Henderson v. Collins
Filing
268
ORDER overruling 260 Objection to Magistrate Judge Order; overruling 261 Objection to Magistrate Judge Order; overruling 264 Objection to Magistrate Judge Order; adopting Report and Recommendation re 258 Report and Recommendation; and denying 257 Motion for Certificate of Appealability. Signed by Judge Michael R. Barrett on 2/25/19. (ba)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Jerome Henderson,
Petitioner,
- vs -
Case No. 1:94-cv-00106
Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
Terry Collins, Warden,
Respondent.
ORDER
This matter is before the Court on the Magistrate Judge’s March 21, 2018
Deficiency Order and Report and Recommendation (“R&R”) (Doc. 258) which ordered
that Petitioner pay the appellate filing fee and recommended that Petitioner’s Motion for
a Certificate of Appealability 1 (Doc. 257) be denied. Petitioner filed Objections to the
March 21, 2018 Deficiency Order and R&R. (Docs. 260, 261). 2 The matter is also before
the Court on Petitioner’s Objections (Doc. 264) to the Magistrate Judge’s April 10, 2018
Notation Order (Doc. 263) denying Petitioner’s Motion for Leave to Appeal in forma
pauperis (Doc. 262) as moot.
When objections to an order of a magistrate judge are received on a nondispositive matter, the district judge must consider timely objections and modify or set
aside any part of the order that is clearly erroneous or is contrary to law. FED. R. CIV. P.
72(a). When objections to an order of a magistrate judge are received on a dispositive
matter, the “district judge must determine de novo any part of the magistrate judge’s
1
Regarding the undersigned’s February 27, 2018 Order (Doc. 255) adopting the Magistrate Judge’s
April 24, 2017 R&R (Doc. 246).
2 These documents are identical.
disposition that has been properly objected to.” FED. R. CIV. P. 72(b)(3). “The district
judge may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” Id.
Petitioner’s arguments and Objections center on the fact that the undersigned did
not, in the February 27, 2018 Order (Doc. 255), expressly state that Petitioner is denied
a certificate of appealability and Petitioner shall not be granted leave to appeal in forma
pauperis. (Docs. 257, 260, 261, 264). He asserts that a certificate of appealability is
warranted, as reasonable jurists could debate the Magistrate Judge’s three primary
conclusions which the undersigned adopted in the February 27, 2018 Order. Compare
(Doc. 255), with (Doc. 257 at PageID 1247, 1257, 1261). However, in the February 27,
2018 Order, the undersigned adopted the Magistrate Judge’s April 24, 2017 R&R in full,
including the recommendation that any appeal would not be taken in good faith. Compare
(Doc. 255), with (Doc. 246).
After consideration of Petitioner’s Objections regarding leave to appeal in forma
pauperis and de novo review of his Objections regarding a certificate of appealability—
both regarding the February 27, 2018 Order—the Court concludes that the Magistrate
Judge’s March 21, 2018 Deficiency Order ordering Petitioner to pay the appellate filing
fee (Doc. 258) and April 10, 2018 Notation Order (Doc. 263) denying Petitioner’s Motion
for Leave to Appeal in forma pauperis as moot are not clearly erroneous or contrary to
law and that the Magistrate Judge’s March 21, 2018 R&R recommending (Doc. 258) that
Petitioner’s Motion for a Certification of Appealability be denied is correct.
In light of the above, the Court ORDERS that:
1. Petitioner’s Objections (Docs. 260, 261, 264) are OVERRULED, the
2
March 21, 2018 Deficiency Order and April 20, 2018 Notation Order (Docs.
258, 263) REMAIN the Orders of the Court and the March 21, 2018 R&R
(Doc. 258) is ADOPTED in full.
2. The Petitioner’s Motion for a Certificate of Appealability (Doc. 257)—
regarding the February 27, 2018 Order (Doc. 255)—is DENIED, because
any appeal would not be taken in good faith.
3. Petitioner shall not be granted leave to appeal—the February 27, 2018
Order (Doc. 255)— in forma pauperis, as any appeal would not be taken in
good faith and would be objectively frivolous.
IT IS SO ORDERED.
_s/ Michael R. Barrett_____________
HON. MICHAEL R BARRETT
UNITED STATES DISTRICT JUDGE
3
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