United States District Court, S.D. Ohio, Western Division
Michael R. Merz Magistrate Judge
AND ORDER OVERRULING OBJECTIONS (DOCS. 299, 309); ADOPTING
REPORT AND RECOMMENDATIONS (DOC. 295), SUPPLEMENTAL REPORT
AND RECOMMENDATIONS (DOC. 301), AND REPORT AND
RECOMMENDATIONS; ORDER TO SHOW CAUSE (DOC. 305); DENYING
SEVENTEENTH AND EIGHTEENTH MOTIONS FOR RELIEF FROM JUDGMENT
(DOCS. 293, 304 (AS SUPPLEMENTED BY DOC. 312)); AND DENYING
MOTION DENYING PLENARY JURISDICTION TO MAGISTRATE JUDGE (DOC.
310) AND MOTION FOR PERMENANT [SIC] INJUNCTION UNDER FED. R.
CIV. P. 65 (DOC. 311)
M. ROSE UNITED STATES DISTRICT JUDGE.
Seventeenth Motion for Relief from Judgment
criminal case is before the Court on Defendant's
17th Motion for Relief from Judgment, brought
under Fed.R.Civ.P. 60(b)(1)(ECF No. 293). The Magistrate
Judge recommended denying the Motion based on the law of the
case, to wit, the Sixth Circuit's denial to Lewis of a
certificate of appealability on his claims under Day v.
McDonough, 547 U.S. 198 (2006 and Shelton v. United
States, 800 F.3d 292 (6th Cir. 2015)(Report,
ECF No. 295, citing Lewis v. United States, Case No.
16-4077 (6th Cir. Mar. 23, 2017)(unreported; copy
at ECF No. 263)). Lewis objected (ECF No. 299), the Court
recommitted the matter (ECF No. 300), the Magistrate Judge
filed a Supplemental Report (ECF No. 301), and Lewis filed
Supplemental Objections (ECF No. 307) which the Magistrate
Judge struck as untimely filed (ECF No. 308).
reviewed the Report de novo as required by
Fed.R.Civ.P. 72(b)(3), the Court concurs with and adopts the
Magistrate Judge's recommendation as filed. Lewis's
17th Motion for Relief from Judgment is DENIED on
the basis of the law of the case cited by the Magistrate
Judge. Because reasonable jurists would not disagree with
this conclusion, Lewis is DENIED a certificate of
appealability and the Court certifies to the Sixth Circuit
that any appeal would be objectively frivolous and therefore
should not be permitted to proceed in forma
Eighteenth Motion for Relief from Judgment
case is also before the Court on Lewis' 18th
Motion for Relief from Judgment, this time under Fed.R.Civ.P.
60(b)(6)(ECF No. 304). Although this claim is already made in
the Motion as filed, Lewis has also moved to supplement and
add a claim to this Motion (Motion, ECF No. 312).
claims he is actually innocent of the crime of which he was
convicted because (a) the Indictment does not contain the
language about forced accompaniment included in the statement
of facts in support of the plea (ECF No. 304, PageID 1996)
and (b) because the Indictment does not state an offense
under 18 U.S.C. § 2113(a) because it does not name the
person who was subjected to the forced accompaniment (ECF No.
312, PageID 2025-26)
Report notes, Lewis's actual innocence argument has been
heard and denied many times on the merits, as the Sixth
Circuit has found. Lewis v. United States, Case No.
16-4077 (6thCir. Mar 23, 2017)(unpublished; copy
at ECF No. 263)(“A review of the record reveals that
Lewis has had multiple opportunities to present his
timeliness, equitable tolling, and actual innocence arguments
to the district court. In addition, Lewis has received a
determination on the merits as to each.”) The lack of
merit in Lewis's actual innocence claim is also the law
of the case and the Report recommends denying Lewis's
18th Motion for Relief from Judgment on that basis
(Report, ECF No. 305, PageID 1999). Lewis has filed timely
Objections to the Report (ECF No. 309).
reviewed the matter de novo as required by
Fed.R.Civ.P. 72(b)(3), the Court OVERRULES the Objections and
ADOPTS the recommendation in the Report. Lewis's
“actual innocence” Motion for Relief from
Judgment (ECF No. 304 as supplemented by ECF No. 312) is
DENIED. Because reasonable jurists would not disagree with
this conclusion, Petitioner is denied a certificate of
appealability and the Court hereby certifies to the Sixth
Circuit that any appeal would be objectively frivolous and
therefore should not be permitted to proceed in forma
Under Fed.R.Civ.P. 11
of the Supplemental Report and Recommendations recommending
denial of Lewis's 17th Motion for Relief from
Judgment, the Magistrate Judge notified Lewis ...