United States District Court, N.D. Ohio, Eastern Division
M. PARKER MAGISTRATE JUDGE.
C. NUGENT JUDGE.
matter is before the Court upon the Report and Recommendation
of Magistrate Judge Thomas M. Parker. (ECF #20). The Report
and Recommendation, issued on May 14. 2018 is hereby ADOPTED
by this Court. Petitioner's Motion for Reconsideration
(leave request) and Emergency Motion to vacate the
magistrate's order for lack of authority are DENIED.
Spates sought a writ of habeas corpus under 28 U.S.C. §
2254, claiming that his convictions and sentences in
State v. Spates, No. CR-13-576749-A violated his
constitutional rights. ECF #1. Magistrate Judge Thomas Parker
recommended the Court deny Spates* petition in a Report and
Recommendation filed on September 13, 2017. ECF #12. This
Court issued a Memorandum Opinion adopting the R&R on
February 23, 2018. ECF #15. On April 20, 2018 Spates filed a
timely notice of appeal to the Sixth Circuit. ECF #16. On
April 26. 2018, petitioner Spates filed a "Motion for
Reconsideration (Leave Request)." The motion was
dated April 21, 2018, the day following the filing of the
notice of appeal. Warden Harris, respondent, filed a response
to the motion on May K 2018. asserting that the notice of
appeal had divested this Court of Jurisdiction. ECF #19.
Judge Parker recommended that Spates" motion for
reconsideration be denied as it offered no meritorious
arguments. ECF #20. Magistrate Parker found that this Court
retained jurisdiction to consider Spate's motion, citing
an unpublished opinion in the case Starcher v. Eberlin,
No. 1:05CV1314, 2007 275971 at *l-2 ( N.C. Ohio Jan. 25.
2007) which quoted the Advisory Committee Notes on the 1993
Amendments to Fed. R.App. P. 4(a)(4) (''the amendment
provides.... A notice filed before the filing of one of the
specified motions... is. in effect. suspended until the
motion is disposed of. whereupon, the previously filed notice
effectively places jurisdiction in the court of
receiving Magistrate Judge Parker's R&R and outside
of the 14-day window for properly filing a timely objection.
Petitioner Spate filed an emergency motion to vacate the
Magistrate Judge's report and recommendation for lack of
jurisdiction. ECF #22. Respondent Warden responded to the
motion to vacate, asserting that Spate's timely appeal to
the Sixth Circuit divested this Court of jurisdiction and,
further, that Spate's motions lacked merit. ECF 23.
of Review for a Magistrate Judge's Report and
applicable standard of review of a magistrate judge's
report and recommendation depends upon whether objections
were made to that report. When objections are made to a
report and recommendations of a magistrate judge, the
district court reviews the case de novo. Fed. R.
Civ. P. 72(b) states:
The district judge must determine de novo any part
of the magistrate judge's dispositions that has been
properly objected to. The district judge may accept, or
modify the recommended disposition; receive further evidence:
or return the matter to the magistrate judge with
Court conducted a de novo review of this case and
has considered all of the pleadings and filings of the
parties. .After careful evaluation of the record, the Court
adopts the Report and Recommendation.
Court retains jurisdiction to dispose of Petitioner's
motions. Respondents correctly assert that "filing a
timely and sufficient appeal notice immediately transfers the
jurisdiction of all matters relating to the appeal from the
District Court to the Court of Appeals." ECF #19.
See Marrese v. American Academy of Osteopathic
Surgeons,470 U.S. 373 (1985). citing Griggs v.
Provident Consumer Discount Company,459 U.S. 56. 58
(1982) (per curium). "It is settled law that
filing a notice of appeal with the district court divests the
district court of jurisdiction to act in a case, except on
remedial matters unrelated ...