Henson v. Warden, Lebanon Correctional Institution

Filing 30

REPORT AND RECOMMENDATIONS - Petitioner's Motion for Leave to Amend Original Habeas Corpus Petition (ECF No. 29) is untimely and should be DENIED. Objections to R&R due by 11/21/2016. Signed by Magistrate Judge Michael R. Merz on 11/3/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

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

:

- vs -

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

WARDEN, Lebanon
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on Petitioner’s
Motion for Leave to Amend Original Habeas Corpus Petition (ECF No. 29). As a post-judgment
motion it is deemed referred to the assigned Magistrate Judge under 28 U.S.C. § 636(b)(3) for a
recommended disposition.
Mr. Henson filed his Petition for Writ of Habeas Corpus in this Court on August 9, 2012
(ECF No. 1).

Respondent pleaded that the Petition was time-barred under 28 U.S.C. § 2244.

The Magistrate Judge recommended the Petition be dismissed on that basis, but that Henson be
granted a certificate of appealability on his claim of equitable tolling (Report, ECF No. 11,
PageID 1263). Mr. Henson filed no objections and Judge Barrett adopted that Report (Order,
ECF No. 12). Judge Barrett then reaffirmed issuance of a certificate (ECF No. 25). On appeal
the Sixth Circuit affirmed denial of equitable tolling. Henson v. Warden, Case No. 13-4322 (6th
Cir. July. 29, 2015)(unreported; copy at ECF No. 27). The Sixth Circuit mandate issued August
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20, 2015. Mr. Henson filed the instant Motion November 1, 2016.1
The essence of Mr. Henson’s argument in the instant Motion is that he can now show
extraordinary circumstances that will justify equitable tolling in this case. Thus he does not
present a new ground for relief, but contends this Court was in error in not finding equitable
tolling previously. This makes the argument one in that nature of a motion for relief from
judgment under Fed. R. Civ. P. 60(b). Because it does not seek to present a new ground, but to
correct this Court’s prior decision, it can properly be considered by this Court and not transferred
to the Court of Appeals as a second or successive habeas petition. Gonzalez v. Crosby, 545 U.S.
524 (2005).
Considered as a motion for relief from judgment under Fed. R. Civ. P. 60(b), the motion
is untimely. Fed. R. Civ. P. 60(c) requires that motions for relief from judgment of the sort
involved here must be brought within one year of the date of the judgment complained of.
Judgment was entered in this case on October 29, 2013, more than three years before Mr.
Henson filed his instant Motion and indeed more than fourteen months after the Court of
Appeals entered its mandate in the case.
Because Mr. Henson’s Motion is untimely, it should be DENIED.

November 3, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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Although the Motion was not received and docketed by the Clerk until November 3, 2016, Mr. Henson is entitled
to a filing date of November 1, 2016, when he mailed the Motion (See ECF No. 29, PageID 1333).

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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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