Mockbee v. Warden, Miami Correctional Institution
Filing
40
DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 30 ), OVERRULING PETITIONER'S OBJECTION (Doc. 35 ), AND TERMINATING THIS CASE IN THIS COURT. Signed by Judge Timothy S. Black on 3/16/18. (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
BRANDON MOCKBEE,
Petitioner,
vs.
Case No. 1:17-cv-147
Judge Timothy S. Black
Magistrate Judge Karen L. Litkovitz
WARDEN, MIAMI CORRECTIONAL
INSTITUTION,
Respondent.
DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 30),
OVERRULING PETITIONER’S OBJECTION (Doc. 35),
AND TERMINATING THIS CASE IN THIS COURT
This case is before the Court pursuant to the Order of General Reference to United
States Magistrate Judge Karen L. Litkovitz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court, and, on February 6, 2018, submitted a
Report and Recommendation. (Doc. 30). On February 28, 2018, Petitioner filed an
objection. (Doc. 35) (“Objection”).
The Objection is not well-taken. Initially, the Objection—which was required to
be filed by February 20, 2018, but was not filed until eight days later—is untimely and
fails as a matter of law. See Jones v. Warden, Ross Corr. Inst., No. 2:11-cv-0871, 2013
U.S. Dist. LEXIS 169658, at * 4 (S.D. Ohio Dec. 2, 2013) (“failure to file timely
objections not only waives the right to de novo review of a Magistrate’s Report and
Recommendation, but dispenses with the need for the district court to conduct any
review”).
In any event, the Objection fails on the merits. The Objection repeats the
argument that Petitioner, who is currently incarcerated in Indiana pursuant to a January
12, 2017 conviction for burglary in Dearborn, Indiana, is “in custody” pursuant to a 2012
conviction in the Scioto County, Ohio, Court of Common Pleas—even though the
sentence imposed for that conviction has expired—because the 2012 conviction was used
to enhance the sentence he is currently serving. (Doc. 35 at 1-7).
This argument is unavailing. The United States Supreme Court has expressly held
that a petitioner is not “in custody” pursuant to a conviction after the sentence imposed
has expired, even if the conviction is subsequently used to enhance the sentence imposed
for a later conviction:
The question presented by this case is whether a habeas petitioner remains
“in custody” under a conviction after the sentence imposed for it has fully
expired, merely because of the possibility that the prior conviction will be
used to enhance the sentences imposed for any subsequent crimes of which
he is convicted. We hold that he does not. . . .
In this case, of course, the possibility of a sentence upon a subsequent
conviction being enhanced because of the prior conviction actually
materialized, but we do not think that requires any different conclusion.
When the second sentence is imposed, it is pursuant to the second
conviction that the petitioner is incarcerated and is therefore “in custody.”
Maleng v. Cook, 490 U.S. 488, 492-93 (1989); see also In re Lee, 880 F.3d 242, 243-44
(6th Cir. 2018).
Accordingly, the Magistrate Judge properly concluded that Petitioner is not “in
custody” pursuant to his 2012 conviction and this Court lacks subject matter jurisdiction
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over this habeas action which exclusively challenges the 2012 conviction. (Doc. 30 at 45).
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 Recommendation should be and is hereby adopted in its
entirety. Accordingly:
1.
The Report and Recommendation (Doc. 30) is ADOPTED;
2.
Petitioner’s Objections (Doc. 35) are OVERRULED;
3.
Respondent’s Motion to Dismiss (Doc. 11) is GRANTED; and
4.
The Clerk shall enter judgment accordingly, whereupon this case is
TERMINATED on the docket of this Court.
IT IS SO ORDERED.
Date: ____________
3/16/18
_______________________
Timothy S. Black
United States District Judge
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