Howard v. Warden, Pickaway Correctional Institution

Filing 29

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Motion to Vacate 27 be GRANTED and Petitioner be allowed fourteen days from the entry of a decision by Judge McFarland on this Report to file objections to the Report on the merits. Objections to R&R due by 11/12/2020. Signed by Magistrate Judge Michael R. Merz on 10/27/2020. (kpf)

Case: 1:19-cv-00274-MWM-MRM Doc #: 29 Filed: 10/28/20 Page: 1 of 2 PAGEID #: 326

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
MICHAEL J. HOWARD,
Petitioner,

:

- vs -

Case No. 1:19-cv-274
District Judge Matthew W. McFarland
Magistrate Judge Michael R. Merz

WARDEN,
Pickaway Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case is before the Court on Petitioner’s Motion for Relief from
Judgment (ECF No. 27). On the Court’s Notice (ECF No. 28), Respondent has advised the Court
that he does not oppose the Motion. As a post-judgment motion, it requires a report and
recommendation from the referral Magistrate Judge. 28 U.S.C. § 636(b)(3).

Petitioner seeks relief from the judgment dismissing his Petition with prejudice under
Fed.R.Civ.P. 60(b)(1) which allows relief from judgment occasioned by, inter alia, mistake. Here
it appears the Agreed Entry granting Petitioner until November 6, 2020 (ECF No. 24) may have
crossed in the docketing process with the Entry and Order adopting the Report and
Recommendations as unobjected to and the Judgment (ECF Nos. 25 and 26). To rectify that
clerical error and allow Petitioner to be heard on the merits, it is respectfully recommended that

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Case: 1:19-cv-00274-MWM-MRM Doc #: 29 Filed: 10/28/20 Page: 2 of 2 PAGEID #: 327

the Motion to Vacate be GRANTED and Petitioner be allowed fourteen days from the entry of a
decision by Judge McFarland on this Report to file objections to the Report on the merits.

October 27, 2020.
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. 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.

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