Hand v. Houk

Filing 125

SCHEDULING ORDER RE MOTION FOR CERTIFICATE OF APPEALABILITY - The Court sua sponte extends the time for filing a motion for certificate of appealability to and including September 23, 2013. Signed by Magistrate Judge Michael R Merz on 9/11/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

GERALD HAND,

:
Case No. 2:07-cv-846

Petitioner,
-vs-

District Judge Sandra A. Beckwith
Magistrate Judge Michael R. Merz

MARC HOUK, Warden,

Respondent.

:

SCHEDULING ORDER RE MOTION FOR CERTIFICATE OF
APPEALABILITY

This capital habeas corpus case is before the Court on Petitioner’s Motion to Alter or
Amend Order Denying Habeas Relief (Doc. No. 121).
Petitioner argues the Motion as if made under Fed. R. Civ. P. 59(e) and asserts it is timely
because filed within the period for filing a Rule 59(e) motion as extended by the Court on
Petitioner’s unopposed motion (See Motion, Doc. No. 120, and notation order granting). If the
Motion were truly required to be considered under Fed. R. Civ. P. 59(e), it would be untimely
because district courts lack authority to extend the time for filing Rule 59(e) motions. See Fed.
R. Civ. P. 6(b)(2). There is extensive authority for the proposition that this limit on district court
authority is jurisdictional and therefore a purported extension of Rule 59(e) time does not extend
the time for appeal. See Wright, Miller & Kane, Federal Practice and Procedure 3d § 2817,
cases cited at nn. 9 & 13.
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However, there is no final judgment in this case because the Court has not yet decided
any motion for certificate of appealability.

In her Order adopting the Magistrate Judge’s

recommendations in this case, Judge Beckwith referred the case for a supplemental report on
petitioner’s expected motion for certificate of appealability (Doc. No. 118, PageID 2945). The
same day, the Magistrate Judge confirmed that, under the prior schedule set July 15, 2011,
Hand’s motion for certificate of appealability would be due to be filed not later than June 28,
2013 (Doc. No. 119). Two days before that deadline, Petitioner’s counsel filed his “Unopposed
Motion for Extension of Time to File a Motion for Reconsideration and a Certificate of
Appealability” (Doc. No. 120). That Motion was granted by notation order and the instant
Motion followed.
The Court will treat the instant Motion as one for reconsideration. However, it does not
contain any argument about why a certificate of appealability should be granted. The only
reference to that question in the Motion is at footnote 2 which reads:
Hand does not attack each and every aspect of the Court’s ruling in
this motion. Rather, Hand raises only certain issues for which he
believes reconsideration is warranted. Hand does not concede that
the issues upon which he does not seek Rule 59(e) relief were
properly decided, nor does he waive his ability to seek a certificate
of appealability as to those issues.

(Doc. No. 121, PageID 2953.)
The Court extended Petitioner’s time to seek a certificate of appealability only until July
28, 2013. There is no doubt of this Court’s authority to control the timing of motion practice in
this as in other cases on its docket. In other words, although “death is different,” it is not
different in this respect.
To dispel any misconception about deadlines and to protect Petitioner’s position, the

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Court sua sponte extends the time for filing a motion for certificate of appealability to and
including September 23, 2013. The Motion must be filed by that date.
September 11, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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