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Spates v. Warden, Warren Correctional Institution

United States District Court, N.D. Ohio, Eastern Division

June 27, 2018

BRANDON SPATES, Plaintiff,
v.
WARDEN, WARREN CORRECTIONAL INSTITUTION, Defendants.

          THOMAS M. PARKER MAGISTRATE JUDGE.

          MEMORANDUM OPINION

          DONALD C. NUGENT JUDGE.

         This 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.

         Procedural History

         Petitioner 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)."[1] 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.

         Magistrate 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 Magistrate Parker found that this Court retained jurisdiction to consider Spate's motion, citing an unpublished opinion in the case Starcher v. Eberlin, No. 1:05CV1314, 2007 275971 at *l-2 ( N.C. Ohio Jan. 25. 2007) which quoted the Advisory Committee Notes on the 1993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 appeals").

         After 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.

         Standard of Review for a Magistrate Judge's Report and Recommendations

         The 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 instructions.

         Discussion

         This 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.

         A. Jurisdiction

         This 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 ...


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