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United States v. May

United States District Court, S.D. Ohio, Western Division, Dayton

December 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD MAY, Defendant.

          THOMAS M. ROSE DISTRICT JUDGE

          REPORT AND RECOMMENDATIONS ON POST-JUDGMENT OBJECTIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This § 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).

         The 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).

         As an 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.

         For a 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).

         The 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.

         In his 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.

         Expanding 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").

         Second, 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 ...


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