Nelms v. Warden North Central Correctional Institution

Filing 29

ORDER denying 27 Petitioner's Motion to Supplement his Objection to the Report and Recommendation and denying 28 Petitioner's Motion for Reconsideration/Amend or Alter Judgment. The Court declines to issue a certificate of appealability. Signed by Judge George C. Smith on 7/12/17. (sem)(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
DAVID NELMS,
Petitioner,
Case No. 2:16-cv-0160
JUDGE GEORGE C. SMITH
Magistrate Judge King

v.
WARDEN, NORTH CENTRAL
CORRECTIONAL COMPLEX,
Respondent.

ORDER

This is an action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which
Petitioner asserted three (3) challenges to his conviction, in the Delaware County Court of
Common Pleas, on charges of engaging in a pattern of corrupt activity and possession of heroin.
The Magistrate Judge recommended that Petitioner’s first two claims be dismissed on the merits
and that Petitioner’s third claim, i.e., ineffective assistance of counsel be dismissed as
procedurally defaulted. Report and Recommendation (Doc. 19). That recommendation was
originally adopted without objection, see Order (Doc. No. 20), but judgment was thereafter
vacated because Petitioner established that he had timely objected to the recommendation.1
Order (Doc. 23). Petitioner’s objections were thereupon filed. Objection (Doc. 24). On June 29,
2017, however, the Court overruled Petitioner’s objections, once again adopted the Magistrate
Judge’s recommendation, and dismissed the action.2 Opinion and Order (Doc. 25). Final
judgment was entered that same date. Judgment (Doc. 26). This matter is now before the Court
on Petitioner’s Motion to Supplement his Objection to the Magistrate’s [sic] Report and
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Petitioner mailed his objections to the Magistrate Judge, but not to the Clerk.
The Court also declined to issue a certificate of appealability. Opinion and Order (Doc. 25).

Recommendation and Motion to Respond to Court Order (Doc. 27) and Petitioner’s Motion to
Reconsideration/Amend or Alter Judgement Pursuant Rule 59(e) [sic] (Doc. 28).
In both of his motions, Petitioner appears to complain that the Magistrate Judge
improperly addressed, sua sponte, the issue of procedural default. See e.g., Petitioner’s Motion to
Reconsideration/Amend or Alter Judgement Pursuant Rule 59(e) [sic] (Doc. 28, PageID#
626,27)(“Petitioner did not rec[eive] adequate notice from the Magistrate [sic] of the Supreme
Court procedural default pursuant to Rule 4 thus denying him re[a]sonable opportunity to argue
against the bar in violation of his 14[th] Amendment right”). However, the record is clear that
Respondent raised, in the Return of Writ (Doc. 7), procedural default as a defense to Petitioner’s
third claim for relief. See Return of Writ (Doc. 7, PageID# 51-54). Petitioner had the opportunity
to respond – and in fact did respond, see Petitioner’s Traverse Brief (Doc. 17) – to the Return of
Writ. Thus, in recommending that Petitioner’s third claim for relief be dismissed as procedurally
defaulted, the Magistrate Judge did not act sua sponte or raise an issue that had been otherwise
waived by Respondent.
In short, nothing stated in Petitioner’s motions persuades this Court that final judgment
was entered in error. Petitioner’s Motion to Supplement his Objection to the Magistrate’s [sic]
Report and Recommendation and Motion to Respond to Court Order (Doc. 27) and Petitioner’s
Motion to Reconsideration/Amend or Alter Judgement Pursuant Rule 59(e) [sic] (Doc. 28) are
therefore DENIED.
Moreover, and for the reasons previously stated by the Court, see Opinion and Order
(Doc. 25) the Court DECLINES to issue a certificate of appealability.

s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT
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