Johnson v. Warden Pickaway Correctional Institution

Filing 46

REPORT AND RECOMMENDATIONS ON RECOMMITTAL - It is again respectfully recommended that the Motion to Vacate (ECF No. 40) be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of a ppealability 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. Objections to R&R due by 11/22/2017. Signed by Magistrate Judge Michael R. Merz on 11/7/2017. (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
DERRICK L. JOHNSON,
Petitioner,

:

- vs -

Case No. 3:15-cv-090
District Judge Walter H. Rice
Magistrate Judge Michael R. Merz

CHARLES BRADLEY1, Warden,
Pickaway Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON RECOMMITTAL

This is habeas corpus case is before the Magistrate Judge on recomittal from Judge Rice
to address the issues raised by Petitioner’s Objections (ECF No. 42) to the Magistrate Judge’s
Report and Recommendations (ECF No. 41) recommending denial of Petitioner’s Motion to
Vacate (ECF No. 40).
On the same day as he filed his Objections, Petitioner also filed a Motion to Amend or for
Relief from Judgment in which he raised the same issues raised in the Objections. Those issues
are dealt with in the Magistrate Judge’s Report on the Motion to Amend (ECF No. 44). Because
the Objections and the Motion to Amend essentially duplicate each other, no further analysis is
needed.
It is therefore again respectfully recommended that the Motion to Vacate (ECF No. 40)
be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should

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Mr. Bradley is the current Warden at Petitioner’s place of confinement and is therefore substituted as Respondent
in this case; the caption is amended as set forth above. Fed. R. Civ. P. 25.

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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.

November 7, 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,
153-55 (1985).

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