United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose District Judge
REPORT AND RECOMMENDATIONS ON “WRIT” FOR
Michael R. Merz United States Magistrate Judge
habeas corpus case under 28 U.S.C. § 2254 is before the
Court on Petitioner's “Writ for District Judge to
Review the Entire Record” (ECF No. 60). Black's Law
Dictionary defines writ as “a court's written order
. . . commanding the addressee to do or refrain from doing
some specified act.” (10th ed. at 1845).. As
a litigant in this Court, Brown El lacks the authority to
command District Judge Rose to do anything.
because Brown El is proceeding pro se, the Clerk has
liberally construed his filing as a motion and the Magistrate
Judge will analyze it as thus filed. As a post-judgment
motion, it is deemed referred to the Magistrate Judge under
28 U.S.C. § 636(b)(3).
of the Decision
El objects to the form of Judge Rose's Decision and Order
of May 4, 2018 (ECF No. 53), which adopted the Magistrate
Judge's Substituted Report and Recommendations (ECF No.
41) as well as several prior Reports. Although the Decision
recites that Judge Rose “has reviewed de novo
all parts of the Report to which objections has been
made” (ECF No. 53, PageID 3954), Brown El objects that
the Decision “must specifically indicate that the judge
has reviewed the entire record of the case de novo
on his own. Judge Rose is required to give ‘fresh
consideration' to the whole record. See 28 U.S.C.
636(b)(1)(B); Nettles v. Wainright, 677 F.2d 404,
409 (5th Cir. 1982); United States v.
Walters, 638 F.2d 947, 949 (6th Cir.
1981).” Id. at PageID 3988-89.
cited authority does not stand for the proposition for which
it is cited. 28 U.S.C. § 636(b)(1) mirrors the language
in Fed.R.Civ.P. 72 and requires the District Judge to make a
de novo determination of those portions of the
Magistrate Judge's report and recommendations to which
specific objection is made. Walters held that
failure to make objections would preclude later appeal, but
does not contain a holding (i.e. a decision on a question of
law that was necessary to decision of the case) on the sort
of review a district judge must make. The Nettles
court ruled in parallel with Walters that failure to
file objections waives the right to appeal. The Fifth Circuit
held “[i]n compliance with 28 U.S.C. §
636(b)(1)(B), the district judge must review the
magistrate's findings and recommendations. If objections
are filed, the district judge must make a de novo
determination, a "fresh consideration, " of those
findings objected to.” 677 F.2d at 409 (footnote
omitted). Neither the statute nor the cases requires a
District Judge to make a “'fresh consideration'
of the entire record, '” as Brown El contends. (ECF
No. 60, PageID 3989.)
district court must review both proposed findings of fact and
conclusions of law of a magistrate judge in a habeas case on
a de novo basis. Broom v. Mitchell, 441
F.3d 392, 398 (6th Cir. 2006); Flournoy v.
Marshall, 842 F.2d 875 (6th Cir. 1988). But
de novo here means, as it does in other places in
American law, review without deference to the opinion of the
decisionmaker being reviewed. In contrast, for example,
federal courts reviewing state court decisions of federal
questions in habeas cases must defer to the state courts
unless the decision is contrary to or an objectively
unreasonable application of Supreme Court precedent, or based
on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. 28 U.S.C.
§ 2254(d); Terry Williams v. Taylor, 529
de novo review is required in habeas cases, no
decision of the Supreme Court or the Sixth Circuit commands
how the District Judge is to specify that he or she has done
that review. Here Judge Rose states in the Decision that he
has performed the de novo review required by the
rule and the statute. Nothing more is required.
of Brown El's “National” Status
El notes that prior Objections on his part had resulted in
recommittals to the Magistrate Judge, whereas the District
Judge dealt directly with his most recent Objections. Brown
El asserts (ECF No. 60, PageID 3989) that he advised the
Court of his claimed “national” status as a
“Moorish American, ” on May 3, 2018, in a motion
for extension of time at ECF No. 51. That Motion, however,
says nothing about any new “national status”
claim. In both the caption and the signature line, Brown El
uses the name by which he has been known throughout the
litigation, “Jeffrey Antonio Brown.” The first
paragraph reads “[n]ow comes Jeffrey Antonio Brown EL,
in propria persona, in the matter of Petitioner, JEFFREY
ANTONIO BROWN, ‘stramineus
homo' hereinafter, ("Brown") who moves
this Honourable [sic] Court pursuant to Rule 6(b) of the
Civil Procedure and request an extension of time.”
Id. at PageID 3951. Brown-El's conjecture that
the dismissal was because of his new national status claim is
totally specious since the Court did not know of the claim
until May 8, 2018, when Brown El filed his “Affidavit
of Fact” (ECF No. 55).
El asserts that his “legal status in law as Moorish
American” somehow entitles him to different
consideration from the Court. That also is a groundless
claim. The Court has respected Petitioner's choice of a
different name, but his new claim of national status has no
effect on his procedural or substantive rights in this case.
As a person confined under order of an Ohio court which Brown
El claims is unconstitutional, he has the same procedural and
substantive rights as any other person similarly situated, no
more and no less. Whether Brown El is a “free white
person” within the meaning of the “Naturalization
Act as amended by Act July 14, 1870” as he asserts (ECF
No. 60, PageID 3989) is totally irrelevant to this case.
El asserts that the Decision did not close the case because
“all the pleadings were not closed.” Id.
at PageID 3990. Petitioner is cautioned that Judge Rose
caused the Clerk to enter judgment in connection with the
Decision (ECF No. 54) and his time to appeal to the Sixth
Circuit runs from that date; it is not stayed by the pendency
of his Objections to denial of an evidentiary hearing.
on the foregoing analysis, Brown El's “Writ for
District Judge to Review the Entire Record, ” ...