United States District Court, S.D. Ohio, Western Division
J. Dlott District Judge.
REPORT AND RECOMMENDATIONS ON MOTION FOR CERTIFICATE
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
habeas corpus case is before the Court on Petitioner's
Request for a Certificate of Appealability (ECF No. 29). As a
post-judgment motion, it is deemed referred to the assigned
Magistrate Judge under 28 U.S.C. § 636(b)(3) for a
report and recommendations.
Report and Recommendations on the merits, the Magistrate
Judge recommended that the Petition be dismissed with
prejudice and that “[b]ecause reasonable jurists would
not disagree with this conclusion, Petitioner should be
denied a certificate of appealability. . .” (ECF No.
22). Petitioner objected to that recommendation and sought a
certificate of appealability on “all grounds for
relief.” (Objections, ECF No. 25, PageID 1485).
entering final judgment in the case, the District Court
overruled Petitioner's objections, including Objection
18, and denied a certificate of appealability. Under Rule 11
of the Rules Governing § 2254 Cases, a district court
“must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant.” In
other words, the question whether to issue a certificate is
supposed to be a pre-judgment matter, as it was treated by
the Magistrate Judge and the District Court in this case. The
effect of the instant Motion, then, is to seek an amendment
of the final judgment denying a certificate of appealability.
Motion treats the question of a certificate as if it were to
be decided de novo, but the Court has already done
that and denied a certificate. The Motion is timely if
considered under Fed.R.Civ.P. 59(e). But the Motion neither
cites Rule 59 nor argue in terms of the standards for
granting relief under that Rule.
Motions to alter or amend judgment may be granted if there is
a clear error of law, see Sault Ste. Marie Tribe,
146 F.3d at 374, newly discovered evidence, see id.,
an intervening change in controlling law, Collison v.
International Chem. Workers Union, Local 217, 34 F.3d
233, 236 (4th Cir. 1994); Hayes v. Douglas Dynamics,
Inc., 8 F.3d 88, 90-91 n.3 (1st Cir. 1993); School
District No. 1J v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993), or to prevent manifest injustice. Davis,
912 F.2d at 133; Collison, 34 F.3d at 236;
Hayes, 8 F.3d at 90-91 n.3. See also North River
Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218
(3d Cir. 1995).
Gencorp, Inc. v. American Int'l Underwriters,
178 F.3d 804, 834 (6th Cir. 1999), accord,
Nolfi v. Ohio Ky. OilCorp., 675 F.3d 538, 551-52
(6th Cir. 2011), quoting Leisure Caviar, LLC
v. United States Fish & Wildlife Serv., 616 F.3d
612, 615 (6th Cir. 2010). A motion under Fed.R.Civ.P. 59(e)
is not an opportunity to reargue a case. Sault Ste. Marie
Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374
(6th Cir. 1998)(citation omitted). That is,
however, what Petitioner appears to have done. The Motion
lists numerous ways in which the Magistrate Judge assertedly
erred: he “mischaracterized, … never addressed,
. . . glossed over,, and claimed” incorrectly that
Petitioner “failed to present key factors.” And
these objections to the Report are all contained in one
paragraph (ECF No. 29, PageID 1555). Petitioner's
Objections to the Report raised these issues in much the same
language (ECF No. 25, PageID 1489-90). The Order and Judgment
which are sought to be amended overruled these Objections on
the merits (ECF No. 27). To prevail on the instant Motion,
Petitioner must show a manifest error of law in the judgment,
but he has not attempted to do so except by rearguing the
Motion, construed as being made under Fed.R.Civ.P. 59(e),
does not show manifest error of law in the judgment and
should therefore be DENIED.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Pursuant to Fed.R.Civ.P.
6(d), this period is extended to seventeen days because this
Report is being served by mail. Such objections shall specify
the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. A party may respond to another party's
objections within fourteen days after being served with a
copy thereof. Failure to make objections in accordance with
this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140, 153-55 (1985); United States
v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
 A motion under Rule 59(e) must be
filed not later than twenty-eight days after judgment. In
this case that would have been July 4, 2019, so the time for
filing was extended to July 5, 2019 by operation ...