Brown v. Warden Lebanon Correctional Institution

Filing 77

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: Brown's Application-Motion for Issuance of a Certificate of Appealability (Doc. 73 ) and Motion for Leave to Appeal in forma pauperis (Doc. 76 ) be DENIED. Objections to R&R due by 5/14/2012. Signed by Magistrate Judge Sharon L Ovington on 4/25/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JEFFREY ANTONIO BROWN,
Petitioner,

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vs.
WARDEN, Lebanon Correctional
Institution,

Case No. 3:08cv00477
District Judge Timothy S. Black
Magistrate Judge Sharon L. Ovington

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:

Respondent.

REPORT AND RECOMMENDATION1

Previously in this habeas corpus case, the undersigned Judicial Officer filed a
Report and an Amended Report recommending that Jeffrey Antonio Brown’s Petition for
Writ of Habeas Corpus be denied and that a certificate of appealability under 28 U.S.C.
§2253 not issue. (Doc. #s 49, 50). Brown filed detailed Objections including, in part, his
contention that a certificate of appealability was warranted. (Doc. # 58). On November
7, 2011, United States District Judge Timothy S. Black overruled Petitioner’s Objections,
adopted the Report and Recommendations and the Amended Report and
Recommendations, denied Brown’s Petition for Writ of Habeas Corpus, and denied a
certificate of appealability. (Doc. # 60). On that same date, the Clerk of Court entered

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Attached hereto is a NOTICE to the parties regarding objections to this Report and
Recommendations.

Judgment accordingly. (Doc. # 61).
Brown unsuccessfully litigated a Motion for Reconsideration and a Motion for
Relief from Judgment. (Doc. #s 62-69, 72, 74). On March 9, 2012, he filed a Notice of
Appeal, and the United States Court of Appeals for the Sixth Circuit assigned him Case
Number 12-3287. (Doc. #s 70, 71). (The Court of Appeals recently granted Brown’s
Motion to Voluntarily Dismiss another appeal, Case No. 12-3285. (Doc. # 75)).
The case is presently before the Court upon Brown’s Application/Motion for
Issuance of a Certificate of Appealability (Doc. # 73), Brown’s Motion for Leave to
Appeal in forma pauperis (Doc. # 76), and the record as a whole. Brown’s
Application/Motion overlooks that he has previously been denied a certificate of
appealablity in this case. (Doc. # 60). His Application/Motion is therefore moot. And,
his Application/Motion lacks merit for the reasons previously explained. (Doc. #s 49, 50,
60). Additionally, his Motion for Leave to Appeal in forma pauperis is moot.
Accordingly, Brown’s Application/Motion is both moot and meritless. In the
event this Report and Recommendation is adopted, Brown will remain free to seek a
certificate of appealability in the United States Court of Appeals for the Sixth Circuit.
See Fed. R. App. P. 22(b); see also Sims v. United States, 244 F.3d 509 (6th Cir. 2001).

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IS THEREFORE RECOMMENDED THAT:
Brown’s Application/Motion for Issuance of a Certificate of Appealability (Doc.
#73) and Motion for Leave to Appeal in forma pauperis (Doc. # 76) be DENIED.

April 25, 2012

s/ Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendation within fourteen days after being
served with this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period
is extended to seventeen days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within fourteen days after being
served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S.
140 (1985).

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