United States District Court, S.D. Ohio, Western Division
DERRICK L. JOHNSON, Petitioner,
JEFFREY LISATH, Warden, Pickaway Correctional Institution, Respondent.
AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S
FOURTH SUPPLEMENTAL REPORT AND RECOMMENDATIONS (DOC. #93);
OVERRULING PETITIONER'S OBJECTIONS THERETO (DOC. #96);
OVERRULING MOTION FOR RELIEF FROM JUDGMENT PURSUANT TO CIVIL
RULE 60(b)(1) (DOC. #62); DENYING CERTIFICATE OF
APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS; JUDGMENT
TO ENTER IN FAVOR OF RESPONDENT AND AGAINST PETITIONER; CASE
TO REMAIN TERMINATED ON DOCKET
H. RICE UNITED STATES DISTRICT JUDGE.
matter is currently before the Court on United States
Magistrate Judge Michael R. Merz's Fourth Supplemental
Report and Recommendations, Doc. #93, in which he recommends
that the Court overrule Petitioner's Motion for Relief
from Judgment, Doc. #62, and deny a certificate of
appealability and leave to appeal in forma pauperis.
Petitioner has filed timely Objections to the Fourth
Supplemental Report and Recommendations, Doc. #96.
procedural history of Petitioner's Motion for Relief from
Judgment is set forth in the Fourth Supplemental Report and
Recommendations. Magistrate Judge Merz contends that
Petitioner's Motion for Relief from Judgment, Doc. #62,
should be overruled based on the law-of-the-case doctrine.
Magistrate Judge Merz noted, in denying Petitioner a
certificate of appealability, the Sixth Circuit considered
the entire case and found that "[Reasonable jurists
could not disagree with the district court's conclusion
that Johnson's § 2254 petition was untimely."
Under 28 U.S.C. § 2244(d)(1)(D), the limitations period
began to run when the factual predicate of the claims
presented could have been discovered through the exercise of
due diligence. The Court noted that Johnson became aware of
his "newly discovered evidence" in 2004 yet waited
until 2015 to file his § 2254 petition. It also found
that he had failed to establish a basis for equitable
tolling. Doc. #61, PageID##1037-39.
Objections, Doc. #96, Petitioner continues to argue that the
law-of-the-case doctrine should not apply because the Sixth
Circuit did not expressly address his June 19, 2015,
"second" motion for leave to file a delayed motion
for a new trial which was based on "additional newly
discovered evidence." The Court overrules
Judge Merz expressly discussed the relevance of
Petitioner's "second" motion for a new trial to
the statute-of-limitations issue in the September 8, 2017,
Report and Recommendations, Doc. #35, PageID##960-61, which
was adopted by the undersigned, Doc. #36. Final Judgment was
entered on October 2, 2017, Doc. #37. Petitioner moved to
vacate the judgment based on lack of service, Doc. #40, and
filed a Motion to Amend, or in the Alternative, for Relief
from Judgment, Doc. #43. On December 18, 2017, the Court
overruled both motions. Doc. #52. Petitioner appealed that
decision. Doc. #53.
Judge Merz noted that Petitioner is not entitled to piecemeal
appeals. The Sixth Circuit had the entire case before it,
including Magistrate Judge Merz's discussion of the
effect of the "second" motion for a new trial on
the statute-of-limitations issue, and determined that the
district court properly dismissed his petition for a writ of
habeas corpus as untimely. To the extent that Petitioner
believes that the Court erred in calculating the statute of
limitations under 28 U.S.C. § 2244(d)(1)(D), he should
have raised that issue on appeal. Given that the Sixth
Circuit has already determined that the petition was
untimely, the law-of-the-case doctrine bars Petitioner's
reasons set forth above, the Court OVERRULES Petitioner's
Objections, Doc. #96, to the Fourth Supplemental Report and
Recommendations, Doc. #93, and ADOPTS said judicial filing in
its entirety. The Court OVERRULES Petitioner's Motion for
Relief from Judgment Pursuant to Civil Rule 60(b)(1), Doc.
shall be entered in favor of Respondent and against
that Petitioner has not made a substantial showing of the
denial of a constitutional right and, further, that the
Court's decision herein would not be debatable among
reasonable jurists, and because any appeal from this
Court's decision would be objectively frivolous,
Petitioner is denied a certificate of appealability, and is
denied leave to appeal in forma pauperis.
captioned case shall remain terminated upon the docket
records of the United States District Court for the Southern
District of Ohio, Western Division, at Dayton.