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United States v. Lewis

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

April 26, 2018

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

          Michael R. Merz Magistrate Judge

         DECISION 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)

          THOMAS M. ROSE UNITED STATES DISTRICT JUDGE.

         The Seventeenth Motion for Relief from Judgment

         This 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).

         Having 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 pauperis.

         The Eighteenth Motion for Relief from Judgment

         The 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).

         Lewis 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)

         As the 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).

         Having 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 pauperis.

         Sanctions Under Fed.R.Civ.P. 11

         Mr. Lewis's Position

         As part of the Supplemental Report and Recommendations recommending denial of Lewis's 17th Motion for Relief from Judgment, the Magistrate Judge notified Lewis ...


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