Lovett v. Warden Southern Ohio Correctional Institution

Filing 39

REPORT AND RECOMMENDATIONS re 37 MOTION Relief filed by Kelvin R. Lovett - It is Therefore Recommended that 37 the Motion for Relief from Judgment should be denied. Objections to R&R due by 11/23/2012. Signed by Magistrate Judge Michael R Merz on 11/6/12. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
KELVIN R. LOVETT,
:
Petitioner,

Case No. 1:11-cv-518
:

Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsWARDEN, Southern Ohio Correctional
Institution
:
Respondent.

REPORT AND RECOMMENDATIONS
This case is before the Court on Petitioner=s Motion for Relief from Judgment (Doc. No.
37).
It is unclear to this Court what judgment Petitioner seeks to have set aside. He has
attached to his Motion an Opinion from the First District Court of Appeals in which that court set
aside the judgment of the Hamilton County Common Pleas Court denying co-defendant Johnny
Gamble’s petition for post-conviction relief for lack of jurisdiction.

State v. Gamble,

2012-Ohio-4045, 2012 Ohio App. LEXIS 3599 (Ohio App. 1st Dist. Sept. 7, 2012). Petitioner
claims he is entitled to the same relief. However, upon examination of the Return of Writ, the
Court finds no reference to any petition for post-conviction relief filed by Petitioner in the state
courts and therefore there is no parallel judgment.
Even if there were a judgment in Lovett’s case parallel to that in Gamble’s, this Court
would have no power to grant relief from that judgment. This Court has power under Fed. R. Civ.
1

P. 60(b) only to grant relief from its own judgments.
Therefore the Motion for Relief from Judgment should be denied.
November 6, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days
because this Report is being served by one of the methods of service listed in Fed. R. Civ. P.
5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party=s objections within
fourteen days after being served with a copy thereof. Failure to make objections in accordance
with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th
Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

2