Hand v. Houk

Filing 146

DECISION AND ORDER DENYING MOTION FOR JUDGMENT ENTRY - Respondent's Motion for Judgment Entry (Doc. No. 145) is denied as premature. Signed by Magistrate Judge Michael R Merz on 1/21/2014. (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.

:

DECISION AND ORDER DENYING MOTION FOR JUDGMENT
ENTRY

This capital habeas corpus case is before the Court on Respondent’s Motion for Judgment
Entry (Doc. No. 145). Respondent is concerned that there be a firm date from which to calculate
Petitioner’s time to appeal.
On June 6, 2011, while this case was pending before District Judge Beckwith on the
merits, the Magistrate Judge entered an Order for Pre-judgment Briefing on Certificate of
Appealability (Doc. No. 107) which explained that Rules Governing § 2254 Cases had been
amended to require that a decision on appealability be made in any “final order adverse to the
applicant.” In order to comply with that new rule, the Magistrate Judge had to change his
practice in capital habeas of waiting to make a recommendation on appealability until after the
District Judge had decided the merits. To accomplish compliance in this case, where the Report
and Recommendations on the merits had already been filed, Petitioner was ordered to brief that
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question prior to judgment. Id. In a later entries, Petitioner’s time to file a motion for certificate
of appealability was extended such that the Motion for Certificate of Appealability was
eventually timely filed November 21, 2013 (Doc. No. 142). The Report and Recommendations
on that Motion was filed January 3, 2014 (Doc. No. 144); any objections are due by January 21,
2014.
It is contemplated by the Magistrate Judge that Judge Beckwith will enter a final
judgment in this case when she rules on the Motion for Certificate of Appealability. Because of
Rule 11 of the Rules Governing § 2254 Cases, a judgment entry at this point would be
premature. See also Fed. R. Civ. P. 54.
Respondent’s Motion for Judgment Entry is DENIED.
January 21, 2014.
s/ Michael R. Merz
United States Magistrate Judge

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