United States District Court, S.D. Ohio, Western Division
MICHAEL R. BARRETT JUDGE
matter is before the Court on the Magistrate Judge's
April 1, 2019 Report and Recommendation
(“R&R”) (Doc. 129) and the Magistrate
Judge's August 19, 2019 R&R (Doc. 141).
parties were given proper notice under Rule 72(b) of the
Federal Rules of Civil Procedure, including notice that the
parties would waive further appeal if they failed to file
objections to the R&R in a timely manner. See United
States v. Walters, 638 F.2d 947, 949-950 (6th Cir.
1981). Petitioner filed timely objections to the R&R.
(Doc. 130, 142).
Court shall consider objections to a magistrate judge's
order on a nondispositive matter and “shall modify or
set aside any portion of the magistrate judge's order
found to be clearly erroneous or contrary to law.”
Fed.R.Civ.P. 72(a). When objections to a magistrate
judge's report and recommendation are received on a
dispositive matter, the assigned district judge “must
determine de novo any part of the magistrate
judge's disposition that has been properly objected
to.” Fed.R.Civ.P. 72(b)(3). After review, the district
judge “may accept, reject, or modify the recommended
decision; receive further evidence; or return the matter to
the magistrate judge with instructions.” Id.;
see also 28 U.S.C. § 636(b)(1).
brings this habeas corpus action pursuant to 28 U.S.C. §
2254. Petitioner's arguments center primarily on
Petitioner's claim that his sentence is unconstitutional
because the state court entered an order nunc pro tunc which
altered his sentence. On July 24, 2017, this Court adopted
the Magistrate Judge's R&Rs and dismissed
Petitioner's case with prejudice. (Doc. 81). This Court
ruled that Petitioner's claim is an alleged violation of
state law which does not rise to the level of a
constitutional violation. Accord Floyd v. Alexander,
148 F.3d 615, 619 (6th Cir. 1998) (“while the trial
court may have violated Ohio Criminal Rule 43 in entering the
nunc pro tunc order changing Floyd's sentence from
concurrent to consecutive sentences in his absence, this
error does not rise to a ‘fundamental miscarriage of
justice' or constitute a violation of procedural due
process of law. Floyd has alleged a violation of a state law
that is not cognizable in a federal habeas corpus
proceeding.”). While Petitioner appealed this
Court's ruling, the Sixth Circuit dismissed the appeal
for want of prosecution. (Doc. 92).
April 1, 2019 R&R, the Magistrate Judge recommends
denying Petitioner's New Retroactive Motion to Alter.
(Doc. 129). The Magistrate Judge explains that
Petitioner's motion to alter this Court's July 24,
2017 judgment is untimely under Federal Rule of Civil
Procedure 59(e). In his objections, Petitioner does not
address the timeliness of his motion, but instead discusses
the merits of his claim and suggests that his motion should
be considered pursuant to Federal Rule of Civil Procedure
60(b)(2) and (c). While Rule 60(b) allows a habeas petitioner
to move a district court to reconsider a judgment or order
“under a limited set of circumstances, ” any such
motion must be filed within AEDPA's one-year statute of
limitations. Hill v. Mitchell, 842 F.3d 910, 921
(6th Cir. 2016) (quoting Gonzalez v. Crosby, 545
U.S. 524, 528, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)).
Petitioner filed his motion on March 29, 2019, which is well
beyond the expiration of the one-year time period, and
therefore any motion Petitioner would file pursuant to Rule
60(b)(2) would also be untimely.
August 19, 2019 R&R, the Magistrate Judge recommends
denying Petitioner's Motion for Affirmative Action. (Doc.
141). The Magistrate Judge explains that any relief that
Petitioner would seek from judgment has already been denied,
or his request is untimely. In his objections, Petitioner
seeks adjudication of his sentencing claims which he states
have already been granted by the Sixth Circuit. (See Doc.
142, PAGEID# 2086).
to Petitioner's arguments, Petitioner is not entitled to
be released from state custody. On May 1, 2019, the Sixth
Circuit considered whether Petitioner should be permitted to
file a second or successive petition pursuant to 28 U.S.C.
§ 2244. (Doc. 132). In its order denying authorization,
the Sixth Circuit granted Petitioner leave to amend his
proposed sentencing claims. In other words, even though the
Sixth Circuit considered Petitioner's amended sentencing
claims on appeal, the Sixth Circuit did not find that
authorization to file a second or successive § 2254
petition was warranted. Without authorization to consider
Petitioner's second or successive § 2254 petition,
this Court lacks jurisdiction. See Burton v.
Stewart, 549 U.S. 147, 157, 127 S.Ct. 793, 799, 166
L.Ed.2d 628 (2007).
on the foregoing, the Magistrate Judge's April 1, 2019
R&R (Doc. 129) and August 19, 2019 R&R (Doc. 141) are
ADOPTED. Accordingly, it is hereby
1. Petitioner's New Retroactive Motion to Alter Doc. 128)
2. Petitioner's Motion for Affirmative Action (Doc. 140)
is DENIED; and
3. This matter remains CLOSED and
TERMINATED from the active docket of this