Jones v. Warden, Lebanon Correctional Institution

Filing 39

REPORT AND RECOMMENDATIONS ON MOTION FOR RECONSIDERATION - The Magistrate Judge respectfully recommends that the Petitioner's Motion for Reconsideration (ECF No. 37) be DENIED. Objections to R&R due by 5/23/2016. Signed by Magistrate Judge Michael R. Merz on 5/4/2016. (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
RICHARD J. JONES,
Petitioner,

:

- vs -

Case No. 1:14-cv-839
District Judge Sandra S. Beckwith
Magistrate Judge Michael R. Merz

WARDEN, Lebanon
Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION FOR
RECONSIDERATION

This habeas corpus case, brought pro se by Petitioner Richard Jones, is before the Court
on Petitioner’s Motion for Reconsideration (ECF No. 37) which the Warden opposes (ECF No.
38). As a post-judgment motion, it is deemed referred to the Magistrate Judge for report and
recommendation under 28 U.S.C. § 636(b)(3).
Respondent asserts the Motion must be considered under Fed. R. Civ. P. 60(b)(6) because
it was filed too late to meet the deadline for consideration under Fed. R. Civ. P. 59 (ECF No. 38,
PageID 1622-23). Respondent is correct that the twenty-eight day period for filing under Fed. R.
Civ. P. 59 is jurisdictional. Judgment was entered March 30, 2016, so that the twenty-eight days
expired April 27, 2016. However, the Certificate of Service on the Motion shows deposit in the
mail on April 27, 2016, and, because Petitioner is incarcerated, he is entitled to benefit of the
mailbox rule. . Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th

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Cir. 2002). The Motion for Reconsideration was therefore timely filed.
A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)(citation omitted).
Thus, parties should not use them to raise arguments which could and should have been made
before judgment issued. Id. Motions under Rule 59(e) must establish either a manifest error of
law or must present newly discovered evidence. Id.
Jones’ Motion does not meet the standards of Fed. R. Civ. P. 59(e). He has not shown a
manifest error of law or in presented any new evidence to be considered by the Court. Instead,
he re-argues the claims already made and rejected in the Court’s Order adopting the Report and
Recommendations on the merits (ECF No. 35). Furthermore the Court has already rejected the
request for certificate of appealability. Id.
The Magistrate Judge respectfully recommends that the Motion for Reconsideration be
DENIED.
May 4, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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
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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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