Easterling v. State of Ohio

Filing 52

DECISION AND ENTRY ADOPTING THE REPORT AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 50 ). Signed by Judge Timothy S. Black on 7/28/2015. (mr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
WARREN EASTERLING,
Petitioner,
vs.
STATE OF OHIO,
Respondent.

:
:
:
:
:
:
:
:
:

Case No. 3:13-cv-24
Judge Timothy S. Black
Magistrate Judge Michael R. Merz

DECISION AND ENTRY
ADOPTING THE REPORT AND RECOMMENDATIONS
OF THE UNITED STATES MAGISTRATE JUDGE (Doc. 50)
This case is before the Court pursuant to the Order of General Reference in the
United States District Court for the Southern District of Ohio Western Division to United
States Magistrate Judge Michael R. Merz. Pursuant to such reference, the Magistrate
Judge reviewed the pleadings filed with this Court and, on July 20, 2015, submitted a
Report and Recommendations. (Doc. 50). Petitioner filed Objections. (Doc. 51). 1
As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b), the Court has
reviewed the comprehensive findings of the Magistrate Judge and considered de novo all
of the filings in this matter. Upon consideration of the foregoing, the Court does

1

Petitioner argues that his Rule 60(b) motion for relief from judgment is not time barred by the
one-year limitation in Rule 60(c) because he asserts that the judgment is void under Rule
60(b)(4). (Doc. 51). However, the Magistrate Judge correctly noted that Petitioner’s motion is
untimely as it was filed twenty-two months after judgment was entered and relies on case law
which was reported well before entry of final judgment, and most of which case law, if not all,
was cited to the Court before its entry of judgment. Accordingly, Petitioner’s motion was not
filed within a “reasonable time” after the entry of judgment pursuant to Rule 60(c).

determine that such Report and Recommendations should be and is hereby adopted in its
entirety.
Accordingly:
1.

The Report and Recommendations (Doc. 50) is ADOPTED;

2.

Petitioner’s Motion for Relief from Judgment (Doc. 49) is DENIED; and

3.

The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of
this Order would not be taken in good faith and therefore, Petitioner is
denied leave to appeal in forma pauperis. He remains free, however, to
apply to proceed in forma pauperis in the Court of Appeals.

IT IS SO ORDERED.
Date: 7/28/15

s/ Timothy S. Black
Timothy S. Black
United States District Judge

2