Gordon v. State of Ohio

Filing 14

ORDER: denying IFP re 13 Notice of Appeal filed by Michael Lee Gordon; Clerk to mail a copy of complt & R&R to respondent. Signed by Magistrate Judge Mark R. Abel on 11/26/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael Lee Gordon,
Petitioner

:

Respondent

Judge Sargus

:

State of Ohio

Civil Action 2:09-cv-00929

:

v.

:

Magistrate Judge Abel

:

ORDER
Petitioner Michael Lee Gordon, a federal prisoner challenging his state court
convictions, brings this action for writ of habeas corpus under 28 U.S.C. §2254. This
matter is before the Court on petitioner's notice of appeal, apparently from the Court’s
October 13, 2012 Order (doc. 12) denying his motion to reopen this case.
As the Court has previously held, this is a successive petition for writ of habeas
corpus. The Court transferred this case to the United States Court of Appeals for the
Sixth Circuit. On February 18, 2011, the Court of Appeals denied petitioner leave to file
a successive petition.
Petitioner Gordon's March 11, 2011 motion for relief from judgment (doc. 9) and
his motion to reopen this case (doc. 12) both again alleged that the prosecutor violated
Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose a witness's statements that
Gordon was not present when the victim was murdered. The United States Court of

Appeals for the Sixth Circuit has already denied petitioner leave to pursue this claim in
a successive petition.
Petitioner has not paid the $455 filing fee for an appeal, and he has not filed a
motion to proceed on appeal in forma pauperis. Because it is clear that petitioner
“cannot make any claims with a rational or arguable basis in law or in fact,” Lawler v.
Marshall, 898 F.2d 1196, 1198 (6th Cir. 1990), the appeal is not taken in good faith. 28
U.S.C. §1915(a)(3). McGore, 114 F.3d at 610-11 (6th Cir. 1997). See also Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Accordingly, it is ORDERED that petitioner Gordon
pay the $455 filing fee for an appeal within twenty-eight days of the date of this Order.
If any party objects to this Report and Recommendation, that party may, within
fourten (14) days, file and serve on all parties a motion for reconsideration by the Court,
specifically designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk of Court is DIRECTED to mail a copy of the complaint and this Report
and Recommendation to respondent.
s/Mark R. Abel
United States Magistrate Judge
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