United States District Court, S.D. Ohio, Western Division, Dayton
M. ROSE DISTRICT JUDGE
REPORT AND RECOMMENDATIONS ON POST-JUDGMENT
MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE
§ 2255 action is before the Court on Defendant's
Objections (ECF No. 44) to the Magistrate Judge's Report
and Recommendations recommending dismissal of the Motion with
prejudice under Rule 4 of the Rules Governing § 2255
Motions the “Report, ” (ECF No. 41).
Report was filed on November 25, 2019, and sent to Defendant
the same day. The Report advised Defendant that he had
seventeen days within which to object, or until December 12,
2019 (ECF No. 41, PageID 110). Defendant's Objections
were not received and docketed by the Clerk until December
19, 2019. Because no objections had been received within the
time provided, the District Judge adopted the Report and
entered judgment dismissing the case on December 18, 2019
(ECF Nos. 42, 43).
incarcerated person, Defendant is entitled to a filing date
which is the same as the date he deposited his Objections in
the prison mailing system. Houston v. Lack, 487 U.S.
266 (1988); Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002). May does not provide that date,
nor does the envelope in which he mailed the Objections
contain a postmark. However, he does assert that he signed
the objections on December 5, 2019. Thus although the
Objections were not received early enough to be considered
before judgment was entered, they can be considered as a
timely motion to amend the judgment under Fed.R.Civ.P. 59(e).
This Report will proceed on that basis.
district court to grant relief under Rule 59(e), “there
must be ‘(1) a clear error of law; (2) newly discovered
evidence; (3) an intervening change in controlling law; or
(4) a need to prevent manifest injustice.'”
Betts v. Costco Wholesale Corp., 558 F.3d 461, 474
(6th Cir. 2009) (quoting Henderson v. Walled Lake Consol.
Sch., 469 F.3d 479, 496 (6th Cir. 2006)).
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. 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).
Report concluded May's Motion was barred by the one-year
statute of limitations on § 2255 motions. May had argued
his Motion was timely because Rehaif v. United
States, 139 S.Ct. 2191 (Jun. 21, 2019), had adopted a
new rule of constitutional law made retroactive to cases on
collateral review. The Report noted, however, that
Rehaif had not recognized any new constitutional
right at all.
Objections, May admits that Rehaif did not recognize
any new constitutional right (ECF No. 44, PageID 113).
Instead, he claims what it did
was expose a fundamental Constitutional violation that had
been common practice in most 922(g) convictions. It brought
to light a violation of Defendant's due process by the
Government. Rehaif fortunately brought to light the
accused's innocence [sic] and as such there can be no
limits placed on discovery by the Supreme Court that some
individuals convicted of 922(g), are actually innocent.
Id. at PageID 113-14.
this argument, May claims that there cannot be a statute of
limitations on a claim of actual innocence:
“retroactivity is not even a question, but a right of
the innocent.” Id. This is simply not true. To
the extent May is claiming he is entitled to relief because
he is actually innocent, the Supreme Court has repeatedly
refused to recognize a freestanding constitutional right to
release based on actual innocence. Herrera v.
Collins, 506 U.S. 390, 408-11 (1993). If actual
innocence is not a basis for release, it follows logically
that Congress can put a time limit on making claims of actual
innocence (or any other claim) which it did in the
Antiterrorism and Effective Death Penalty Act of 1996 (Pub.
L. No 104-132, 110 Stat. 1214)(the "AEDPA").
May argues that the Supreme Court has repeatedly applied new
rules retroactively without even discussing that issue
(Objections, ECF No. 44, PageID 115-16). That is true, but
those cases are no longer good law. Later Supreme Court case
law holds that, subject to two narrow exceptions, a case that
is decided after a defendant's conviction and sentence
become final may not provide the basis for federal habeas
relief if it announces a new rule. Graham v.
Collins, 506 U.S. 461 (1993); Stringer v.
Black,503 U.S. 222 (1992); Teague v. Lane, 489
U.S. 288 (1989). A principal reason for the ...