Campbell v. Warden, Lebanon Correctional Institution

Filing 28

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 27 ). Petitioner's objections to the June 7, 2017 Report and Recommendations (Doc. 26 ), construed by this Court as a motion to amend the j udgment under Rule 59(e), are DENIED. A certificate of appealability shall not issue with respect to any of the grounds for relief alleged in the petition because petitioner has not stated a "viable claim of the denial of a constitutional right, " nor are the issues presented "adequate to deserve encouragement to proceed further." See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed . R. App. P. 22(b); The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal of this Order would not be taken in good faith and therefore Petitioner is denied leave to appeal in forma pauperis. Signed by Judge Timothy S. Black on 1/25/18. (jlm)(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
ROSCOE T. CAMPBELL,
Petitioner,
vs.
WARDEN, LEBANON
CORRECTIONAL INSTITUTION,
Respondent.

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Case No. 1:16-cv-411
Judge Timothy S. Black
Magistrate Judge Michael R. Merz

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 27)
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 June 7, 2017, submitted a
Report and Recommendations. (Doc. 20). This Court entered an Order adopting the
Report and Recommendations and dismissing Petitioner’s writ of habeas corpus with
prejudice on October 5, 2017. (Doc. 24). Petitioner had not filed objections by the date
of the Court’s Order.
The day after the Court’s Order dismissing the case, Plaintiff’s objections to the
initial Report and Recommendations were docketed. (Doc. 26). The October 6, 2017
date of docketing was well beyond Petitioner’s deadline to file objections. However, the
objections contained a certificate of service indicating that the objections were placed in

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the outgoing mail system of the Lebanon Correctional Institution on September 25, 2017,
which was Petitioner’s deadline for objecting to the Report and Recommendations. (Id.
at 8). Deposit of an item in the prison mail box counts as filing for an incarcerated
person. Houston v. Lack, 487 U.S. 266 (1988); Cook v. Stegall, 295 F.3d 517, 521 (6th
Cir. 2002). Petitioner is therefore entitled to have his objections considered on the
merits. However, because the objections were received and docketed after judgment had
been entered, the Court is required to treat the objections as a motion to amend the
judgment under Fed. R. Civ. P. 59(e).
Petitioner’s construed motion to amend the judgment was accordingly reviewed by
the Magistrate Judge pursuant to reference. The Magistrate Judge filed a Report and
Recommendations on October 10, 2017. (Doc. 27). No objections to this second Report
and Recommendations were filed.
As required by 28 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 Report and Recommendations should be and is hereby adopted in
its entirety. Accordingly, IT IS ORDERED that:
1)

2)

Petitioner’s objections to the June 7, 2017 Report and Recommendations
(Doc. 26), construed by this Court as a motion to amend the judgment
under Rule 59(e), are DENIED.
A certificate of appealability shall not issue with respect to any of the
grounds for relief alleged in the petition because petitioner has not stated a
"viable claim of the denial of a constitutional right," nor are the issues
presented "adequate to deserve encouragement to proceed further." See
Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle,
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463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. § 2253(c); Fed. R.
App. P. 22(b);
3)

The Court certifies that pursuant to 28 U.S.C. § 1915(a)(3), an appeal of
this Order would not be taken in good faith and therefore Petitioner is
denied leave to appeal in forma pauperis.

IT IS SO ORDERED.
Date: 1/25/18

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Timothy S. Black
United States District Judge

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