Smith v. Warden, Chillicothe Correctional Institution

Filing 17

REPORT AND RECOMMENDATIONS ON MOTION FOR RECONSIDERATION 16 - Petitioner's Motion for Reconsideration should be DENIED. Objections to R&R due by 8/23/2018. Signed by Magistrate Judge Michael R. Merz on 8/9/2018. (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
LADON SMITH,
Petitioner,

:

- vs -

Case No. 1:17-cv-570
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

WARDEN,
Chillicothe Correctional Institution
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION FOR
RECONSIDERATION

This habeas corpus is before the Court on Petitioner’s Motion under Fed. R. Civ. P.
60(b)(1) for reconsideration (ECF No. 16). Smith seeks reconsideration of the Court’s Order of
July 27, 2018 (ECF No. 15), adopting the Magistrate Judge’s recommendation that Petitioner’s
Rule 11 motion be denied (ECF No. 12).
The Magistrate Judge has filed two Reports and Recommendations (“R&R”) since the case
was transferred to him on July 6, 2018. In the first R&R the Magistrate Judge recommended
denying Petitioner’s Motion for Sanctions (ECF No. 8). In that first R&R, Petitioner was notified
that any objections would be due seventeen days after service (See ECF No. 12, PageID 713.
Under Fed. R. Civ. P. 5, service of that R&R was complete upon mailing on July 9, 2018, making
the deadline for objections July 26, 2018. Then on July 13, 2018, the Magistrate Judge filed an
R&R on the merits (ECF No. 13).

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On July 23, 2018, Smith mailed a set of Objections (ECF No. 14) which were received by
the Clerk on July 26, 2018 (ECF No. 14). Under the “mailbox” rule of Houston v. Lack, 487 U.S.
266 (1988), Smith is entitled to have those Objections deemed filed on July 23, 2018. Thus the
Objections would be timely for both the first and second R&R.
However, the Objections do not object in any way to the first R&R about Rule 11 sanctions.
Instead, they say in their very caption that they are objections to the second R&R, referred to as
the one filed July 13, 2018 (See ECF No. 14, PageID 730). The first R&R addresses only the Rule
11 question and was adopted because Smith made no objections to that particular R&R. The Order
adopting the first R&R speaks only of denying Smith’s Motion for Sanctions and says nothing
about the merits.
On the other hand, the Objections actually filed are directed to the merits and were timely
filed. They are pending for consideration by District Judge Barrett in the ordinary course of the
Court’s business.
The Motion for Reconsideration should therefore be DENIED.

August 9, 2018.
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 mail. .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.
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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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