Carter v. Mitchell

Filing 181

ENTRY AND ORDER OVERRULING CEDRIC CARTER'S OBJECTIONS (Doc. # 166 ) TO MAGISTRATE JUDGE MICHAEL R. MERZ'S POST-REMAND REPORT AND RECOMMENDATIONS (Doc. # 163 ); OVERRULING CARTERS OBJECTIONS (Doc. # 177 ) TO MAGISTRATE JUDGE MERZ'S SUP PLEMENTAL POST-REMAND REPORT AND RECOMMENDATIONS (Doc. # 175 ); ADOPTING MAGISTRATE JUDGE MERZ'S POST-REMAND REPORT AND RECOMMENDATIONS AND SUPPLEMENTAL POST-REMAND REPORT AND RECOMMENDATIONS IN THEIR ENTIRETY AND APPROVING THE ISSUANCE OF A CERTIFICATE OF APPEALABILITY ON GROUNDS FOR RELIEF TWENTY-EIGHT, TWENTY-NINE AND FIFTY. Signed by Judge Thomas M Rose on 06/10/13. (pb1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

CEDRIC CARTER,
Petitioner,
-vs-

Case No. 1-:98-cv-853

BETTY MITCHELL, Warden,

District Judge Thomas M. Rose

Respondent.
Magistrate Judge Michael R. Merz
______________________________________________________________________________
ENTRY AND ORDER OVERRULING CEDRIC CARTER’S
OBJECTIONS (Doc. #166) TO MAGISTRATE JUDGE MICHAEL R.
MERZ’S POST-REMAND REPORT AND RECOMMENDATIONS (Doc.
#163); OVERRULING CARTER’S OBJECTIONS (Doc. #177) TO
MAGISTRATE JUDGE MERZ’S SUPPLEMENTAL POST-REMAND
REPORT AND RECOMMENDATIONS (Doc. #175); ADOPTING
MAGISTRATE JUDGE MERZ’S POST-REMAND REPORT AND
RECOMMENDATIONS AND SUPPLEMENTAL POST-REMAND
REPORT AND RECOMMENDATIONS IN THEIR ENTIRETY AND
APPROVING THE ISSUANCE OF A CERTIFICATE OF
APPEALABILITY ON GROUNDS FOR RELIEF TWENTY-EIGHT,
TWENTY-NINE AND FIFTY
______________________________________________________________________________
This matter is before the Court pursuant to Petitioner Cedric Carter’s (“Carter’s”)
Objections (doc. #166) to the Post-Remand Report and Recommendations of Magistrate Judge
Michael R. Merz (doc. #163) and Carter’s Objections (doc. #177) to the Supplemental PostRemand Report and Recommendations (doc. #175) of Magistrate Judge Merz. The Post-Remand
Report and Recommendations and Supplemental Post-Remand Report and Recommendations
address two of Carter’s Grounds for Relief, the Twenty-Eighth and Twenty-Ninth, that were
remanded by the Sixth Circuit for further consideration. The Sixth Circuit affirmed this Court’s
decision on Carter’s Ground for Relief Fifty.

The Post-Remand Report and Recommendations was filed on January 14, 2013, and the
Supplemental Post-Remand Report and Recommendations was filed on May 2, 2013. Carter
objected to the Post-Remand Report and Recommendations on February 13, 2013 (doc. #166)
and Replied on May 1, 2013 (doc. #173).1 Carter objected to the Supplemental Post-Remand
Report and Recommendations on May 20, 2013. (Doc. #177.)
The Warden responded to both Carter’s Objections to the Post-Remand Report and
Recommendations (doc. #172) and Carter’s Objections to the Supplemental Post-Remand Report
and Recommendations (doc. #180). Carter’s Objections are, therefore, ripe for decision.
As required by 28 U.S.C. §636(b) and Federal Rules of Civil Procedure Rule 72(b), the
District Judge has made a de novo review of the record in this case. Upon said review, the Court
finds that Carter’s Objections to the Magistrate Judge’s Post-Remand Report and
Recommendations and Carter’s Objections to the Magistrate Judge’s Supplemental Post-Remand
Report and Recommendations are not well-taken, and they are hereby OVERRULED. The Chief
Magistrate Judge’s Post-Remand Report and Recommendations and Supplemental Post-Remand
Report and Recommendations are adopted in their entirety.
Therefore, Carter is denied habeas relief on all three of the remanded issues. However,
because the Sixth Circuit found these issues sufficiently arguable to merit remand, a certificate
of appealability should issue on all three.

1

Fed. R. Civ. P. 72 does not authorize a reply but arguments presented in Carter’s Reply have
been considered.
-2-

DONE and ORDERED in Dayton, Ohio, this Tenth day of June, 2013.
s/Thomas M. Rose

_____________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

Copies furnished to:
Counsel of record

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