Blankenburg v. Warden, Belmont Correctional Institution

Filing 43

REPORT AND RECOMMENDATIONS ON WARDEN'S MOTION FOR RECONSIDERATION OF RECOMMITTAL - The Court committed no error of law in recommitting the matter. Such recommittal is expressly authorized by Fed. R. Civ. P. 72. The Motion for Reconsideration should therefore be DENIED. Objections to R&R due by 9/13/2017. Signed by Magistrate Judge Michael R. Merz on 8/30/2017. (kpf)

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

:

- vs -

Case No. 1:16-cv-505
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

MICHELE MILLER, Warden,
Belmont Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON WARDEN’S MOTION
FOR RECONSIDERATION OF RECOMMITTAL

This habeas corpus case under 28 U.S.C. § 2254 is before the Court on the Warden’s
Motion (ECF No. 42) asking the District Court to reconsider its Recommittal Order (ECF No.
ECF No. 37). Although the Motion is pre-trial and non-dispositive, it asks a District Judge to
reconsider an order made by that Judge sua sponte, and is therefore appropriate for a
recommendation from the assigned Magistrate Judge.
Courts disfavor motions for reconsideration because they consume a court’s scarce time
for attention to a matter that has already been decided. They are subject to limitations based on
that disfavor.
As a general principle, motions for reconsideration are looked
upon with disfavor unless the moving party demonstrates: (1) a
manifest error of law; (2) newly discovered evidence which was
not available previously to the parties; or (3) intervening authority.
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3rd Cir. 1985), cert.
denied, 476 U.S. 1171, 90 L. Ed. 2d 982 (1986).

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Meekison v. Ohio Dep't of Rehabilitation & Correction, 181 F.R.D. 571, 572 (S.D. Ohio
1998)(Marbley, J.).
The Warden does not suggest the Recommittal Order is based on a manifest error of law
or that he has new evidence or intervening authority. Instead, the Warden objects to the order of
proceeding, arguing that he is entitled to a ruling on his Objections to the Interim Report and
Recommendations before discovery is done and the Court takes evidence. But he points to no
law supporting that manner of proceeding. In the exercise of judicial discretion for the staging of
proceedings, the Magistrate Judge could have ordered discovery and an evidentiary hearing
before filing any report at all. The Interim Report had the intention and has served the function
of narrowing the issues to be decided.
It is true that as the case is presently scheduled, the Attorney General’s Office will have
to staff the discovery and the evidentiary hearing, expenditures of resources that Office would
not have to make if they could achieve an outright victory at this stage of the proceedings. But
by ordering discovery and an evidentiary hearing, the Magistrate Judge has in effect decided the
case will not be ripe for decision without the additional evidence. If the Warden believes it was
error to grant discovery and a hearing, he could have objected to those orders, but did not do so
within the time allowed by Fed. R. Civ. P. 72.1
The essence of the Warden’s Motion appears to be “consideration of the merits of the
juror bias claim by an Article III judge should be a necessary step before this federal court
intrudes on the sanctity of a state trial court’s jury room.” (Motion, ECF No. 42, PageID 3845).
But federal habeas corpus law does not provide for any such “necessary” step nor single out

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In the last sentence of the Motion, the Warden asks the District Judge to “hold in abeyance, or overrule, the
magistrate judge’s two most recent orders for discovery and conditionally granting an evidentiary hearing . . .”
(ECF No. 42, PageID 3845. That request was made on August 22, 2017. The time for objecting to those two orders
expired on August 23, 2017, but no objections were filed. Fed. R. Civ. P. 72(a).

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particular kinds of constitutional claims which are too important to be heard by magistrate judges
in the first instance.
The Court committed no error of law in recommitting the matter. Such recommittal is
expressly authorized by Fed. R. Civ. P. 72. The Motion for Reconsideration should therefore be
DENIED.

August 30, 2017.
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. 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
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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