a Decision and Entry
Adopting Magistrate Judge Merz's September 8, 2017,
Report and Recommendations, and sustaining Respondent's
Motion to Dismiss the Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus. Docs. ##35, 36. The Court noted
that no Objections had been filed. Moreover, the Petition was
"extremely untimely" and Petitioner had failed to
show that equitable tolling was warranted or that the
"actual innocence" exception applied. Doc. #36.
Judgment was entered in favor of Respondent and against
Petitioner. Doc. #37.
then filed a Motion to Compel Service of the September 8,
2017, Report and Recommendations, claiming that he was not
properly served with a copy. Doc. #38. That motion was
denied as not credible. Doc. #39.
October 12, 2017, Petitioner filed a Motion to Vacate and
Reinstate Case Due to Lack of Service of the Magistrate
Judge's Report & Recommendation[sj. Doc. #40. The
following day, Magistrate Judge Merz issued a Report and
Recommendations on Motion to Vacate, noting that no mail had
been returned to the Court, and that "[p]rior and
subsequent docket entries of Court-generated documents show
the same method of service (See ECF Nos. 6, 9, 10, 12, 16,
18, 24, 36, 37, & 39)." He also noted that the
motion did not include any substantive reasons why Petitioner
believed that the judgment was wrong. He recommended that the
Court deny the motion "without prejudice to the timely
filing of a motion under Fed.R.Civ.P. 59(e) which includes
any substantive objections Mr. Johnson has to the
judgment." Doc. #41.
November 2, 2017, Petitioner filed Objections to the October
13, 2017, Report and Recommendations, pointing out that the
September 8, 2017, Report and Recommendations (ECF #35) were
not included on the list of Court-generated documents cited
by Magistrate Judge Merz. Doc, #42. The Court recommitted
this issue to Magistrate Judge Merz. Doc. #45.
November 2, 2017, Petitioner also filed a Motion to Amend, or
in the Alternative, for Relief from Judgment Under
Fed.R.Civ.P. 59(e)(3) and 60(b)(6), again arguing only that
he had not received a copy of the September 8, 2017, Report
and Recommendations "via certified U.S. Mail, " and
that this document was not included on the list cited by
Magistrate Judge Merz. Doc. #43.
November 3, 2017, Magistrate Judge Merz issued a Report and
Recommendations on Motion to Amend or for Relief from
Judgment. He first noted that Petitioner is not entitled to
service via certified mail. He rejected Petitioner's
argument that, because the September 8, 2017, Report and
Recommendations (Doc. #35) was not included on the list of
court documents that had been mailed to him, this proved that
he had not been served. He explained that Document #35 had
been served in the same way as many "[p]rior and
subsequent" documents, as listed in the Report and
Recommendations. Moreover, Magistrate Judge Merz noted that
Petitioner had advanced no substantive reason why the
Petition should not have been dismissed as untimely. He
therefore recommended that the Court deny the Motion to Amend
or for Relief from Judgment. Doc. #44.
November 8, 2017, Magistrate Judge Merz issued a Report and
Recommendations on Recommittal. Doc. #46. Noting that the
issues raised by Petitioner in his Objections, Doc. #42, to
the October 13, 2017, Report and Recommendations, Doc. #41,
were identical to the issues raised in the Motion to Amend or
for Relief from Judgment, Magistrate Judge Merz found that no
further analysis was needed. He again recommended that the
Court deny the Motion to Vacate.
Court granted Petitioner's request for additional time to
file Objections to the November 3, 2017, Report and
Recommendations. Docs. ##47, 48. On December 11, 2017,
Petitioner filed Objections to the Magistrate Judge's
November 3, 2017, Report and Recommendations and November 8,
2017, Recommittal. Doc. #51.
raises three Objections. He first argues that the October 2,
2017, Judgment should be vacated so that he can file
Objections to the September 8, 2017, Report and
Recommendations. He next argues that Magistrate Judge Merz
abused his discretion in finding that Petitioner was, in
fact, served with a copy of the Report and Recommendations.
He maintains that there is no proof of service, and the
docket entry shows that he was not served by U.S.
mail. Finally, Petitioner argues that Magistrate Judge Merz
abused his discretion by attempting to cure the denial of his
right to file Objections to the September 8, 2017, Report and
Recommendations, by suggesting that he file a motion to alter
or amend the judgment under Fed.R.Civ.P. 59(e).
thorough de novo review of the Court's file and
the applicable law, the Court OVERRULES Petitioner's
Objections to the October 13, 2017, Report and
Recommendations, Doc. #42, and Petitioner's Objections to
the Magistrate Judge's November 3, 2017, Report and
Recommendation[s] and November 8, 2017, Recommittal, Doc.
#51, The Court's docket shows that the September 8, 2017,
Report and Recommendations were sent by regular mail to
Petitioner at Pickaway Correctional Institution, P.O. Box
209, Orient, OH 43146. This mail was not returned to the
Court as undeliverable, creating the rebuttable presumption
that it was received. Petitioner submits an unsworn note from
"NB" stating that the oniy legal mail Petitioner
received in September of 2017, was logged on September 7,
2017. Doc. #51, PagelD#999. Petitioner points out that this
was the day before the Report and Recommendations
unsworn note submitted by Petitioner, however, is
insufficient to overcome the presumption that mail sent to
the last known address and not returned was received.
See, e.g., Mecaj v. Mukasey, 263 Fed.Appx. 449, 451
(6th Cir. 2008). As Magistrate Judge Merz noted, numerous
documents sent by regular mail to the same address, both
before and after September 8, 2017, were delivered to
Petitioner. Accordingly, there is no basis to vacate the
October 2, 2017, Judgment based on the alleged failure to
serve Petitioner with a copy of the September 8, 2017, Report
Magistrate Judge Merz properly noted, because Judgment had
already been entered, Petitioner could no longer file
Objections, but he could file a Motion to Alter or Amend the
Judgment under Fed.R.Civ.P. 59(e), raising any substantive
Objections that he had to the Judgment. Citing Hurst v.
Fannie Mae,642 Fed.Appx. 533 (6th Cir. 2016),
Petitioner argues that he is prejudiced by having to raise
substantive arguments in a Rule 59(e) motion instead of
through Objections to the Report and Recommendations. He
notes that, in Hurst, the Sixth Circuit ...