United States District Court, S.D. Ohio, Western Division, Dayton
DERRICK L. JOHNSON, Petitioner,
CHARLES BRADLEY, Warden, Pickaway Correctional Institution, Respondent.
Herbert Rice District Judge
REPORT AND RECOMMENDATIONS ON APPLICATION FOR
CERTIFICATE OF APPEALABILITY
Michael R. Merz United States Magistrate Judge
habeas corpus case is before the Court on Petitioner's
Application for a Certificate of Appealability regarding the
District Court's Decision of December 18, 2017 (ECF No.
52) denying Petitioner's Motions to Vacate (ECF No. 40)
and for relief from judgment (ECF No. 43). Although Johnson
never appealed the judgment on the merits, he has appealed
from the denial of his post-judgment motions (ECF No. 53).
Because this is a habeas corpus case, Johnson is correct that
he needs a certificate of appealability, even though he is
appealing from denial of a motion for relief from judgment,
rather than on the merits. Johnson v. Bell, 605 F.3d
333, 339 (6th Cir. 2010).
standard for a certificate of appealability from denial of a
Rule 60 motion is the same standard applied on appeal on the
merits: a petitioner must demonstrate that jurists of reason
could debate whether the motion should have been resolved in
a different manner. Jones v. Warden, Ross Corr.
Inst., 2017 U.S. App. LEXIS 24542 (6th Cir.
Dec. 4, 2017), denying a certificate of appealability on the
same basis as this Court had denied a certificate. Jones
v. Warden, Ross Corr. Inst., 2017 U.S. Dist. LEXIS 65360
(S.D. Ohio Apr. 28, 2017).
Motion to Vacate (ECF No. 40) was grounded in his assertion
that he was never served with a copy of the Magistrate
Judge's Report and Recommendations of September 8, 2017,
which recommended dismissal of the Petition with prejudice as
barred by the statute of limitations. The Magistrate Judge
investigated that claim and found that the Clerk had notated
the docket to show service was made on Johnson by regular
mail in the same manner as ten other court filings in the
case and in accordance with standard practice and that the
Court had never received any returned mail in the case
(Report, ECF No. 41). In his later Motion to Amend the
Judgment or for Relief from Judgment, Johnson asserted that
the list of ten court filings that were mailed did not
include the September 8, 2017, Report (ECF No. 43 at PageID
980). In the meantime, the Magistrate Judge provided Johnson
with another copy of the Report and Recommendations on the
merits suggested that he raise his objections on the merits
by way of a motion to amend under Fed.R.Civ.P. 59(e).
District Judge Rice denied the Motion to Vacate and the
Motion to Amend, he found as a matter of fact that the
September 7, 2017, Report had been served on Johnson
(Decision, ECF No. 52, PageID 1004). He also found that
Johnson was not prejudiced by being offered a chance to raise
his substantive objections in a Fed.R.Civ.P. 59 motion
because the Court would have had authority to grant such a
motion. Id. at PageID 1005, citing GenCorp,
Inc., v. Am. Int'l Underwriters, 178 F.3d 804, 834
(6th Cir. 19998). He also found that Johnson
“has yet to raise a single substantive Objection to the
Court's decision to dismiss his Petition as
‘extremely untimely'.” Id.
arguing for a certificate of appealability, Johnson asserts
again he was not served and says the Magistrate Judge
“claims the Clerk mailed [the Report] with absolutely
no proof or corroboration of such.” That's just not
so. Corroboration is shown by (1) the Clerk's docket
notation of mailing, which is a contemporaneous record of a
regularly conducted activity which would be admissible as
non-hearsay under Fed.R.Evid. 801(6); (2) the absence of any
record of mail sent to the Petitioner by the same method
being returned undelivered, which would be admissible as
non-hearsay under Fed.R.Evid. 801(7). The only evidence of
non-receipt is Johnson's statement that he did not
receive it. Johnson claims that the Magistrate Judge's
sending a courtesy copy proves the Magistrate Judge is trying
to cover up a mistake. On the contrary, the extra copy was
sent to enable Johnson to include substantive objections in
his Rule 59 motion, which he did not do. Reasonable jurists
would not debate Judge Rice's conclusion that Johnson was
appears to believe it is debatable among reasonable jurists
that he could have raised his substantive objections in the
Rule 59(e) motion. He relies on case authority which says
that Rule 59(e) motions cannot be used to raise arguments
which could and should have been made before judgment. But
that is precisely the point: if, as he claims, Johnson did
not know about the Report and Recommendations in time to file
objections, any arguments he would have made (which have
still not been revealed) are not arguments he should have
made before judgment because he could not have done so.
Reasonable jurists would not debate Judge Rice's
conclusion that he would have had authority to rule on
Johnson's substantive claims if they had been made in the
Rule 59(e) motion.
has not shown that reasonable jurists would disagree with the
conclusions reached by Judge Rice in the Decision and Entry
appealed from. Petitioner should therefore be DENIED a
certificate of appealability.
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 ...