Dillingham v. Warden Chillicothe Correctional Institution

Filing 47

DECISION AND ORDER DENYING MOTION FOR RECONSIDERATION - Because Dillingham has not shown a manifest error of law in denying his motion for evidentiary hearing at this stage of the proceedings, his Motion for Reconsideration is DENIED. Signed by Magistrate Judge Michael R Merz on 9/29/2014. (kpf1)

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

:

- vs -

Case No. 1:13-cv-468
Chief Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

WARDEN, CHILLICOTHE CORRECTIONAL
INSTITUTION,
:
Respondent.

DECISION AND ORDER DENYING MOTION FOR
RECONSIDERATION

This habeas corpus case is before the Court on Petitioner’s Motion for Reconsideration
(Doc. No. 46) of the Magistrate Judge’s Decision and Order Denying Dillingham’s Renewed
Motion for Evidentiary Hearing (Doc. No. 44). Mr. Dillingham indicates some confusion as to
proper process.
A motion for reconsideration is directed to the judge who made the decision on which
reconsideration is sought. In this case, that would be the magistrate judge because the motion for
evidentiary hearing was decided by the magistrate judge and it is a nondispositive motion which
is properly decided in the first instance by a magistrate judge under 28 U.S.C. § 636(b). If
Dillingham believes the Magistrate Judge’s decision was wrong to deny an evidentiary hearing at
this stage of the proceedings, he has two possible ways to proceed. First, if he believes he can
persuade the Magistrate Judge that he was wrong, he can file a motion for reconsideration.
Second, if he wants to persuade the District Judge that the Magistrate Judge was wrong, he can

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file objections.

Since Dillingham was confused about the proper process, his time to file

objections to the Decision and Order denying an evidentiary hearing is EXTENDED to and
including October 10, 2014.
As the current Motion notes, there are pending Reports and Recommendations before the
District Judge on the merits (Doc. Nos. 33, 37, & 41.) If Chief Judge Dlott rejects those Reports
and concludes that the state court decision was an unreasonable application of Supreme Court
precedent, Dillingham could at that time renew his motion for an evidentiary hearing because
Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388 (2011), would no longer bar a hearing.
Because Dillingham has not shown a manifest error of law in denying his motion for
evidentiary hearing at this stage of the proceedings, his Motion for Reconsideration is DENIED.
September 29, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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