Dillingham v. Warden Chillicothe Correctional Institution

Filing 60

ORDER ADOPTING 57 REPORT AND RECOMMENDATIONS : Document 58 Motion for Relief from Judgment is DENIED. Because reasonable jurists would not disagree with this conclusion, Petitioner is denied a certificate of appealability and the Court certifies to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.. Signed by Judge Susan J. Dlott on 6/30/2017. (jlw)(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
CHARLES DILINGHAM,
Petitioner,

:

- vs -

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

WARDEN,
Chillicothe Correctional Institution,
:
Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATIONS ON
MOTION FOR RELIEF FROM JUDGMENT

This habeas corpus case, brought under 28 U.S.C. § 2254, is before the Court on
Petitioner’s Objections (ECF No. 59) to the Magistrate Judge’s Report and Recommendations
(ECF No. 58) which recommended denying Petitioner’s Motion for Relief from Judgment (ECF
No. 57). As required by Fed. R. Civ. P. 72(b), the Court has reviewed de novo the Objections
Petitioner has raised, but finds that they should be overruled for the reasons set forth in this
Order.
Dillingham equates the doctrine of fraud on the court with the court somehow making an
error of law. Then he claims such a “fraud” on the court makes all subsequent orders void
because a court loses jurisdiction of the subject matter when it commits a fraud on itself
(Objections, ECF No. 59, PageID 1191-92). That simply is not the law. Dillingham cites no
case from any court in which it has been held that a judge can defraud the court on which she or

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he sits by committing legal error.
Dillingham claims he was convicted “in large part because of his race,” but the time for
that argument, if it is supported by any evidence, was at trial or at least before this Court
dismissed the habeas petition, not now on a motion for relief from judgment.
Petitioner complains that he was denied an evidentiary hearing (Objections, ECF No. 59,
PageID 1195).

An evidentiary hearing was denied before final judgment (ECF No. 44).

Dillingham had an opportunity to present that claim to the Sixth Circuit in his request for a
certificate of appealability from that court, but did not do so.
For the foregoing reasons, the Objections are OVERRULED and the Magistrate Judge’s
Report and Recommendations are ADOPTED.

The Motion for Relief from Judgment is

DENIED. Because reasonable jurists would not disagree with this conclusion, Petitioner is
denied a certificate of appealability and the Court certifies to the Sixth Circuit that any appeal
would be objectively frivolous and therefore should not be permitted to proceed in forma
pauperis.
June _30__, 2017.
____s/ Susan J. Dlott_____________
Susan J. Dlott
United States District Judge

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