Franklin v. Warden, Mansfield Correctional Institution
Filing
146
DECISION AND ORDER DENYING 144 MOTION TO RESCIND CONSENT. Signed by Magistrate Judge Michael R Merz on 3/18/2013. (sc1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ANTONIO SANCHEZ FRANKLIN,
Petitioner,
:
Case No. 3:04-cv-187
- vs Magistrate Judge Michael R. Merz
NORMAN ROBINSON, Warden,
Respondent.
:
DECISION AND ORDER DENYING MOTION TO RESCIND
CONSENT
This capital habeas corpus case is before the Court on Petitioner’s pro se Motion to
Rescend [sic] Consent to Jurisdiction of Magistrate Judge (Doc. No. 144).
This case was assigned to District Judge Sandra Beckwith when initially filed and
referred to the undersigned automatically under Judge Beckwith’s General Order for referral of
capital habeas corpus cases under 28 U.S.C. § 636(b). On June 2, 2004, noting the unanimous
consent of the parties, Judge Beckwith referred the case under 28 U.S.C. 636(c) for all further
proceedings, including the entry of judgment (Doc. No. 26). Franklin correctly notes that in the
instant Motion that consent must be unanimous for a magistrate judge to exercise plenary
jurisdiction under 28 U.S.C. § 636(c), but he does not dispute that at sometime prior to Judge
Beckwith’s Order of Reference, consent was unanimously given. Instead, he says that he is now
operating pro se, does not now agree to this arrangement, and seeks to have it reversed (Motion,
Doc. No. 144, PageID 2131).
There is no absolute right to withdraw consent to plenary magistrate judge jurisdiction.
1
Dixon v. Ylst, 990 F.2d 478, 480 (9th cir. 1993), citing Fellman v. Fireman's Fund Ins. Co., 735
F.2d 55, 58 (2d Cir. 1984); Carter v. Sea-Land Services, 816 F.2d 1018, 1020 (5th Cir. 1987).
Under 28 U.S.C. § 636(c)(4), “[t]he court may, for good cause shown on its own motion, or
under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a
magistrate judge under this section.” The Sixth Circuit has held that withdrawal must be under
extraordinary circumstances. Moses v. Sterling Commerce, 122 Fed. Appx. 177, *; 2005 U.S.
App. LEXIS 19 (6th Cir. Jan. 3, 2005).
Franklin has not shown any extraordinary circumstances. Instead, he merely says he
wants to “change the arrangement.” This case is now pending before the United States Supreme
Court on a petition for writ of certiorari and has been pending in the federal courts for more than
nine years. The age of the case alone cautions against a transfer of judges without cause.
Franklin has not attempted to show any basis for the Magistrate Judge to recuse himself from
further involvement in the case when jurisdiction is eventually returned to this Court.
The Motion to Rescend [sic] is DENIED.
March 18, 2013.
s/ Michael R. Merz
United States Magistrate Judge
2
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