Kline v. Marion Correctional Institution, Warden
REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Motion to Re-Open 6 be DENIED. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court shoul d certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 7/25/2017. Signed by Magistrate Judge Michael R. Merz on 7/11/2017. (kpf)(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
WESTERN DIVISION AT DAYTON
- vs -
Case No. 3:14-cv-250
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
JASON BUNTING, Warden,
Marion Correctional Institution,
REPORT AND RECOMMENDATION ON MOTION TO REOPEN
This habeas corpus case is before the Court on Petitioner’s Motion to Re-Open (ECF No.
6). The Motion was filed July 4, 2017, the date Mr. Kline, who is imprisoned, mailed it to the
Court. It seeks to re-open the final judgment entered in this case on September 2, 2014 (ECF
Nos. 4 and 5).
The Motion claims error in entering judgment, rather than attempting to raise a new claim
for habeas corpus relief. Therefore the Motion is properly decided by this Court and does not
require transfer to the Sixth Circuit as a second or successive habeas application. Gonzalez v.
Crosby, 545 U.S. 524 (2005).
Although Mr. Kline does not cite it, the rule governing the reopening of judgments is
Fed. R. Civ. P. 60(b). A motion seeking reopening because the judgment is allegedly void for
want of jurisdiction must be brought within “a reasonable time” after judgment. Although the
the Motion is prima facie untimely because Petitioner waited almost three years to file it, the
Magistrate Judge prefers to deal with the merits of the Motion, rather than recommending it be
denied on timeliness grounds.
As the Court understands Petitioner’s argument, it is that this Court did not properly
exercise jurisdiction over his habeas petition because habeas jurisdiction is only appellate and the
Court did not properly obtain appellate jurisdiction by entering an order to show cause to require
production of the state court record, including any “state substantive law” regarding his
Mr. Kline is correct that federal courts are courts of limited jurisdiction and whether they
have subject matter jurisdiction over a particular case is a threshold question which must be
decided before reaching the merits of any question presented. Finley v. United States, 490 U.S.
545, 550 (1989); Aldinger v. Howard, 427 U.S. 1, 15 (1976); Turner v. President, Directors and
Co. of the Bank of North America, 4 U.S. 8 (1799). A federal court is further obliged to note
lack of subject matter jurisdiction sua sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S.
149, 152 (1908); Capron v. Van Noorden, 6 U.S. 126 (1804); Answers in Genesis of Ky., Inc. v.
Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009); Clark v. United States, 764 F.
3d 653 (6th Cir. 2014).
Although the question of subject matter jurisdiction was not expressly discussed in the
undersigned’s Report and Recommendations which led to judgment, subject matter jurisdiction
does exist. 28 U.S.C. § 2241 authorizes any justice or judge of the United States to issue the writ
with respect to any person in custody in violation of the Constitution or laws or treaties of the
United States. It does not require a district court to obtain state court records in order to have
jurisdiction. A person must be in custody to invoke the jurisdiction, Carafas v. La Vallee, 391
U.S. 234 (1968), but the Petition here alleged that Mr. Kline was in Respondent’s custody.
Because our jurisdiction is original rather than appellate, there is no requirement that we
issue any process to or obtain documents from the state courts. Indeed, when we order the state
court record filed in a case, the order is directed to the Warden’s attorney, the Attorney General
of Ohio, rather than to the state court that convicted a petitioner.
The premise of Petitioner’s Motion – that a habeas court obtains jurisdiction only by
obtaining the state court records – is in error and therefore provides no basis for reopening the
On the basis of the foregoing analysis, it is respectfully recommended that the Motion to
Re-Open be DENIED. Because reasonable jurists would not disagree with this conclusion,
Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth
Circuit that any appeal would be objectively frivolous and therefore should not be permitted to
proceed in forma pauperis.
July 11, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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 recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .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 Recommendations are 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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
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