Mercado v. Warden, Chillicothe Correctional Institution

Filing 17

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATIONS (Doc. 11 ) AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. 15 ) OF THE UNITED STATES MAGISTRATE JUDGE. Signed by Judge Timothy S. Black on 6/23/2015. (mr)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
BISMARK MERCADO,
Petitioner,
vs.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

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Case No. 1:14-cv-124
Judge Timothy S. Black
Magistrate Judge Michael R. Merz

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATIONS (Doc. 11)
AND SUPPLEMENTAL REPORT AND RECOMMENDATIONS (Doc. 15)
OF THE UNITED STATES MAGISTRATE JUDGE
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Michael R. Merz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court, and, on March 5, 2015, submitted a
Report and Recommendations (“R&R”). (Doc. 11). Petitioner objected to the R&R.
(Doc. 13).
This Court then recommitted the case to the Magistrate Judge for reconsideration
in light of the objections. (Doc. 14). Pursuant to such reference, the Magistrate Judge
reviewed the objections, and, on May 4, 2015, submitted a Supplemental Report and

Recommendations (“Supplemental R&R”). (Doc. 15). Petitioner objected to the
Supplemental R&R. (Doc. 16). 1
As required by 29 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court does
determine that such R&R (Doc. 11) and Supplemental R&R (Doc. 15) should be and are
hereby ADOPTED in their entirety. Accordingly:
1.

Petitioner’s petition is DISMISSED WITH PREJUDICE;

2.

Because reasonable jurists would not disagree with this conclusion,
Petitioner is DENIED a certificate of appealability;

3.

The Court certifies that an appeal of this Order would be objectively
frivolous, and therefore Petitioner will not be permitted to proceed in forma
pauperis; and

4.

This case is CLOSED on the docket of this Court.

1

As an initial matter, the Court notes that Petitioner’s objections (Doc. 16) were not timely filed. When
the Supplemental R&R was filed, Petitioner was advised that he had seventeen days to file objections.
(See Doc. 15 at 8). This period consists of the fourteen days provided directly by Fed. R. Civ. P. 72 and
an additional three days because Petitioner was served by mail. A staff note on the docket shows that
Petitioner was served by regular mail on the date the Supplemental R&R was filed, May 4, 2015. Thus
Petitioner’s time to file objections expired on May 21, 2015. In any event, Petitioner essentially renews
his previous objections, which were fully addressed in the R&R (Doc. 11) and Supplemental R&R (Doc.
13). Petitioner maintains that he did timely mail a response to the return of writ and argues that he cannot
now file a time-stamped copy of that response because he was never provided with one. As the
Magistrate Judge notes, such a response was never docketed, and Petitioner has not provided the Court
with any evidence supporting his contention that he timely mailed the response for filing. Further, the
Court has thoroughly considered Petitioner’s objections—which, presumably, set forth similar arguments
to those Petitioner would have advanced in his response to the return of writ—and finds that, for the
reasons set forth in the R&R (Doc. 11) and Supplemental R&R (Doc. 13), Petitioner’s arguments are not
well taken.
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IT IS SO ORDERED.
Date:

6/23/2015

_/s/Timothy S. Black______________
Timothy S. Black
United States District Judge

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