Hillman v. Warden Chillicothe Correctional Institution
Filing
58
OPINION AND ORDER denying 55 Motion. Signed by Judge James L. Graham on 11/10/2016. (ds)(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
EASTERN DIVISION
ROBERT LEON HILLMAN,
Petitioner,
CASE NO. 2:15-CV-02417
JUDGE JAMES L. GRAHAM
Magistrate Judge King
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.
OPINION AND ORDER
On October 28, 2016, final judgment was entered dismissing this action for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Judgment (ECF No. 54.) Petitioner thereafter filed
a motion requesting judicial notice pursuant to Rule 201 of the Federal Rules of Evidence.
Petitioner [sic] Request This Honorable Court to Take Judicial Notice Pursuant to Evid Rule 201
and to Recall It’s October 28, 2016 Mandate (ECF No. 55.) Invoking the provisions of Rule
60(b) of the Federal Rules of Civil Procedure, Petitioner’s motion also asks that the Court vacate
its dismissal of the action and its denial of his request for a certificate of appealability. Id. After
he filed that motion, Petitioner also filed a notice of appeal. Notice of Appeal (ECF No. 56.)
In light of Petitioner’s appeal, this Court no longer has jurisdiction over the issues
presented by petitioner’s motion. See Pickens v. Howes, 549 F.3d 377, 383 (6th Cir.
2008)(“Once divested of jurisdiction, the district court may ‘aid the appellate process’ but may
not independently grant a Rule 60(b) motion”). Moreover, even if the matter were remanded to
this Court for consideration of the motion, see Bovee v. Coopers & Lybrand C.P.A., 272 F.3d
356 (6th Cir. 2001), this Court would conclude that petitioner’s motion (Doc. No. 55) lacks
merit.
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Discussion
In his motion, Petitioner complains that the Court improperly failed to engage in
meaningful consideration of his claims, thereby denying him access to the courts. He also
maintains that the Court improperly denied his request for an evidentiary hearing, failed to defer
to the factual findings of the state appellate court on his claim of the denial of the effective
assistance of counsel, and based its decision on flawed factual findings. Finally, Petitioner
contends that the judgment of this Court must be reversed as a matter of law because it is an
objectively unreasonable application of 28 U.S.C. § 2254(d).
To the extent that Petitioner contends that he should have been permitted to present
evidence in support of his claims at an evidentiary hearing, his current motion may constitute a
“second or successive” habeas application that requires prior authorization from the United
States Court of Appeals. See Franklin v. Jenkins, — F.3d —, 2016 WL 5864892, at *6 (6th Cir.
Oct. 7, 2016)(citing Burton v. Stewart, 549 U.S. 147, 149 (2007)).
To the extent that Petitioner contends that the dismissal of this action was based on fraud
and misrepresentation, there is nothing in the record to support that contention. Likewise,
Petitioner’s claim that the Court failed to engage in meaningful consideration of his claims is
utterly without support.
Finally, Petitioner asks that the Court take judicial notice that the dismissal of this action
“must be reversed as a matter of law” as an “objectively unreasonable application of law under
U.S.C. 2254(d)” because the Court “failed to defer to the state courts findings on the ineffective
assistance of counsel claim.” Petitioner [sic] Request This Honorable Court to Take Judicial
Notice Pursuant to Evid Rule 201 and to Recall It’s October 28, 2016 Mandate (ECF No. 55,
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PageID# 1735.) Under Rule 201 of the Federal Rules of Evidence, a district court may take
judicial notice – at any stage of the proceeding and whether or not asked to do so by the parties –
of any fact “not subject to reasonable dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by
resort to sources whose accuracy cannot reasonably be questioned.”
Fed. R. Evid. 201.
However, Petitioner’s motion points to no fact appropriate for judicial notice by this Court.
In sum, this Court lacks jurisdiction to consider Petitioner [sic] Request This Honorable
Court to Take Judicial Notice Pursuant to Evid Rule 201 and to Recall It’s October 28, 2016
Mandate. Accordingly, the motion (ECF No. 55) is denied without prejudice. Moreover, even if
the matter were remanded to this Court for consideration of the motion, see Bovee v. Coopers &
Lybrand C.P.A., 272 F.3d 356 (6th Cir. 2001), this Court would conclude that petitioner’s motion
lacks merit.
Date: November 10, 2016
_______s/James L. Graham
James L. Graham
United States District Judge
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