Henson v. Warden, Lebanon Correctional Institution

Filing 23

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION FOR CERTIFICATE OF APPEALABILITY - Because Henson filed no objections at all to the Merits Report, he is not entitled to appeal any issue included in that report and adopted by Judge Barrett without o bjection. Accordingly, the prior Report and Recommendations recommending that a certificate of appealability on the equitable tolling claim be issued is WITHDRAWN and the Magistrate Judge now recommends that Henson be denied a certificate of appealabity because he has waived his right to appeal any issue dealt with in the Merits Report. Objections to R&R due by 1/13/2014. Signed by Magistrate Judge Michael R Merz on 12/27/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
DERRYCK HENSON,
Petitioner,

:

- vs -

Case No. 1:12-cv-602
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN, Lebanon Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
MOTION FOR CERTIFICATE OF APPEALABILITY

This habeas corpus case is before the Court on Respondent’s Objections (Doc. No. 21) to
the Magistrate Judge’s Report and Recommendations on Motion for Certificate of Appealability
(“Appealability Report,” Doc. No. 20).

Upon preliminary consideration of the Objections,

District Judge Barrett has recommitted the appealability question to the Magistrate Judge for
reconsideration in light of the Objections (Doc. No. 22).
“A party may respond to another party’s objections within 14 days after being served
with a copy.” Fed. R. Civ. P. 72(b)(2). Respondent’s Objections were filed electronically and
thereby served on Petitioner’s counsel (Objections, Doc. No. 21, PageID 1295). By operation of
Fed. R. Civ. P. 6(d), Petitioner’s time to respond to the Objections was extended to 17 days, or
December 23, 2013, but no response was filed.
The Report and Recommendations on the Merits (“Merits Report,” Doc. No. 11),
recommended a certificate of appealability be granted on Petitioner’s equitable tolling claim, but
only on that claim. Id. at PageID 1263. The Merits Report was adopted by Judge Barrett
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without objection by either party (Order, Doc. No. 12). Petitioner filed a one-line Motion for
Certificate of Appealability (Doc. No. 18). In the Appealability Report, the Magistrate Judge
recommended that a certificate of appealability be issued, limited to the equitable tolling issue
because that was the only issue thus recommended in the Merits Report which had been adopted
without objection (Appealability Report, Doc. No. 20, PageID 1287-88).
Respondent now argues Henson has waived the right to appeal the Court’s equitable
tolling decision because he never objected to the Magistrate Judge’s determination that the
equitable tolling claim was without merit (Objections, Doc. No. 21, PageID 1290-91). That
argument is well taken. A party who is notified of his obligation to object to a report and
recommendations but who fails to do so has waived the right to appeal on any recommendation
not objected to. Ordinarily, parties who do not "substantially prevail[] in a magistrate judge's
recommendation" must "file objections with the district court or else waive [the] right to appeal."
Souter v. Jones, 395 F.3d 577, 585-86 (6th Cir. 2005). "'[O]nly those specific objections to the
magistrate's report made to the district court will be preserved for appellate review.'" Id. at 585
(quoting Smith v. Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).
Because Henson filed no objections at all to the Merits Report, he is not entitled to appeal
any issue included in that report and adopted by Judge Barrett without objection. Accordingly,
the prior Report and Recommendations recommending that a certificate of appealability on the
equitable tolling claim be issued is WITHDRAWN and the Magistrate Judge now recommends
that Henson be denied a certificate of appealabity because he has waived his right to appeal any
issue dealt with in the Merits Report.
December 27, 2013.
s/ Michael R. Merz
United States Magistrate Judge
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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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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