United States District Court, S.D. Ohio, Western Division, Dayton
M. Rose, District Judge.
REPORT AND RECOMMENDATIONS ON MOTION TO
Michael R. Merz, United States Magistrate Judge.
case under 28 U.S.C. § 2255 is before the Court on
Defendant Antonio Spiva's Motion to Strike the final
judgment (ECF No. 174). As a pro se litigant, Spiva
is entitled to a liberal construction of his pleadings.
McNeil v. United States, 508 U.S. 106, 113 (1993);
Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Since
the Motion was filed within the time allowed for a motion to
amend the judgment under Fed.R.Civ.P. 59(e), the Magistrate
Judge will construe it as a Rule 59(e) motion and consider it
under the standards applicable to such motions.
post-judgment, the Motion requires a Report and
Recommendations from an assigned Magistrate Judge, rather
than a decision.
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 v. Jellico Cmty. Hosp.,
912 F.2d 129, 133 (6th Cir. 1990)];
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 (3rd Cir.
Gencorp, Inc. v. Am. Int'l Underwriters, 178
F.3d 804, 834 (6th Cir. 1999), accord Nolfi v.
Ohio Ky. Oil Corp., 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).
contends the judgment was entered without properly
considering his objections to the Magistrate Judge's
Report and Recommendations on the merits (“Report,
” ECF No. 168). The judgment sought to be amended
recites that Spiva failed to file objections to the Report
within the time allowed by law. He says he received the
Report “on or about June 10, 2019[.]” (Motion,
ECF No. 174, PageID 979). As the Magistrate Judge noted in
the Order Striking Objections, the Report was served on
Defendant by mailing it to him on May 30, 2019, and his
Objections would have been timely if deposited in the prison
mail system within seventeen days of that date (ECF No. 171,
PageID 971). Seventeen days after May 30, 2019, is June 16,
2019, which was a Sunday, so the time is extended
automatically to the next day.
avers in a Declaration, which he terms an Affidavit, attached
to his motion that his Objections were mailed June 24, 2019
(Motion, ECF No. 174, PageID 981-82). But the deadline for
filing objections to a report and recommendations runs from
the date of service which, under Fed.R.Civ.P. 5, is the date
the report is mailed, not the date it is received. Hence, the
Objections were not timely mailed and were properly stricken.
Spiva asks the Court to consider his objections on the
merits, which the Court has authority to do under
Fed.R.Civ.P. 59(e). Because Spiva has not tendered any new
evidence and does not rely on a change in the law since the
judgment was entered, the issue is whether there was a
manifest error of law in the final decision.
§ 2255 Motion, Spiva claims that he received ineffective
assistance of trial counsel Aaron Durden because Mr. Durden
failed to explain to him the impact on his case of the
Supreme Court decision in Burrage v. United States
(ECF No. 167, PageID 889, citing 571 U.S. 204 (2014)). He
also claims he received ineffective assistance of appellate
counsel Patrick Hanley when Mr. Hanley did not “appeal
his sentence and conviction under Burrage rather
than filing an Anders brief.” Id. at
PageID 896. Finally, Defendant also raises a vague Fifth
Amendment Due Process challenge to his conviction.
Id. at PageID 895-96.
Report recommended denying Spiva's § 2255 Motion
because his reliance on Burrage was misplaced. In
that case the Supreme Court had decided that “but
for” causation was required to be proved before a
defendant could be sentenced to the mandatory minimum twenty
years for causing the death of a buyer of drugs. 571 U.S. at
213. The Court further held that causation was an element
required to be proved to a jury beyond a reasonable doubt
under Apprendi v. New Jersey, 530 U.S. 466 (2000),
unless admitted by a defendant. Id. at 210. The
Report noted that Spiva received dismissal of the fatality
specification by plea bargaining, that his agreed Guideline
Sentencing range reflected that, that he had nonetheless
admitted the drugs he sold caused two deaths and the
statement of facts by the prosecutor, which he admitted were
true, showed the United States could prove but for causation
beyond a reasonable doubt (ECF No. 168, PageID 938-39).
Objections rely on the Declaration attached to his §
2255 Motion in which he claimed
5.) “I know that my actions did not result in the
death's [sic] of Paul McElfresh and Jason Robinson. Had I
known that the Supreme Court had decided caselaw that would
require the Government to prove that the alleged substances
were the 100% certain cause of the death for Mr. McElfresh
and Robinson, I would not have accepted a plea ...